Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 19 January 2010

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 9.34 a.m.

 6             JUDGE VAZ: [Interpretation] Good morning to everyone.

 7             Madam Registrar, would you please call the case before us today.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case

 9     IT-04-83-A, the Prosecutor versus Rasim Delic.

10             JUDGE VAZ: [Interpretation] Thank you.

11             I would first like to inquire whether Mr. Delic can follow the

12     proceedings in a language he understands.  Thank you, Mr. Delic, for

13     telling us so.

14             Could I please have the appearances, starting with Mr. Delic's

15     Defence.

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

17     morning to all in the courtroom.  Vasvija Vidovic and John Jones for the

18     Defence of General Delic, with Lejla Gluhic and Sabina Dzubur as our

19     assistants.

20             JUDGE VAZ: [Interpretation] Thank you.

21             And on the Prosecution side?

22             MR. KREMER:  Morning, Your Honours.  Peter Kremer appearing on

23     the Prosecution, assisted by Todd Schneider, Elena Martin-Salgado,

24     Kyle Wood, and our assistant this morning is Lourdes Galicia.

25             JUDGE VAZ: [Interpretation] Thank you, Mr. Kremer.

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 1             First of all, I recall that a Status Conference was held on the

 2     6th of February, 2009, pursuant to Rule 65 bis of the Rules of Procedure

 3     and Evidence.  Having consulted the parties and on account of the fact

 4     that Rasim Delic was on conditional release in the period pending appeal,

 5     it was decided not to hold any further appeal Status Conferences.

 6             The Appeals Chamber is sitting today to hear the parties'

 7     submissions related to the appeals filed by Rasim Delic and the

 8     Prosecution against the trial judgement.  Before I give the floor to the

 9     parties, let me briefly summarise the grounds of appeal pending before

10     the Appeals Chamber and I will also outline the way the hearing the

11     proceed today.

12             In its judgement of 15th of September, 2008, Trial Chamber I made

13     up of Judge Moloto, Presiding Judge, Judges Harhoff and Lattanzi,

14     sentenced by a majority decision Rasim Delic to a single sentence of

15     three years of imprisonment for the count he was found guilty of, namely,

16     Count 2, cruel treatment, a violation of the laws or customs of war,

17     punishable under Articles 3 and 7(3) of the Statute of the Tribunal in

18     relation to events in Livade and the Kamenica camp from July to

19     September 1995.

20             Rasim Delic appealed against the trial judgement and the

21     Prosecution appealed against the sentence against Rasim Delic.

22             Under his first ground of appeal, Rasim Delic submits that the

23     Trial Chamber erred in law or in fact in finding that he had effective

24     control over the El Mujahed Detachment from July to December 1995.

25             First, he contends that the Trial Chamber erred in fact in

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 1     relation to the indicators of effective control that it found to have

 2     existed and in failing to consider indicators of lack of effective

 3     control.

 4             Second, Delic contends that the Trial Chamber failed to draw the

 5     proper inferences from its findings and from the evidence regarding the

 6     structure, functioning, and role of the ABiH, the RBiH Presidency, the

 7     KM Kakanj, and the chain of command within the Army of

 8     Bosnia-Herzegovina.

 9             Third, Delic submits that the Trial Chamber erred when it found

10     that the ABiH organisation improved considerably in the period between

11     1993 and 1995, allowing Delic to exercise effective control over the EMD.

12             Fourth, Delic contends that the Trial Chamber erred in law in

13     misapplying the burden and the standard of proof.

14             Fifth, Delic argues that the Trial Chamber erred in law by

15     denying him the right to a fair trial when convicting him on the basis of

16     his superior-subordinate relationship to the EMD, whereas it was not

17     pleaded in the indictment.

18             Under his second ground of appeal, Delic contends that the

19     Trial Chamber erred in finding that he had reason to know that members of

20     the EMD were about to commit or had committed the crime of cruel

21     treatment against VRS soldiers detained by the EMD.

22             First, he argues that by virtue of the cumulative effect of a

23     number of errors, the Trial Chamber erred in fact, occasioning a

24     miscarriage of justice.

25             Second, the Delic submits that the Trial Chamber erred when it

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 1     found that he had received information concerning the EMD's record of

 2     misdemeanours and criminal offences and that this information was such as

 3     to qualify bulletin 137 as sufficiently alarming to justify his immediate

 4     intervention in order to determine whether members of the EMD were about

 5     to commit or had committed crimes in Livade and the Kamenica camp in July

 6     and August 1995 or had committed them.

 7             Third, Delic claims that the Trial Chamber erred in law in

 8     finding that he had reason to know that crimes had been or were about to

 9     be committed on the sole basis that he had sufficiently alarming

10     information at his disposal.

11             Fourth, Delic claims that the Trial Chamber erred both in law and

12     in fact in holding that his failure to conduct an investigation to

13     determine whether EMD members were about to commit or had already

14     committed crimes in Livade and the Kamenica camp in July and August 1995

15     entailed that he exacted the risk that crimes were about to be committed

16     or had been committed by EMD members in July and August 1995.

17             Fifth, Delic argues that the Trial Chamber erred in law in

18     finding that Delic's alleged knowledge of less serious offences committed

19     by the EMD which did not contain the elements of cruel treatment as a

20     violation of the laws or customs of war was sufficient to put him on

21     notice that the more serious offences of cruel treatment would be

22     committed by the EMD.

23             Lastly, in his third and last ground of appeal, Rasim Delic

24     claims that the Trial Chamber erred in finding that he had not taken the

25     necessary and reasonable measures to prevent and punish the cruel

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 1     treatment inflicted by members of the El Mujahed Detachment on soldiers

 2     of the Army of the Serb Republic of Bosnia and Herzegovina detained in

 3     Livade and in the Kamenica camp in July and August 1995.

 4             Firstly, Mr. Delic submits that the Trial Chamber committed a

 5     two-fold error of law and fact when it held that he had the material

 6     ability to prevent and punish the cruel treatment committed in July and

 7     August 1995.

 8             Secondly, Mr. Delic alleges that the Trial Chamber committed a

 9     two-fold error of law and fact when it failed to specify any of the

10     necessary and reasonable measures he could have taken under the

11     circumstances at the time and that were in his power to prevent and

12     punish the crimes committed by the El Mujahed Detachment.

13             Thirdly, Mr. Delic contends that the Trial Chamber erred in

14     finding that neither he or any other individual under his authority or

15     under his leadership or command had taken the necessary and reasonable

16     measures to prevent or punish the cruel treatment inflicted on the

17     detainees in Livade and in the Kamenica camp in July and August 1995.

18             Fourthly, Mr. Delic submits that the Trial Chamber erred when it

19     relied on the information contained in bulletin 137 to establish his

20     responsibility for failing to prevent or punish the crimes.

21             Mr. Delic, therefore, requests the Appeals Chamber to quash his

22     conviction and to substitute it for a finding of not guilty.

23             The Prosecution objects to Rasim Delic arguments.  The

24     Prosecution more specifically claims that the Trial Chamber committed no

25     error of fact or law when it concluded that Mr. Delic exercised effective

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 1     control over the members of the El Mujahed Detachment, that he had reason

 2     to know that members of this detachment were about to commit crimes or

 3     that they had committed them, and that Rasim Delic failed to take the

 4     necessary and reasonable measures to prevent or punish the crimes.

 5             As stated above, the Prosecution appeals against Rasim Delic's

 6     three-year sentence.  The Prosecution argues that the Trial Chamber

 7     correctly stated the law that applies to sentencing, but that it erred in

 8     law in imposing a manifestly inadequate sentence.

 9             Firstly, the Prosecution alleges that the Trial Chamber's

10     sentence does not reflect the appallingly brutal nature of the crimes

11     committed by Rasim Delic's subordinates.

12             Secondly, the Prosecution argues that the Trial Chamber did not

13     sufficiently consider the gravity of Rasim Delic's breach of his duties

14     as a commander.

15             Thirdly, the Prosecution claims that the Trial Chamber erred when

16     it failed to consider the likely sentence of Rasim Delic's subordinates.

17             And fourthly, the Prosecution claims that the Trial Chamber

18     failed to meet the two main objectives of sentencing that apply to

19     international crimes, namely, deterrence and retribution.  The

20     Prosecution requests the Trial Chamber -- the Appeals Chamber to impose a

21     more appropriate sentence of seven years' imprisonment.

22             At this hearing, the counsel of the parties may submit their

23     grounds and subgrounds of appeal in the order they consider the most

24     appropriate.  I would nonetheless like to remind the parties that they

25     have been asked to develop three questions which have been disclosed to

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 1     them in the addendum to the Scheduling Order of the 15th of December,

 2     2009, questions I shall not go over here.

 3             I shall now remind you of the standards that apply to errors of

 4     fact and errors of law on appeal.  Appeals against trial judgements do

 5     not give rise to a trial de novo.  The parties may not merely repeat the

 6     arguments that the Trial Chamber has heard already.  It follows from

 7     Article 25 of the Statute that the Appeals Chamber's role is limited to

 8     correcting errors of law that invalidate the decision and errors of fact

 9     that have occasioned a miscarriage of justice.  Consequently, the party

10     alleging an error on a question of law must present arguments in support

11     of its claim and explain how the error invalidates a decision.

12             As for errors of fact, it is well established in the

13     jurisprudence of this Tribunal that the Appeals Chamber does not lightly

14     disturb findings of fact reached by a Trial Chamber.  The Appeals Chamber

15     will thus only intervene once it has been established that no reasonable

16     trier of fact could have reached the same finding or when that finding is

17     wholly erroneous.

18             Moreover, the Appeals Chamber may summarily dismiss, without

19     considering them on their merits, arguments submitted by a party that

20     have no chance of reversing or setting aside the impugned decision.  The

21     appealing parties must also provide specific references of the material

22     presented in support of their arguments on appeal.  In addition, the

23     Appeals Chamber must not be expected to analyse the findings of the

24     parties in detail if they are obscure, contradictory, or vague, or if

25     they suffer from other formal and obvious insufficiencies.

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 1             Lastly, the Appeals Chamber has an inherent power to determine

 2     which arguments merit a reasoned response in writing and which arguments

 3     may be dismissed without any detailed reasoning because they are

 4     evidently unfounded.

 5             This hearing will proceed according to the addendum to the

 6     Scheduling Order of December -- of 15th of December, 2009.  The Defence

 7     will start submitting its arguments this morning for one hour and a

 8     quarter.  After a 30-minute break, the Prosecutor may submit its

 9     arguments in response for 50 minutes.  After the Prosecution's response,

10     the Defence will have 20 minutes to submit its arguments in reply.  After

11     one -- a one-hour lunch break, the Prosecution may submit its arguments

12     for one hour.  The Defence will have 50 minutes to submit its arguments

13     in response.  The Prosecution will then have 20 minutes to submit its

14     arguments in reply.

15             Finally, Mr. Delic will be invited to take the floor, if he

16     wishes to, for a short statement lasting no longer than ten minutes.

17             Arguments presented clearly, logically, and concisely would

18     greatly assist the Appeals Chamber.  The Judges will take the liberty to

19     interrupt the parties at any time to ask for clarifications or to put

20     questions.  This is what I wish to share with you.  If there are no

21     questions on the conduct of these proceedings, I would now like to invite

22     the Defence to submit its arguments on appeal.

23             MR. JONES:  Your Honour, I'm obliged.  By way of preliminary,

24     we've prepared bundles containing extracts of the case law to which I'll

25     refer in the course of answering the first of the Chamber's questions.

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 1     So I wonder if we could distribute that now.  There are six copies, one

 2     for the Prosecutor and five for the Bench and one for the Registry.

 3             And, Your Honours, looking at the clock, I see that it's nearly

 4     10.00.  I take it, then, that I can go until 11.15.  I realise that's

 5     slightly later than the Scheduling Order --

 6             MS. VIDOVIC: [Interpretation] Exactly.

 7             MR. JONES:  I'm obliged.

 8             Your Honours, this morning I'm going to address the three

 9     questions posed by the Chamber, but I'd like to start, if I may, by

10     encapsulating our appeal on ground one in one core submission, which is

11     this.  The conclusion of Judge Harhoff and Judge Lattanzi on effective

12     control simply does not follow from their own findings.  Against the

13     backdrop of the Chamber's own findings on effective control, their

14     conclusion is a non sequitur.  That's their error.  A reasonable trier of

15     fact doesn't reach conclusions which are contradicted by their own

16     findings, and that's also why Judge Moloto's dissent is so important,

17     because his conclusion does follow from the Chamber's findings.

18             Excuse me, I'm obliged to my colleague.

19             As a matter of law, logic, and fact, Judge Moloto's conclusion

20     does follow and his dissent shows that the only reasonable view of the

21     case was that there was at least a reasonable doubt that Delic exercised

22     effective control over the EMD.  And so the majority erred and they

23     occasioned a miscarriage of justice.

24             Fortuitously, Your Honours' first question helps me to illustrate

25     that point, and so I turn to the indicators of effective control.  We say

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 1     the case law establishes at least the following 12 propositions.  The

 2     first proposition.  In order to establish effective control it must be

 3     shown not only that an accused issued orders, but that those orders were

 4     in fact obeyed by the perpetrators.  This proposition is well established

 5     and finds expression, for example, in the Strugar appeal judgement at

 6     paragraph 256, whether a superior's orders are, in fact, followed can be

 7     indicative of a superior's effective control over the subordinates.  The

 8     Appeals Chamber notes that in addition to finding that Strugar had the

 9     authority to issue orders, the Trial Chamber also established that

10     Strugar's orders were actually followed.  And we rely for that

11     proposition too on the Halilovic appeal judgement, paragraph 207; the

12     Hadzihasanovic appeal judgement, paragraph 199; and the Dragomir

13     Milosevic appeal judgement, at paragraph 280.

14             It follows that a counter-indicator of effective control is

15     disregard or noncompliance by the perpetrators with orders or

16     instructions issued by the accused.  This is usefully illustrated by the

17     Hadzihasanovic appeal judgement at paragraphs 225 to 227, where the

18     Appeals Chamber dealt with the ABiH 3rd Corps' inability to obtain the

19     release of one of its own soldiers who had been abducted, detained, and

20     mistreated by the EMD for consuming alcohol.  Although the 3rd Corps

21     commander ordered his release, the EMD did not obey, nor did they release

22     him even when threatened with attack.  As the Appeals Chamber noted at

23     paragraph 227:

24             "The EMD was never requested by the 3rd Corps to catch hostages,

25     nor did it receive any approval for doing so.  Quite to the contrary, its

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 1     behaviour was in reckless disregard of the 3rd Corps' requests that it

 2     abstain from these abductions.  It did not comply with Mehmed Alagic's

 3     order to release them or release them when threatened with the use of

 4     force."

 5             And so the Appeals Chamber found that:

 6             "These events confirm that Hadzihasanovic did not have effective

 7     control over the El Mujahed Detachment and:

 8             "Demonstrate that there were areas in which the EMD acted

 9     independently from the 3rd Corps."  Paragraph 226.

10             These facts are, of course, strikingly similar to the facts of

11     this case.  Indeed, we say, the evidence is much stronger, as you'll see

12     from paragraphs 403 to 404 of the judgement, where the Chamber held that

13     by capturing and holding VRS soldiers who were mistreated, in July and

14     August 1995, the very events for which Delic was convicted:

15             "The EMD did not comply with the obligations as set out by the

16     35th Division commander concerning the handling of captives taken during

17     combat," and that the EMD acted "in defiance of ABiH orders, in defiance

18     of ABiH orders."

19             Yet Judges Harhoff and Lattanzi failed to draw the obvious

20     conclusion from this, the conclusion reached by the Appeals Chamber in

21     Hadzihasanovic and by Judge Moloto in this case, in particular at

22     paragraph 27 of his dissent, namely, that such events showed that the

23     accused did not have effective control over the EMD.  And a litany of

24     orders disobeyed by the EMD is further set out by the Chamber at

25     paragraphs 371 to 385 of the judgement.

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 1             The second proposition, evidence that the alleged subordinates

 2     reserved their right to participate or not to participate in combat is a

 3     counter-indicator of effective control.  The Hadzihasanovic trial

 4     judgement provides authority for that proposition.  At paragraph 795, the

 5     Chamber referred to evidence:

 6             "That the Mujahedin reserved the right to decide for themselves

 7     whether or not to join combat."

 8             In this case too, the Chamber clearly found that the EMD "made

 9     their own decisions" about whether to participate in combat,

10     paragraph 382, and that the EMD would simply "decline to take part in a

11     given ABiH operation" if they deemed the conditions not met.  In other

12     words, the EMD simply made up their own mind whether to participate in

13     combat, regardless of what the ABiH ordered.  If that's effective

14     control, then it has to be said it's not very effective.

15             The third proposition, erratic behaviour and prior instances of

16     indiscipline on the part of the alleged subordinates is relevant to

17     assessing effective control.  This proposition is found, for example, in

18     the Strugar appeal judgement at paragraph 257, where the Appeals Chamber

19     found that:

20             "Evidence of prior instances of indiscipline and of noncompliance

21     with orders would be clearly relevant to an assessment of whether Strugar

22     had effective control over his subordinates."

23             Likewise, in the Oric appeal judgement:

24             "The Appeals Chamber considers that if a superior-subordinate

25     relationship existed, it cannot be relevant to ask whether the

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 1     subordinate's behaviour was erratic.  However, if it is not clear whether

 2     that relationship existed, it can be relevant to take into account the

 3     erratic behaviour of the subordinate in determining whether the superior

 4     had the 'material ability to prevent or punish' necessary for effective

 5     control."  Paragraph 159.

 6             That observation is clearly relevant here.  In this case it was,

 7     at the very least, not clear that a superior-subordinate relationship

 8     existed between Delic and the EMD.  Indeed, we say, it was abundantly

 9     clear that the EMD members were not Delic's subordinates.

10             So in those circumstances it was highly relevant to take into

11     account the erratic behaviour of EMD members in determining whether Delic

12     had effective control.  The majority entirely failed to do so.  There was

13     a super-abundance of evidence of the EMD's erratic and dangerous

14     behaviour, by which I mean dangerous to the ABiH whom EMD members

15     habitually threatened and abused.  See paragraph 408 of the judgement.

16     So one is in a sense spoiled for choice.  In E 774, for example, one

17     finds this account of a dispute between the EMD and a regular ABiH unit:

18             "On this occasion," and this is July 1995, precise time of

19     these -- the events at which Delic was convicted.

20             "On this occasion, members of the El Mujahed were saying that the

21     basic objective of their struggle was to exterminate the Serbs and Croats

22     and added that they were expecting from everyone to remain on the path of

23     Allah, and sooner or later the two units, i.e., the EMD and the ABiH unit

24     in question, would clash because of their difference."

25             And one sees the same thing in dozens of exhibits, E 125, E 667,

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 1     E 670, E 760 -- sorry, E 737, E 800, E 801, E 872, E 892, E 903, E 934,

 2     E 938, E 1084, each of which I would urge the Appeals Chamber to review

 3     in order to get a true flavour of how the EMD behaved, how dangerous to

 4     other ABiH units, and how wild and completely ungovernable they were.

 5     And Prosecution witnesses, Hasanagic, Imamovic, Sljuka, and Sehic, all

 6     told the same story at T3102, T4058, T4370, and T5086, respectively.  And

 7     really, there can be no dispute as to the bizarre erratic, and dangerous

 8     behaviour of the EMD.

 9             The fourth proposition, effective control is absent when the

10     perpetrators have the independent power to take decisions and to act.

11     Thus, in the Oric trial judgement at paragraph 706, the Chamber found

12     that local armed groups "were primarily loyal to their respective

13     commanders" and acted independently.  And, therefore, it followed they

14     were not under Oric's effective control.  Again, we say this applies a

15     fortiori to the EMD and Delic's command.

16             "The EMD had a 'religious council,' the shura, which was its

17     supreme decision-making body."

18             Those are the Chamber's own words, its own finding at

19     paragraph 189 of the judgement.  And "the shura was the final authority,

20     the final authority, within the EMD regarding all matters of importance.

21     The Emir was elected by and answerable to the shura; his decisions could

22     be amended or overturned only by that body."

23             Again, the Chamber's own words from the same paragraph, and it

24     was to the Emir alone that the EMD were loyal.

25             In our submission, the fact, as found by the Chamber, that the

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 1     supreme decision-making body, the final authority over the EMD was not

 2     the ABiH, but the religious council, the shura, cannot be reconciled with

 3     there not even being a reasonable doubt as to effective control.

 4             Look what Ismet Alija, again a Prosecution witness, said about

 5     the EMD.

 6             "In my knowledge and according to my information, the EMD was not

 7     within the system of command and control.  They were a closed unit and

 8     they stood for themselves.  They were independent.  They were very

 9     difficult to reach or receive information about their activities.  They

10     made their own decisions."

11             He went on to explain the shura:

12             "Your Honours, I believe that you know that they had their own

13     way of decision-making.  That term is 'shura,' is something like a

14     council of sorts.  And if they decided to do something, they did it.  And

15     if they decided not to do, they didn't do it.  And they would not take

16     anybody's orders."  T4156.

17             Those are the words of a Prosecution witness.  How striking is

18     that?

19             As with all Prosecution witnesses, I emphasise the fact because,

20     in our submission, the Prosecution cannot credibly go behind or seek to

21     contradict the words of its own witnesses, not if they haven't had them

22     declared hostile.

23             The fifth proposition is that an insufficiently developed or

24     dysfunctional chain of command is a counter-indicator of effective

25     control.  That proposition is axiomatic and finds expression, inter alia,

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 1     in the Oric trial judgement at paragraph 707.

 2             The sixth proposition is that evidence that the alleged

 3     subordinates did not regard themselves as being under the command of the

 4     alleged superior and vice versa indicates a lack of effective control.

 5     Authority for that proposition is to be found, inter alia, in the

 6     Hadzihasanovic trial judgement at paragraph 795, where the Chamber

 7     referred to the evidence that:

 8             "3rd Corps commanders did not believe they had the authority to

 9     give orders to the Mujahedin."

10             In this case, again on the Chamber's own finding, the EMD stated:

11             "'We are now one unit, we have our own body which is formally

12     under the control of the [ABiH], but the [ABiH] cannot order us to engage

13     in actions against our will.'"

14             I hope to revert to the matter later if I have time, but the very

15     concept that one cannot be ordered to engage in actions against one's

16     will gives the line to the idea that there is compliance when the EMD

17     went along with all this.  They're not following orders or obeying orders

18     if it simply coincides with what you would do anyway.  That's the

19     Chamber's finding at paragraph 381, and we would also refer you to its

20     findings at paragraphs 432 and 453 in that regard.  And this was also the

21     evidence of Prosecution Witness Imamovic, T4045; Prosecution Witness

22     Sljuka, T4301, and T4369; Prosecution Witness Hajderhodzic at T3784;

23     Prosecution Witness Husic at T446; and Prosecution Witness Awad at T172

24     of the Sarajevo hearing.

25             Time and again, former EMD members in this trial gave evidence

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 1     that they did not consider themselves a part of the ABiH at all and

 2     exhibits bore that out.  Yet, the majority didn't consider this aspect at

 3     all as detracting from or creating a reasonable doubt as to effective

 4     control.

 5             The seventh proposition concerns reporting, evidence that the

 6     perpetrators did not submit reports to the alleged superior and/or that

 7     they did submit reports to other superiors is a counter-indicator of

 8     effective control.  We refer to the Hadzihasanovic trial judgement at

 9     paragraph 795, which refers to the relevance of the fact that there was

10     "no evidence indicating that the Mujahedin sent combat reports or other

11     reports on their activities to those in charge of the combat in which

12     they took part."

13             Now, reporting is key to effective control.  As Judge Moloto

14     correctly pointed out in his dissent at paragraph 15:

15             "The EMD's failure to report to its immediately superior unit

16     coupled with the EMD's erratic behaviour towards the orders of the ABiH

17     seriously undermined the command and control of Rasim Delic.  A chain of

18     command lies in the flow of orders and information, the transmission of

19     information up and down the chain of command, and the ability of a

20     commander to exercise his authority through orders constitute the two

21     essential components of a system of command and control.  Only if these

22     two components function is a commander in a position to control his units

23     and induce obedience from them.  However, this did not happen in relation

24     to the EMD."

25             Yet again, the majority's conclusion regarding effective control

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 1     is belied by its own findings.  The Chamber found or at least did not

 2     dispute that "the EMD never submitted written or oral operative reports

 3     to the 35th Division," its allegedly superior unit in the ABiH, paragraph

 4     424 --

 5             JUDGE VAZ: [Interpretation] One moment, please.

 6             Yes, Judge Meron, has a question for you.

 7             JUDGE MERON:  Thank you.  In paragraph 430 of the judgement, last

 8     sentence.

 9             MR. JONES:  Sorry, I didn't catch the paragraph?

10             JUDGE MERON:  I'm terribly sorry, paragraph 430 of the judgement.

11             "Although the EMD was officially re-subordinated to the

12     35th Division ... it orally reported several times to the 3rd Corps

13     command on the progress of the combat activities," how to reconcile this

14     with your argument, counsel.

15             MR. JONES:  Yes.

16             JUDGE MERON:  And the fact that there is some evidence of oral

17     reporting by the EMD to its superior's commanders, would this not

18     indicate a level of control?

19             MR. JONES:  Yes.  If I may, the position with the 3rd Corps and

20     the 35th Division in itself is extremely revealing about the lack of

21     effective control, because according to the evidence as accepted by the

22     Chamber, the principle of unity of command meant that subordinate units

23     reported to their next superior unit, which was the 35th Division.  So

24     already the fact that the EMD simply disregarded that and when they felt

25     like it went over the heads of the 35th Division to the 3rd Corps,

Page 24

 1     reveals that they didn't care [indiscernible] about the system which was

 2     meant to be in place.

 3             As to oral reporting, we would respectfully adopt what

 4     Judge Moloto says in relation to that, which is that oral reporting,

 5     firstly when written reports are required to be submitted, hardly meets

 6     the requirements imposed within the ABiH.  But oral reporting, the

 7     evidence showed, was entirely consistent with two allied units fighting

 8     together, ensuring before an action that they didn't end up shooting each

 9     other.  It's something which any allied co-operative fighting unit would

10     do in order to avoid friendly fire.  It's common sense.  The majority

11     suggested that this was because there was a language problem, which we've

12     dealt with in our appeals brief.  It's a non-explanation.  Because of the

13     Bosnian speakers in the EMD, they could have easily submitted written

14     reports if they wanted to.  The fact that the majority felt that they

15     needed to make that explanation is itself revealing.

16             I don't know if that assists.

17             Now, by contrast, the EMD did send detailed written reports to

18     its foreign masters.  See, for example -- sorry, is there another

19     question from the Bench?

20             JUDGE VAZ: [Interpretation] Yes, indeed.  Judge Liu had a

21     question for you.

22             JUDGE LIU:  Well, I wonder whether you finished your answer.  If

23     not, you may continue; and after that I'll raise my question to you.

24             MR. JONES:  No, I am finished.

25             JUDGE LIU:  Yes.  Thank you.

Page 25

 1             Well, I believe that in your presentations you mentioned the

 2     insufficiently developed and dysfunctional chain of command in the ABiH

 3     and EMD, and you also mentioned the case law in Hadzihasanovic's case.  I

 4     understand, you know, that the Appeals Chamber overturned the

 5     Trial Chamber's finding of effective control in that case.  But I wonder

 6     whether you noticed the time difference between the Hadzihasanovic case

 7     and the present case.  I believe the crimes of which Mr. Hadzihasanovic

 8     was convicted was committed between January and September 1993, while in

 9     the present case which took place in July and August 1995.  The

10     Trial Chamber specifically found out that the command and control

11     improved significantly from 1993 to 1995.  Therefore, the circumstances

12     of the present case are materially different from those of the

13     Hadzihasanovic case.

14             What's your comments on this time difference?  Thank you.

15             MR. JONES:  Yes.  Thank you.

16             If I didn't make it clear, I apologise.  We rely on

17     Hadzihasanovic appeal judgement purely for the legal principles.  That's

18     what I was extracting, and it would be clearly simplistic in the extreme

19     to say, well, there was an acquittal on appeal in Hadzihasanovic and

20     we're entitled to the same acquittal.  Obviously, there's a two-year

21     difference.  However, the majority's conclusion, that's at paragraph 460:

22             "The Majority finds that the structure, organisation as well as

23     command and control within the ABiH improved significantly from the time

24     when Delic was appointed as Commander" in 1993 until 1995.

25             That's the premise of the majority which distinguishes, if you

Page 26

 1     like, Hadzihasanovic.  But if you look at that paragraph there is no

 2     reference to any evidence at all.  It's pure assertion, and we've dealt

 3     in detail in our appeals brief and why we say that's not based on

 4     evidence.  It's contradicted by the evidence.  It's very revealing, they

 5     don't cite any evidence there.  Surely that's a moment to cite to a

 6     witness who says, well, things improved a lot in those two years.  No one

 7     said that.  The exhibits didn't show it.  That was their own way to get

 8     around Hadzihasanovic.

 9             JUDGE LIU:  Thank you very much.

10             MR. JONES:  In relation to reporting the other component is the

11     EMD did send - and this is revealing - detailed written reports to its

12     foreign masters.  And I was referring to, as you'll see, a very detailed

13     combat report at paragraph 444 of the judgement.  If you have it out,

14     I'll ask you to turn it up because it's revealing.  The report is so

15     specific it refers to how the assault groups began to advance at

16     12.02 a.m.  It gives the exact geographical differences between the

17     different areas involved in the combat.  Nothing like that was sent to

18     the alleged superiors in the ABiH, but it was sent abroad.

19             And in terms of oral communication, I've touched on this but I'll

20     perhaps reiterate it, it's hardly surprising that there was some oral

21     communication between the EMD and ABiH units before or during combat

22     because it would be suicide not to, just as it would be suicide for the

23     EMD to launch its own combat operations without telling anyone else.  And

24     the majority seemed to consider it significant that the EMD didn't just

25     launch attacks without telling anyone, but obviously, obviously, they

Page 27

 1     wouldn't, if not -- if only for their own self-preservation.  And that's

 2     what allies do:  They communicate in order to co-ordinate their

 3     respective combat activities.

 4             The French and British forces did it at the Battle of the Marne

 5     in the First World War.  Allies do it today to avoid friendly fire.  It's

 6     obvious.  And this highlights a crucial point about the flaws in the

 7     majority's reasoning.  If oral reporting is consistent with nothing more

 8     than co-operation, then oral reporting doesn't prove effective control.

 9     Indeed, in relation to each indicator, we invite the Appeals Chamber to

10     ask the Prosecution this question:  What did the Trial Chamber find which

11     is consistent only with effective control, not consistent with anything

12     else?  And the answer is:  Nothing.  Or putting the question the other

13     way:  Is there any finding by the Chamber which is wholly inconsistent

14     with co-ordination, co-operation, joint or mutual assistance or even

15     attempts to establish control, all of which would fall short of effective

16     control?  And again the answer will inevitably be:  No, there is nothing.

17     The majority should have been able to say:  We rule out that these are

18     just two armies co-operating with each other, because if it were only

19     that and not effective control, then X, Y, and Z, but you won't find that

20     in the judgement.  They never did that.

21             Which means that Delic had to be acquitted and that his

22     conviction should be quashed now.

23             I turn to the eighth proposition, which is that where authority

24     exists over the perpetrators from persons other than the accused, then

25     that indicates absence of effective control.  We refer to paragraphs 216

Page 28

 1     and 217 of the Hadzihasanovic and Kubura appeal judgement, from which two

 2     points of principle emerge.  First, that:

 3             "Effective control cannot be established by process of

 4     elimination."

 5             So we didn't have to show that someone else had effective control

 6     over the EMD, but for the Trial Chamber could conclude that Delic did

 7     not.  Second, that if authority was exercised over the perpetrators by

 8     persons other than the accused, then that is a relevant counter-indicator

 9     of effective control.  That's obvious.  No servant can serve two masters,

10     for either he will hate the one and love the other, or else he will hold

11     to the one and despise the other.  That's the parable of the unjust

12     steward.

13             In this case there was abundant evidence accepted by the Chamber

14     that authority over the EMD was exerted by foreign state organs, Islamic

15     organisations such as the ICI, and high-ranking Muslim clerics.

16             The ninth proposition is that a key indicator of effective

17     control is whether the perpetrators received weapons and ammunition from

18     the accused.  This indicator is clearly expressed in the report of the

19     International Commission of Inquiry on Darfur of 25 January 2005, at

20     paragraphs 111 and 113.  The Appeals Chamber will appreciate the chairman

21     of that commission was Antonio Cassese - the first President of this

22     Tribunal and now President of the Special Tribunal for Lebanon - and so

23     while the report is not case law as such, we say it is of strong

24     persuasive authority.

25             In finding "clear links between the Sudanese state and militias,

Page 29

 1     the commission relied as an indicator of effective control, the fact that

 2     militias received weapons and regular supplies of ammunition from the

 3     army and other state organs."

 4             In this case, the Chamber found that the ABiH's assistance to the

 5     EMD in terms of ammunition and weaponry was "sporadic and insufficient."

 6     Paragraph 418.  Conversely, there was abundant evidence that the EMD

 7     obtained arms and munition and ammunition from their own sources.

 8     Prosecution's own witness Awad, a former EMD member, testified:  "We had

 9     our own independent logistics and we were stronger than the corps as far

10     as that is concerned."  That's T260 on 10.2.08.  And the Chamber referred

11     to this unchallenged evidence in footnote 1079 of the judgement and

12     apparently accepted it.

13             This was also borne out by PW-9's evidence at T5682 and by E 676.

14             The tenth proposition may be captured by the dictum, he who pays

15     the piper calls the tune; or in other words, control of the finances and

16     salaries paid to the perpetrators is another indicator of effective

17     control.  But for this proposition again we cite the Darfur report,

18     paragraph 113, referring to the payment of monthly salaries as an

19     indicator of control.  And the Musema trial judgement at paragraph 880

20     where the Trial Chamber found that Musema had effective control over the

21     employees of the Gisovu Tea Factory, inter alia, because "he exercised

22     legal and financial control over these employees."

23             In this case, the Chamber found that "the EMD was financed

24     through separate channels," separate from the ABiH.  And that the

25     salaries of EMD members "came from funds secured by the EMD."  That's

Page 30

 1     paragraphs 418 to 419 of the judgement.

 2             The evidence in terms of the EMD's financing was

 3     incontrovertible.  We refer to E 782, the evidence of Prosecution witness

 4     PW-9 at T8633 and E 1201, from which you can see the ICI, the Islamic

 5     Cultural Institute, sent monthly payments to the EMD.  The Chamber

 6     accepted this exhibit at footnote 1145.

 7             The point about salaries was picked up by Judge Moloto at

 8     paragraph 18 of his dissent:

 9             "The links of the EMD with the foreign authorities show another

10     area in which the EMD acted independently from the ABiH.  Indeed, none of

11     the EMD members was paid by the ABiH."  That's a very striking fact.  I

12     continue.

13             "Furthermore, the fact that these contacts were put in place by

14     the EMD with a view to promoting its cause and attract funds may also

15     allow the inference that the authorities sponsoring the EMD might have

16     retained a significant influence over them."

17             And as an aside here, I would make an important point that

18     Judge Moloto and the majority shared the same factual findings; they

19     simply drew different conclusions from them.  It's an obvious inference

20     and an obvious point but one which escaped the majority.  He who holds

21     the purse strings is clearly in a position to dictate terms, to exercise

22     control, and precisely by the threat of cutting off financial support if

23     his orders are not followed.

24             The ABiH and Delic crucially were never in a position to make

25     that threat, to exert control through holding the purse strings.  They

Page 31

 1     couldn't threaten to stop paying the EMD if the EMD didn't obey orders

 2     because they weren't paying [Realtime transcript read in error "saying"]

 3     them.  It's as simply as that.

 4             And -- sorry, correction in the transcript because they weren't

 5     paying them.

 6             Indeed one finds that obvious logic that money equals control or

 7     the potential for control reflected in the Tribunal's jurisprudence from

 8     the earliest days in the Tadic appeal judgement of 15th July 1999 in the

 9     context of deciding whether the VRS was under the control of the FRY

10     government.  One of the decisive factors for the Appeals Chamber was

11     "'the continuing payment of salaries, to Bosnian Serb and non-Bosnian

12     Serb officers alike, by the government of the Federal Republic of

13     Yugoslavia.'"  That's paragraph 150.

14             The 11th proposition is to prove effective control it must be

15     shown that the accused has disciplinary and investigative powers over the

16     perpetrators as a result of his position of authority, that those powers

17     were actual and effective as opposed to merely formal and unenforceable,

18     and finally that those measures were capable of punishing the crimes that

19     were the basis of the charges and not some other crimes.  For example,

20     ordinary crimes like theft.  Whereas here it's alleged that the accused

21     had effective control on the basis that crimes by the perpetrators, the

22     EMD, were on occasion punished.  There are two separate questions which

23     have to be asked:  Who initiated the prosecution and was the prosecution

24     for war crimes or for ordinary crimes?  The issue is addressed, for

25     example, in the Oric appeal judgement at paragraph 142, where the Chamber

Page 32

 1     held that Oric's alleged ability to take disciplinary action against the

 2     perpetrators was not demonstrated by the fact that he had been

 3     "'... instrumental in promoting an investigation'" of the military police

 4     chief.  Since the Trial Chamber "did not find that Oric took this

 5     measure, or was able to do so, as a result of an authority on his part

 6     over the military police."

 7             The Appeals Chamber therefore quashed Oric's conviction, ruling

 8     that the Trial Chamber had erred in finding that Oric exercised effective

 9     control over the military police.

10             When we turn back to this case, two very striking facts emerge

11     from the Chamber's findings.  One, there was no evidence that Delic was

12     able to discipline EMD members at all.  In the section of the judgement

13     dealing with the ability to investigate and punish EMD members, the

14     Chamber was only able to point to criminal proceedings brought against

15     foreign members of the EMD for "illegal behaviour although not for

16     violations of international humanitarian law."  Paragraph 470.  That's a

17     crucial fact of which the majority failed entirely to appreciate the

18     significance.

19             Second, the criminal proceedings relied on by the majority were

20     not brought by Delic or even by the military, but by the civilian

21     authorities.  So in this way the majority fell into the exact same error

22     as the Hadzihasanovic Trial Chamber.  In Hadzihasanovic, the

23     Trial Chamber relied on the domestic prosecution of an EMD member to show

24     Hadzihasanovic's authority to punish EMD members.  And the Appeals

25     Chamber found that this was an error.  At paragraph 219 of the

Page 33

 1     Hadzihasanovic appeal judgement it's stated:

 2             "Witness Siljak testified that the alleged perpetrator 'had to

 3     appear before the court in Travnik' without specifying which court it

 4     was.  Even if it were true that the said individual had been brought

 5     before the Travnik district military court, there is no indication in the

 6     trial judgement as to what role Hadzihasanovic would have had in bringing

 7     about the initiation of proceedings against that perpetrator.  Nor does

 8     Witness Siljak's testimony demonstrate that the perpetrator was

 9     prosecuted following measures taken or initiated by the 3rd Corps.  The

10     Appeals Chamber stresses that the perpetrator was an identified local

11     Muslim and that both the civilian police and the witness himself may have

12     filed the complaint against him."

13             The exact same situation applies to the Trial Chamber's findings

14     in this case.  The majority relied on the arrest of EMD members for the

15     killing of the British aid worker, Paul Goodall, referred to at

16     paragraph 448 of the judgement.  Yet, those proceedings were instituted

17     by the Ministry of Interior, civilian ministry, before a civilian court,

18     as the Chamber itself accepted.  And that's clear too from Exhibit 887,

19     which is referred to in footnote 1158 of the judgement.  The Ministry of

20     Interior civilian police brought a criminal report to the civilian

21     prosecutor in Zenica against the EMD.  That has nothing to do with the

22     military or Delic.

23             Likewise, with Exhibit 880 relied on by the majority, see

24     footnote 1164, these were criminal proceedings for theft, an ordinary

25     crime, not one of international humanitarian law.  And as in

Page 34

 1     Hadzihasanovic, the perpetrator was an identified local Bosnian Muslim,

 2     Sefik Bijelo.  And in none of this was there any evidence as to what role

 3     Delic would have had in bringing about the initiation of proceedings

 4     against the perpetrator.

 5             So we say that the Appeals Chamber's reasoning for overruling the

 6     Trial Chamber in Hadzihasanovic applies equally here, and the Chamber's

 7     findings, we say, at paragraphs 447 to 453 of the judgement are,

 8     therefore, absolutely incapable as a matter of law of supporting the

 9     majority's conclusion at paragraph 470 that Delic had the material

10     ability to investigate, prevent, and punish war crimes committed by the

11     EMD in July/August 1995.

12             I turn to our 12th and final proposition, which is that effective

13     control is absent if the alleged superior needs to negotiate or have

14     recourse to external pressure to ensure compliance with his decisions and

15     orders.  Here, too, we rely on the Hadzihasanovic appeal judgement at

16     paragraph 227, which is worth citing in full.

17             "The independence of the El Mujahedin Detachment from the

18     3rd Corps, as opposed to its subordination to it, is further confirmed by

19     other circumstances.  The 3rd Corps had to engage in negotiations for the

20     release of the hostages with some members of the detachment while at the

21     same time putting pressure on them with the support of certain

22     international organisations, as well as Muslim clerics and naturalised

23     Bosnian Muslims.  Had the members of the El Mujahedin Detachment been

24     subordinated to the 3rd Corps, no negotiations or external pressure would

25     be necessary -- sorry, would have been needed.  The 3rd Corps's orders to

Page 35

 1     release the hostages would have been complied with.  Another circumstance

 2     showing the independence of the El Mujahedin Detachment from the

 3     3rd Corps is the Trial Chamber's finding that the only means available to

 4     the 3rd Corps to obtain the release of the hostages was to use direct

 5     force against the El Mujahedin Detachment."

 6             And again, we rely on this for legal principle, obviously not for

 7     factual finding.

 8             It stands to reason that if you can only exercise "control" over

 9     a detachment by calling in some outside body, say to someone else, Can

10     you please control these people because we can't, then you yourself are

11     not in control.  And that was clearly found to be the case here, as, for

12     example, when the 35th Division commander had to ask municipal

13     authorities for help in dealing with disorderly conduct by EMD members.

14     That's at paragraph 441 in the evidence at footnote 1144 of the

15     judgement.  It's as if the head of the British army has to call in the

16     Scotland Yard or the civilian police to deal with the Scots Guards.  It's

17     an absurd situation but one which indicates clearly that there was no

18     effective control within the ABiH.

19             And what's even more clear is that if you can only exercise

20     control by attacking and overwhelming the perpetrators, then you're

21     obviously not in control.  I mean, otherwise an army which can defeat its

22     enemy in battle would retrospectively be said to have had effective

23     control over the enemy.  It's an absurdity.  Which calls to mind

24     paragraph 230 of the Hadzihasanovic appeal judgement, where the Chamber

25     said of the relationship between the EMD and 3rd Corps:

Page 36

 1             "It was quite close to overt hostility, since the only way to

 2     control the EMD was to attack them as if they were a distinct enemy

 3     force."

 4             That's quite aside from the impracticality of requiring the ABiH

 5     to wage war against the EMD while at the same time fighting the Serbs and

 6     the Croats.  And the law cannot seriously require Delic to open up a war

 7     on, in fact, four fronts, VRS, HVO, Fikret Abdic's forces in Bihac, and

 8     the EMD, even if such a decision were up to him, a political decision,

 9     which it wasn't.

10             Yet, the evidence shows that's all he could have done to try to

11     bring the EMD fighters under control.  And the Chamber's own findings

12     show that's all he could have done.

13             The way that Judges Lattanzi and Harhoff dealt with this is

14     utterly devoid of evidential support or, with the greatest respect to

15     them, common sense.  At paragraph 468 they say:

16             "Several witnesses testified that, in their view, nothing could

17     be done to discipline the EMD since coercive measures would have entailed

18     a violent conflict with the EM D."  I pause there.  That's the evidence.

19     That's the evidence which witnesses have given.  Nothing could be done.

20     But then they simply go on to say:

21             "This position is not borne out by facts adduced in the

22     evidence."  One would expect, though, wouldn't one, to see what the facts

23     are, a reference, a footnote.  What facts?  There is nothing, there is

24     nothing there.  On such a crucial issue, they simply failed to say what

25     these critically important facts are.  No footnote to the evidence, no

Page 37

 1     facts cited, just bald assertion.

 2             And then follows one of the most critical passages --

 3             JUDGE VAZ: [Interpretation] One moment, please.  We don't hear

 4     the interpretation in French anymore.

 5             You may proceed.

 6             MR. JONES:  There follows one of the most critical passages in

 7     their conclusion:

 8             "Rather than saying that nothing could be done to oppose

 9     undisciplined behaviour of the EMD members, the majority finds that

10     nothing was done or even attempted to be done, in particular in

11     connection with the alleged violations of international humanitarian law

12     during the detention of enemy soldiers and civilians by the EMD.  In the

13     majority's view, this failure to take any steps to assume control over

14     the detainees constitutes a failure to take the necessary and reasonable

15     measures to prevent and punish the crimes in question."

16             Now, there are at least three things fundamentally wrong with

17     this critical conclusion.  First, conclusions have to be based on the

18     evidence, and yet the majority here simply rejects out of hand a

19     reasonable view of the evidence, namely, that nothing could be done to

20     control the EMD short of violent conflict, the view taken by the Appeals

21     Chamber in Hadzihasanovic, and the view taken by Judge Moloto in this

22     case, rejected out of hand merely on the basis that that's their

23     preferred view of the matter.

24             Second, the only supporting reasoning provided in footnote 1200,

25     which appears to criticise ABiH officers for not trying again or trying

Page 38

 1     harder when the EMD denied them access to Serb detainees, has got nothing

 2     to do with whether Delic had effective control over the EMD.  It's one of

 3     those non sequiturs.  It begs the very question issue, namely, whether if

 4     they had tried any harder, it would have made any difference.  If the

 5     fact is that even if the ABiH officers had tried again or tried harder,

 6     it still would have been impossible to gain access to the detainees.

 7     Then effective control is absent.  The majority leaves that possibility

 8     open.

 9             In any event, the officers reported the matter, and within four

10     weeks, the detainees were no longer held by the EMD.  So the reproach

11     that they should have done more may ring hollow.

12             Thirdly and most fundamentally, the majority in this passage

13     fundamentally confuses the third element of command responsibility.

14     They're discussing effective control here, the first element, and

15     suddenly they skip to the failure to take reasonable measures.

16             "In the majority's view, this failure to take any steps to assume

17     control over the detainees constitutes a failure to take the necessary

18     and reasonable measures to prevent and punish the crimes."

19             So, in fact, their conclusion doesn't even have anything to do

20     with effective control.

21             So we respectfully submit that the conclusion of Judge Harhoff

22     and Judge Lattanzi is fundamentally confused, flawed, and indefensible.

23             Finally, with regard to question one, we would draw attention to

24     the Appeals Chamber's holding that "criminal responsibility does not

25     attach to a military official merely on the basis of his overall

Page 39

 1     command," paragraph 214, Halilovic appeal judgement, an important and

 2     pertinent principle here.

 3             I turn to the Chamber's second question, question 2A, whether the

 4     Trial Chamber erred by failing --

 5             JUDGE VAZ: [Interpretation]  I would just like to remind you that

 6     you have approximately ten minutes left to answer the questions.

 7             MR. JONES:  I have an hour and 15 minutes, I believe, and I

 8     started at 10.00, so I think I have until 11.15, which would be

 9     20 minutes.  I will stand corrected if that's wrong.

10             Question 2A, whether the Trial Chamber erred by failing to

11     consider one or more of the indicators of effective control discussed in

12     the trial judgement to be incompatible with the notion of effective

13     control.  In our submission, the indicator identified at paragraph 368,

14     VI ...

15                           [Appeals Chamber and Legal Officer confer]

16             MR. JONES:  I appreciate there may have been a need to take a

17     break for the tapes or the interpreters.  I'll continue until told to

18     stop.

19             The indicator which is identified at paragraph 368, VI, and

20     discussed at paragraphs 416 to 422 of the judgement, mutual assistance

21     between the ABiH and the EMD, is incompatible with the notion of

22     effective control.  Assistance, co-operation, or even co-ordination which

23     exists between allied armed forces is plainly not the same thing at all

24     as effective control, and that's -- that runs as a thread through all of

25     the Tribunal's case law.  For example, the Hadzihasanovic appeals

Page 40

 1     judgement, paragraph 214:

 2             "Thus while these Trial Chamber's findings indicate that the

 3     3rd Corps co-operated with the El Mujahedin Detachment, they are

 4     insufficient to establish the existence of effective control."

 5             And indeed the Chamber in this case itself had clearly

 6     contemplated that forces can fight together without one being under the

 7     control of the other.  See paragraph 345:

 8             "It is not implausible that engagement in combat can take place

 9     on the basis of mutual consultations and agreement between two fighting

10     forces as opposed to orders issued from one to the other."

11             And also paragraph 350 that said that the relationship between

12     the Mujahedin as opposed to the EMD and the ABiH "is appropriately

13     characterised as co-operation between such groups as separate and

14     independent military entities rather than subordination of the Mujahedin

15     within the single military structure."

16             On that basis, Delic was found not guilty of the crimes committed

17     in Maline and Bikose in June 1993.  But the majority should have applied

18     this same principle to the relationship between the ABiH and the EMD in

19     1995, but it failed to do so.  Its findings are full of the language of

20     consultation, consensus, co-operation, one sees references to requests

21     being addressed from the ABiH to the EMD, requesting authorisation to

22     speak with the commander or to access the camp, not command.  For

23     example, the 3rd Corps commander only made "recommendations to the EMD,"

24     at paragraph 395 of the judgement, not issuing orders.  The 35th Division

25     security officer sought the "approval of the EMD to interview soldiers."

Page 41

 1     A superior doesn't request approval of subordinate units in a matter like

 2     this, paragraph 408.

 3             The indicator relationship between the EMD and authorities

 4     outside the ABiH, depending on how that's construed, is also incompatible

 5     with the notion of effective control.  The majority's treatment of this

 6     issue was superficial in the extreme.  At paragraph 464 it stated:

 7             "It is true that the EMD communicated with foreign institutions

 8     outside Bosnia and Herzegovina; however, in the majority's view, the main

 9     purpose of these communications was to promote its cause and attract

10     financial support.  Thus, this did not affect the chain of command and

11     the effective control exercised by Rasim Delic over the EMD and its

12     members."

13             The word "thus" in that sentence is singularly misplaced.  The

14     conclusion does not follow from the premise.  That is again a

15     non sequitur.  The EMD communicated with foreign bodies to get finance,

16     the majority finds, it was paid by those bodies, the majority finds,

17     ergo, according to the majority, this had no impact on Delic's effective

18     control.  That makes absolutely no sense.  It's a classic example of how

19     the majority's conclusions have little or nothing to do with their

20     factual findings.

21             I turn finally to the Appeals Chamber's third question, in

22     essence, whether the Chamber erred in finding that Delic had effective

23     control over the EMD in July and December 1995.  Of course, we say they

24     did err.  That's the main thrust of our first ground of appeal, so

25     obviously I won't repeat our submissions here.  What I may usefully do in

Page 42

 1     the remaining time is simply to outline some major conceptual problems in

 2     relation to the majority's findings and conclusions, and the first

 3     relates to the very concept of following orders.

 4             In relation to the power to give orders and have them executed,

 5     just as a preface, I would remind the Chamber of the following findings

 6     made by the Chamber, and all paragraph references are to the judgement.

 7     The EMD and its members did not reliably execute all of the orders issued

 8     by the ABiH, paragraph 371.  The EMD refused to surrender a captured tank

 9     in August 1995, para 372.  The EMD refused an ABiH order to establish a

10     list of all their members; they didn't know who was a member of EMD.

11     They refused an ABiH order to make statements that they had joined army

12     units voluntarily, para 373.  And that's crucial because without such a

13     statement they couldn't join the ABiH at all under its rules, you'll see

14     that in paragraph 113 of the judgement.  They refused to comply with the

15     decree of the ABiH Ministry of Defence to register with municipal defence

16     secretaries, para 373.  They set up the Kamenica camp where they chose to

17     rather than where they had been ordered to, para 374.  The commander of

18     the 35th Division could not even threaten the EMD, much less issue orders

19     to them, when they disobeyed orders he could only "invite" their leaders

20     to a meeting, where they would typically just say "God willing,

21     everything is going to be okay," para 375.

22             In combat, as we've seen repeatedly, the EMD themselves said and

23     the Chamber did not dispute:  "The ABiH cannot order us to engage in

24     actions against our will," para 381.  The EMD would routinely decline to

25     "obey ABiH orders to participate in battle," para 383.  And as a former

Page 43

 1     member of the EMD and a Prosecution witness accepted as a fair summary,

 2     the ABiH commander would "give orders but unlike other units, you did not

 3     accept those orders, you simply decided on your own whether you would

 4     accept an order or not," para 384, they accepted that.  Even if the EMD

 5     did agree to participate in combat, once in the field the EMD commanders

 6     would "make their own decisions," para 382.  In that situation, the

 7     35th Division commander would not even have influence, not even influence

 8     over the EMD much less be in a position to exercise effective control

 9     over them.  And as we've seen the EMD supreme decision-making body was

10     not the ABiH commander but a shura, para 385.  In fact, the EMD's

11     disobedience to orders would be comic if it were not tragic, considering.

12     For example, their plainly absurd excuse, as found by the Chamber, of not

13     going into battle on one occasion because "leaves were falling," which

14     seems to be some sort of joke, and conducting instead a fake attack, a

15     fake attack, the object of which was plainly to deceive the ABiH.  And

16     this not surprisingly caused "great distrust of the EMD in the ABiH,"

17     paragraphs 389 and 443.  They abandoned the positions of the front line

18     without prior notice and for unknown reasons, that's at para 392.

19             And indeed, such was the ABiH's distrust of the EMD that it could

20     not even trust the unit not to "slaughter its own non-Muslim soldiers."

21     You'll see that at paragraph 434 of the judgement.  The Chamber found

22     "out of concern for their safety, i.e., the safety of Croatian and Serb

23     ABiH soldiers, battalion command stopped sending its non-Muslim soldiers

24     to the front line.  So how on earth, one might ask, is it compatible with

25     the ABiH having effective control over the EMD that the only way they

Page 44

 1     could stop the EMD from slaughtering their own soldiers was by not

 2     transferring those soldiers to the front line where they were needed.

 3     Notwithstanding this, the majority concluded "the reticent approach,"

 4     that's their wording, very strange wording.

 5             "The reticent approach by the EMD in respect of some superior

 6     orders does not create a reasonable doubt as to the general ability of

 7     ABiH commanders to have their orders implemented," para 462.

 8             And I say "reticent" is a very strange word to use here, it means

 9     not saying very much, when what we're talking about is outright defiance

10     and disobedience to orders by the EMD.  But underlying this misuse of

11     language, which in itself is revealing, there lies a far more fundamental

12     conceptual mistake, and I'll end on that.  I see I have seven minutes

13     left according to my calculation.

14             It's plain that subordinate units which are under effective

15     control are not permitted simply to opt out of war from combat operations

16     as leaves are falling or for whatever other pretext, whatever their

17     reservations about the action.  That's simply inconsistent with military

18     reality.  And conceptually, an order which you either obey or choose not

19     to obey, depending on your preference or your whim, is not properly

20     understood an order at all.  So when the Prosecution says, well, they

21     obeyed some orders, it's not obeying an order if you go along with it

22     when it suits you.  Obeying an order means doing so whether it suits you

23     or not, whether it means you're rushing headlong into death.  There's not

24     to reason why; there's but to do or die.

25             So that's the acid test.  If you would obey the order, even if

Page 45

 1     you were utterly against it, and the EMD failed that acid test

 2     completely.  So with the EMD when they "complied with orders," to use the

 3     Chamber's preferred term, it cannot be said that that amounts to obeying

 4     orders; it's just that their will and that of the ABiH sometimes happened

 5     to coincide.  After all, they were in Bosnia to fight.  They weren't

 6     there to go on a picnic.  Of course they were going to fight.

 7             So the crux of the matter is that if they didn't wish to do so,

 8     they didn't follow orders.  That was indisputably their modus operandi.

 9     And so in reality they never obeyed orders, even if sometimes they went

10     along with ABiH tactical plans.

11             I come to the second fundamental error and I'll end on this.  For

12     the majority, "the EMD's participation and engagement in the armed

13     conflict against the VRS lies at the core of the determination of

14     Rasim Delic's command and effective control," that's paragraph 461.  Now,

15     why should the EMD's participation in the conflict against the VRS lie at

16     the core of its determination?  This case didn't concern war crimes

17     committed by the VRS -- sorry, by the EMD in the battle-field.  It

18     concerned the treatment of detainees.  So surely what lies at the core of

19     the determination of Delic's command and effective control is what

20     happened with prisoners, is what happened with gaining access to

21     prisoners, being able to interview prisoners, find out what's happening

22     to them.  So it's almost as if the majority chose the indicator which

23     they thought would give them the most mileage in finding effective

24     control and said that's the core, that's the most important thing.

25             In terms of access to prisoners, the indicators are unequivocally

Page 46

 1     against a finding of effective control.  In relation to the EMD's capture

 2     of VRS soldiers and their removal to Kamenica camp in July 1995, during

 3     Operation Proljece II, the Chamber found that "the EMD did not comply

 4     with obligations as set out by the 35th Division Commander concerning the

 5     handling of captives taken during combat."  Para 403.  In other words,

 6     the EMD captured and detained the very soldiers who were the subject of

 7     this indictment in clear breach of ABiH orders, and in September 1995

 8     again the Chamber found that the EMD detained captives "in defiance," I

 9     can't emphasise that strongly enough, "in defiance of the ABiH combat

10     order of Operation Farz."  That's paragraph 404 of the trial judgement

11     which stipulated POWs were to be handed over to the military police.  And

12     the Chamber further found that the military police had to "act in a

13     consensual manner because the two units were not in a hierarchical

14     relationship," paragraph 405.  I'm finishing now.

15             The EMD refused ABiH units access to their camp, in particular to

16     conduct interviews with the captives in the hands of the EMD or to

17     conduct criminal investigations, para 406.  The 3rd Corps security

18     service itself reported that "all those captured are under the control of

19     the EMD who do not allow any access to them."  That's crucial, they

20     denied access.  And see also paragraphs 276 and 281 of the judgement.

21     Yet, it's precisely that lack of access by the ABiH to the detainees

22     which extended even to turning away ABiH security officers, telling them

23     that "there were no detainees," para 410, which meant that the ABiH could

24     not effectively detect and investigate crimes committed by the EMD

25     against the captives.  And so nor could Delic.  And it's precisely that

Page 47

 1     lack of access which indicates the absence of effective control in that

 2     key area, and the majority seriously erred in law when it failed to draw

 3     the obvious conclusion resulting in a miscarriage of justice.

 4             Thank you, I'm obliged, unless there are any further questions

 5     from the Bench.

 6             JUDGE VAZ: [Interpretation]  Thank you very much, Mr. Jones.

 7     There are no questions from the Judges for the time being.  We are

 8     therefore going to have a 30-minute break now, and we shall resume at

 9     quarter to 12.00, so a little over 30 minutes.

10             The hearing stands adjourned.

11                           --- Recess taken at 11.12 p.m.

12                           --- On resuming at 11.48 p.m.

13             JUDGE VAZ: [Interpretation] The court is back in session.  I turn

14     to my fellow Judges to ask them whether they have any questions to put to

15     Mr. Jones.  If that's not the case, I'd like to thank you.

16             There's one question from Judge Guney -- you have the floor for

17     your question.

18             JUDGE GUNEY: [Interpretation] You submitted your arguments this

19     morning.  You developed the key question, i.e., whether Rasim Delic

20     exercised effective control over the MED [as interpreted] extensively.

21     This question ties closely into the -- one of our questions, namely, the

22     fact that Mr. Delic was incriminated under Article 7(3) of the Statute.

23     You did not address this second question very extensively.  I would like

24     to know to what extent Rasim Delic was advised of Article 7(3) and the

25     crimes committed by members of the EMD, the fact that he occupied a very

Page 48

 1     high position in the ABiH, to which the EMD was subordinated.  Therefore,

 2     what connections there were and, more specifically, what role he played

 3     and what authority or effective control he exercised.  Thank you.

 4             MR. JONES:  Well, insofar as the question related to effective

 5     control, I think I've covered the main principles.  The fact that Delic

 6     occupied a very high position in the ABiH, of course, is not at all a

 7     basis in itself to say that therefore there was effective control.  That

 8     was why I cited from the Halilovic appeals judgement, that it would be

 9     simplistic in the extreme to say he was top of the pyramid and therefore

10     he had effective control over the EMD.

11             You -- the -- your question seems to start from the assumption

12     that the EMD was subordinated to the ABiH, but that's precisely what we

13     challenge, if what you're talking about is effective control.  They were

14     not under the effective control of the ABiH.  That's our whole point.  So

15     I'm not sure -- I'm not sure what else really Your Honour would like me

16     to develop in that regard, whether it's a question about de jure, the EMD

17     being de jure subordinated, that's a perhaps sufficiently developed

18     already in our pleadings.  But if the key question is effective control,

19     I've addressed that.

20             THE INTERPRETER:  Microphone, Your Honour, please.

21             JUDGE GUNEY: [Microphone not activated].

22             JUDGE VAZ: [Interpretation] Please open your microphone,

23     Your Honour.

24             JUDGE GUNEY: [Interpretation] I'm sorry.  I want to know whether

25     Mr. Delic was advised of the fact that he was being incriminated under

Page 49

 1     Article 7(3) of the Statute for the crimes committed by the EMD, and what

 2     role he played in the event that he did have that information in light of

 3     the high position he held in the hierarchy of the ABiH.

 4             MR. JONES:  I'm afraid, I think as we all see from the

 5     transcript, there's a technical difficulty in seeing the question.  I

 6     heard the first part of the question was, has Mr. Delic been advised that

 7     he's been indicted under Article 7(3) of the Statute.  If that means

 8     advised by us, well, of course he knows he's charged under Article 7(3).

 9             As to what Delic did when informed of crimes in light of the, as

10     you say, high position he held, I'm not sure if that's addressed to what

11     our case was or what the Chamber's findings were, or what the

12     Prosecution's case was.  It's very difficult to answer a question like

13     that in the abstract.  And if the question relates to the third element

14     of command responsibility, taking necessary and reasonable measures, I

15     think we've addressed that at length in our appeals brief and I would

16     simply rely on that and refer the Chamber to what we say there.  It would

17     be impossible for me now to recite what action we say Delic took.  That

18     would be really re-litigating the whole trial.

19             Sorry.  If I have misunderstood, our position clearly is that

20     Delic didn't receive any information about the specific crimes.  That's

21     all set out in our appeals brief.

22             JUDGE GUNEY: [Interpretation] Thank you, Mr. Jones.

23             JUDGE VAZ: [Interpretation] We'd like to thank, Mr. Jones.

24             I shall now give the floor to the Prosecutor so that he can

25     submit his arguments in response to Mr. Delic's arguments.

Page 50

 1             You have 50 minutes.

 2             MR. SCHNEIDER:  Thank you, Your Honour.  Good morning,

 3     Your Honours.  Todd Schneider appearing for the Prosecution.  I will be

 4     addressing that General Delic did have effective control in my

 5     submissions today.  We, of course, are happy to answer questions relating

 6     to that General Delic knew or had reason to know of the crime of cruel

 7     treatment and that he failed to take the necessary reasonable measures in

 8     relation to this crime.

 9             Your Honours, the Trial Chamber reasonably found that

10     General Delic had effective control over the El Mujahed Detachment as of

11     July and August 1995, when members of this unit committed the crime of

12     cruel treatment by beating and terrorising a group of a dozen Bosnian

13     Serb prisoners for one month.  Because effective control -- because

14     effective control is an evidentiary issue, the Defence must show that no

15     reasonable Trial Chamber could have made this finding.  It has failed to

16     do so.

17             I would note that time-lines have been distributed that I will be

18     addressing later on in my submissions.  I appreciate the help in

19     distributing those.

20             But before turning to the time-lines, I'm going to start by

21     answering the three questions Your Honours have asked regarding effective

22     control for today.  The first, of course, was to elaborate on the

23     indicators of effective control from the Tribunal's jurisprudence that

24     are relevant to determining if a superior does have effective control.

25     Your Honours, the Trial Chamber correctly identified the relevant

Page 51

 1     indicators of effective control for this case at paragraphs 62, 367, and

 2     368 of the judgement.  Rather than go through all of these indicators

 3     today, I will be focusing more broadly on General Delic's proven

 4     ability -- proven material ability to prevent or punish crimes by members

 5     of the El Mujahed Detachment, which is of course the definition of

 6     effective control.  I will further discuss one particular indicator, the

 7     ability to issue orders that are followed.

 8             Of course I would be happy to discuss any other indicators that

 9     you might so wish.

10             The second question was whether any of the indicators of

11     effective control discussed in the judgement are incompatible with the

12     notion of effective control.  The answer is no, none of the indicators

13     discussed are incompatible, for two reasons.  First, there are no

14     essential, no indispensable indicators of effective control; rather, it

15     is a case-by-case analysis based on the totality of the evidence and that

16     comes from the Strugar appeal judgement, paragraph 254.

17             Second, even particular instances of non-compliance do not

18     necessarily show a lack of control if the other evidence demonstrates

19     that the commander can exercise control when he or she wants to do so.

20     The standard is effective control, not absolute compliance.  And of

21     course the example of this is again the Strugar appeals judgement.

22             This case was cited repeatedly earlier by the Defence.  However,

23     the Defence has not noted the other important aspect of this judgement.

24     In Strugar the Appeals Chamber upheld a finding that General Strugar had

25     effective control over his troops when they shelled the Old Town of

Page 52

 1     Dubrovnik in December 1991, even though these exact same troops had

 2     failed to comply with prior orders not to shell the same location.

 3     Strugar appeals judgement 257, 305.  These same troops also committed

 4     various crimes from October through December 1991, Strugar appeals

 5     judgement 257.  The Appeals Chamber noted that General Strugar chose not

 6     to act regarding these acts of non-compliance.  "Where it was important

 7     to him, his orders were actually followed."  Strugar appeals judgement

 8     paragraph 259.

 9             The same is true here, General Delic could act where he wanted.

10             The importance of Strugar, the holding of Strugar also is in

11     relation to the Defence's claim that so-called lack of access to

12     prisoners in this case must demonstrate lack of control.  I will discuss

13     more fully that there was access to these prisoners early on by other

14     parts of the Bosnian army.  But what's important is that we see here --

15     or we see in Strugar that prior acts of non-compliance for the crime in

16     question - don't shell the Old Town, they shell the Old Town, then they

17     again shell the Old Town - did not preclude a finding of effective

18     control because General Strugar chose not to act.  Therefore, any

19     non-compliance in prisoner access in this case, does not necessarily

20     preclude a finding of effective control when the other evidence

21     demonstrates the Trial Chamber was reasonable in its conclusion that

22     General Delic did exercise control given the many other times he and

23     other Bosnian commanders had taken steps.

24             The final question was whether the Trial Chamber erred in

25     concluding and finding that General Delic had effective control over the

Page 53

 1     El Mujahed Detachment as of July and August 1995.  The Trial Chamber

 2     reasonably found that General Delic did have effective control and the

 3     rest of my submissions will elaborate on this answer.

 4             In doing so, I'm going to focus on the same two pillars that the

 5     Trial Chamber focused on.  First, that the El Mujahed Detachment was

 6     subordinated to its superior, General Rasim Delic, for two years by the

 7     time the crime of cruel treatment occurred in July 1995; second,

 8     General Delic had the ability to prevent or punish crimes by members of

 9     this unit given the many other times he and other Bosnian army commanders

10     had taken steps to do just that; furthermore, the detachment did comply

11     with orders, particularly those relating to combat.  Despite some

12     instances of non-compliance, General Delic still exercised effective

13     control.

14             Turning to the first point, subordination, we of course start

15     with General Delic himself, who, as we know, was the commander of the

16     Main Staff of the Bosnian army, and thereby the most senior officer in

17     the entire army.  You see that in paragraphs 99 to 101 of the judgement.

18     When he took over in June 1993, he worked to establish command and

19     control over the entire army, and as the Trial Chamber found, command and

20     control of the army did improve significantly from 1993 to 1995,

21     paragraph 460 of the judgement.  The Defence today has asserted there's

22     no evidence to support this finding.  We, in our response brief,

23     paragraphs 98 through 109, have set forth the many findings and the

24     detailed evidence that supported this particular finding of improvement

25     of effective control -- of command and control over the army.

Page 54

 1             At this point I would ask you to turn to the first time-line I've

 2     distributed entitled "The El Mujahed's Detachment's Subordination to

 3     General Rasim Delic."  This time-line is based on the findings of the

 4     judgement.  I will walk through with you each event listed on the

 5     time-line, and for ease of reference we've divided those events involving

 6     General Delic below the time-line with the rest above.

 7             And of course what this time-line shows in total is that the

 8     El Mujahed Detachment was subordinated to General Delic for two years --

 9     over two years, starting at the beginning, the beginning of the unit.  We

10     see on August 13th, 1993, General Delic authorising the creation of the

11     unit and subordinating them to the 3rd Corps.  Prior to this time, there

12     had been requests within the Bosnian army to bring foreign fighters in

13     Central Bosnia into the army.  The foreign fighters themselves had

14     specifically made a request that they join the army itself.  The

15     Main Staff proposed General Delic that this occur; he agreed.  He

16     authorised negotiations which led to the creation of the unit.  All of

17     this is discussed at paragraphs 172 to 176 of the judgement.  What's

18     important about the formation is that the Bosnian army commanders wanted

19     to incorporate these foreign fighters into the army to achieve command

20     over them and to prevent their unlawful conduct, while the fighters

21     themselves wanted to join to ensure their fighting would be legal,

22     paragraphs 172 to 174.

23             Once a unit is created we see it resubordinated several times

24     over the next two years.  It is true the El Mujahed Detachment did not

25     comply with all resubordination orders, that's at paragraph 363 of the

Page 55

 1     judgement.  However, we have noted on this time-line the many times they

 2     were successfully resubordinated; in September 1993, autumn 1994, and

 3     repeatedly throughout 1995, in March, in June, and in September.  On top

 4     of these many resubordinations, we see the Bosnian army transferring

 5     soldiers from other parts of the army into the El Mujahed Detachment.  We

 6     see that in October 1994, in August 1995.  As we note in our response

 7     brief, paragraph 70, they transferred approximately 86 soldiers into the

 8     unit, a significant number.  They also resubordinated the 5th Manoeuvre

 9     Battalion to the El Mujahed Detachment, as noted on September 11th, 1995.

10     As the Trial Chamber noted, this transfer of soldiers into the unit, this

11     resubordination of units to the detachment, shows that the unit was

12     within the hierarchy of the Bosnian army.  The commanders would not have

13     been abandoning control of so many soldiers by sending them apart to a

14     separate entity, paragraph 467.

15             Finally, we see the events relating to the disbandment of the

16     unit at the end of the time-line.  On December 12th, 1995, General Delic

17     ordering that the unit be disbanded.  A few days later, the 3rd Corps

18     issuing its order on the same topic.  The unit is disbanded, and on

19     January 1st, 1996, we see the Bosnian army hosting a farewell for this

20     unit, attended by General Delic himself.

21             Apart from all these many events in the time-line, we have the

22     findings throughout the judgement that the Bosnian army commanders issued

23     dozens of orders to this unit.  Many of them are collected at

24     footnote 1183 of the judgement.  These orders relate to combat,

25     redeployment, reporting, and other subjects.  We are not suggesting that

Page 56

 1     they complied with all these orders; rather, we are raising in the

 2     context of subordination that the high volume of orders issued to this

 3     unit and the fact that they were continually issued throughout the

 4     two-year time-span of the unit's existence, in particular in 1995, shows

 5     again that the El Mujahed Detachment was within the hierarchy of the

 6     Bosnian army.  It would have been illogical for Bosnian army commanders

 7     to issue so many orders to a unit that wasn't part of their structure.

 8             All that I've discussed shows that the Trial Chamber was

 9     reasonable in finding that the El Mujahed Detachment was subordinated to

10     General Delic for two years, and particularly July 1995.

11             JUDGE VAZ: [No interpretation].

12             JUDGE MERON: [No interpretation].

13             [In English] You will agree with me that the question of

14     treatment of prisoners is very central to this appeal.  And I would be

15     very grateful if you would in the course of your argument explain to the

16     Bench how does EMD's lack of co-operation with regard to the handling of

17     prisoners impact on the convictions entered.  Thank you.

18             MR. SCHNEIDER:  Certainly, Your Honours.  I would turn to that

19     right now.  I would start, though, by saying, as I hope to develop

20     further, all the evidence demonstrated the reasonableness of the

21     Trial Chamber's finding regarding many areas of control.

22             With regard to the issue of prisoners, it is true that the

23     El Mujahed Detachment did deny access sometimes to prisoners it held into

24     its camp, but at the same time they handed over some prisoners

25     immediately, paragraph 403 of the judgement.  They also handed over other

Page 57

 1     prisoners eventually, albeit in an untimely manner, including the

 2     particular victim prisoners from July 1995, and that's paragraph 283.

 3             Moreover, they did provide access to the prisoners subjected to

 4     cruel treatment from July.  This occurred almost as soon as they were

 5     captured and it resulted in detailed interviews gathering intelligence

 6     from the prisoners, which was the focus of the access.  And this may be

 7     found in paragraphs 274 to 275, 282, and 549.

 8             Therefore, when the Defence has asserted today that it was

 9     impossible to gain access to the detainees, at page 32, that's not

10     correct based on the findings of the judgement.  Apart from this specific

11     prisoner issue, I would note that Bosnian army soldiers and commanders

12     entered the camps at other times, paragraphs 411 and 431.  Furthermore,

13     there were lots of meetings between members of the El Mujahed Detachment

14     and their superiors in the Bosnian army.  Many of these are noted between

15     paragraphs 427 and 433 of the judgement.  This shows the El Mujahed

16     Detachment was available regarding these prisoners.  They were not hidden

17     away with no way to get in touch with them and no idea where they might

18     be.  It would have been easy to get in touch with the prison -- with the

19     El Mujahed Detachment further regarding these prisoners rather than just

20     seek to interview them for intelligent purposes.

21             And I would just note at this point that the fact that there were

22     many meetings between the El Mujahed Detachment and their superiors in

23     the Bosnian army refutes the Defence's assertion or reliance on one

24     witness who says it was very difficult to reach the detachment.  One

25     particular piece of evidence does not undermine the reasonableness of the

Page 58

 1     Trial Chamber's findings that there was repeated contact, communication,

 2     and meetings between the El Mujahed Detachment and their superiors.

 3             Returning for a moment to the question of subordination in

 4     general, not only was it reasonable for the Trial Chamber to find that

 5     there was subordination.  All of the evidence I've talked about shows the

 6     Defence has failed to show that the Trial Chamber was unreasonable in

 7     rejecting its theories of co-operation and outside control.

 8             First, with respect to co-operation, this is not a case about

 9     co-operation or mere influence.  As the Trial Chamber noted and as the

10     Defence has also cited earlier today, co-operation involves separate,

11     independent entities rather than a single military structure.

12     Co-operation involves mutual agreement rather than the issuing of orders.

13     And this is all from paragraphs 345, 349, and 350 of the judgement.  The

14     Defence asked today:  Is there any finding in the judgement inconsistent

15     with co-operation?  Of course there is.  If you're co-operating with

16     somebody, if you're co-ordinating with another unit, you don't create the

17     unit, you don't disband the unit, you don't issue dozens of orders to the

18     unit, you don't transfer soldiers into the unit, you don't assign them a

19     headquarters, you don't promote members of the unit, you don't give

20     members awards, you don't issue them passports, you don't grant them

21     permission to travel abroad, as General Delic personally did,

22     paragraph 422 of the judgement; you don't repeatedly investigate the

23     unit, as I'll discuss more in a moment.  These are the hallmarks of a

24     subordinated unit.

25             As for the Defence's theory of outside control, yes, the

Page 59

 1     El Mujahed Detachment did receive financial and logistical support from

 2     local authorities, paragraph 441.  They received financial support and

 3     were in communication with private foreign institutions, paragraph 442.

 4     This support and communication, though, was not evidence of control by

 5     these outsiders, nor did any of this interfere with the control exercised

 6     by the Bosnian army over its subordinate unit, the El Mujahed Detachment.

 7     The Defence's focus on theoretical control by others ignores the actual

 8     control exercised by General Delic and the Bosnian army commanders.

 9             At this point I would turn from the issue of subordination to

10     General Delic's material ability to prevent or punish crimes, and in

11     doing so I would refer to the second time-line that we've distributed.

12     Again, this time-line is based on the findings of the judgement.  I'll

13     walk you through each of the events listed on the chart, and we have

14     divided this chart so that measures relating to prevention are below the

15     time-line and those relating to punishment are above.

16             Before actually going into the particulars of this chart, though,

17     I do want to correct an assertion by the Defence that the question is the

18     ability to prevent or punish war crimes.  No.  That limitation is not in

19     the Tribunal's jurisprudence; rather, it is preventing or punishing

20     crimes by one's subordinates.  And here we see ample examples of this.

21             First, with regard to prevention, we see in December 1993,

22     General Delic himself ordering a "clamp-down" on the El Mujahed

23     Detachment and another unit.  In spring 1995 we see General Delic again

24     getting involved to personally authorise Operation Vranduk, designed to

25     curb illegal activities by members of the unit.  Around the same time,

Page 60

 1     April 12th, 1995, General Delic, on a report of "unacceptable activities"

 2     by members of the El Mujahed Detachment, writes on a report to the

 3     security administration "proposal to finally resolve this."

 4             Moving on, in July 1995, we see after an investigation by

 5     military security into threats made by members of the unit against a shop

 6     owner, military security announcing they will take measures to prevent

 7     such incidents.  And finally, in December 1995, an admission by a member

 8     of the El Mujahed Detachment that:

 9             "The army today prevented us from attacking Zepce for revenge."

10             At the same time, throughout these two years, we see steps

11     related to punishment.  We see two members of the El Mujahed Detachment

12     arrested in February 1994 for the murder of Paul Goodall, a British

13     humanitarian worker.  Proceedings are initiated.  However, they later

14     escape.  Contrary to any suggestion by the Defence, this was not merely a

15     civilian exercise, but rather a joint military effort to arrest these

16     men.  Throughout 1995, again of course critical, in this case we see

17     military security investigating members of the El Mujahed Detachment

18     again and again; in January for abduction and mistreatment, on May 23rd

19     for torture, on May 26th for desecrating a cemetery, in July for threats

20     against a Bosnian army soldier.  The Defence has raised these threats

21     many times this morning without noting the resulting investigation into

22     this particular incident.  Finally, in October 1995, we see criminal

23     proceedings again initiated against a member of the El Mujahed

24     Detachment, this time for theft.

25             All of these examples show General Delic's material ability to

Page 61

 1     prevent or punish crimes by members of the El Mujahed Detachment.  The

 2     Defence is incorrect when it suggests you only focus on what

 3     General Delic did as opposed to what his subordinates did as well when

 4     examining -- when reviewing the reasonableness of the Trial Chamber's

 5     finding that General Delic had the ability to prevent and punish crimes,

 6     either by acting himself or through his subordinates, which is typical of

 7     someone in his high power.

 8             An incident that's not mentioned on this time-line but that was

 9     highlighted by Defence this morning relates to the 35th Division asking

10     for help from local authorities in relation to misconduct by members of

11     the unit.  At paragraph 441 of the judgement.  The significance of this

12     request is that it again shows the fact that Bosnian army commanders,

13     General Delic, if necessary through his subordinates, could act either

14     alone as evidenced by the many times on this time-line military security

15     itself had taken steps, or with the help of civilian authorities, in

16     paragraph 441 and again is referenced in arresting the suspected murders

17     for Paul Goodall.  There are multiple options available for preventing or

18     punishing crimes by this unit.

19             Furthermore, all the steps listed on this time-line,

20     investigations, arrests, and others, show that contrary to the

21     Defence's --

22             JUDGE VAZ: [Interpretation] I was going to ask you to slow down,

23     please, because it is difficult for the interpreters.  Thank you.

24             MR. SCHNEIDER:  I apologise.

25             All of the events discussed in this time-line, the

Page 62

 1     investigations, the arrests, the criminal proceedings, show that the

 2     Defence was not correct when it asserted even this morning that use of

 3     force was the only option.  There were many other proven steps available

 4     to General Delic, in respect specifically to July 1995 and in general in

 5     demonstrating his ability to prevent and punish crimes.  So these many

 6     examples show the Trial Chamber's finding was reasonable that

 7     General Delic could prevent or punish crimes.

 8             It further shows that the Defence was wrong when it claimed it

 9     was impossible for General Delic and others to act.  We know that it was

10     a choice not to act rather than any impossibility, given the many other

11     times highlighted on this time-line that General Delic and other Bosnian

12     army commanders had taken steps to prevent or punish crimes by members of

13     the El Mujahed Detachment.  All this further shows that the following is

14     not true, that the El Mujahed Detachment had a propensity to violence if

15     it was confronted, that confronting the El Mujahed Detachment would start

16     a war on a third front, this is noted in Judge Moloto's dissenting

17     opinion, paragraphs 8 and 9, raised again by the Defence questioning the

18     Trial Chamber's finding in paragraph 468 that these broad claims of

19     violence were not credible.  The Trial Chamber's rejection of these broad

20     claims of a third front or violence was reasonable based on the findings

21     in evidence before it, based on the many times highlighted on this

22     time-line where General Delic and other Bosnian army commanders had taken

23     steps to prevent or punish crimes without any violent third front

24     reaction.

25             The question arises:  If the Bosnian army could take steps in

Page 63

 1     general, why didn't they in July and August 1995 regarding the specific

 2     crime of cruel treatment?  The answer is:  Military expediency.  They

 3     prioritised the El Mujahed Detachment's compliance with combat orders

 4     over its misconduct in other areas.  First in this regard is Exhibit 583,

 5     an August 30th military security report.  The judgement quotes this

 6     partially in footnote 1159.  We've quoted it more fully in our response

 7     brief at paragraph 39.  In the context of talking about repeated

 8     misconduct by members of the El Mujahed Detachment, military security

 9     reports:

10             "No energetic measures have been taken so that the relations with

11     this unit would not be spoiled and that combat operations would be

12     carried out as successfully as possible."

13             The timing of this is key.  It is right after the crime of cruel

14     treatment in this case has ended, in August 1995, and right before the

15     Bosnian army will launch Operation Farz and Uragan, in September 1995,

16     during which the El Mujahed Detachment will play a key role in helping

17     them achieve one of the top military objectives of the Bosnian army.

18             Now, it's true that Exhibit 583 also contains broad claim that

19     the El Mujahed Detachment "has operated independently and has not

20     respected the control and command system."  The Defence has cited this in

21     its reply brief at paragraph 19.  We had already noted the same language

22     in footnote 114 of our response brief.  Importantly, the Trial Chamber

23     viewed this broad claim skeptically and did so reasonably given all the

24     specific evidence of control and the ability to prevent and punish

25     already discussed, as well as the fact within the same report, on the

Page 64

 1     same page, military security says the El Mujahed Detachment "has

 2     completed all the assigned military tasks."  We don't control them, but

 3     they do everything we ask them to do.  It just doesn't make sense.

 4             Similar in this regard is Exhibit 938, an exhibit the Defence has

 5     actually highlighted today earlier in its submissions.  This is a

 6     July 5th, 1995, military security report.  It relates to the

 7     investigation into the El Mujahed Detachment's threats against fellow

 8     Bosnian army soldiers that was discussed extensively earlier by the

 9     Defence and that I noted already on our time-line.  This particular

10     exhibit is noted in 1162 of the judgement.  And the report

11     demonstrates -- report shows that after conducting its investigation and

12     determining that these threats were made, military security met with

13     threatened soldiers and "tried to console them, telling them that they

14     were prepared to do everything requested by members of the

15     above-mentioned unit," clearly the El Mujahed Detachment, "in order to

16     execute planned assignments, i.e., occupy Paljenik and Vozuca."

17             As I'd mentioned with regard to the prior exhibit, Vozuca was

18     this key, top military objective of the Bosnian army, paragraph 86 of the

19     judgement, that was successfully captured in September 1995, and

20     Paljenik, as mentioned in the report, was the "gateway to enter the

21     Vozuca pocket," paragraph 398.

22             There is nothing in these two exhibits about it being impossible

23     to crack down on the El Mujahed Detachment.  Rather, what the reports --

24     what military security is saying is:  Hold off on doing anything because

25     we need them to succeed in combat.

Page 65

 1             And how did the commanders in the Bosnian army know that they

 2     would achieve this military success with the El Mujahed Detachment?

 3     Because, quite simply, they knew that the El Mujahed Detachment did

 4     follow orders, particularly those relating to combat.  As the

 5     Trial Chamber found, the Bosnian army controlled the El Mujahed

 6     Detachment's participation in and engagement in combat, paragraph 461.

 7     Importantly, the El Mujahed Detachment never fought without authorisation

 8     from its superiors in the Bosnian army, paragraphs 386 and 465.

 9             We see especially in the combat operations surrounding the

10     July 1995 crime of cruel treatment, the El Mujahed Detachment repeatedly

11     following orders relating to combat.  In May 1995, in Operation Proljece,

12     where they spear head an attack as ordered.  In July 1995, in

13     Operation Proljece II, where they are the primary leader of the attack

14     and they follow various orders to attack.  And finally, in what I've

15     mentioned before, Operations Farz and Uragan, in September 1995, where

16     they again followed various orders to attack.  And all of this is

17     referenced in the trial judgement paragraphs 394 to 402.

18             Now, it is true, as noted in the judgement and highlighted by the

19     Defence, that there was some non-compliance with combat orders, but we

20     need to understand the process by which this happened.  First, the

21     El Mujahed Detachment's questioning orders from its superiors was part of

22     the general process within the Bosnian army of planning operations in

23     general, paragraphs 377 to 379.  Specifically, the Trial Chamber found

24     that this dialectical relationship applied to the El Mujahed Detachment

25     and its superiors in the Bosnian army, paragraph 465.  There were a few

Page 66

 1     times when the El Mujahed Detachment refused to participate in attacks at

 2     the time they had been ordered.  This was not:  We won't go and fight, we

 3     sit on our hands for no reason whatsoever.  Rather, not carrying out the

 4     attack at this time was a reasoned decision by the detachment that they

 5     shared with their superiors.  Either the unit itself or battle-field

 6     conditions were not ready for the attacks at the time they were ordered,

 7     paragraphs 388 to 390 of the judgement.  As the Trial Chamber found,

 8     their superiors in the Bosnian army agreed with the El Mujahed

 9     Detachment's assessment, because two of the three attacks were carried

10     out at a later time and the third was cancelled.  388 to 390 of the

11     judgement.

12             Importantly, no steps or sanctions were taken against the

13     El Mujahed Detachment for this non-compliance, paragraph 462 of the

14     judgement.  And just to respond to a point raised by the Defence earlier,

15     when the detachment said that battle-field conditions were not ready, for

16     example, because the leaves had fallen, this was not a "joke," but

17     rather, this was an important consideration that there was no foliage, no

18     trees, leaves, available to hide the attackers and they would have been

19     open to the enemy combatants.  And in this respect I would refer you to

20     transcript pages 66 to 67 of Witness Awad from the Sarajevo hearing.

21             But what is important about these delays in fighting was that it

22     ended at the latest by March 1995.  The El Mujahed Detachment fought

23     pursuant to orders throughout May to September 1995, again right around

24     the time of cruel treatment in July 1995.  Moreover, this non-compliance

25     is very different from the ability to prevent or punish crimes.  In fact,

Page 67

 1     many of the examples highlighted by the Defence of alleged non-compliance

 2     don't show any interference with the superior's ability to prevent or

 3     punish crimes.  Yes, they set up camp 13 kilometres away from Zavidovici

 4     instead of 12.  Yes, they refused to comply with many paperwork

 5     requirements that were highlighted earlier today at paragraph 373 of the

 6     judgement.  These don't conflict with the actual examples of prevention

 7     and punishment that I've already discussed today.

 8             Even the question of reporting.  First, the Trial Chamber

 9     reasonably found that the El Mujahed Detachment's oral reporting partly

10     compensated for its failure to submit written reports as ordered,

11     paragraph 463 of the judgement.  And perhaps going to a question raised

12     by Judge Meron earlier, when it came to the fact that while subordinated

13     to the 35th Division the El Mujahed Detachment did report directly above

14     the 35th Division to the 3rd Corps is entirely consistent that at the

15     same time, again while the detachment is under the 35th Division, the

16     3rd Corps is directly ordering the El Mujahed Detachment itself.  And

17     that's at paragraph 431 of the judgement.  So it would be unsurprising

18     that the detachment was reporting directly in September 1995 to a

19     commander that was at the same time giving its orders.  But frankly,

20     what's important about this question of reporting at what level is that

21     in the end General Delic was above 35th Division and the 3rd Corps, and

22     any question of who was reported to below him did not affect the flow of

23     information up and the flow of orders down.

24             JUDGE VAZ: [Interpretation] Yes, Judge Meron has a question.

25             JUDGE MERON: [Interpretation] Thank you, Your Honour.

Page 68

 1             [In English] Now supposing that there was broad compliance with

 2     orders pertaining to combat, could that not be explained on the basis of

 3     tactical co-operation rather than on the basis of a command structure?

 4     And I wish you would be as specific with regard to compliance with orders

 5     not plaining to combat but with respect to treatment of people,

 6     particularly POWs.  Thank you.

 7             MR. SCHNEIDER:  In -- under the facts of this case, the

 8     compliance with orders was yet further evidence of the subordination of

 9     the El Mujahed Detachment to its superiors rather than examples of

10     co-operation.  Given, as I'd mentioned before, the many other steps

11     related to this unit, creating it, disbanding it, promoting members,

12     giving them awards, investigating them, if you're just going to

13     co-operate with another unit, you're not going to bother going through

14     all those steps.

15             As far as its compliance with orders relating to treatment of

16     prisoners of war, in the first respect -- as again I'd mentioned there

17     was direct access to those prisoners quickly, of course if there had been

18     no violations of how to treat the prisoners of war, there would be no

19     case today.  Apart from that, we do see the El Mujahed Detachment

20     treating other prisoners properly, correctly, as they are required to do

21     under the laws of war in handing them over immediately at paragraph 403

22     of the judgement.

23             If I could return briefly to the topic of reporting.  Any

24     questions about reporting problems in the end, again, doesn't interfere

25     with an ability to prevent or punish crimes when there are the many

Page 69

 1     examples of this occurring at other times and these particular reporting

 2     problems aren't interfering with knowledge of further crimes by members

 3     of the El Mujahed Detachment.  In particular, in respect to the July

 4     prisoners subjected to the cruel treatment, other parts of the Bosnian

 5     army knew immediately of the situation despite any "reporting problems,"

 6     and that's paragraphs 274 to 282.

 7             What the Defence seeks to do is to use a magnifying glass to

 8     highlight a problem here, look only at a problem there.  The proper --

 9     the Trial Chamber properly examined the entire picture, the totality of

10     the circumstances, and in particular looked at all the events from 1993

11     to 1995 rather than just isolated incidents, paragraph 370.

12             The Defence has mentioned today, many times, the appeals

13     judgement in Hadzihasanovic.  Your Honours, the El Mujahed Detachment in

14     the Hadzihasanovic case from October 1993 was a very different unit than

15     the El Mujahed Detachment of this case in July 1995.  And this, of

16     course, relates to a question Judge Liu had raised earlier.  This key

17     two-year time difference is reflected in the many examples of

18     subordination and control I've already discussed today.  In this case as

19     well, there actually was a finding of a lack of control back in 1993

20     relating to a predecessor of this unit.  In this regard I would also

21     refer to or note that the Defence cited, from paragraph 381 of the

22     judgement, a report from the unit that they are not part -- considering

23     themselves part of the Bosnian army.  This again is from November 1993,

24     almost two years away from the crime of cruel treatment in July 1995.

25             There are many other significant differences between the

Page 70

 1     El Mujahed Detachment of Hadzihasanovic and this case.  First, there were

 2     almost no orders issued to the unit in Hadzihasanovic.  Only three are

 3     discussed at paragraphs 199 to 200 of the judgement [sic].  Here, of

 4     course, dozens of orders were issued to the El Mujahed Detachment.  In

 5     Hadzihasanovic it was noted that communication and contact with the

 6     El Mujahed Detachment was difficult and that there were almost no

 7     investigations of members of this unit, paragraphs 211, 218, and 219.

 8     Here, communication was easy, given the many meetings between the

 9     El Mujahed Detachment and its superiors, given the access provided to the

10     camp and prisoners at times.  Furthermore, given the many investigations,

11     criminal proceedings, and other steps taken in response to crimes or

12     misconduct by members of the unit that are detailed in this case.

13             Finally, in Hadzihasanovic, Bosnian army commanders repeatedly

14     took steps, issuing orders, issuing threats, to try to free the prisoners

15     that were being held.  Here all they did was take steps to interview the

16     prisoners and gather detailed intelligence.

17             In sum, Your Honours, the El Mujahed Detachment was subordinate

18     to its superior General Rasim Delic for two years by July 1995.

19     Furthermore, General Delic had the proven material ability to prevent or

20     punish crimes by members of this unit, given the many times such steps

21     had been taken.

22             It was therefore reasonable for the Trial Chamber to find that

23     General Delic did have effective control.  The Defence has failed to show

24     otherwise.  It has instead focused on broad claims rather than noting the

25     specific findings in evidence.  We therefore respectfully request that

Page 71

 1     Defence's challenges in particular to effective control in ground 1 be

 2     dismissed, and that would conclude my submissions on that point.  Thank

 3     you.  Unless there are any questions either on this point or on the other

 4     two issues, grounds, in which case we would ask that you dismiss those

 5     grounds of appeal as well.

 6             JUDGE VAZ: [Interpretation] Thank you, Mr. Schneider.

 7             Are there any questions from the Judges?  Yes, Judge Liu has a

 8     question for you.

 9             JUDGE LIU:  Thank you very much for providing us with the

10     time-line and your comments on the differences between the two cases,

11     that is, the Hadzihasanovic case and this case.  I just want to know what

12     is your position on the reply given by the Defence counsel to my question

13     this morning in which Mr. Jones, if I'm not mistaken, alleges that the

14     Trial Chamber committed an error in not substantiating or giving any

15     reasons to its finding that the command and control were improved

16     significantly from 1993 to 1995.  Thank you.

17             MR. SCHNEIDER:  If I might have a moment to consult before I

18     answer, Your Honours.

19                           [Prosecution counsel confer]

20             MR. SCHNEIDER:  Thank you for your patience.  Your Honour, in

21     paragraphs 98 to 109 of our response brief we highlight many of the

22     findings showing improvement in the command/control generally in the

23     Bosnian army.  I would highlight in particular the fact that in

24     paragraphs 287 -- I'm sorry, that's my footnote, in paragraph 460 it is

25     noted that general functioning regarding planning and preparation of

Page 72

 1     combat orders had improved, in part because of General Delic's efforts to

 2     improve the system of command and control.  And again in the same

 3     paragraph, that loyalty difficulties encountered when General Delic

 4     originally took over had been addressed.

 5             Furthermore, importantly, as noted in paragraphs 136 and 137,

 6     General Delic authorised several specific operations "to remove obstacles

 7     to the functioning of the Bosnian army system of command and control."

 8             All of these steps and many other evidence demonstrated the

 9     reasonableness of the Trial Chamber's finding that the command and

10     control over the army generally had improved.

11             JUDGE LIU:  So you mean that the Trial Chamber did not commit an

12     error because all the reasonings are scattered everywhere in the

13     judgement and taking into the overall, total evidence all-together?

14             MR. SCHNEIDER:  That is a much answer, if I may say, and to the

15     point, yes.

16             JUDGE LIU:  Thank you.

17             JUDGE VAZ: [Interpretation] Thank you.

18             Judge Meron.

19             JUDGE MERON:  Mr. Schneider, if I understood you correctly, you

20     said a few minutes ago that in contrast to Hadzihasanovic, Delic and

21     others in this case did nothing with regard to getting really involved in

22     this question of prisoners.  Now, there was -- paragraph 403 of the

23     judgement indicates that there was a standing order of the 35th Division

24     commander concerning handling of captives and that all -- and according

25     to this order, prisoners were to be brought in to the nearest security

Page 73

 1     unit and then to the 35th Division.

 2             Now -- so there were orders to move the prisoners to a central

 3     command where presumably they would be under better protection.  Now, I

 4     understand that this order was not executed.  What can we learn from

 5     that?

 6             MR. SCHNEIDER:  I would focus on two points in answering that

 7     question.  First, there was some compliance with this order, as noted in

 8     the same paragraph.  They did immediately hand over some prisoners.

 9     Furthermore, such general orders relating broadly would not be sufficient

10     in the context of necessary or reasonable measures to show that this

11     would be sufficient in response to the actual information, alarming

12     information, that was passed throughout the Bosnian army and up to

13     General Delic.

14             JUDGE MERON:  Thank you.  I suppose that the Defence would later

15     point out if there was a more specific order.

16             JUDGE VAZ: [Interpretation] Judge Pocar has a question for you.

17             JUDGE POCAR:  I tried to understand exactly how the situation was

18     in fact, because many of arguments went to the de jure subordination, and

19     on that we can perhaps easily agree.  But what is relevant is the

20     de facto subordination that amounts to really effective control, which of

21     course has to be proven beyond reasonable doubt.  One cannot rely on the

22     de jure subordination which forces an indicator maybe of the effective

23     control is one of the indicators but cannot be the basic indicator alone.

24     And I'm referring essentially to the -- your answer to the question put

25     by Judge Liu, the impression one gets that efforts were made by Delic to

Page 74

 1     make effective a control which originally was not and originally was not

 2     as it's proven by the Hadzihasanovic case.  There was no real control of

 3     the ABiH army over the EMD, but efforts were made to make the control

 4     effective.  Where are we exactly?  I mean, did these efforts make the

 5     control fully effective, is that your position, that the control was made

 6     fully effective as a consequence of these acts so that the only

 7     reasonable conclusion that the Trial Chamber could reach was that indeed

 8     the efforts succeeded; or is there still a margin of doubt?  Because you

 9     said some prisoners were handed over, some were not.  Was it fully --

10     fully effective, the control, in your view?  Because we have to remove

11     any margin of doubt.  You are aware of that.

12             MR. SCHNEIDER:  If I may consult for a moment, Your Honour.

13                           [Prosecution counsel confer]

14             MR. SCHNEIDER:  Your Honour, the finding of effective control is

15     a factual finding in this case, as in many other cases, and therefore the

16     standard to review is whether the Trial Chamber was reasonable.  The

17     evidence and findings demonstrate the reasonableness.  Turning first to

18     the de jure subordination, that of course can be and in this case

19     happened -- was a prima facie indicator of effective control, as is

20     consistent with the jurisprudence of the Tribunal.  Furthermore, the many

21     steps taken following the initial creation, the resubordination from here

22     to here which they complied with, transfer of orders, the fact that a

23     unit disbanded when ordered, these not only relate to subordination

24     narrowly, but to generally effective control over the entire unit and of

25     course compliance with orders.

Page 75

 1             As far as, again, the Hadzihasanovic case, the findings in this

 2     case relate to entire two-year period, much of which, of course, would

 3     not be in the Hadzihasanovic case, which focused on October 1993.  And

 4     during 1994 and 1995 we see repeated compliance with combat orders,

 5     repeated investigations of the members of the unit, them being subjected

 6     to criminal proceedings.  Therefore, the findings generally that command

 7     and control improve significantly over the entire Bosnian army as well as

 8     the fact that by July 1995 General Delic had effective control over the

 9     El Mujahed Detachment was reasonable based on the evidence before the

10     Trial Chamber.

11             And if I may add one more point to that.  Of course it's not

12     absolute compliance, full control; it's effective control.  And the

13     Strugar appeals judgement demonstrates that certain acts of

14     non-compliance, even relating to the particular issue crime in question,

15     did not show a lack of effective control; rather, it must be - and the

16     Trial Chamber did here - an analysis of all the evidence of whether the

17     commander was choosing not to act which was the case there and is the

18     case here.

19             JUDGE VAZ: [Interpretation] Thank you, Mr. Schneider.

20             The Defence may now proceed with their reply.  You have

21     20 minutes to do so.

22             MR. JONES:  Thank you, Your Honour.

23             In terms of the schedule, in fact I was going to suggest that if

24     we're not continuing after the lunch break that we might have a comfort

25     break, as it's sometimes colloquially referred, just for five minutes,

Page 76

 1     otherwise I can continue.  But ...

 2                           [Appeals Chamber confers]

 3             MR. JONES:  If it's a difficulty, I can press on.

 4             JUDGE VAZ: [Interpretation] Please continue.  Thank you.

 5             MR. JONES:  I'm obliged.  Thank you.

 6             Well, if I could start firstly in response to a matter raised by

 7     Judge Meron, he referred the Prosecutor to paragraph 403 of the

 8     judgement.  And the Prosecutor replied that insofar as that was

 9     concerned, there was partial compliance because some detainees were

10     released.  Well, those were captured Bosnian Muslims.  They're not even

11     prisoners of war at all.  So there's no compliance at all because the

12     order concerns prisoners, not civilians who have just -- civilian --

13     Bosnian Muslim civilians who had simply got in the way.

14             And you asked whether there were any other orders.  Well,

15     paragraph 404 goes on to refer to another order which was defied by the

16     EMD, and so that's -- obviously that's pertinent too.

17             Now, responding to the Prosecution's submissions, the Prosecution

18     repeatedly said how the Trial Chamber found effective control.  Well,

19     that's of course completely wrong.  It's not the Chamber, it's only two

20     Judges, with Judge Moloto dissenting, and the Judges themselves were

21     clear about that.  And it's worth reflecting that 2-1 vote is a very

22     small margin.  Translated into a jury trial that would be 8 to 4, which I

23     think isn't acceptable in any common law jurisdiction.  But be that as it

24     may, it's allowed under the Statute, but one swing vote means that a

25     man's fate hangs on a very slender thread.

Page 77

 1             My learned friend also referred repeatedly to what was reasonable

 2     in terms of conclusions by the Chamber.  That -- the assessment of

 3     reasonableness has to be seen in the context of what the Chamber itself

 4     said about a case based on circumstantial evidence.  And you'll see at

 5     paragraph 28 where the Chamber reminded itself:

 6             "It is not sufficient that it is," it being guilt, "a reasonable

 7     conclusion available from that evidence.  It must be the only reasonable

 8     conclusion available.  If there is another conclusion which is also

 9     reasonably open from that evidence and which is consistent with the

10     innocence of the accused, he must be acquitted."

11             So the point I make is it's not enough if one says:  Well, the

12     majority's view was one reasonable view.  It's only if their view was one

13     open to them only on the basis that it was the only reasonable

14     conclusion.  And we say, of course, that it wasn't.

15             Now, I'm going to deal as much as I can in an orderly manner with

16     my learned friend's submissions, but of course when one replies, it's not

17     always possible to have a completely logical progression.  I'll start

18     with the issue of resubordination and the orders on resubordination.  In

19     fact, the orders on resubordination show the complete opposite of what

20     the Prosecution thinks.  They say the orders on resubordination were

21     successful.  Well, that's their gloss on it.  All that we have is

22     evidence of many orders on resubordination.  And the reason why there

23     were many is precisely because it was unsuccessful.  They weren't

24     succeeding to resubordinate the unit.  And we've referred to this at

25     paragraph 25 in our appeals brief.  One sees that in six days the EMD was

Page 78

 1     issued three orders on subordination or resubordination and that it

 2     didn't follow any of these orders, and that's the evidence of PW-9.  So

 3     they weren't issuing lots of resubordination orders because it was such a

 4     success.  It's the complete opposite.  They had to keep trying because it

 5     wasn't working.

 6             And here perhaps I can deal also with the issue of improvement,

 7     the notion that there was improvement.  And I think I have to ask to go

 8     into closed session because there's an exhibit which is under seal which

 9     I just want to call up.  I believe that e-court is able to call up

10     exhibits and it's E 661, but of course if they can refrain from calling

11     it up.

12             JUDGE VAZ: [Interpretation] Very well.  Let's move into closed

13     session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 79

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8                           [Open session]

 9             THE REGISTRAR:  We're back in open session, Your Honours.

10             MR. JONES:  Thank you.

11             Yes, dealing with the first time-line, we see Delic authorising

12     the creation of the EMD.  Well, I won't call up the relevant exhibit,

13     given the shortness of time, but it's E 273, which shows firstly this was

14     a proposal by the RBiH and that Delic was not out of his own personal

15     authority creating the EMD.  And it's well established in the Tribunal's

16     case law that merely being a conduit through which your superior passes

17     an order doesn't place you in a position of effective control.  And at

18     the end of that exhibit there are a list of things which had to happen in

19     order for the EMD to be established.  It had to provide a list of its

20     members, it had to report on what it had done, and none of that -- none

21     of that happened.  So right from the start it didn't actually work out,

22     and that's clear from the evidence, and if we have time I'll provide the

23     reference to our -- where that's dealt with in our Defence appeals brief.

24             The Prosecution says that Delic replenished the unit, but in fact

25     as we see from the judgement, joining the EMD was even treated as

Page 80

 1     desertion, paragraph 174.

 2             In terms of all the orders which were issued and which they

 3     rely -- the Prosecution rely very heavily on footnote 1183, which is

 4     indeed key for the majority as being all the orders -- a whole list of

 5     orders which were issued to the EMD, combat orders.  You'll notice very

 6     significantly in that paragraph that there are no references to

 7     transcripts at all, no references to witness evidence.  And so

 8     significantly, there's no evidence that those orders were complied with.

 9     In fact, these are just exhibits which mentioned the EMD on it.  And

10     that's why, as I say, very significantly, that there's absolutely not a

11     single transcript reference in that whole footnote.

12             Besides, this was co-operation with tactical parts of the combat

13     orders, that's the Chamber's own words at 461, and so we say consistent

14     anyway with co-operation.

15             As for disbandment, again relied on as creating and disbanding

16     the unit, well, if we see paragraph 198 of the judgement, and I'll ask

17     you to simply turn that up, it's a matter which we've dealt with in our

18     appeals briefs, one sees this:

19             "According to a former EMD member, without the surest consent the

20     EMD would have continued fighting."

21             So in any event, disbandment hinged on the shura agreeing.  It

22     wasn't because Delic ordering it.  And as we all know, this is in the

23     context of the Dayton Peace Agreement which provided that all foreigners

24     had to leave the territory.  So it was in that context that this

25     happened.

Page 81

 1             My learned friend went through a list of the facts which he said

 2     were incompatible with co-operation, and he listed, for example,

 3     promoting members, appointing members to the EMD by the ABiH.  Well,

 4     you'll see at paragraph 191 of the judgement that there were no ranks in

 5     the EMD.  So the notion that actually appointing or promoting people is

 6     fairly meaningless, particularly given that the leaders were not

 7     appointed by the ABiH.  That's paragraph 187 of the trial judgement.

 8             In terms of issuing awards, my learned friend says, well, that's

 9     never done in terms of allied armies; well, quite the contrary.  I won't

10     mention that my grandfather, an American colonel, got the OBE from the UK

11     for his wartime services.  He wasn't under the effective control of the

12     UK.  James Stewart, the American actor, received a Croix de Guerre from

13     France.  No one would say he was under the effective control of the

14     French.  That is certainly something which allied armies can do and do

15     do.  So it's, if anything, a very weak indicator, if it's an indicator at

16     all, of effective control.

17             The second time-line refers to the Goodall case.  Really, it's

18     sufficient to look at what the Chamber itself said about that at

19     paragraph 448.  Exhibit E 887 sets out all of what we rely on in that

20     regard.  But it's plain from the judgement itself, proceedings were

21     instituted before a civilian court and they were never even concluded.

22     So as to what one can draw from that, we say very little, and they

23     subsequently escaped.

24             My learned friend says that it's not correct to say that the use

25     of force was not the only option, and they develop this theory which I

Page 82

 1     don't see the majority is developing particularly, but that there was a

 2     question of military expediency, that the ABiH had sort of decided to do

 3     a pact with the devil and not confront them because they were so useful.

 4     In fact, as we've seen, far from being useful, the EMD, for example,

 5     meant that they couldn't send Catholic or Orthodox soldiers to the front.

 6     But what they refer to in support of that very thin submission is

 7     footnote 1159.  But it's not Delic who made the remark about not taking

 8     energetic measures in order not to spoil relations, it's the

 9     35th Division.  And so that's significant.  It can't be held against him

10     that someone expressed that view.  And to the contrary, he was in fact in

11     favour of confronting, violently, if necessary, the EMD.  And we've set

12     that out in our appeals brief at paragraph 383, that in fact there was a

13     division within the ABiH of how to deal with the EMD.  And Delic was

14     actually in favour of taking strong action, but it was said - and this is

15     Witness Karavelic - any attempt that General Delic took on his own to

16     disarm them would have inevitably had led to loss of life among

17     civilians.  "He did not have the right to do that from the Supreme

18     Command."

19             So that's very significant.  He in fact, had it been in his power

20     to do so, would have taken action.  So he certainly can't be charged with

21     accepting the EMD for military expediency.

22             The Prosecution referred to E 583, showing that the EMD had

23     completed all its tasks.  Well, obviously what one has to see is that

24     exhibit in context.  Time doesn't allow it, but if we look at E 583,

25     obviously the phrase "has completed all assigned military tasks" has to

Page 83

 1     be read in context.

 2             The Prosecution referred to the dialectical approach and the idea

 3     that what the EMD did what a normal dialectic with superior commands, but

 4     that simply misunderstands what Dr. Paul Cornish, the expert who

 5     introduced the expression, was referring to.  You find it at paragraph

 6     379 of the judgement.  And what he says is that:  Yes, you have an

 7     exchange of ideas, but where there's effective control in essence at the

 8     end the commander says:  Thank you for your contribution, but this is how

 9     we're going to do it.  And that's not how it went with the EMD.  That's

10     the critical distinction.  If there was this exchange and they EMD said:

11     No, we don't want to fight for this and this reason, they wouldn't accept

12     an ABiH commander saying:  Well, tough luck, you have to do it.  And

13     that's critical.  And they and the majority misunderstood that.

14             My learned friend has referred to Strugar on which they rely, it

15     seems, quite heavily.  A very different case obviously.  Strugar involved

16     regular army units, a fundamentally different proposition from foreign

17     fighters with the extremist views, bizarre and erratic behaviour of the

18     shura, the Emir, the foreign supporters.  It really is barely worth

19     comparing the two.

20             Forgive me.  Just, I think, two other matters.  With respect to

21     Delic being informed of measures taken against the EMD, which is

22     highlighted in the time-lines, certainly there was an attempt to have

23     information to clarify what was happening with the EMD, but that isn't

24     tantamount to effective control.  It's only human, it's only normal,

25     you're going to try and find out what's happening with this unit.  But

Page 84

 1     the crucial point is the ABiH couldn't liaise with the EMD in order to

 2     carry out proper investigations because the EMD had their own superiors

 3     and they didn't have security officers or intelligence officers.  And

 4     that's precisely the organ which deals with crimes being committed and

 5     investigation.  And that's clear from paragraph 425 of the trial

 6     judgement, where you see that the assistant commander for security --

 7     sorry, in the words of one witness:

 8             "Each battalion had a security organ, brigades had a security

 9     organ, and the division had a security organ.  The exception to this was

10     the EMD, which -- with which we never established contacts with respect

11     to the security organ."

12             And so that was what was preventing anything from really

13     happening.  You'll see Awad as well, at paragraph 192, says that

14     officially his title was security officer but he just acted as an

15     interpreter.  So it's hopeless.  Without the EMD having security

16     intelligence organs it wasn't possible to properly investigate.  And

17     what's more, because they didn't provide a list of the identities of

18     their members, they didn't know who was even in the EMD.  So how do you

19     investigate a crime maybe committed by the EMD if you don't even know who

20     was in the unit?

21             They also, the EMD, besides submitting - and you'll see in the

22     evidence a list of their members only with nationalities, Kuwait, Iran,

23     Pakistan, the names left blank, they also didn't have any military

24     identification documents, that's paragraph 191, again making proper

25     security and intelligence investigation work impossible.  And finally, on

Page 85

 1     prisoners Prosecution say:  Well, yes, the ABiH did get access eventually

 2     to the prisoners.  Well, that's certainly not true of the September

 3     prisoners who were simply killed by the EMD.

 4             The ABiH in fact had to leave the camp of the EMD because of fear

 5     for their own safety.  And you'll see that at paragraph 275 of the

 6     judgement, where -- relates to how the assistant commanders of the

 7     35th Division went to see the VRS detainees.

 8             "When Imamovic asked the detainees about the circumstances of

 9     their capture, an armed Mujahedin appeared and started yelling in a

10     foreign language.  Out of concern for their own safety, the two ABiH

11     soldiers left."

12             Again, that's very significant.  It's not just slight

13     difficulties in gaining access.  They're running out of the camp for fear

14     that they're going to be killed or injured by the EMD.  Again, how does

15     that equate to effective control?

16             And yes, the Prosecution gave examples of how sometimes access

17     was given to the camp, but it's very significant what that was for.  It

18     was clearly for religious propaganda purposes.  You see at paragraph 411

19     they would allow other members into the camp in order to pray together.

20     They were probably recruiting.  It would be quite a good way to get new

21     members.  So one has to see the context.

22             We do say that access to the detainees and the camp is critical

23     in a case of this nature.  Otherwise, one can imagine this reductio ad

24     absurdum.  Let's imagine not the facts of this case, I emphasise, but

25     let's imagine the EMD complied absolutely with combat orders without

Page 86

 1     fail, but conversely they would fight to the last man before they would

 2     give access to their camps.  It's not that far, the latter anyway, from

 3     the facts in this case.  How, then, would that be a basis for saying that

 4     an accused should have done something, could have done something about

 5     detainees?  Again, it's a non sequitur.  What has combat got to do with

 6     whether there was effective control in relation to these crimes?

 7             And finally, Hadzihasanovic was not distinguished purely on the

 8     basis that Hadzihasanovic only issued three orders, here there were many.

 9     That's an over-simplistic way of distinguishing that case from this.  But

10     in any event, I think you have our submissions and unless I can assist

11     you further.

12             JUDGE VAZ: [Interpretation] We thank you, Mr. Jones.  We shall

13     now have a one-hour break and resume at 20 minutes past 2.00 p.m. and

14     hear the Prosecution's appeal.  We shall resume at half past 2.00.

15             The court stands adjourned.

16                           --- Luncheon recess taken at 1.20 p.m.

17                           --- On resuming at 2.31 p.m.

18             JUDGE VAZ: [Interpretation] Good afternoon to you all.  The court

19     is back in session.  We shall now give the floor to the Prosecutor so

20     that he may present his appeal.  You have one hour.

21             MR. WOOD:  Thank you, Your Honour.

22             For 35 days in the summer of 1995, General Rasim Delic's

23     subordinates, members of the El Mujahed Detachment, humiliated and

24     terrorised 11 prisoners of war.  General Delic, as you heard earlier

25     today, formed the El Mujahed Detachment out of a group of violent

Page 87

 1     foreigners.  Not only did he create this unit, he tolerated their

 2     criminal behaviour for two years before the prisoners of war at issue in

 3     this case fell into their hands.  When the war ended, General Delic

 4     disbanded the unit and thanked and praised its members for their service.

 5             General Delic's three-year sentence fails to reflect both the

 6     gravity of the "appallingly brutal" crimes at issue here and the gravity

 7     of his failure to prevent and punish the crimes of members of the

 8     El Mujahed Detachment.  The sentence lacks any deterrent value to

 9     dissuade future commanders to choose, as General Delic did in this case,

10     military expediency over an obligation to enforce international

11     humanitarian law.  As such, the sentence attracts the condemnation of the

12     international community.  The Appeals Chamber should revise this

13     manifestly inadequate sentence and impose a more appropriate sentence of

14     seven years' imprisonment.

15             The path leading to the abuse and terrorisation of these

16     11 prisoners of war in July 1995 starts in Central Bosnia in 1993.  On

17     June 13th, 1993, one of General Delic's subordinate commanders told him:

18             "In the general area of Zenica municipality since the beginning

19     of the war, there have been volunteers from foreign countries who have

20     not entered the BH army."  And that:

21             "In fighting to date, they have been acting outside the usual

22     context and lawful methods of combat, which is detrimental to the

23     BH state, and especially to the RBiH army."  That's from trial judgement

24     172.

25             As a solution to this problem, General Delic's subordinate

Page 88

 1     commanders proposed that these foreigners should either be sent back to

 2     where they came from or organised into a unit, and that's at trial

 3     judgement 173.  General Delic acted quickly on this request, and on the

 4     13th of August he signed an order "authorising the formation of a

 5     detachment named El Mujahedin" composed of "foreign volunteers currently

 6     on the territory of the 3rd Corps zone of responsibility."  That's at

 7     trial judgement 177.  This is the El Mujahed Detachment.

 8             After this unit was formed, General Delic was "informed via

 9     bulletins sent by the Security Administration of numerous instances of

10     misconduct involving the El Mujahed Detachment members, some of which

11     amounted to criminal offences."  This is at trial judgement 501, which

12     lists a number of instances in which General Delic was put on notice of

13     criminal behaviour of the El Mujahed Detachment.  And the last of these

14     reports which is cited by the Trial Chamber was dated on the

15     19th of July, 1995, that's two days before members of the

16     El Mujahed Detachment captured the prisoners of war at issue in this

17     case.  Then, as we see in the judgement, three days later, on the

18     22nd of July, another bulletin specifically directed to Rasim Delic

19     provided information that the prisoners were being held by the El Mujahed

20     Detachment and that "so far, they do not allow access."  And

21     General Delic did not follow-up on this information, that's from trial

22     judgement 553, and the abuse of the prisoners of war continued until the

23     24th of August.

24             Why would General Delic countenance the El Mujahed Detachment

25     within his army, knowing their history of criminal behaviour?  Because,

Page 89

 1     as we've explained earlier in our submissions, the El Mujahed Detachment

 2     was effective in combat.  As the judgement shows, it was a specialised

 3     assault unit assigned with spear-heading attacks and breaking through

 4     enemy lines, the most dangerous assignments in the field.  The

 5     El Mujahed Detachment was described as "the primary leader" in the

 6     July operation that resulted in the capture of the 12 POW at issue in

 7     this case.  Now, I said "12" there, I said "11" earlier and I'll explain

 8     that difference in a second.

 9             This tolerance of the El Mujahed Detachment's criminal behaviour

10     is reflected in the 5 July 1995 military security report that

11     Mr. Schneider referred to earlier.  I'm just going to go into that in a

12     little bit more detail.  As you recall, that report was regarding threats

13     to "slaughter" all the Croats and Chetniks who were in the 1st Battalion

14     of the ABiH 328th Brigade, and this is what that report indicated:

15             "The security body of the 1st Battalion of the 328th Mountain

16     Brigade held separate interviews with permanent top command members and

17     the non-Muslim members and tried to console them, telling them that they

18     were prepared to do everything requested by members of the

19     above-mentioned unit," and of course that's the El Mujahed Detachment,

20     "in order to execute the planned assignments, i.e., occupy Paljenik and

21     Vozuca."  And that's from Exhibit 938 and cited in the judgement at

22     paragraph 434.

23             What this illustrates, Your Honours, is the choice of military

24     expediency over any other consideration.  Rasim Delic chose expediency,

25     that is, the capture of Paljenik and Vozuca, over his responsibility to

Page 90

 1     enforce international humanitarian law.  And as the judgement indicates,

 2     in September the El Mujahed Detachment, having never been punished for

 3     their crimes against the prisoners of war in July and August, captured a

 4     hill called Paljenik, and that's at trial judgement 398.

 5             The Chamber found that the apparent impunity with which members

 6     of the El Mujahed acted through mid-July 1995, just before the capture of

 7     the prisoners, "was also likely to have an encouraging effect on the

 8     perpetrators and the El Mujahed Detachment at large," and that's from

 9     paragraph 512 of the judgement.

10             Delic's failure to punish the perpetrators of the July crimes

11     showed the members of the El Mujahed Detachment that they could commit

12     even more serious crimes than those recounted by the Chamber in

13     paragraph 501.  And again that's the paragraph that lists the bulletins

14     in which Rasim Delic was informed of the criminal behaviour of the

15     El Mujahed Detachment.  The murders of at least 53 Serb prisoners in the

16     Kamenica camp by the EMD members in September only serves to illustrate

17     the gravity of Rasim Delic's failure to punish the crimes of the

18     El Mujahed Detachment soldiers in July and August.

19             As the Prosecution has explained in its brief, General Delic's

20     failure to control the EMD before the 21st of July, 1995, was inherently

21     grave, given the enormous powers he exercised as both the highest

22     military commander in the Army of Bosnia and Herzegovina and as a member

23     of the BiH Presidency, which was, as the Chamber described it, "the

24     Supreme Command of the armed forces."  And that's at trial judgement 94.

25     The highest military commander in the Army of Bosnia and Herzegovina has

Page 91

 1     great power, and with this power came great responsibility.  Delic had

 2     the duty to ensure that international humanitarian law was followed.

 3     This principle underpans -- underpins the very idea of command

 4     responsibility, Your Honours.  As the ICRC commentary to Article 7 [sic]

 5     of Additional Protocol I notes:

 6             "Everything depends on the commanders," who "more than anyone

 7     else can prevent breaches by creating the appropriate frame of mind,

 8     ensuring the rational use of the means of combat, and by maintaining

 9     discipline."

10             As the commentary says, the commander's failure in his duty to

11     enforce international humanitarian law is "the paramount breach, which

12     encompasses all others."

13             What the Geneva Conventions stand for is that the international

14     community has a fundamental interest to ensure that superior

15     responsibility remains an effective tool in enforcing international

16     humanitarian law.  Delic's three-year sentence fails to protect this

17     interest.  Delic's failure to prevent and punish the crimes of the

18     El Mujahed Detachment is itself inadequately punished.

19             The three-year sentence additionally fails in the other goal of

20     sentencing at the ICTY, and that is of deterrence.  And this is from

21     Trial Chamber judgement, paragraph 559.  Not only did Delic fail to

22     prevent and punish members of the EMD for their criminal acts, he

23     personally thanked them for their service and awarded some members of the

24     unit the army's highest award for combat, the Golden Lily.  That's at

25     trial judgement 198, and specifically Exhibit 828.  His inadequate

Page 92

 1     sentence effectively sanctioned General Delic's decision to ignore his

 2     obligations to enforce international humanitarian law and to continue to

 3     use the El Mujahed Detachment in battle.  The three-year sentence will

 4     fail to deter future military commanders from making this same choice,

 5     and the three-year sentence diminishes the power of command

 6     responsibility as a tool for enforcing international humanitarian law and

 7     protecting vulnerable people like the 11 prisoners of war who were ill

 8     treated in the Kamenica camp in 1995.

 9             Now, that goes to General Delic's -- the gravity of his failure.

10     The three-year sentence also fails to properly reflect the gravity of the

11     crimes committed by the El Mujahed Detachment against the prisoners as

12     the second part of the two-part analysis.

13             As I mentioned, for 35 days the El Mujahed Detachment abused,

14     humiliated, and terrorised 11 of the prisoners.  The 12th, Gojko Vujicic,

15     was shot and beheaded the morning after he and the other prisoners

16     arrived in the Kamenica camp.  The survivors describe an atmosphere of

17     constant physical and mental abuse that began in the village of Livade on

18     the 21st of July and continued in the Kamenica camp until the

19     24th of August.

20             One of the survivors, a doctor, a medical doctor,

21     Dr. Branko Sikanic, described how the men were bound by their hands and

22     feet to a stick, forcing their faces to their knees.  In his statement he

23     said:

24             "I had a lot of problems with this stick and the terrible

25     position I was tied."  And that's from Exhibit 927, cited in footnote 660

Page 93

 1     of the judgement.

 2             In Livade, two of the prisoners were shown the freshly severed

 3     heads of two Serb soldiers, identified later as Predrag Knezevic and

 4     Momir Mitrovic, who had been murdered by EMD members as an act of

 5     terrorisation.  The conditions did not improve for the prisoners after

 6     they were transferred to the EMD camp in Kamenica.  Dr. Sikanic described

 7     how the prisoners were restrained once they arrived at that camp.

 8             "We were put laying on our stomachs, hands were tied behind our

 9     backs, and also our legs were tied.  There was some kind of terrible pain

10     caused to my legs, but I am not able to tell what caused that pain.  I

11     had a feeling that somebody was slightly cutting off my feet slowly with

12     some object which was moving."  And again, this is from his statement

13     which is cited by the Trial Chamber at paragraphs 257 and 258.

14             As I mentioned, Gojko Vujicic was shot and beheaded on the first

15     day at the camp.  This had an impact on the others who survived.  One of

16     the prisoners of war, Triv icevic, described what he saw.

17             "And one of the Mujahedin who were in the tent at prayer came out

18     of the tent, took an automatic rifle that was right next to the entrance,

19     he cocked it on his way.  And then walking, he stopped next to Gojko's

20     head and Gojko could see him coming up, and he just turned his head

21     towards me, to his left.

22             "And then going along, he stood next to Gojko's head and coolly

23     fired a shot at Gojko's right temple and then went back to the tent.  And

24     I just looked at Gojko and I could see his little finger still twitching

25     as if he were alive.  The Mujahedin went to the tent, then he took a

Page 94

 1     sword.  He came back to Gojko and in several strokes he severed Gojko's

 2     head.  He tried to place this head on the chest, but since the body was

 3     tilting backwards, the head wouldn't stay there.  He tried it several

 4     times, and when that didn't work, he placed the head on the stomach.

 5     Then it rolled off ... he put it back on the stomach, and then it stayed

 6     there."  This is from transcript 3639 to 3640, also cited by the Chamber

 7     in paragraph 260.

 8             And in the next paragraph, the judgement recalls that the men

 9     were made to kiss the severed head.

10             During their stay the men were subjected to regular beatings,

11     electric shocks, and weren't given enough water throughout their

12     imprisonment in the Kamenica camp, and this is from the judgement at 273.

13     This had lasting impact on the victims.  As Dr. Sikanic explained:

14             "The serious lack of water caused the dehydration and weight

15     loss, 13 to 15 kilogrammes.  As I lost so much weight, my right kidney

16     moved to a lower position than normally.  Because of that, I still

17     occasionally have severe pain in the right kidney.  As a result of stress

18     and lack of food, I developed an ulcer in the lower intestine," and that

19     is from his statement which is cited in paragraph 268 and 271 of the

20     judgement.

21             Delic's three-year sentence fails to reflect the gravity of the

22     series of crimes, not single crime but series of crimes that were

23     inflicted against these 11 men over a period of 35 days.  As the Appeals

24     Chamber has held, superior responsibility is not inherently less grave

25     than responsibility as a perpetrator of the crime.  That's at Celebici

Page 95

 1     appeal judgement, paragraph 735.

 2             And as Judge Shahabuddeen declared in the Oric appeal judgement:

 3             "The punishment for the commander's crime of failing to control

 4     his subordinates should be measured by the punishment of his subordinates

 5     for the actual crimes committed by them."  And that's at

 6     Judge Shahabuddeen's declaration, paragraph 22.

 7             So Delic is given a three-year sentence.  Now, as an example, a

 8     conviction for a single instance of cruel treatment under the relevant

 9     articles of the SFRY Criminal Code would have resulted in "a minimum

10     sentence of five years' imprisonment," with the most severe penalty being

11     that of death.  And that's cited in the judgement.

12             Given the number of victims in this case, 11 -- well, 12, because

13     Gojko Vujicic was also mistreated during his time when he was still

14     alive, and the length of the ongoing abuse inflicted on these men, the

15     appropriate sentence for Delic's perpetrator subordinates would be well

16     in excess of five years.  Delic's own sentence of just three years is

17     manifestly inadequate.

18             To conclude, this three-year sentence fails to take into account

19     the critical role that Rasim Delic played in creating the

20     El Mujahed Detachment and in tolerating the behaviour of its members

21     leading up to the July 1995 crimes.  He rewarded them when he should have

22     punished them.  He deployed them when he should have held them back.

23             The Chamber's three-year sentence was taken from the wrong shelf.

24     It fails to serve as any kind of retribution for these offences.  It has

25     no deterrent value to dissuade future commanders from choosing, as

Page 96

 1     General Delic did in this case, military expediency over an obligation to

 2     enforce international humanitarian law.  The Appeals Chamber should

 3     revise this sentence and impose a more appropriate sentence of seven

 4     years' imprisonment.

 5             And unless there are any questions, that concludes my remarks

 6     today.

 7             JUDGE VAZ: [Interpretation] Thank you.  The Judges have no

 8     questions.

 9             I shall now give the floor to the Defence.  Mrs. Vidovic, I

10     believe, you are going to be taking the floor and you have 50 minutes.

11             MS. VIDOVIC: [Interpretation] Yes, thank you, Your Honours.  Good

12     afternoon, again.

13             Your Honours, the Prosecution's submissions contained both in the

14     appeals and those presented today have no foundation in the case law of

15     the Tribunal and have been fully negated through the majority's thorough

16     and argumented analysis.  The Prosecutor's plea actually represents an

17     unfounded request for a more severe punishment.

18             As the Prosecution claims in its appeal, the majority has

19     correctly cited all the relevant factors that have to be taken into

20     consideration when sentencing.  Namely, according to the Tribunal's case

21     law there are two basic goals of punishment in war crime case.  They have

22     both found their reflection in the sentence pronounced.  These are

23     retribution and deterrence or, that is to say, the prevention of future

24     crimes.

25             The principle of retribution requires a just and appropriate

Page 97

 1     sentence which is commensurate with the gravity of the act of the accused

 2     himself.  Deterrence, according to the majority, has two forms:  An

 3     individual and a general one.  However, as the majority has correctly

 4     warned in paragraph 559 of the judgement, the principle of deterrence

 5     must not be accorded undue prominence in the overall assessment of the

 6     sentences to be imposed on persons convicted by the International

 7     Tribunal.  This position, Your Honours, has been taken by Appeals

 8     Chambers in the Kordic and Cerkez cases, paragraph 1078; Celebici,

 9     paragraph 801; Tadic, paragraph 48; and Aleksovski, paragraph 185.  The

10     majority has correctly evaluated the factors that have to be taken into

11     consideration when sentencing pursuant to Article 24 of the Statute and

12     Rule 101 of the Rules of Procedure and Evidence.  Therefore, the

13     Prosecution's appeal is completely unfounded and should be dismissed by

14     the Appeals Chamber.

15             The majority has correctly stated that the gravity of a fact is

16     the crucial factor when determining the sentence.  The sentence must

17     reflect the inherent gravity of the act committed by the convicted

18     person, bearing in mind the specific circumstances of the case and the

19     form and the degree of participation of the person convicted in the

20     crime, paragraph 561 of the judgement.  This is in compliance with the

21     first goal of retribution.

22             As on all criminal cases, the most important factor in the cases

23     that deal with command responsibility are the acts committed by the

24     accused and the circumstances under which the act was committed.

25     Although the crimes committed by subordinates must definitely be taken

Page 98

 1     into the consideration, the Court must not lose sight of the fact that

 2     the convicted person is punished for their own failures and not the

 3     offences of their subordinates.  This is stated in paragraph 101 in the

 4     Krnojelac case, which reads:

 5             "It cannot be overemphasised that where superior responsibility

 6     is concerned, an accused is not charged with the crimes of his

 7     subordinates but with his failure to carry out his duty as a superior to

 8     exercise control."

 9             The Prosecution ignores the nature of command responsibility and

10     the importance of the acts committed by the accused when it says that the

11     findings by the majority that deal with the nature of the crimes

12     committed by Delic's subordinates illustrate the mismatch between the

13     gravity of the underlying crimes and the three-year sentence imposed.

14     This is paragraph 9 of the Prosecution's appeal.

15             The Prosecution has described in detail the "appalling brutality"

16     of the crimes committed by Delic's subordinates without explaining in

17     what way the gravity of each such described situation should contribute

18     to the sentencing, given that it has been established that Delic did not

19     had actual knowledge about the crimes.  Nowhere in the Tribunal's case

20     law is command responsibility defined as strict liability.  Therefore,

21     when considering the responsibility of the accused and the

22     appropriateness of the sentence, the conduct of the subordinates must not

23     be afforded too much importance.  I again refer us to the case law of

24     this Tribunal, case Celebici, paragraph 239, where it is specifically

25     said that command responsibility is not strict liability; the judgement

Page 99

 1     in Halilovic case, paragraphs 42 to 54, confirmed by the Trial Chamber's

 2     judgement; and Hadzihasanovic case, paragraph 66 to 75.  The majority,

 3     when delivering this sentence, was fully aware of all the details

 4     relating to the subordinates' crimes and afforded them appropriate weight

 5     in the process of sentences which can be seen in paragraph 564 of the

 6     judgement.

 7             Contrary to the Prosecution's claims, the possible sentence for

 8     his subordinates cannot affect the decision on Delic's punishment because

 9     Delic was not convicted of direct involvement in the crimes, but rather,

10     for the failure to prevent and punish his subordinate for the crimes

11     committed.  Although the Prosecution correctly states that command

12     responsibility is not per se less serious than the responsibility of

13     perpetrators themselves, it does not follow from this that the superior

14     automatically must be given either the same or even more severe

15     punishment than the one delivered on his subordinates.  Command

16     responsibility is another form of a criminal offence, and therefore the

17     punishment must be different, having in mind the nature of the failure of

18     the superior.  This is decided by the Trial Chamber in the Halilovic

19     case, paragraphs 42 to 52; and re-affirmed in the Halilovic case,

20     paragraph 39 of the appeals judgement.

21             The Prosecutor mentioned today the case law of the domestic

22     courts and the SFRY Criminal Code.  He erroneously invokes the practice

23     of certain legal systems with regard to sentences, because these systems

24     have a completely different concept of command responsibility than the

25     one applied by this Tribunal.  In any of the systems mentioned by the

Page 100

 1     Prosecution - and he mentioned a lot today - the severity of the sentence

 2     is a very important factor when deciding the punishment for the superior;

 3     and the superior himself is therefore considered an accomplice or aider

 4     and abetter in the crime.

 5             The Appeals Chamber of this Tribunal has specifically stated that

 6     criminal responsibility is a separate criminal offence and that those who

 7     are convicted on this basis shall not be considered as accomplices, and

 8     therefore, their punishment cannot be equal to the punishment imposed on

 9     the subordinates.  I refer here to the Halilovic judgement of the

10     Trial Chamber, paragraph 42 to 54; confirmed in the Hadzihasanovic case,

11     trial judgement paragraph 66 to 75; and the appeal judgement in the

12     Celebici case, paragraph 239.

13             So the case law of the -- of the courts of the former Yugoslavia

14     in this particular case is of lesser importance.

15             Delic has been convicted for the failure to prevent and punish

16     his subordinates and not for his direct involvement in the crimes.  The

17     Prosecution is also in error when taking into account the case law of

18     these courts by overlooking what has been said in paragraph 558 of the

19     judgement.  The majority concluded that -- or rather, although the

20     majority stated that jurisprudence must be one of the factors taken into

21     consideration when determining the sentence, in its further analysis it

22     concluded that the SFRY Criminal Code does not contain the form of

23     liability that corresponds to Article 7(3) of the Statute, and that the

24     Tribunal's case law regarding the punishment is relevant for this

25     particular case, paragraph 593 of the judgement.

Page 101

 1             However, as the Prosecutor stated, according to the SFRY Criminal

 2     Code the minimum sentence - as quoted in paragraph 593 of the

 3     judgement - was five years of imprisonment.  However, the sentence

 4     pronounced in this case against Rasim Delic is completely adequate and

 5     appropriate in view of the fact that he was convicted on the principle of

 6     command responsibility and he didn't have actual knowledge about the

 7     crimes committed.  Therefore, instead of the acts and possible punishment

 8     for the perpetrators, the most important factor when sentencing must be

 9     the conduct of the accused himself.  Since the doctrine on command

10     responsibility theoretically can be applied to a wide spectrum of

11     dereliction or breach of duty which may vary in terms of nature and

12     gravity, so can the sentence to a great extent vary in different cases.

13             There are three basic factors relevant in determining the scope

14     within which a superior can be deemed responsible for the crimes

15     committed by his subordinates and which sentence would be appropriate

16     under the given circumstances.  These factors are the gravity of his

17     dereliction of duty, the seriousness of the consequences of such

18     dereliction, and the scope within one might say that his failure to act

19     contributed to the commission of crime, which is failure to act and

20     prevent, or for not imposing punishment on his subordinates.

21             The gravity of the dereliction of duty will be measured by

22     comparing the measures that the accused was legally bound to undertake

23     and had material capability of adopting and, eventually, the conduct

24     adopted by himself in given circumstances.  It is important to underline

25     that the superior had some responsibility and relevant authority.  One

Page 102

 1     cannot take that as a basis for a presumption that he had a comprehensive

 2     responsibility.

 3             We also have to bear in mind that according to the international

 4     law, a high-ranking officer is neither expected nor requested to

 5     personally see to the implementation of measures aimed at preventing or

 6     punishing crimes committed by lower-ranking personnel.  Please bear in

 7     mind the fact that we are talking here about the commander of the

 8     Main Staff of the ABiH army, who under him within the chain of command

 9     had corps commands, division commands and their commanders, brigade

10     commands and their commanders, battalion commands and their commanders,

11     and the detachment that we are discussing here.  So at that level, this

12     detachment only one of the thousand units that existed within that chain.

13             The question which measure or measures a superior must adopt

14     within a given context primarily hinges on the material capabilities that

15     the superior had and the circumstances that prevailed at the time.  That

16     was the conclusion of the Trial Chamber in the Strugar case,

17     paragraph 378.  Therefore, the Tribunal must have carried out a very

18     specific check of the situation in which the commander was and the means

19     that he had at his disposal during the indictment period, taking into

20     account all the relevant facts of the case.  This is in compliance with

21     international law, which clearly imposes that the gravity of failure of

22     the accused as one of the main factors for sentences cannot be

23     established without taking into account all the circumstances in which

24     this failure was committed.  This was underlined by the Chamber itself in

25     paragraph 558 of the judgement, and it was also ruled in the Toyoda case,

Page 103

 1     page 5001.

 2             Speaking about Delic's failure, the Prosecution claims that a

 3     three-year sentence affects the effectiveness of responsibility as an

 4     instrument of the implementation of international humanitarian law,

 5     having in mind the circumstances of the case.  However, the Prosecution

 6     did not cite any circumstance that would justify more severe punishment

 7     in order -- which would be the way in which the international law would

 8     treat the responsibility of a commander.  On the contrary, there is a

 9     series of circumstances under which Delic was acting which justify the

10     position of the Trial Chamber.

11             The facts clearly show that the circumstances in which

12     Rasim Delic acted from the time he assumed the position of the commander

13     of the Main Staff of the RBiH all the way to the Dayton Accords

14     considerably restricted his capability to undertake any measures against

15     the EMD.  On the other hand, the evidence clearly shows that Delic had

16     undertaken all the measures that were available to him under the

17     circumstances.

18             One of the most important circumstances that the Chamber must

19     take into consideration when considering the guilt of Rasim Delic and the

20     appropriate sentence is the fact that his capability of taking any

21     measures against the EMD was even more restricted in view of the fact

22     that this unit refused to recognise the authority of the commander of the

23     RBiH.  This was particularly obvious from the fact that members of the

24     EMD did not allow access to representatives of the RBiH to their camps,

25     paragraphs 407 and 410 of the judgement; that RBiH itself had very

Page 104

 1     limited data about the identity of certain members of the EMD,

 2     paragraph 373; and as my colleague put it, they didn't know the origin of

 3     the countries from which they came; and that this unit persistently

 4     refused to accept the system of subordination within RBiH, as testified

 5     by Imamovic on the 10th of October, 2007, transcript 4045 to 4046;

 6     Sljuka, 24th of October, 2007, transcript 4301-4369; Hajderhodzic,

 7     8th of October, 2007, transcript T-3784 to 3785; Edin Husic, 23rd of

 8     October, 2007, transcript 4446 to 4447; Awad, 2nd -- 9th of February,

 9     2008, transcript 172 to 173; and Alija, 16th of October, 2007,

10     transcript 4156.  These were all Prosecution witnesses.  All the

11     above-stated circumstances are extremely relevant when assessing the

12     individual responsibility of the accused and determining the sentence.

13             It is a relevant fact that Rasim Delic, in spite of the problems

14     cited, has undertaken decisive, albeit often unsuccessful, steps towards

15     establishing a system of command and control in general as well as

16     some -- undertaking some specific measures in order to try and put the

17     EMD under control.

18             Already in June 1993 Delic ordered the 3rd Corps to disarm,

19     disband and expel the Mujahedin, Exhibit 163; then Exhibit 661; then

20     Exhibit 963.  In October 1993, he initiated the action Trebevic 1 against

21     two units of the RBiH that were outside of control, as was established by

22     one -- in paragraph 136 of the judgement.  Afterwards, he initiated some

23     other actions like Trebevic 2, 3, and 4, respectively, in order to remove

24     obstacles in the functioning of the system of command and control within

25     the Army of Bosnia and Herzegovina, as stated in paragraph 137 of the

Page 105

 1     judgement.

 2             On the 9th of December, 1993, Delic ordered a clamp-down on the

 3     illegal activity of the units of guerilla Mujahedin and El Mujahedin, as

 4     stated in paragraph 449 of the judgement.  Finally, the operative action

 5     Vranduk that you saw, or rather, whose plan you saw, that was the last

 6     exhibit that was displayed to you by my colleague, had as its objective

 7     investigating the activities of EMD and constituted yet another attempt

 8     by the Army of Bosnia-Herzegovina to place El Mujahedin under control.

 9             All of these actions indicate that Delic was a responsible

10     commander who tried to establish a system of command and control within

11     the Army of Bosnia-Herzegovina and to resolve the problem of the

12     Mujahedin; however, due to a variety of factors that we discussed in

13     greater detail in subground 2D, paragraph 250 through 258 of our appeal,

14     that was not established.

15             The decision of the majority that the Prosecutor calls a twin

16     failure in his appeal is actually a perfectly appropriate judgement in

17     view of the context in which Delic operated.  Many difficulties that he

18     encountered on a daily basis no doubt affected his actual ability to

19     prevent and punish.  Therefore, Your Honours, the assertion of the

20     Prosecutor that the sentence is inappropriate is far from reality.  The

21     majority states in several places in the judgement that Rasim Delic

22     failed to prevent and punish his subordinates, paragraph 564 of the

23     judgement; and on the basis of this it can be concluded that the majority

24     had in mind this twin failure when deciding on sentencing.

25             And therefore, the Prosecution assertion is totally unfounded.

Page 106

 1             The Prosecutor fully neglected certain circumstances, and that

 2     was repeated today by the Prosecution to a certain extent, that Delic did

 3     not act in accordance with international humanitarian law and that he

 4     decided in favour of expediency instead of obligations imposed on him by

 5     international humanitarian law.  Specifically, the Prosecutor says that

 6     Delic closed his eyes before violations of international humanitarian law

 7     by the EMD and continued to use this unit in operations because that

 8     suited his military purposes.  This statement is contrary to the findings

 9     of the majority.  First of all, the majority established that Delic never

10     had any actual knowledge about any crimes, but only had reason to know

11     that the members of the El Mujahedin are preparing to commit a crime of

12     cruel treatment in the camps of Livade and Kamenica in July and

13     August 1995, as stated in paragraph 542 of the judgement.  So, for

14     someone who did not have actual knowledge of violations of international

15     humanitarian law, one cannot say that he closed his eyes, as it were,

16     before such violations.

17             Your Honours, you have truly heard some horrifying descriptions.

18     However, none of these descriptions or none of this knowledge ever

19     reached General Delic.  And the majority never found any such thing.

20             Secondly, the Prosecution's argument is contrary to the findings

21     of the majority, namely, that Delic worked on resolving the problems

22     related to EMD and that he was involved in training his subordinates on

23     principles of international humanitarian law.  And I'm now referring to

24     paragraph 544 of the judgement.  Specifically, the majority decided that

25     Delic took measures in order to promote knowledge of and the application

Page 107

 1     of international humanitarian law within the Army of Bosnia-Herzegovina,

 2     and that he instructed commands of the corps of the Army of

 3     Bosnia-Herzegovina to treat enemy combatants who were taken prisoner in

 4     accordance with Geneva Conventions and allow the representatives of the

 5     ICRC to have access to detention premises, paragraph 544 of the

 6     judgement.

 7             The Prosecution assertions that Delic decided in favour of

 8     military expediency, neglecting obligations imposed on him by

 9     international humanitarian law, are totally unfounded.  What is also

10     unfounded thereby is what was stated today by the Prosecutor, that the

11     three-year sentence effectively sanctioned Delic's decision to ignore his

12     responsibilities under international humanitarian law and to continue to

13     use the EMD in battle, and that such a sentence has a diminished value as

14     a deterrent.

15             It is not only unjustified, Your Honours, it is also offensive in

16     relation to the Trial Chamber.  It does not encourage in any way other

17     commanders to use individuals or units prone to violence in military

18     operations.  Also the Prosecution is mistaken when claiming that Delic's

19     decision not to -- or rather, when he mentions Delic's decision not to

20     control the EMD.  The majority never found that Delic consciously decided

21     not to control the EMD.

22             The Prosecutor claims that Delic neglected to notice that the

23     El Mujahedin had committed crimes and that he even awarded this unit and

24     thanked it for their services.  That is a distortion of facts and

25     findings of the Trial Chamber.  In the paragraphs of the judgement,

Page 108

 1     paragraphs 198 and 455, the Trial Chamber found that the recognition

 2     given to the EMD was actually there by way of impetus to foreigners to

 3     leave Bosnia and Herzegovina, and that promotions of the members of the

 4     EMD were a result of the decisions of the Presidency of the RBiH, not

 5     decisions of Rasim Delic.

 6             Your Honours, that was also referred to in paragraph 455 of the

 7     judgement.

 8             The Prosecutor completely ignores this context when claiming that

 9     the fact that Delic thanked the unit for the assistance they rendered

10     during the course of the war should be taken as an indication for his

11     disregard of international humanitarian law.  The findings of the

12     Trial Chamber, paragraph 456 of the judgement, no doubt indicate that

13     Delic's statement was in accordance with the decision of the Presidency

14     and that it was given under pressure that was brought to bear by the

15     international community which, after the signing of the Dayton Accords,

16     asked that all foreigners leave Bosnia-Herzegovina.  That is what Witness

17     Loncaric testified on the 10th of April, 2008; Halim Husic as well, on

18     the 12th of March, 2008; also Awad, a Prosecution witness.  In such a

19     situation, the representatives of military and political structures had

20     to act highly diplomatically towards foreigners so that they would make

21     sure that they actually left the country.

22             The Prosecutor's assertion that Delic actually deserves a graver

23     sentence because of the fact that his breach of duty to enforce

24     international humanitarian law is especially grave since he was the most

25     senior military commander, that was stated in the appeal and repeated

Page 109

 1     today, is based on an erroneous interpretation of jurisdiction related to

 2     command responsibility.  Rank or a high position in the hierarchy cannot

 3     at the same time be grounds for conviction according to the doctrine of

 4     responsibility of the superior and also an aggravating factor in

 5     sentencing.  Such a procedure would result in taking his position as

 6     relevant into account twice, as relevant for sentencing.  This was stated

 7     in the judgement of the Trial Chamber in the Hadzihasanovic and Kubura

 8     case, page 614, footnote 4877; then in the appeal judgement in the

 9     Celebici case, paragraph 745, footnote 1261.

10             The fact that the accused held a high position and that he had

11     certain authority can make criminal conduct graver only if the accused

12     person had abused this authority or used it with a view to achieving his

13     own or someone else's criminal acts, and only in situations when the

14     accused person was not found guilty on the basis of command

15     responsibility.  Krstic Trial Chamber, paragraph 709; then the appeals

16     judgement in Celebici, paragraph 736; the appeals judgement in

17     Aleksovski, paragraph 183; the sentencing judgement in Sikirica,

18     paragraph 172; the sentencing judgment in Babic, paragraphs 54 through

19     62; and the sentencing judgement in the Simic case, paragraph 67.

20             Your Honours, the Prosecutor did not prove in any way that

21     Rasim Delic had abused his office or position in any way.

22             The Prosecutor says that Delic was supposed to be given a higher

23     sentence and quotes the appeal judgement in the Strugar case to support

24     that assertion; however, as my colleague already stated, there is an

25     important distinction between these two cases.  As opposed to Strugar,

Page 110

 1     Strugar was -- as opposed to Delic, Strugar was found guilty on the basis

 2     of Article 7(1) and Article 7(3) of the Statute.  The Appeals Chamber in

 3     Celebici made a clear distinction between these two forms of

 4     responsibility when speaking of sentencing; namely, proof of active

 5     participation by a superior in the criminal acts of subordinates adds to

 6     the gravity of the superior's failure to prevent or punish those acts and

 7     may therefore aggravate the sentence.  That is paragraph 736 of the

 8     Celebici appeal; and in Aleksovski, it is -- the appeals judgement in

 9     Aleksovski, it is paragraph 183.  So any kind of comparison between these

10     two cases is inappropriate.

11             Delic was found guilty by the majority of the Trial Chamber only

12     on the basis of cruel treatment and only on the basis of indirect or

13     imputed knowledge of crimes.  This last allegation is particularly

14     important in terms of sentencing.  The majority itself stated that

15     relevant factors when determining the gravity of a crime of a superior

16     also involved the question whether the superior had actual or imputed

17     knowledge about the crimes committed by the subordinates and the extent

18     to which this was foreseeable.  Paragraph 563 of the judgement.

19             And it is important to state that Rasim Delic had imputed and not

20     actual knowledge of these crimes.  Paragraph 564 of the judgement.

21             Your Honours, I'm briefly going to deal with what the Prosecutor

22     said today.  The Prosecutor said that Rasim Delic had indirect knowledge

23     about criminal behaviour or crimes that had been committed by

24     El Mujahedin previously.  That is not true, Your Honours.  Even as far as

25     criminal reports are concerned against the killers of Paul Goodall, it

Page 111

 1     does not mean that there are several perpetrators and only some are

 2     members of the EMD.  On the other hand, the information that was

 3     accessible in the bulletins did not have to do with criminal offences at

 4     all, but minor offences often committed against civilians.  Because of

 5     the different traditions involved and the fact that Arab soldiers had

 6     different perceptions when compared to those of the Bosnian people.  So

 7     there is no evidence of previous criminal conduct that Rasim Delic would

 8     have to be aware of.

 9             The nature of knowledge of a subordinate concerning crimes of --

10     of a superior concerning crimes committed by subordinates is an important

11     element when looking at the second and third factor relevant and to the

12     extent to which this can be looked into if the subordinates remained

13     unpunished for anything they had committed.

14             I do apologise for being too fast.

15             The Prosecution says in their appeal, in view of his previous

16     role of high-ranking commander of the Army of Bosnia-Herzegovina, Delic's

17     failure to prevent and punish his subordinates is particularly serious

18     because he stimulated the creation of a climate of impunity in the entire

19     chain of control.  Delic was the superior of every soldier in the army

20     structure of Army of Bosnia-Herzegovina.  More than anyone else, he was

21     responsible for exercising the function of command in the

22     Army of Bosnia-Herzegovina.  That is paragraph 33 of the Prosecutor's

23     appeal.

24             When presenting this assertion, the Prosecutor is ignoring

25     relevant jurisprudence and facts in this case.

Page 112

 1             First of all, as for Strugar and Hadzihasanovic, namely, the

 2     failure of a commander to punish a crime can be as a consequence an

 3     increased risk from having it repeated, can pertain only to a situation

 4     where the superior had actual knowledge about crimes committed.  I'm

 5     referring to Hadzihasanovic appeal paragraph 30, and then the Strugar

 6     appeal judgement paragraph 301.  Since Delic had only indirect rather

 7     than actual knowledge about an isolated incident, one cannot say that

 8     this climate of impunity was created by any failure on his part,

 9     especially in view of the fact that he actively worked on acquainting

10     members of the Army of Bosnia-Herzegovina with international humanitarian

11     law.

12             Secondly, the findings of the Appeals Chamber in the Celebici

13     case that the Prosecutor refers to in his appeal, that constant failure

14     on the part of a commander to prevent or punish crimes of subordinates

15     can encourage subordinates to commit new crimes, paragraph 739, is not

16     applicable in this case, Your Honours.  Actually, as opposed to the

17     accused in the Celebici case, the majority did not conclude that Delic on

18     a continued basis failed to carry out his duties.  On the contrary, he

19     was found guilty on the basis of the conclusion that he had reason to

20     know of one isolated incident, as stated in paragraph 551 of the

21     judgement.

22             The Chamber itself in the Celebici case states that constant

23     failure on the part of a commander to prevent and punish must be

24     considered significantly graver than cases of isolated incidences of this

25     kind -- incidents of this kind, paragraph 739.

Page 113

 1             The Prosecution's -- the Prosecutor's statement that Delic was

 2     the superior commander of every soldier within the military structure of

 3     the Army of Bosnia-Herzegovina, that more than anyone else he was

 4     responsible for command in the Army of Bosnia-Herzegovina, that is

 5     paragraph 33, is contrary to facts and the findings of the Trial Chamber.

 6     From the evidence it is clear that the command structure of the Army of

 7     Bosnia-Herzegovina is based on singleness of command.  So although Delic

 8     was the commander of the Main Staff of the Army of Bosnia-Herzegovina, he

 9     did not command all soldiers within the Army of Bosnia-Herzegovina.

10     E 419 clearly states who the persons were to whom Delic was a direct

11     commander, including the commanders of the corps, and so on and so forth,

12     Your Honours.

13             Finally, the Prosecutor ignored many mitigating factors that the

14     majority took into consideration in sentencing.  First of all, Delic

15     voluntarily surrendered to the Tribunal immediately after the indictment

16     was issued, as stated in paragraph 573 of the judgement.  Secondly, there

17     is an abundance of evidence about his good character; he did not have a

18     criminal record; he was an advocate of implementing international

19     humanitarian law within the Army of Bosnia-Herzegovina; he was

20     instrumental in the initiation of Operation Trebevic I and subsequent

21     actions to crack-down on unruly units, and he was involved in peace

22     negotiations, as stated in paragraphs 582 through 584 of the judgement.

23     Finally, the majority took into consideration the circumstances that

24     prevailed in Bosnia and Herzegovina and the difficulties that Delic faced

25     because of resistance by persons from his own milieu in certain political

Page 114

 1     groups, paragraphs 588 and 589 of the judgement.

 2             The fact that the Prosecutor ignored these mitigating

 3     circumstances when asking for a new sentence of seven years clearly

 4     states that his request is inappropriate.

 5             Your Honours, on the basis of what I've stated so far, it is

 6     clear that the majority did take into account all significant factors

 7     when asking for an appropriate judgement for Rasim Delic.  The three-year

 8     sentence reflects the gravity of Delic's failure, all the circumstances

 9     in which the failure took place, as well as many mitigating

10     circumstances.  The Prosecutor did not present a single valid reason

11     showing why this sentence is inappropriate.  The Prosecutor's arguments

12     are contrary to evidence and the findings of the majority and they are

13     based on a misinterpretation, as I've already said, of relevant

14     jurisprudence, and therefore the Prosecution's claims should be

15     dismissed.

16             JUDGE VAZ: [Interpretation] Judge Pocar has a question.

17             JUDGE POCAR:  As just a question to be clear about what your

18     position is, because perhaps I didn't get it correctly through the

19     interpretation.  Is that correct that your point is that command

20     responsibility is a separate crime consisting of the failure to prevent

21     or punish separate, distinct, from the crime committed by the

22     subordinate?  Is that correct what I heard?

23             MS. VIDOVIC: [Interpretation] Yes, Your Honours.

24             JUDGE POCAR:  If it is so, is that your point that command

25     responsibility is not responsibility for the crime committed by the

Page 115

 1     subordinate, but is a different kind of responsibility that is not linked

 2     necessarily to the crime committed?  I heard you saying that it depends

 3     on the gravity of omission of the duty measured in light of the measures

 4     that the commander should have taken.  So is that correct, your point is

 5     a quite different offence which has nothing to do or very little to do

 6     with the crime committed by the subordinate?  In other terms, it is not a

 7     mode of responsibility for the crime committed by the responsibility, but

 8     is a completely different offence.  Is that your position?

 9             MS. VIDOVIC: [Interpretation] Yes, Your Honours.  Our position

10     and the position of the majority of Trial Chambers in this International

11     Tribunal is that this is a separate crime, that this is a distinct crime.

12     In other words, a commander is responsible for his own failure to either

13     prevent or punish, but not for the crimes committed by his subordinates

14     as such.

15             JUDGE POCAR:  Thank you.  In such a case, am I correct that in

16     your view, the gravity of the failure to prevent or punish is not

17     dependent on the gravity of the crime committed by the subordinate?  That

18     has to be measured differently?

19                           [Defence counsel confer]

20             MS. VIDOVIC: [Interpretation] Actually, yes, Your Honours.  Yes.

21             JUDGE POCAR:  I thank you.

22             JUDGE VAZ: [Interpretation] Judge Meron has a question.

23             JUDGE MERON:  If I may follow on the penetrating questions asked

24     by my distinguished colleague, Judge Pocar.  You are in fact saying in

25     answering him that there is no nexus between the gravity of the sentence

Page 116

 1     to be imposed, say, on Mr. Delic and the conduct of his, let's assume,

 2     subordinates without going into the question of effective command now.

 3     Would that also be your position if Mr. Delic would have known what were

 4     the crimes committed and how grave they were; or are you resting your

 5     argument, or your answers to Judge Pocar on the fact that he was not

 6     familiar with what was happening in the Mujahedin compound?

 7             MS. VIDOVIC: [Interpretation] Your Honours, actually no.

 8     General Delic should be convicted on the basis of his own credibility,

 9     that is to say -- actually, yes, I apologise.  I made a mistake.

10             General Delic should be tried and convicted on the basis of his

11     own failure and the gravity thereof, that is to say, his failure to

12     prevent and pressure.  Certainly, the gravity of the crimes committed

13     should be taken into account, but in no way should it be accorded too

14     much importance, because otherwise one can always assume that every

15     commander should get life imprisonment for any serious crimes committed

16     by his subordinates.  Therefore, we have to judge his own failure and his

17     own liability.

18             And, Your Honours, allow me to answer the second part of your

19     question.  Of course it is extremely important in this situation to know

20     whether he was convicted due to the existence of actual knowledge or

21     indirect knowledge.  If he didn't have any actual knowledge about the

22     specific circumstances, then definitely it is a different kind of failure

23     as opposed to the situation in which he had actual knowledge.  Had he had

24     actual knowledge, his failure would have been more serious.

25             JUDGE MERON:  Thank you.

Page 117

 1             JUDGE VAZ: [Interpretation] Well, there are no other questions.

 2     Therefore, Mr. Prosecutor, you have 20 minutes for your reply.

 3             MR. WOOD:  Thank you, Your Honour.

 4             The most important point to take away from the Prosecution's

 5     submissions, Your Honour, and in response to what the -- in reply to what

 6     the Defence has said today, the Prosecution's argument here is that the

 7     Chamber failed to properly assess the gravity of crimes and also the

 8     gravity of Rasim Delic's breach.  The circumstances as a whole on the

 9     facts of this case, as applied to Rasim Delic, this is -- this three-year

10     sentence is manifestly inadequate.

11             I heard a lot in response that imputed knowledge should be

12     treated as something different than actual knowledge, and that was

13     repeated throughout the Defence submission today and throughout their

14     brief, and this is an important point to address, I think.  The reason

15     that Rasim Delic did not have actual notice of these crimes is because of

16     a failure to inquire further when he had alarming information about

17     prisoners being held by this particular unit out of a thousand, after he

18     had received information that this particular unit out of a thousand, as

19     the Defence says, had a propensity to commit violent criminal acts.  To

20     say that he should be given a lower sentence because he only had imputed

21     knowledge versus actual knowledge, only rewards his failure to inquire

22     further when he got this information.

23             There's nothing in the jurisprudence of the Tribunal that

24     suggests imputed knowledge should be treated anything differently than

25     actual knowledge, and that is not a step that the Appeals Chamber should

Page 118

 1     take in this case either.

 2             A few other points.  The Defence said that there should not be

 3     undue prominence given to deterrence.  Now, that's obviously in the

 4     jurisprudence.  The Prosecution agrees with that proposition, but that

 5     doesn't in any way have any effect on their arguments in this case.

 6     Retribution -- or deterrence should not be given undue prominence,

 7     perhaps, but it should be given some prominence.  The Prosecution's

 8     argument in this case is that the three-year sentence for these crimes

 9     under these circumstances, considering Rasim Delic's knowledge of the

10     criminal behaviour of the EMD shows that the deterrence has actually no

11     prominence, and that is where the Trial Chamber erred.

12             Now, there's also some debate about -- in response to some

13     questions about whether the criminal acts of the accused or of the

14     perpetrators is transferred to the commander under 7(3).  Now, there is

15     some dispute about whether 7(3) is actually a crime of failing to prevent

16     or punish, or whether the commander convicted under 7(3) is actually

17     convicted of the crimes themselves.  But for this case, Your Honour,

18     that's not a discussion that needs to be delved into that deeply because

19     even on the facts and the law as the Chamber has described them or has

20     recounted in this case, Rasim Delic's failure in this case on these facts

21     shows that the three-year sentence is inadequate.  Now, even if you agree

22     that the crimes of the perpetrator are not imputed to the commander, the

23     case law is still very clear that there must be some correlation between

24     the likely crime of the subordinate and the crime that the commander

25     would receive.

Page 119

 1             Now, in this case I did go into some detail about the gravity of

 2     the crimes themselves, and it's important to remember this is not a

 3     low-level cruel treatment case, Your Honours.  This was cruel treatment

 4     inflicted on first 12 and then 11 prisoners of war over a period of

 5     35 days, on a daily, constant basis.  It's important to bear that in mind

 6     and to consider that the perpetrators in this case would certainly, under

 7     virtually any standard, have been given a sentence of more than three

 8     years.  Now, whether that should be -- whether Rasim Delic's sentence

 9     should be equal to that of what the perpetrators received, that is not

10     what the Prosecution is arguing necessarily.  The Prosecution's argument

11     is that there should be some correlation, and that for crimes that are

12     this grave, considering especially the fact that Rasim Delic was on

13     notice that the EMD was holding vulnerable prisoners and that the EMD had

14     a propensity for criminal violence, the three-year sentence is manifestly

15     inadequate.

16             As to the Defence argument that the Prosecution fails to take

17     into account the difficult circumstances under which Rasim Delic was

18     functioning, the Prosecution's contention here is that this three-year

19     sentence is manifestly inadequate, even considering - this is what we

20     said in our reply brief as well - even considering the mitigating

21     circumstances that the Chamber found.  Even taking that into account,

22     this is still a manifestly inadequate sentence.

23             Another major theme, of course, was that Rasim Delic chose

24     military expediency over international humanitarian law, his obligation

25     to enforce that.  That was on page 100 of the transcript today.  The

Page 120

 1     evidence as a whole in this case, Your Honours, shows that Rasim Delic

 2     knew based on the notice that he'd received, as recounted in

 3     paragraph 501 of the judgement, and of course I'd invite Your Honours to

 4     take a close look at paragraph 501 which does show exactly what kind of

 5     notice he received.  The Chamber found that the notice that was recounted

 6     in paragraph 501 showed that he knew starting in 1994, and even perhaps

 7     as early as 1993, that the El Mujahed Detachment had a propensity for

 8     violence, had a propensity for criminality.  Rasim Delic continued to

 9     employ the El Mujahed Detachment notwithstanding that.  That shows,

10     Your Honours, that he did choose military expediency over his obligation

11     to enforce international humanitarian law, and that culminated in the

12     report that he received or the report that was directed to him

13     specifically on the 21st of July, the bulletin, which showed that -- the

14     22nd of July, which showed that the El Mujahed Detachment had members --

15     or had prisoners of war in its possession and was refusing to allow

16     access.  He had an obligation at that point to do something or at least

17     to inquire further, and it's his failure to do so that resulted in the

18     cruel treatment of these men until August 24th, for 35 days.

19             Just a couple other points, Your Honours.  As for the Defence

20     argument that the rewards were only given to the El Mujahed Detachment as

21     an impetus for them to leave, that is a mis-characterisation of the

22     findings of the Chamber.  Your Honour, if you look at paragraph 455, it

23     shows that a number of El Mujahed Detachment members were promoted by a

24     decision of the Presidency, of which General Delic was a member even in

25     June 1995, at various moments before the final ceremony where Rasim Delic

Page 121

 1     attended and thanked the El Mujahed Detachment for their service.  They

 2     were being promoted even during their service as an effective fighting

 3     force for the army.  So to say that they were only given awards and

 4     promotions because of an impetus to leave, the evidence doesn't show

 5     that.

 6             And finally, the Defence suggests perhaps that the Prosecution

 7     argues that we want his position of authority to be counted twice and

 8     that it's only an abuse of a position of authority that can be counted as

 9     an aggravating circumstance.  Now, the Prosecution agrees with that

10     proposition.  It says that's pretty clear in the jurisprudence that only

11     an abuse of authority can be considered an aggravating circumstance; but

12     that's not what the Prosecution's argument is in this case.  The

13     Prosecution doesn't suggest that his high position should be counted

14     twice, but rather that it should be properly assessed the first time in

15     assessing the gravity of his breach.  As the Prosecution has said in its

16     brief, Delic in a position -- more than anyone else had a position or was

17     in a position to intercede in July 1995 when he got information or when

18     that information was directed to him that these men were being held and

19     that access was not being provided to them.

20             One additional point.  As to the culture of impunity, this feeds

21     into the Defence argument that imputed knowledge should be treated

22     differently than actual knowledge.  The Chamber found in paragraph 512

23     that the failure to punish the El Mujahed Detachment members for the

24     series of crimes going back to 1994 had to have an encouraging effect on

25     them and did create a culture of impunity.  That's straight from the

Page 122

 1     Chamber's finding at paragraph 512.

 2             Unless there are any further questions, if I could just consult

 3     with my colleagues for just one moment.

 4                           [Prosecution counsel confer]

 5             JUDGE VAZ: [Interpretation] Are you finished, Prosecutor?  We

 6     don't have any questions for you.

 7             MR. WOOD:  Yes.  Thank you, Your Honour.

 8             JUDGE VAZ: [Interpretation] Thank you.

 9             Absent any further questions, we're now going to turn to

10     Mr. Delic and ask him whether he has anything to say to the

11     Appeals Chamber.  In the affirmative, he may proceed but not for more

12     than ten minutes.

13             THE APPELLANT: [Interpretation] Your Honours, that will be more

14     than enough.

15             First of all, it is my duty to thank you for giving me the floor

16     to say a few words.  I don't want to go into legal evidence and the legal

17     situation as it is because, on the one hand, it is the task of the

18     Prosecutor to prove what they wish to prove; we on the Defence side want

19     to prove what the truth is; and you have your own duty as the Appeals

20     Chamber.

21             It is my duty to say that I trusted this Tribunal as an army

22     commander at the time when it was being established.  Because of the

23     situation in my country, I believed that this Tribunal was needed in

24     order to have my own country advance, that is to say, to have

25     reconciliation and progress in my country.  Through my own efforts, I

Page 123

 1     supported the work of this Tribunal up until the end of the war, until

 2     1995, and afterwards as one of the commanders of the joint army of the

 3     Federation.  So irrespective of the punishment meted out by the

 4     Trial Chamber, I still trust this Tribunal to decide on the basis of law

 5     and legal arguments.  I have no doubt in that regard.  I would like to

 6     thank you for these fair proceedings and I am grateful for the fact that

 7     these proceedings took place in a fair way without any incidents

 8     involved.  Thank you.

 9             JUDGE VAZ: [Interpretation] Thank you, Mr. Delic.

10             Let me now thank the Legal Officers, the representative of the

11     Registry who helped us hold this hearing, the court reporters for their

12     very invaluable help, as well as the interpreters that -- who made it

13     possible for us to communicate.  We are now going to deliberate.  You

14     will be informed of the date for the appeal judgement in due time.  Thank

15     you very much.

16             The hearing stands adjourned.

17                           --- Whereupon the Appeals Hearing

18                           adjourned at 4.01 p.m.