Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5587

1 Thursday, 3 May 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.02 a.m.

5 JUDGE ROBINSON: This morning we have resumed to hear submissions

6 from the Defence under the provisions of Rule 98 bis. I see you are at

7 full strength, Mr. Whiting.

8 MR. WHITING: I wouldn't have it any other way, Your Honour.

9 JUDGE ROBINSON: I may not be, but we'll carry on.

10 So, Mr. Tapuskovic, we'll hear from you.

11 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.

12 By taking the floor, I'm fully aware of the possibilities and the

13 authority that the Trial Chamber has at the moment under Rule 98 bis. I

14 will do my best to be as concise as possible and even try not to use up

15 all the time allocated to me. I will be very careful, which is probably

16 against my nature, because I can deliver my speech in about 20 minutes,

17 but I will take due care in order to enable the interpreters to translate

18 everything I say. I will make a effort to focus only on the most

19 important issues that I believe the Defence, at this juncture, should try

20 and explain.

21 As I said, I'm fully aware, according to the previous practice of

22 this Tribunal that at this stage of the proceedings, the Trial Chamber

23 cannot evaluate the credibility and credence of the witnesses and the

24 weight or weaknesses of evidence with regard to specific counts in the

25 indictment, especially not with regard to the incidents discussed here.

Page 5588

1 I'm not going to deal at all with the incidents, nor seek that you

2 evaluate anything with regard to these incidents because this is simply

3 impossible.

4 If I dealt with one single incident only, I would use up the whole

5 time allocated it me today. For instance, I cannot seek your response

6 today to the question how it was possible for a modified air bomb to

7 explode without leaving any shrapnel or what kind of shells can fly in

8 without being heard or seen. I'm not going to talk about these things in

9 my submission today.

10 The 98 bis requirement, as I understand the practice of this

11 Tribunal, can be met or successful, unless there is no evidence

12 corroborating specific counts of -- in the indictment, or if the evidence

13 lacks any credulity in order to support the conviction in a proper way,

14 even if the evidence is taken in the most favourable light by the

15 Prosecution.

16 Today, I'm going to be mainly focussing on only one question. I'm

17 going to raise this question, although I am aware that in view of the

18 limited points of 98 bis rule the Trial Chamber could probably not make a

19 ruling today. This question refers to the question whether the

20 Prosecution has provided enough evidence supporting the main act of

21 perpetration in the indictment dominating all counts in the indictment,

22 and from which all other crimes stem that the accused Dragomir Milosevic

23 has been accused under Count 1, under Counts 2 to 4, and Counts 5 to 7.

24 This crucial element and allegation stating that Dragomir

25 Milosevic in the period between 10th of August -- 10th of April, 1994 and

Page 5589

1 21st November, 1995 conducted an extensive campaign of shelling and

2 sniping upon civilian areas in civilian population of Sarajevo, and that

3 this campaign was the one and only thing that was on the mind of the

4 accused Dragomir Milosevic, and that it was a crucial act committed

5 through his actions.

6 I'm not going to talk about today whether there was an allegation

7 or an order, in that respect, whether there was any meeting between

8 Dragomir Milosevic and other persons on the subjects, did he talk about

9 representatives of the international community about this issues. This is

10 something for another occasion. What I want to point out today is that we

11 should look whether there is sufficient evidence from all this involving

12 terror, inhumane treatment, and violations of the laws and customs of war.

13 Therefore, for that purpose, I have to give a history of the

14 events in these proceedings.

15 As you know, on the 18th of December, 2006, which is 15 days after

16 the decision rendered in the Galic case by the Appeals Chamber and it was

17 rendered on the 30th of November, 2006, the Prosecution amended the

18 indictment but without changing the counts in the indictment.

19 JUDGE ROBINSON: Sorry to interrupt you, Mr. Tapuskovic, but I

20 think you did say that the consideration is whether there is sufficient

21 evidence. I'm looking for it in the transcript, but I heard it.

22 Yes. I haven't found it, but I did hear the translation to the

23 effect that the consideration was whether there is sufficient evidence and

24 I paused. I'm just checking to see whether you did say that.

25 [Trial Chamber and legal officer confer]

Page 5590

1 JUDGE ROBINSON: In any event, I just wanted to clarify that the

2 standard of the sufficiency of evidence was in the old Rule and that was

3 changed in 2004, and now the judgement of acquittal will be entered on any

4 count if there is no evidence capable of supporting a conviction. In my

5 view, there is a difference between a search for sufficiency of evidence

6 and a simpler quest to see whether there is no evidence capable of

7 supporting a conviction.

8 So that, as I understand it - and this would always have been the

9 law, although perhaps not the practice - if there is some evidence capable

10 of supporting a conviction, the submission under 98 bis will not succeed.

11 So with that in mind, you may continue.

12 Yes. It is page 2, line 18/19. The question refers to a question

13 whether the Prosecution has provided, it says, "enough evidence," but it

14 did come across to me as sufficient evidence supporting the main act. And

15 it is in relation to that I said what I said.

16 MR. TAPUSKOVIC: [Interpretation] I understood you perfectly, Your

17 Honours. Yes, that is a nuance; and in that respect, you have surely

18 warned me in a proper way. In fact, what I wanted to say was that the

19 campaign which involves something as an exclusive intention on the part of

20 the accused is that the sole purpose was to jeopardise the lives of

21 civilians, and the sole purpose was to target civilian targets.

22 I will deal only with the fact that this does not stem literally

23 from a single piece of evidence. Maybe I said there was insufficient

24 evidence, but that is why I said at the beginning that I do not intend to

25 deal with individual incidents, because all these incidents that the

Page 5591

1 accused, Dragomir Milosevic, is suspected of and charged with stems from

2 this campaign. However, this -- the existence of this campaign was not

3 proved in a proper way by the Prosecution through a single piece of

4 evidence. So this is my basic thesis at this stage.

5 I know very well what are the capabilities and authorities of the

6 Chamber when deciding according to Rule 98 bis. Believe me, if I am to

7 deal with a single incident, the analysis thereof, since we were not able

8 to do anything in writing, would require a lot of time, and will not make

9 it possible for me to speak about the campaign that the accused, Dragomir

10 Milosevic, is charged with and which is the source of everything else. I

11 believe that the Trial Chamber can be satisfied with this explanation that

12 I will give you and that I will be allowed to proceed.

13 JUDGE ROBINSON: Certainly, yes.

14 MR. TAPUSKOVIC: [Interpretation] What I'm trying to explain here

15 is everything that took place and what we found out in the proceedings,

16 documents, what we heard from witnesses, and the evidence introduced

17 through these witnesses. That is why I wanted to start with the 18th of

18 December, 2006, which is 15 days after the Appeals ruling in the Galic

19 case, when the indictment was amended without changing the counts. I'm

20 particularly referring to paragraph 19 in the indictment, which reads

21 that:

22 "From May 1992, when he was commander of the Romanija Infantry

23 Brigade, and from July 1993 when he was the Chief of Staff, he knew of the

24 campaign against the civilian population, that he inherited this campaign

25 and continued its pursuit."

Page 5592

1 So what did the Prosecution do? Less than a month before this

2 trial began, the Prosecution expanded the consciousness of the accused to

3 include the period before his tenure; that is to say, to all the 44 months

4 of the campaign. In that way, we have been put in a situation when, at

5 the moment, we didn't even know the scope of responsibility of the

6 accused, Dragomir Milosevic, to be dealt with by the offence. Since

7 counts in the indictment were not changed, there was no remedy at our

8 disposal at the moment, and to seek probably some response by the Trial

9 Chamber to our motion had we been able to file one.

10 Moreover, on the 18th of December, 2006, the Prosecution

11 submitted, on the same day, when they amended the indictment, a motion for

12 a formal notice of facts under Rule 94(B), and it involved as many as 181

13 facts. In its brief, dated 21st of January --

14 THE INTERPRETER: Could the counsel please repeat the date of the

15 motion.

16 JUDGE ROBINSON: Please repeat the date. The interpreter didn't

17 have the date.

18 Is it the 21st of January?

19 MR. TAPUSKOVIC: [Interpretation] Sorry, my mistake. 25th of

20 January, 2007. I said 2005. Yes, my mistake.

21 In this submission, in this motion, the Prosecution claim that the

22 facts under number 50 to 181 refer to the issues which were in dispute in

23 the current proceedings. Furthermore, the Prosecution claimed that these

24 proposed facts, although they do not refer to the indictment period, are

25 of such notion that they prove paragraph 19 in the indictment stating that

Page 5593

1 the accused conducted the campaign of sniping and shelling of the

2 civilians, and that he knew about this campaign as far back as in May

3 1992.

4 This position taken by the Prosecution clearly shows that they

5 used these established facts in order to prove that the accused conducted

6 the campaign and, furthermore, much more that he had known about the

7 campaign in May 1992. Therefore, his responsibility, according to the

8 Prosecution, should encompass the whole period of 44 months. However, the

9 key issue is that through these established facts, the Prosecution wanted

10 to prove that there was the existence of shelling and sniping campaign of

11 civilian population as the only objective.

12 When the Prosecution filed this motion, they said something

13 different. In the motion dated the 25th, it also mentioned that the

14 facts, 57 to 181, although they were relevant about the awareness,

15 reiterate the same without saying directly anything about criminal

16 responsibility of the accused and his mens rea. The Defence's

17 understanding is that in this way of trying to prove a key fact is

18 absolutely inappropriate and cannot constitute evidence of the existence

19 of the campaign contained in the indictment. Supposedly, the Prosecution

20 should have taken a different course.

21 They should have tried to prove the existence of this campaign in

22 the period relevant for Dragomir Milosevic and to provide evidence that

23 Dragomir Milosevic, throughout the indictment period, without any military

24 purpose, first, I'll give you a couple of examples: An extensive shelling

25 and sniping of exclusively civilian targets; that throughout the

Page 5594

1 indictment period there was a extensive and widespread campaign on a large

2 scale involving a large number of casualties; that throughout the period,

3 the frequency and geographical dispersion of this campaign was in

4 existence; and that throughout the whole period, the campaign was based on

5 territorial and topographic advantages and particularly superiority in

6 terms of weapons and ammunition; that these incidents were evenly

7 distributed throughout the period; that the civilian casualties were also

8 eventually distributed throughout the period of the document; and so on

9 and so forth.

10 All of this put forth as something being totally out of any

11 military context. The Prosecution didn't even make an endeavour to prove

12 any of these allegations. They just listed these facts established in the

13 Galic case without feeling the need to prove any of the elements dealt

14 with the Appeals Chamber in the Galic case.

15 Instead of providing evidence to corroborate these facts, the

16 Prosecution's point of departure was what he knew at the time before he

17 became what he became, and they took the course of providing evidence of a

18 number of sniping incidents and a number of shelling incidents, as

19 stipulated in paragraph 29.

20 Furthermore - and that is the reason why I didn't want to address

21 these issues - even the few incidents described here, whether they

22 involved a sniping or shelling as the basis of a crime, should be, must be

23 subjected to very serious criticism. I didn't have enough time to prove

24 that the largest number of these incidents still remain unproved beyond

25 reasonable doubt. Not even the crime base was sufficiently established

Page 5595

1 with a sufficient number of cases in the relevant period, and the campaign

2 alone was not proven at all beyond stipulating certain facts stating that

3 Dragomir Milosevic merely inherited the campaign once he was appointed

4 commander.

5 We've heard a number of victims, and most of the witnesses we

6 heard, I believe almost 20 or 25, were policemen, boys, young boys who

7 were in charge of those investigations. We only saw two officers,

8 military officers; a commander and an officer, and they tried to portray a

9 civilian society being targeted by an army for no reason at all, as if

10 there were no belligerent parties present in the area. In the first

11 instance judgement in Galic, it also stated that the Sarajevo front was

12 the central theatre of all events in Sarajevo; whereby, here the OTP

13 attempted to prove that this was a civilian area with a certain number of

14 soldiers targeted by a very strong army which enjoyed superiority for no

15 reason at all with the sole intent of doing nothing but that.

16 There is another thing I must say, and that is that the -- the

17 adjudicated facts in that case are irrelevant concerning the criminal

18 responsibility of Dragomir Milosevic, since none of those facts can be

19 used in order to prove the mens rea, the acts, and behaviour of the

20 accused. I'm looking for a reference. I believe it was in the court

21 ruling of the 10th of April, whereby, something was stated. I will try

22 to find that reference.

23 It is stated that he must have known of the existence of the

24 campaign, and that he should have taken steps to prevent such crimes from

25 happening again and to punish the perpetrators as least of the moment when

Page 5596

1 he was pointed commander. If one allows for such reasoning, then we --

2 then we need not be here. There is no room for this trial because it

3 seems we have the facts, and we need the incidents only in order to come

4 up with a judgement; then one must ask: What is the sense of it all,

5 Unless sufficient evidence was provided as to the existence of the

6 campaign?

7 As I said at the initial stages of the proceedings, concerning the

8 amended indictment and the application for judicial notice of adjudicated

9 facts, before that, we didn't know what the scope of the case was. And

10 since we still have no final ruling of the Court as for the fate of those

11 adjudicated facts, whether all of them will be taken into account or not,

12 we find ourselves in a position that two weeks before we are to forward

13 our witness list - and I may freely say so - we still do not know the

14 scope of responsibility of the accused. It is a very good question as to

15 what preparation we can indeed carry out.

16 We will meet all of the deadlines and rulings made by the Court,

17 but we find ourselves in a tight spot, since we still don't know the scope

18 of responsibility of the accused Dragomir Milosevic. It turns out that he

19 is to stand -- to be held responsible for the period when he was commander

20 and also when Stanislav Galic was commander, and that he should bear the

21 blame for both with an appropriate sentence.

22 [Trial Chamber confers]

23 [Trial Chamber and legal officer confer]

24 JUDGE ROBINSON: Go ahead, please.

25 MR. TAPUSKOVIC: [Interpretation] Your Honours, I will try to take

Page 5597

1 as little time as possible to complete my submissions, but there is

2 another thing I needed to say.

3 What is particularly striking here, and even basic criminal law

4 knowledge and some common sense would find that striking, and that

5 pertains to some basic criminal responsibility features. I have dealt

6 with criminal law throughout my career, and I feel obliged and invited to

7 say a few things on that topic.

8 Can one inherit criminal responsibility, as envisaged in Article 7

9 of the Statute of the International Tribunal for the former Yugoslavia.

10 What sort of criminal responsibility is it when it allows for a

11 possibility to state something of that kind, that one can inherit criminal

12 responsibility? It is beyond dispute between the parties here that, if I

13 may say so, General Dragomir Milosevic inherited the position, the

14 military position of his predecessor, this being General Galic. But that

15 is all he inherited.

16 As for his acts and behaviour, it can only be viewed within his

17 state of mind and the mens rea, as it is referred to in this Tribunal,

18 only during the period that he is to be held responsible; that is, for the

19 time that he was charged with in the indictment. This is not a matter of

20 inheritance. One cannot the inherit such a thing. This is criminal

21 responsibility which can be seen only within the relevant time in the

22 indictment and only for the acts and mens rea in that period. No

23 inheritance factor exists in criminal law. Responsibility is only

24 attributed to a certain period of time pertaining to me and me alone.

25 Everything I want to say about the campaign today has to do with

Page 5598

1 these few basic matters that I have mentioned. Even if he had known of

2 certain things from the preceding period, his behaviour has only to do

3 with the time when he was in the position of authority; and only during

4 that period, one can try to establish what his liability was. It is one

5 of the most notorious facts when it comes to criminal responsible, an

6 individual responsibility under Article 7 of the Statute, and it can be

7 viewed in no other way.

8 In order to make myself even clearer regarding that, I will try to

9 use an example, although some may find it in bad taste, but I don't see

10 why not. I can mention a quote from the dissenting opinion of Judge

11 Nieto-Navia, when this Judge forwarded a separate and dissenting opinion

12 as to the responsibility of General Galic. Concerning the existing

13 campaign, this Judge stated that based on the evidence in the relevant

14 period, one may not conclude that the SRK intentionally carried out a

15 sniping campaign against civilians.

16 There is another thing that was also present in this case, in my

17 view, and that was a portion of that opinion that I wanted to quote. This

18 Judge determined that there was no existence of such a campaign, that it

19 cannot be determined. The Judge said that after the explosion at the

20 Markale market on the 5th of February, 1994, an agreement was put in place

21 of excluding all heavy weaponry from any use in the city. The area of

22 total exclusion was established.

23 Based on that fact, on the existence of the exclusion zone between

24 February and August of that year, he believed that it is sufficient to

25 show that in the period that Galic was accused with committing crimes, one

Page 5599

1 cannot conclude that the campaign existed throughout. This fact is not in

2 dispute, I believe, because the zone of total exclusion, during the period

3 when Dragomir Milosevic was commander, existed throughout, absolutely so.

4 It is but one fact, and I will not go into any others for the time

5 being. I will mention them, however, when I give my opening statement.

6 But this factor alone shows that such a campaign could not have been in

7 existence throughout the period when Dragomir Milosevic was in command. I

8 will address yet some other things at a later stage.

9 The Prosecutor and the Prosecution in this proceeding brought a

10 historian before this Bench. It was Robert Donia. He produced a report

11 based on some historical background and political and military context.

12 As he states in the introduction, "My report will focus on the period

13 between November 1994 and August 1995; that is, within the period

14 encompassed by the indictment against General Dragomir Milosevic." Even

15 that evidence encompassed only the period until August 1994. It was held

16 against me in this Court that I indulge in history far too often.

17 Your Honours, as for a historical background in the case of

18 Dragomir Milosevic, I don't want to go into it at all, or I wouldn't have,

19 had it not been opened here in the report. I had to present my objections

20 to that report and to cross-examine the witness.

21 As for this case, I do not believe that the historical or

22 political background is important. It was towards the end of the war, and

23 I have no reason to go into that for that reason alone. However, the

24 military context throughout the case period was of such a nature that it

25 should have been the only relevant thing for any possibly decisions of

Page 5600

1 yours, particularly when it comes to the sniping and shelling campaign

2 allegation. For without that military context, which was clearly evident,

3 one cannot decide on anything in this case. However, all the evidence and

4 facts presented did not provide for sufficient military context.

5 I will try to be very brief by way of example. If we take W-156

6 in English, it is page 46 --

7 THE INTERPRETER: Interpreter's correction: In the B/C/S, it is

8 page 46.

9 MR. WHITING: I'm really sorry to interrupt counsel's submissions.

10 However, if we are going to talk this witness's testimony, I think out of

11 an abundance of caution, we should go into private session. This witness

12 testified in closed session; and until we resolve what could be made

13 public, if anything, from his testimony and what could not, I think at

14 this stage, we should go into private session.

15 MR. TAPUSKOVIC: [Interpretation] Your Honours.

16 [Trial Chamber confers]

17 JUDGE ROBINSON: Yes, Mr. Tapuskovic. Are you saying something in

18 response to the submissions just made?

19 MR. TAPUSKOVIC: [Interpretation] Yes.

20 JUDGE ROBINSON: Yes. We will hear you.

21 MR. TAPUSKOVIC: [Interpretation] I wanted to read one sentence

22 which will not endanger anyone. The only thing I said was W-156. Apart

23 from that, no identity is known, and this one sentence will not reveal it.

24 There is no need to go into private session when this is but a quote which

25 can describe the context that I have mentioned.

Page 5601

1 MR. WHITING: Your Honours.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: All right. Private session.

4 [Private session]

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 [Open session]

17 THE REGISTRAR: We're in open session, Your Honours.

18 MR. TAPUSKOVIC: [Interpretation] Without the military context,

19 which was not mentioned in the indictment, one cannot view or assess the

20 responsibility of the accused for the things he was charged with. In that

21 regard, the Prosecutor did not attempt to prove anything. What we have is

22 the dominant presence of the adjudicated facts in order to corroborate

23 certain incidents, and no proof or evidence is offered for the things that

24 I mentioned.

25 Perhaps I can draw a parallel, a comparison with the indictment to

Page 5602

1 support my argument. What you can see is that in the indictment, when it

2 refers to the incidents, by the incidents alone, one cannot see that the

3 incident -- that the number of incidents or their intensity could testify

4 as to the existence of a campaign. Not even the number of victims can

5 support that claim. Even on cursory reading of the indictment, one could

6 find that because, according to the document, there were four phases:

7 First, the phases after the anti-sniping agreement until the end of 1994;

8 then we have the phase of cease-fire between January and May 1995; then we

9 have the phase of General offensive of the ABiH; and then NATO

10 air-strikes.

11 If one is to compare only that with what he is charged with, with

12 minimum analysis of the indictment, one can see that the Prosecutor was

13 completely unable to prove that the campaign was in existence throughout

14 the period, the campaign of targeting solely civilians and civilian

15 targets. We can compare that to the contents of P602, this being the

16 police report.

17 Perhaps I needn't go into detail; but it is clear that in the

18 period between August and December 1994, there were wounded but there were

19 only nine people killed, and there was a very small number of incidents.

20 Between early January and May, if we take that as a piece of information -

21 and I believe this is how you adopted the evidence - there were only two

22 killed and but a few incidents. Most of the incidents happened between

23 May and August when there was a general offensive on the part of the ABiH

24 against or at all front lines.

25 This is the period when we have most of the victims; and, of

Page 5603

1 course, subsequently, most of the civilians that could have been killed

2 were killed in that particular period. The only way to avoid that would

3 have been to a complete surrender of the army of Republika Srpska. In the

4 last period, as of late August until November, even according to the

5 indictment, there was not a single stated incident but there were one or

6 two victims. For such a complain as they claim that was in existence, the

7 Prosecutor did not provide a single piece of evidence. That campaign is

8 the basis for all other crimes mentioned in the indictment. This is what

9 I wanted to present to you.

10 Finally, I would like to say something about how informed the

11 accused was. It may sound a little by the absurd to say that in May, or

12 rather, from the beginning of the conflict he knew about that and he

13 inherited that. Please. The Galic judgement was rendered on the 30th of

14 November, 2006. Up until then, Galic was innocent, and it was not known

15 what he was going to be charged with and what happened during his era. So

16 what is the point, then, at all to mention that the accused knew

17 something, and that this should dominate this whole proceedings.

18 It is beyond doubt that he learned about this. It may also sound

19 absurd on the date when the second instance judgement was rendered, and

20 even if he did know, it is impossible to establish any inherited

21 responsibility. In order not to be repetitive and not to tire you, in

22 view of all that, the campaign of targeting civilians and civilian target

23 has not been established on the basis of a single piece of evidence.

24 I think this the only thing that have I to impart on you at this

25 juncture because I'm not going to address any other issues today. Time

Page 5604

1 will come for me to tackle these issues in my opening statement and my

2 closing statement as well. This fact, in my view, has not been proved at

3 all.

4 Thank you.

5 JUDGE ROBINSON: Thank you, Mr. Tapuskovic.

6 Mr. Whiting.

7 MR. WHITING: Your Honours, what I'm going to do is ask for some

8 guidance from the Trial Chamber, first of all, and then I think I will ask

9 if we have a ten-minute break so that we can kind of get our approach in

10 order, because we had prepared a certain approach. I think we may adjust

11 it, based on what we heard today.

12 We were prepared to go through every single incident and talk

13 about every single incident in the indictment based on the submission of

14 Defence counsel. Although he challenged the campaign and although the

15 specific incidents are, of course, relevant to the campaign, because he

16 did not specifically challenge the scheduled incidents, I'm not inclined

17 to go into those, unless Your Honours ask me to. In which case, we're

18 perfectly prepared to do.

19 We're ready, we will go through it, and we will do it. But that

20 is the point of guidance that -- and if Your Honours are unsure, then

21 perhaps we should do it. But if Your Honours think there is no need to go

22 through each incident, then we'll save the time and focus on other issues

23 that have been raised by Defence counsel and that are raised in the case.

24 JUDGE ROBINSON: The Prosecution response must be prompted, not

25 only by the submissions the Defence has made, but by the law of the

Page 5605

1 Tribunal. What is required? What is the standard? That is what you

2 should have in mind. I said to Mr. Tapuskovic what my understanding of

3 the law is, and I don't see how it would become necessary to go into all

4 the incidents.

5 What we are looking for at this stage is whether there is some

6 evidence capable of supporting a conviction on the counts in the

7 indictment, and I would expect the Prosecution, in its response, to

8 provide an indication of that evidence.

9 MR. WHITING: Okay. Could we have just a ten-minute break? I

10 think we can shorten dramatically our presentation if we do that. We have

11 divided up the presentation. It's not just me.

12 JUDGE ROBINSON: That is not necessary. I don't believe that that

13 is necessary at all. It would show that you do not understand the 98 bis.

14 MR. WHITING: Okay. So you just want us to proceed.


16 MR. WHITING: Okay.

17 [Prosecution counsel confer]

18 [Trial Chamber confers]

19 JUDGE ROBINSON: Well, my learned colleagues feel, notwithstanding

20 what I have said, if you wish to have a short break, you are entitled to

21 it. So we will give you a short break of ten minutes.

22 MR. WHITING: Thank you, Your Honour. I think it will be to the

23 benefit of everyone. Thank you.

24 --- Break taken at 9.58 a.m.

25 --- On resuming at 10.12 a.m.

Page 5606

1 JUDGE ROBINSON: Yes, Mr. Whiting.

2 MR. WHITING: Thank you, Your Honours.

3 I'm going to first briefly respond to a few points made by Defence

4 counsel, then I will give a brief introduction; and then, as I indicated,

5 we have divided up our presentation, and others will speak and then I will

6 speak at the end. We have, during the break, shortened dramatically what

7 we have planned to do.

8 Defence counsel repeatedly suggested that the burden on the

9 Prosecution is to prove that the sole purpose of the military campaign, of

10 the campaign of the SRK, that its sole purpose, its objective, exclusive

11 objective was to target civilians. And that suggestion was made

12 repeatedly in the submission of the Defence. That submission misstates

13 both the law and the facts in this case.

14 The law, it is quite clear, does not require a -- that the

15 Prosecution prove with respect to the terror count in Count 1 or any of

16 the other Counts that the sole objective of the accused was to target

17 civilians or was to cause terror. And with respect to terror in

18 particular, because I take it that this is really what the Defence counsel

19 was addressing, I would point the Trial Chamber to the Galic Appeal

20 Judgement at paragraphs 99 to 104, specifically paragraph 104, which

21 explicitly states that the Prosecution need not prove that is the sole

22 objective, only that is a primary objective.

23 Secondly, it has never been the Prosecution's case, nor do we

24 believe it is the evidence, that there was only targeting of civilian

25 objects during the indictment period. Of course, there was a -- there was

Page 5607

1 military activity. There was military fighting going on during that

2 time-period, and we accept that. In fact, we have led evidence about

3 that, specifically, from the very start of the trial to the very end.

4 However, that evidence and that position is not inconsistent with

5 our position that, at the same time, there was a widespread and systematic

6 campaign of shelling and sniping of civilian objects by the SRK under the

7 command of the accused during the indictment period, which had as one of

8 its primary purposes to cause terror. Therefore, we believe that the

9 facts support every -- that the evidence and the facts support every

10 element of every count charged in this indictment.

11 Secondly, [sic] in Defence counsel's submission, there was a

12 suggestion that the indictment is supported only by the scheduled

13 incidents, or that the allegations of a campaign are supported only by the

14 scheduled incidents. That, of course, is not the case. As is explicitly

15 stated in the indictment, and has always been our position, the scheduled

16 incidents are illustrative. They form illustrations of the campaign.

17 There is, however, other evidence, significant evidence, necessary

18 evidence, in the case of the campaign. The evidence of the campaign of

19 shelling and sniping and of terror is supported by the scheduled

20 incidents, by evidence of unscheduled incidents, and by other general

21 evidence of witnesses and documents showing that throughout the indictment

22 period, there existed a campaign of shelling and sniping of civilian

23 objects. It is critical that the proof of the campaign depends on

24 different types of evidence of the sort I have just mentioned, not simply

25 the scheduled incidents.

Page 5608

1 Third, and finally, in response to Defence counsel, there was

2 considerable discussion about the adjudicated facts, which to us came as a

3 by the of a surprise, since the present posture is that many of the

4 adjudicated facts proposed by Prosecution are not part of the record,

5 because by decision of the Trial Chamber, they were not accepted. Of

6 course, that is still an open matter. But as the record currently stands,

7 they are not part of the record. It baffles me a little bit why Defence

8 counsel is arguing against them.

9 However, just to make a few things clear, in case there is a

10 confusion. Number one, it is, of course, not our case that the accused

11 would be held responsible by virtue of the adjudicated facts were they to

12 be admitted for the period before he became commander. The indictment is

13 quite clear in the period that is charged against the accused, and that is

14 not in any way changed by the adjudicated facts.

15 The adjudicated facts and critically other evidence which is

16 similar to the adjudicated facts and which has been led in this trial and

17 which may, and we submit should be considered by the Trial Chamber,

18 concerning the earlier time period is evidence. It evidence. It does not

19 expand the liability of the accused. It is evidence concerning his

20 knowledge during the time-period in which he is charged, and that's all it

21 is.

22 Now, I'm just going to talk very briefly about the 98 bis standard

23 because, of course, the Trial Chamber has stated at the beginning of

24 today's session what the standard is. And with respect to the standard, I

25 would make just two points. The first is, as the Trial Chamber stated,

Page 5609

1 the standard is if there is some evidence capable of supporting a

2 conviction on each count, in making that determination, we submit that the

3 law is - and here I am referring to the Kordic and Cerkez decision of the

4 6th of April 2000 - that all inferences should be drawn in favour of the

5 Prosecution, and any alternative hypothesis by the Defence is at this

6 stage to be disregarded. In other words, the Prosecution's case must be

7 taken at its highest.

8 The second point, and this I think is important to consider, is

9 the effect of the change in the rule 98 bis that occurred in December of

10 2004. Your Honours have referred to one change in regard to the standard.

11 However, there was another important change, and that is that the language

12 of the removal changed from "charges" to "counts." Therefore, now the

13 Trial Chamber need only consider each count and whether there is

14 sufficient evidence regarding each count, not necessarily each allegation

15 or each charge within a count.

16 And the important ramification of that change for our case, we

17 submit, is that, number one, the Trial Chamber need not consider every

18 mode of liability alleged under each count. It is sufficient if the Trial

19 Chamber finds that there is sufficient evidence for one mode of liability

20 alleged under a count, that that count survives 98 bis.

21 Secondly, it is not necessary for the Trial Chamber to consider

22 every "crime base" allegation within a count; and with regards to our

23 case, what we submit that means is that it is in fact not necessary for

24 the Trial Chamber to look at every scheduled incident and determine with

25 respect to every scheduled incident whether there is sufficient evidence

Page 5610

1 regarding that scheduled incident.

2 We submit, as we will argue later on, that there is; that is, for

3 each one, there is sufficient evidence in fact. But the Chamber need not

4 go into that detailed an analysis. It need only decide whether there is

5 sufficient evidence to sustain the count. And, therefore, we submit

6 sufficient evidence of perhaps enough scheduled incidents, unscheduled

7 incidents, other types of evidence to support the counts with respect to

8 each count in the indictment.

9 The law for that approach has been adopted now in two Trial

10 Chambers, and I believe in a third this week. And I would refer to the

11 Mrksic Trial Chamber decision of the 3rd of July 2006, transcript

12 reference 5959 to 5971; the Martic Trial Chamber decision of the 28th of

13 June, 2006, at transcript 11311 -- I'm sorry those transcript pages were

14 reversed. The second one was for Mrksic, and the first one was for

15 Maric. This week, on the 1st of May, the parties in the Milutinovic case,

16 which has started to argue the 98 bis, the parties agreed, both Defence

17 and Prosecution, that this was the proper approach.

18 Now, as I said, we have divided up the case. Mr. Docherty will

19 briefly talk about the campaign of sniping. Mr. Waespi will talk about

20 the campaign of shelling. Ms. Edgerton will talk about terror, and then I

21 will talk at the end about command and control and about 7(3). We will

22 not necessarily touch on every issue in the case; for example, we will not

23 go on at length about armed conflict. I do not think there is a dispute

24 with regards to the existence of an armed conflict during the relevant

25 period. However, if there were, I would refer the Chamber to Mr.

Page 5611

1 Harland's testimony at 322 to 326 which supports an armed conflict.

2 Similarly, with respect to widespread and systematic, which is an

3 element of some of the counts, we will not go into detail about that.

4 However, all of the evidence taken together certainly establishes at this

5 stage, and we submit evenly beyond a reasonable doubt, that there was a

6 widespread and systematic campaign.

7 As I said, we submit that every element on every count has been

8 satisfied. We would ask, since we are trying to make this as quick as

9 possible, though as comprehensive as possible, that if the Trial Chamber

10 has a concern about any count, that it be raised with the Prosecution and

11 we be permitted to address it if we have not done so already; because we

12 believe that we should have an opportunity to be heard if there is a

13 concern about any count.

14 With that is correct, I will turn over the presentation to

15 Mr. Docherty.

16 MR. DOCHERTY: Good morning, Your Honours, Mr. Tapuskovic.

17 The amended indictment charges the accused with sniping as murder

18 in an Count 2 and as inhumane act in Count 3. Both Counts 2 and 3 are

19 characterised as crimes against humanity. In addition, the accused is

20 charged in Count 4 with sniping as a war crime, as unlawful attacks on

21 civilians. There is evidence sufficient to support a conviction on each

22 of these three counts and, therefore, the Defence submission that they

23 should be dismissed ought itself to be dismissed.

24 The existence of a sniping campaign directed against civilians in

25 the Sarajevo area during the indictment period is supported, first of all,

Page 5612

1 by the 12 scheduled incidents upon which the Prosecution has led evidence

2 throughout this trial. Because the Defence has explicitly said that it

3 forgoes at this stage a challenge to the evidence of those 12 incidents, I

4 shall not spend time discussing them, unless the Trial Chambers has a

5 specific question about any one of them. In which case, I will be happy

6 to respond.

7 The existence of the sniping campaign we first evidence of through

8 the Prosecution's very first witness, Mr. David Harland, who said that

9 "the basic dynamic of the conflict around Sarajevo was that the Serbs,

10 who were in a militarily dominant position, would use sniping and shelling

11 against civilians as a way to elicit Bosnian government behaviour they

12 wanted." That is at page 324, lines 14 through 19.

13 The concrete details of the implementation of this military

14 strategy of this campaign of sniping against civilians were then fleshed

15 out by witness after witness who have testified in this trial over and

16 above the crime base witnesses who established the 12 scheduled incidents.

17 Police officer Turkovic testified that during the war, calls for

18 help on sniping and shelling came in from all over the city, all hours of

19 the day and night, all times of the year. Page 5180, lines 9 through 17.

20 80 percent of his time, 80 per cent of his colleagues' time was taken up

21 on these calls. Page 5179, 16 through 17, and 5180, 3 through 8. After

22 the war, these calls dropped to zero. Page 5810, line 18.

23 Exhibit Prosecution 602, a spreadsheet of police activity during

24 the time of conflict, bears out that these calls were coming in at all

25 hours and from all places.

Page 5613

1 Witness Thorbjorn Overgard, an UNMO in Hrasnica, investigated

2 sniping incidents in Hrasnica almost every day. "The origin of fire," he

3 testified, "was always SRK territory, the victim always a civilian." It's

4 transcript page 635, beginning at line 18 and continuing to transcript

5 page 636, third line.

6 The demographer, Ewa Tabeau, testified that even on militarily

7 quiet days, civilians continued to be killed in violent, war-related ways,

8 mostly through sniping.

9 Protected witness, W-62, stated that going out to get food and

10 water was dangerous due to sniping and shelling. Transcript page 882,

11 lines 8 through 15.

12 There was testimony that the victim of scheduled incident number

13 2, this was the shot from the school for the blind through the tunnel, was

14 put into a private car rather than an ambulance to be transported to

15 hospital to avoid sniper fire that they -- that the bystanders expected

16 would be directed at an ambulance. That is page 887, line 20 continuing

17 to page 888, line 9.

18 Following scheduled incident number 2, this passageway became even

19 more dangerous for the citizens of Sarajevo. Sniper fire was directed

20 down it more frequently, despite the neighbourhood civilians hanging

21 blankets as an anti-sniping barricade. And that is page 890, lines 3

22 through 16.

23 A number of 92 ter statements introduced in this trial support the

24 existence of a campaign through either scheduled incidents or general

25 overview evidence. I direct the Court's attention to Prosecution Exhibit

Page 5614

1 92, in which a witness stated that she used to sleep with the blinds shut

2 all the time for fear of sniping; Exhibit 95, in which a witness about a

3 crime base incident, stating that earlier in the war, her husband had been

4 hit in the cheek by a sniper's bullet that came through their apartment

5 window.

6 At page 1657, line 15, continuing to 1658, line 3, there was

7 testimony from a Sarajevo tram driver that every intersection in town was

8 dangerous to a tram driver. Canadian army officer Louis Fortin

9 characterised sniping as a terrorist target and said that the targets were

10 usually civilians but sometimes United Nations personnel. Page 484, line

11 22 to page 485, line 10. And he further testified that he personally was

12 frequently sniped at while driving to Bosnia-Herzegovina command of

13 UNPROFOR. Page 485, lines 11 through 13.

14 With regard to sniping from Sharpstone into the north-east

15 Sarajevo neighbourhood of Sedrenik, Nedzib Djozo of the police, the

16 officer who responded to scheduled incident number ten, gave testimony

17 that every day there was sniping into Sedrenik from Sharpstone and that

18 many, many civilians - he used the figure of 100 as a synonym for a large

19 number - were killed or wounded as a result of this fire. That's page

20 3695, at lines 12 through 18.

21 Witness 54, testified that the assumption of every Sarajevo tram

22 driver during the conflict was that when they took tram out, they would

23 not come back. Page 1693, lines 6 through 13.

24 Another witness, also a tram driver, testified that one might as

25 well drive a tram as stay home, because staying home was dangerous.

Page 5615

1 Indeed, the whole city was dangerous. Transcript page 1185, line 24

2 continuing to 1186, line 4.

3 Also, as put by Witness Zecevic, at transcript 1637, lines 2

4 through 12, the Serbs "shot and fired at us and shelled us all the time."

5 I would also refer the Trial Chamber respectively to Exhibit 541,

6 the expert report Lieutenant Van der Weijden of the Dutch army, in which

7 he stated, at pages 6 through 7, that he has visited the scene of every

8 single scheduled sniping incident and evaluated it. And then when he

9 testified, at transcript page 4287, line 2 through 9, he stated that in

10 every single case, every single scheduled incident, fire should have been

11 withheld because the victim could not have been positively identified as a

12 combatant.

13 In sum, Your Honours, the Prosecution has proven, has introduced

14 extensive evidence, some of which I have mentioned here, some of which,

15 such as the scheduled incidents, I have only adverted to, that there

16 existed a campaign of sniping that was directed against the civilian

17 population of Sarajevo during the indictment period, and that this

18 campaign of sniping was widespread and systematic.

19 Thank you, Your Honours.

20 JUDGE ROBINSON: Thank you, Mr. Docherty.

21 Mr. Waespi.

22 MR. WAESPI: Good morning, Mr. President, Your Honours.

23 The amended indictment charges the accused with shelling as a

24 murder, that is Count 5; shelling as an inhumane act, that is Count 6; and

25 in count 7 also as an unlawful attacks on civilians.

Page 5616

1 As my colleague Mr. Whiting already pointed out, the Prosecution

2 has led evidence, presented evidence of three different categories in

3 relation to the shelling campaign. There are the scheduled incidents 15;

4 it's the unscheduled incidents, numerous numbers; and also evidence of a

5 general nature or overview evidence.

6 Briefly addressing them, first, these scheduled incident, the 15,

7 which I won't go into in any detail, we have shown for each of them that

8 they caused civilian casualties, death, injuries; that the origin of fire

9 was from SRK-held territory; and that there was no military purpose behind

10 them.

11 Moving to unscheduled incidents, just to name two, Your Honours:

12 Both originate from W-138. He testified about an air bomb incident on the

13 22nd June 1995, at Getoeva Street where a child died. The source is

14 transcript 1212 until 1214. The second unscheduled incident, just as an

15 example for Your Honour's consideration, is a shelling incident on a bus

16 on the 18th of September, 1995. The transcript reference is page 1326,

17 also in this relation Prosecution Exhibit 147.

18 The third category of evidence, overview evidence of general

19 nature, my colleague Mr. Docherty already mentioned witnesses Harland,

20 Turkovic, Eva Tabeau, Overgard. I'm sure my colleague Ms. Edgerton will

21 mention a few of them that relate both to sniping and also shelling.

22 Just a few more examples, Mr. President, Your Honours, Mr.

23 Overgard testified, at page 636, that there was nearly daily shelling in

24 Hrasnica at the end of 1995, a time, Mr. Tapuskovic this morning said,

25 that nothing was really happening. We know from witness W-57, at page

Page 5617

1 4554, that Hrasnica was mainly civilian inhabited.

2 Other witnesses who talk in general about the campaign of shelling

3 was Azra Sisic, who came here to testify about Dobrinja. She said that

4 water points were often targets for shelling in her area. That is page

5 2831.

6 Also, other witnesses, Harland and also Ghulam Mohatarem, the

7 brigadier from Pakistan who testified in the first week. They talked

8 about what they called punitive shelling. My colleague Mr. Docherty

9 already alluded to that. Basically, it means that shelling Sarajevo was

10 meant to apply pressure to Bosnian government with no military purpose.

11 Another quote for Mr. Mohatarem, at page 703, "Shelling was a regular

12 process, but it would increase in intensity if the Serbs wanted to make a

13 point, or if they were serving as -- they were facing reverses somewhere

14 in any of those sectors, the shelling would intensify."

15 Two more references, Mr. President, Your Honours, from our

16 documentary evidence, especially from UN sources. P19, an UNPROFOR report

17 of 2nd July 1995, and I quote: "The Serbs have resumed a more or less

18 indiscriminate shelling of the city, adding that sniper activity has

19 spread to a number of areas usually considered reasonably safe."

20 The second example I would like to refer to, Your Honours, is

21 Defence Exhibit number 9, again an UNPROFOR report, dated 24th June,

22 1995. It is very powerful, I suggest, Your Honours, and explicit document

23 drafted by Mr. Harland saying: "Humanitarian situation bad. Civilians

24 killed as Serbs shelled water lines and market places."

25 Just ending up, Mr. President, Your Honours, only if you look at

Page 5618

1 the scheduled incidents we have charged the accused with, they spread all

2 over Sarajevo, starting from the bottom of any map, from the south-east

3 with shelling incidents number 6 and 19 -- I'm sorry, in the south-west,

4 starting with the shelling incidents number 6 and 19, going over Dobrinja,

5 shelling incident number 14, then towards Novi Grad, shelling incident

6 number 22, into the east, the old city, as an example, shelling incident

7 number 5.

8 So you can see in the territorial spread, it's all over Sarajevo,

9 all over the urban part. In time, it's similar. We have used these

10 incidents as an illustrative example, as you have been told consistently

11 by the Prosecution.

12 A brief word about the air bombs, Your Honours. We have led a lot

13 of evidence, live evidence and also documentary evidence, including, very

14 important, from these SRK documents with the signature of the accused that

15 the SRK deployed air bombs. Air bombs, as you have heard many times, are

16 inherently indiscriminate. Just a few quotes: Expert Zecevic, at 4851

17 and the next page; also David Harland talked about that at page 440; and

18 also witness W-146.

19 Two examples of the connection of air bombs to the SRK, the direct

20 connection as you know, P225, exhibit of 7th April, 1995, with the SRK

21 commander, the accused confirming in a regular combat report that he

22 indeed used this bomb over civilian areas, and the second example is P226.

23 Lastly, Mr. President, Your Honours, as Mr. Whiting already said,

24 the Prosecution doesn't deny there was an ongoing war, but there is enough

25 evidence, and a very good example is Ghulam Mohatarem, that the SRK

Page 5619

1 shifted, shifted its tactics from engaging in normal war into targeting

2 the civilians. And a very good example is at page 712 and 713 when, in

3 relation to an attack of the SRK on 16 and 17 May, 1995, on Debelo Brdo,

4 the SRK initially mounted a military campaign; and then when then saw they

5 couldn't achieve it, totally abandoned it and started to indiscriminately

6 shell the civilian part of Sarajevo causing many casualties.

7 Mr. President, Your Honours, the Prosecution has led evidence to

8 show that there was a protected campaign in time, locations of the

9 civilian population in Sarajevo conducted by the SRK under the command of

10 the accused.

11 Thank you, Mr. President, Your Honours.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Do you have other speaker?

14 MR. WHITING: Yes, Ms. Edgerton and then me again.

15 JUDGE ROBINSON: Ms. Edgerton and you again. So Ms. Edgerton you

16 will how long.

17 MS. EDGERTON: According to my timing last night, I will be

18 something between 15 and 18 minutes.

19 JUDGE ROBINSON: Yes. And then you're just closing or

20 Mr. Whiting.

21 MR. WHITING: I'm addressing some substantive matter, so some 15

22 minutes.

23 JUDGE ROBINSON: So we better take the break now then.

24 --- Recess taken at 10.46 a.m.

25 --- On resuming at 11.07 a.m.

Page 5620

1 JUDGE ROBINSON: Ms. Edgerton.

2 MS. EDGERTON: Thank you, Your Honours.

3 It's obvious now that I will be addressing, Your Honours, on the

4 remaining count, 1, which charges the accused in this case with the crime

5 of terror as a violation of the laws or customs of war.

6 Our submission with respect to this count, Your Honours, is that

7 the combined evidence which has been put before you in this case does

8 demonstrate the existence of a campaign of shelling and sniping, and that

9 it was a campaign which was designed, intended, and implemented to

10 terrorise the civilian population of Sarajevo. It was the SRK which

11 realised that campaign, and Your Honours have heard repeated evidence that

12 the campaign did in fact cause terror.

13 There's been evidence which shows the campaign was widespread and

14 occurred over a long period, specifically from only weeks after the

15 outbreak of war in and around Sarajevo in the spring of 1992. In that

16 regard, I'd refer to Your Honours to Martin Bell at pages 5239, lines 4 to

17 5240, line 7; Harland, 323, lines 4 to 12 and 324, lines 11 to 19; and

18 General Karavelic at page 4219, line 1 to 5.

19 The campaign, Your Honours, continued throughout the indictment

20 period and actually intensified in spring of 1995, and the references in

21 this case would be to Harland, at 327, lines 11 -- 10 to 11; 329, lines 15

22 to 24 -- sorry, lines 15 to 33; 334, lines 7 to 24; Bell at 5240, lines 8

23 and own ward; 5244, lines 3 to 9; and P625, under seal, at page 27 of the

24 English translation.

25 This campaign, Your Honours, was firmly in place when the accused

Page 5621

1 assumed command of the SRK in August of 1994; and by that time, its

2 consequences were known not only locally but internationally. Significant

3 witnesses have provided direct evidence in this case, Your Honour, that

4 terror was the primary purpose of the campaign by the SRK: The

5 Prosecution's first witness, David Harland; General Sir Rupert Smith; John

6 Jordan; W-46; and W-158. I'd like to turn to that direct evidence first.

7 David Harland testified that the specific purpose of the siege of

8 Sarajevo was obvious to him for two reasons: First, the Bosnian Serb

9 leaders specifically told him so. They said to him they used the shelling

10 and sniping of Sarajevo to apply pressure, as my friend Mr. Docherty has

11 said, on the Bosnian government that would force them to a peace agreement

12 on terms that would be acceptable to the Serbs. Shelling and sniping,

13 waging what Harland called a war of terror against the civilian

14 population, "was a way," he said, "for the Bosnian Serbs to get had a we

15 wanted." In that regard, I'd refer you to pages 324, lines 2 and

16 onward -- sorry, 324, line 2 to 325, line 17; and 327, lines 5 to 22.

17 Second, "the purpose of the campaign," Harland testified, "was

18 manifest in the military behaviour of SRK forces." Most of the military

19 activity, he reported on, wasn't conventional force on force military

20 activity, but undirected or semi-directed artillery fire against civilian

21 inhabited areas of Sarajevo.

22 "This application of force," he said, "was purely then for the

23 objectives of the application of terror against the civilians," and that

24 as at pages 324, lines 23 over to 325, line 2; and 326, line 20 to 327,

25 line 1.

Page 5622

1 "This application of the instruments of terror," as Harland said,

2 "was the principle activity of the Sarajevo-Romanija Corps." "It was,"

3 he said, "what they did," and that's at 325, lines 14 to 18.

4 Further, he said, "one could easily detect patterns of increase in

5 the application of terror by the Bosnian Serbs through increased room

6 random bombardment of the city, sniping, or cutting off the food supplies

7 at times when they wanted to achieve greater political leverage."

8 He used the analogy of a tap. "The amount of terror," he said,

9 "was linked to the SRK military efforts." "The Serbs," he said, "had a

10 spigot of terror. " And while the extent tent to which it was opened or

11 closed varied. Throughout the course of the war, dynamic was the same.

12 "The Serbs," he said, "intended to inflict maximum suffering on

13 the people of Sarajevo, to induce their state authorities to agree to

14 peace on their terms." But they were careful not to apply too much

15 pressure, and he noted this dynamic continued through to October 1995.

16 I'll refer you to pages 325, lines 2 to 13; and the same page, 325, lines

17 23 through to 326, line 19.

18 Harland recalled, by way of illustration, words used by Radovan

19 Karadzic on one occasion, which struck him. And they, to his mind, were

20 among the factors that confirmed that the Serb intention was necessarily

21 to starve the city but to inflict terror on its population.

22 Discussing the Dobrinja-Butmir tunnel, "Karadzic," Harland said,

23 "said that the Serbs could destroy it but they were going to let the

24 Muslims breathe." "They could have," Mr. Harland testified, "cut off all

25 the food and water and actually force the surrender of Sarajevo at certain

Page 5623

1 points." But he noted they chose not, and they chose to allow the

2 existence of the tunnel, at page 375, lines 9 to 16.

3 Now, other witnesses gave similar evidence as to the primary

4 purpose of the campaign from their own observations and perspective.

5 General Sir Rupert Smith stated that with the exception of countering a

6 specific military attack, he had no doubt that the purpose of campaign of

7 shelling and sniping was to terrorise and to hold the pressure of Serb

8 pressure in the minds of people on a daily basis. "It was," he said,"very

9 effective, particularly on the ordinary run ever life in Sarajevo," and

10 that's at pages 3311, line 7 to 22.

11 I'd now, Your Honours, like to refer witnesses who testified in

12 closed session; so if we could move into private session for that purpose,

13 I would be grateful.

14 JUDGE ROBINSON: Private session.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 5624

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]

16 THE REGISTRAR: We're back in open session, Your Honours.

17 MS. EDGERTON: The witness, John Jordan, volunteer firefighter and

18 many other things for the civilians of Sarajevo: John Jordan's assessment

19 of the deliberate nature of the campaign to terrorise Sarajevo civilians

20 was articulate; and for this purpose, I'm going quote from his statement,

21 which is P267, paragraph 42.

22 He said: "What excuse can there be for shooting a firefighter

23 when he is trying to put out a residential fire? What reason can there be

24 for shelling water lines, bread lines, places with no military purpose? I

25 can't remember a time when we weren't picking up wounded and dead people.

Page 5625

1 The thing I noticed about certain attacks was that Serb shooters would go

2 after the youngest in the family. If an adult and child were walking

3 together, the child would be shot. If a family was walking, it would be

4 the youngest. In a crowd of girls, it is seemed that the most attractive

5 would be shot."

6 It seemed that there was something very personal, almost grudge

7 attacks doing whatever would cause the most pain to survivors.

8 Your Honour, in our submission, there's ample evidence that as a

9 result of the campaign, civilians in Sarajevo had no sense of security.

10 Virtually no place in the city was entirely safe, and I would refer Your

11 Honours to the testimony of Bell at 5242, lines 11 to 15; the testimony of

12 Karacic in regard in part to sniping incident number 8 at 1185, lines 24,

13 to 1186, line 4; Witness 121, page 2833, lines 13 to 20; and Witness

14 Jasarevic at page 3004, lines 11 to 24.

15 Travelling outside the house to get water was a risk. Water lines

16 and water pipes were targeted. Snipers would sometimes even shoot at

17 water containers and people that were carrying them. People would line

18 for water between 2.00 and 3.00 a.m. to avoid being targeted, and the

19 reference in that regard is Bell pages 5259, lines 18 to 23; P618; P295;

20 paragraphs 19 to 23.

21 Movement made people a target. People risked their lives every

22 time they went out; and, again, I'd refer Your Honours to pages 1657, line

23 15 to 1658 line 3; W-62, lines 882 -- pardon me, page 882, lines 8 to 15;

24 and P211.

25 I'll talk briefly now, Your Honours, about three arms of the

Page 5626

1 Prosecution's case, beginning with sniping.

2 Your Honour, I will have to ask for movement in closed session for

3 one last time, please.

4 JUDGE ROBINSON: Closed session.

5 Private.

6 MS. EDGERTON: Private, please.

7 JUDGE ROBINSON: Private session.

8 [Private session]

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 5627

1 (redacted)

2 (redacted)

3 [Open session]

4 THE REGISTRAR: We're back in open session, Your Honours.

5 MS. EDGERTON: Thank you.

6 This was echoed by sniping expert Patrick Van der Weijden in P514

7 at page 7. He said that, "In a sniping, a victim killed by a sniper only

8 affects the victim and people in the direct vicinity; but in the case of

9 sniping, the thought of never being safe from the enemy affects everybody.

10 Apart from being shot at, the anxiety mainly comes from not knowing

11 where or exactly when the sniper will strike."

12 General Fraser also confirmed that sniping had a major

13 psychological effect on the population. Martin Bell testified -- pardon

14 me, the reference in that regard is 1813, lines 18 to 24. Martin Bell

15 testified that civilians even established rat runs to safely move from one

16 place to another because sometimes it was unsafe to even go out of their

17 front door. That's at pages 5243, lines 4 to 10, and P610.

18 Trams were targeted. The Sarajevo tram system, Your Honours have

19 heard, was symbolic of the normal functioning of the city. They stopped

20 working in 1992 and resumed again in 1994. The hope was that when the

21 trams resumed, things were getting better, but they too were hit. Page

22 5249, line 6 to 5250, line 10, and P614.

23 Brigadier General Fraser described trams as a favourite target of

24 snipers inside of Sarajevo because of the psychological impact it had on

25 the people of the city. Shooting a tram gave shudders to the city and it

Page 5628

1 meant that the situation was grave again. Page 1793, lines 18 to 24.

2 Witnesses described their fear, the suspense of not knowing

3 whether you were going to be shot and whether you might be injured,

4 prevailed throughout the war. Pages 1658, line 24 through to 1659, line

5 15, and P92, refer.

6 Moving on to shelling, you've already heard from my colleague

7 Mr. Waespi that it was indiscriminate, unpredictable and for some

8 witnesses a regular feature of their lives. I direct Your Honours to

9 P185, page 3, P280, page 2, and P164.

10 The pattern of artillery around Sarajevo, David Harland described,

11 was one of dispersion of fire. Shells would be dropped apparently

12 randomly across densely populated civilian areas of the city. While they

13 might be concentrated in one area or another, they were not concentrated

14 against military targets. Harland stated that they assumed one of the

15 reasons for this was to keep the general level of terror high. Page 330,

16 line 10, through to 331, line 18.

17 Brigadier Higgs testified that with respect to the incidents he

18 analysed, in particular, SS 2 at pages 5035 to 50346. And SS 23 at 5030,

19 lines 8 to 24, he concluded that the rounds fired had no military

20 objective and the only objective could have been to cause civilian

21 casualties and put terror in the minds of the people in the areas of those

22 incidents.

23 A number of military officers in addition to other witnesses have

24 described air bombs to Your Honours. One, General Fraser, aptly described

25 them as a makeshift weapon with no military value. This officer, who had

Page 5629

1 experience at all levels of military command, including artillery command,

2 said he could never imagine a battlefield situation which would call for

3 the use of a weapon like that. It had a huge explosive capacity and was

4 psychologically devastating for the people. And that's General Fraser,

5 lines -- pages 1825, line 22 through to 1827, line 12.

6 Echoed by Knustad, at page 1992, lines 1 to 15; Overgard in

7 respect of SS6, page 643, line 20, to 644, line 5; and P345, paragraph 23.

8 Your Honours, on -- you've received evidence that on April 6th,

9 1995 the accused issued an order to the Ilidza Brigade to prepare a

10 launcher with an aerial bomb and transport the bomb for launching directed

11 to the most profitable target in Hrasnica and Sokolovic Kolonija and the

12 order reads: "Where the greatest casualties and material damage would be

13 inflicted." That's P226. An air bomb did land in Hrasnica on the 7th of

14 April, leveling five houses and causing one death. P621, and also P279

15 through to 282.

16 Forensic investigator Hasanefendic, in respect of SS22, described

17 the air bomb's primary purpose as massive destruction and intimidation;

18 2326, line 17 to 21; and Martin Bell described the air bombs as by their

19 very nature weapons of mass destruction. "We might even call it," he

20 said, "a weapon of shock and awe," at page 5262, line 6 to 11.

21 Your Honours, the totality of the evidence you've received at this

22 point in the trial in the Prosecution case shows these attacks, the

23 attacks of this campaign were not militarily significant. You've received

24 evidence to the effect that they were not so intense as to show a

25 concerted attempt to take over the city. In fact, the attacks, in our

Page 5630

1 submission, Your Honour -- and you have ample and, one would submit,

2 substantial evidence in that regard -- the attacks passed one message to

3 the people of Sarajevo: No one in the city was safe.

4 And those are my submissions, Your Honours.

5 JUDGE ROBINSON: Thank you, Ms. Edgerton.

6 Mr. Whiting.

7 MR. WHITING: Thank you, Your Honours.

8 Finally, I will address the individual responsibility of the

9 accused and specifically focus on the evidence of command and control of

10 the accused and his 7(3) responsibility.

11 As Your Honours are aware, the accused is charged in each count

12 with essentially four modes of liability: With planning, ordering, aiding

13 and abetting, and with 7(3) responsibility, failure to prevent, failure to

14 punish.

15 In our submission, taking together the evidence -- the

16 overwhelming of evidence of a campaign of shelling and sniping of civilian

17 objects plus a campaign to cause terror, which has been already presented

18 to you, put together with the also overwhelming evidence of the accused's

19 command and control over the SRK, that that supports substantially all of

20 the modes of liability, all four modes of liability that are charged with

21 respect to each count.

22 Now, with respect to command and control, point number one is that

23 the evidence shows that the accused had effective command and control over

24 the SRK and that he was an effective commander. I would point first to

25 the testimony of General Fraser, transcript reference is 1784, 1810 to

Page 5631

1 1811, and 1818.

2 I'll quote from 1818. General Fraser said: "Yes, Mladic was the

3 boss, yes, he had significant control and command because he was directing

4 operations not only in Sarajevo but for the rest of the country. But

5 within that little box called Sarajevo, General Milosevic was the guy in

6 command."

7 There's also evidence from David Harland at transcript 337. He

8 said: "We thought that the command and control, particularly on the Serb

9 side, was very strong."

10 David Harland said at transcript 353 that the accused was: "Was a

11 forceful and commanding personality, rather more commanding presence,

12 perhaps, that his predecessor, General Galic."

13 There was also evidence -- and this evidence in fact was elicited

14 by the Defence from Colonel Dragicevic, and this actually reminds me to

15 make a point that I had intended to make at the beginning, which is that

16 in our submission, the Defence has not disputed any of the evidence led by

17 the Prosecution through numerous witnesses that the accused had effective

18 command and control over the SRK. We in fact believe that the record

19 shows that this -- because of their failure to challenge this evidence, as

20 required by Rule 90 H, that this has in fact been conceded.

21 Colonel Dragicevic said at transcript 4025 and 4010 and 3989 that

22 the accused was a hands-on commander, that he spent a lot of time in the

23 field, and that the SRK had superior "combat morale and strict military

24 discipline."

25 John Jordan testified at paragraph -- in paragraph 41 of his 92

Page 5632

1 ter statement, which is P267, and also viva voce at transcript 2645 that

2 he went to Lukavica and saw the command -- the corps headquarters there

3 approximately six times and he observed that it "seemed like they had good

4 organisation and command structure."

5 There's also evidence on the effective command and control from

6 Major Eimers at 4789 to 90, and General Rupert Smith at transcript 3418

7 and from Exhibit P625 under seal at page 8.

8 Secondly, there is evidence that protests to the corps command and

9 requests to, for example, stop firing or to allow individuals to go

10 through Serb checkpoints, that those requests made to the corps command

11 were effective, that they were effectively implemented and very quickly,

12 demonstrating an effective command and control structure at the corps

13 level. I would refer Your Honours to General Fraser on this point at

14 transcript 1771 to 1772; John Jordan, again, in his statement, P267, at

15 paragraphs 15 and 32. He also testified live about this at 2635. He also

16 talked -- John Jordan talked in paragraph 40 of his statement about

17 getting permission to go through checkpoints, Serb checkpoints, and how

18 was that effectively done.

19 Major Eimers testified at transcript 4787 to 88 that when the

20 UNMOs wanted firing to stop, they would contact Lukavica and the firing

21 would typically stop within minutes. Major Eimers also talked about

22 checkpoints at 4791. The next point is that there's evidence that orders

23 were effectively passed down from the supreme command, the level of

24 Mladic, and then implemented under the command of Dragomir Milosevic. And

25 I -- I need to ask that we go into private session at this point.

Page 5633

1 JUDGE ROBINSON: Private session.

2 [Private session]

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 THE REGISTRAR: We're back in open session, Your Honours.

15 MR. WHITING: Thank you, Mr. President.

16 Colonel Dragicevic testified about how orders came down from the

17 Supreme Command and that the accused would implement those orders and pass

18 them on and make them orders of his own. He directly witnessed this, this

19 happening and that evidence is at transcript 4056, 4067. There is further

20 evidence about orders coming from the Supreme Command and being

21 implemented effectively by the accused from General Rupert Smith, and

22 those transcript references are 3298 to 3302.

23 The next point is that there is evidence, substantial evidence

24 from numerous witnesses that shelling and sniping in particular were

25 controlled at the corps level. And again I'm going to have ask that we go

Page 5634

1 into private session.

2 JUDGE ROBINSON: Private session.

3 [Private session]

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 5635

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 THE REGISTRAR: We're in open session, Your Honours.

12 MR. WHITING: Just to return to the point about shelling and

13 sniping being controlled at the corps level, there was also evidence about

14 this from General Fraser at transcript 1773; Brigadier Ghulam Muhammed at

15 transcript 704, General Rupert Smith at 3318 to 19 -- no, sorry, 3318 to

16 21; and from Mr. Higgs at transcript 5005 to 5006.

17 The next point briefly is: There is also evidence which just

18 reinforces this evidence that I've already spoken about that there no

19 rogue elements within the SRK. That evidence came from several witnesses,

20 including Brigadier Ghulam Muhammed at transcript 708; from John Jordan at

21 paragraph 47 of his statement in evidence, which is P267; and from Major

22 Eimers at exhibit P585, paragraph 37.

23 We have, of course, in evidence numerous orders of the accused.

24 I'll just cite a few of them: P390, P395, P396, P42, P3, P208, P225,

25 P226, D141, P490, plus all of the orders that were put into evidence

Page 5636

1 yesterday through witness Barry Hogan.

2 In our submission, all of that evidence taken together shows that

3 the accused had effective command and control and it can be inferred from

4 all of the evidence that he planned, ordered and aided and abetted the

5 campaign of shelling and sniping and of terror alleged in all of the

6 counts of the indictment.

7 Finally, Your Honours, the final point I will address is the 7(3)

8 evidence of failure to prevent and punish. The first point to make with

9 respect to this is that of course the -- there is substantial evidence

10 that the command of the SRK and the accused were aware of the -- what was

11 occurring in Sarajevo, what was being done by the SRK, aware of the

12 campaign of shelling and sniping and of terror. This was something that

13 was known, frankly, around the world. And it was certainly known by the

14 command.

15 Specifically, there is substantial evidence of many, many protest

16 letters that were sent to the accused and to the command. Some of the

17 examples of protest letters are P18, P28, P29, P30, P31, P32, P33, P36,

18 P87, P101, P102, P103, P204, P343, and P392.

19 General Nicolai testified, at transcript 937, that he wrote over

20 50 protest letters, and that most of the time the response to the protest

21 letters were just denials or justification. That is at transcript 950.

22 The second point on 7(3) is that, of course, the VRS had laws in

23 place stating that commanders had a duty to initiate proceedings when

24 there was a violation of the laws of war, and law is set forth in Exhibits

25 P474 and P475, and there is evidence about how they were applied at

Page 5637

1 transcript 3972 to 3973.

2 There is evidence that there were no investigations; not even any

3 investigations, let alone prosecutions, of invitations of the laws of war,

4 even though many other crimes such as threats, dereliction of document, or

5 other kind of domestic, violent crimes were investigated during this

6 time-period were effectively prosecuted.

7 I would refer Your Honours to the evidence P476 through P488.

8 Those are the reports of investigations and prosecutions from December

9 1994 to October 1995, showing all of these other crimes that are

10 investigated and prosecuted and not a single investigation for violations

11 of laws of war.

12 There are other reports in evidence which refer to the importance

13 of discipline within the SRK for other matters. I refer Your Honours to

14 P491, P489, D141, and P490.

15 Colonel Dracigovic testified, of course, that there were no

16 investigations or prosecution for war crimes during the indictment period.

17 That's at T3983. This was also echoed by Major Eimers in P595 at

18 paragraph 46.

19 As I stated at the beginning, Your Honours need only find that

20 there is sufficient evidence with respect to one alleged mode of liability

21 for each count. We submit that all four modes of liability, which are

22 alleged in each count, have been supported by substantial evidence,

23 certainly sufficient for this Rule 98 bis proceeding.

24 Unless there are any specific questions with regard to any of the

25 counts or any of the points that have been made by the Prosecution, we

Page 5638

1 will end our submission on that note.

2 JUDGE ROBINSON: Thank you.

3 Anything in reply, Mr. Tapuskovic? You're not obliged to.

4 MR. TAPUSKOVIC: [Interpretation] Your Honours, I have noted down a

5 lot of things. It would take a lot of time for me to respond to these

6 submissions. Therefore, all the points that I would like to underline, I

7 would use my opening statement as an opportunity to respond.

8 I was not go going to tire the Chamber with regard of any issues

9 raised by the Prosecution. I think I have to think about everything

10 thoroughly. I could give my responses right now, but I don't think that

11 there's any need for you to be burdened with this. It requires a very

12 serious and deep analysis.

13 JUDGE ROBINSON: Thank you very much.

14 We will adjourn for half an hour.

15 --- Break taken at 11.53 a.m.

16 --- On resuming at 12.33 p.m.

17 JUDGE ROBINSON: I will now give the decision of the Trial Chamber

18 on the Defence submission on under Rule 98 bis.

19 Prior to its amendment in December 2004, Rule 98 bis B read: "The

20 Trial Chamber shall order the entry of judgement of acquittal on motion of

21 an accused, or proprio motu, if it finds that the evidence is insufficient

22 to sustain a conviction on that or those charges."

23 Following the amendment, the rule now reads: "At the close of the

24 Prosecutor' case, the Trial Chamber shall, by oral decision, and after

25 hearing the oral submissions of the parties, enter a judgement of

Page 5639

1 acquittal on any count if there is no evidence capable of supporting a

2 conviction.

3 "The amendment was designed to achieve greater expeditiousness in

4 the operation of the Rule. It did this in three ways: First, as this

5 distinct from the former practice, there is no longer a written motion for

6 acquittal with an oral submission, and the Trial Chamber gives its

7 decision orally."

8 Secondly, the new formulation clarifies that a judgment of

9 acquittal is to be entered if there is no evidence capable of supporting a

10 conviction. But this had always been the standard, and this is confirmed

11 by the following dicta from the Appeals Chamber in Jelisic.

12 The Appeals Chamber held that the test for determining the

13 applicability of Rule 98 bis is whether there is evidence, if accepted,

14 upon which a Tribunal of fact could be satisfied beyond a reasonable doubt

15 of the guilt of the accused on the particular charge in question.

16 The Chamber went on to say that thus the test is not whether the

17 trier of fact would in fact arrive at a conviction beyond reasonable doubt

18 on prosecution evidence, if accepted, but whether it could. Thus, as long

19 as there is some evidence capable of supporting a conviction, a motion for

20 judgement of acquittal will fail. One can look at the Mrksic judgement,

21 which was referred to by the Prosecutor, for support for this proposition.

22 The search for some evidence capable of supporting a conviction

23 will in most cases be carried out more easily and more quickly than an

24 examination into whether there is sufficient evidence to support a

25 conviction.

Page 5640

1 Rule 98 bis is based on the law and practice in common law

2 jurisdictions relating to what is called a no case to answer submission.

3 In keeping with that law and practice, the Tribunal's case-law makes clear

4 that an acquittal at the end of the case is perfectly consistent with a

5 Trial Chamber's rejection of a Rule 98 bis submission; that is, a decision

6 that there is evidence capable of supporting a conviction. Significantly,

7 the test proceeds on the basis that the Prosecution case is accepted, and,

8 therefore, as Mr. Tapuskovic himself mentioned in his submissions, at this

9 stage, the Trial Chamber is not concerned about contradictions or

10 inconsistencies in the Prosecution's case, or, more generally, with issues

11 of credibility. Those are matters to be addressed by the Trial Chamber in

12 determining the guilt of the accused at the end of the case.

13 Now, thirdly, and this is the third way in which the amendment

14 achieved expeditiousness, the new rule clarifies that a judgement of

15 acquittal relates to a Count in respect of which there is no evidence

16 capable of supporting a conviction. If a Count is comprised of several

17 parties, and there is no evidence on one part of the Count, the submission

18 will fail, if there is evidence capable of supporting a conviction on the

19 other parts. The Prosecutor has said as much.

20 But this aspect of the new Rule is, in the Chamber's view, far

21 from satisfactory. The Rule would seem to require, in the example given,

22 not only that the submission should fail, but also that the one part of

23 the Count, which has found to be not supported by any evidence, should

24 also remain because the Count has survived.

25 In the view of the Trial Chamber, this result is unnecessary and

Page 5641

1 impractical. The survival of the Count should not oblige the Trial

2 Chamber to retain for consideration, at the end of the case, a segment of

3 the Count that it has found to be unsupported by any evidence. Moreover,

4 such a result defeats one of the purposes of the Rule; namely,

5 expeditiousness.

6 A consequence of the Rule, and this would also have been the case

7 with the former Rule, is that because charges in indictments at the

8 Tribunal are, what I call, typically multi-layered, there is not much

9 prospect for success for a Rule 98 bis submission. It is not unusual to

10 find in an indictment, in the Tribunal, a Count charging a crime, such as

11 a crime against humanity, with several, perhaps as many as 15 to 20,

12 grounds. Thus, a Count could have as many as 100 or more separate

13 allegations. It could cover 40 municipalities, be allegedly completed by

14 15 different mean, details of which could be set out in 50 or more items

15 in a schedule.

16 If there is some evidence on one of these grounds and none on the

17 others, the submission will fail. Even if no further evidence is adduced

18 in relation to those parts which the Chamber has found to be unsupported

19 by evidence, it will be obliged to retain, to consider, and, at the end of

20 the case, make a determination on them.

21 Charges in indictments at the domestic level are generally not as

22 multi-layered as they are at the Tribunal. A possible exception to this

23 may be cases of fraud. Rule 98 bis, if it is to have any meaning, should

24 reflect this difference; if it does not, the Rule is virtually devoid of

25 any practical application at the Tribunal and serves very little purpose.

Page 5642

1 The Chamber has not been able to find a case in which a motion or

2 submission for acquittal has been successful in respect of all counts.

3 Admittedly, it may be difficult to determine the extent to which the

4 general multi-layered nature of the indictments accounts for this lack of

5 evidence. However, at a minimum, the Rule should be amended to make it

6 clear that if there is no evidence capable of supporting a part, a

7 segment, a particular, or item of account, that part should be discarded

8 at the halfway stage, while the rest of the count that is supported by

9 evidence remains.

10 As presently formulated and applied, a submission leading to the

11 acquittal of the accused or of an accused at the end of the Prosecution

12 case is only likely to succeed in the very rare case when the Prosecution

13 case, as a whole, has broken down, so that there is no evidence of either

14 the actus reus or mens rea of a crime. When one considers that the

15 rational for the Rule in the until common law system is to ensure that at

16 the end of the Prosecution's case, the jury is not left with evidence that

17 cannot lawfully support a conviction, thereby preventing it from bringing

18 in an unjust conviction, one must question the justification for the

19 application of the rule in a system in which the Tribunal of fact is not

20 only a person but a professional panel of Judges.

21 Nonetheless, if there is need to find a justification for the

22 retention of the Rule, it would have to lie in the possibility. It

23 affords the accused to gain his or her freedom at the end of the

24 Prosecution's case.

25 I turn now to the submissions made. The gravamen of the Defence

Page 5643

1 submissions is that the Prosecution was, and here I quote ,"completely

2 unable to prove that there was in existence a campaign throughout the

3 relevant period to target only civilians and civilian targets."

4 It also submitted, that is the Defence, that there was no evidence

5 to prove that the accused knew or had reason to know of the crimes

6 committed by his subordinates. In that regard, the Defence completely

7 rejected the Prosecution thesis of an inherited campaign and the

8 inferences the Prosecution was asking the Chamber to draw from that. The

9 Defence argued that the adjudicated facts from Galic were irrelevant to

10 the criminal responsibility of the accused.

11 The Prosecution, in its reply, made detailed submissions pointing

12 to the evidence which it had led to support a conviction in respect of

13 each of the seven counts. I turn now to an analysis of the evidence, and

14 I make two things clear at the outset: First is that the conclusions

15 arrived at are based on the analysis of the law that the Trial Chamber has

16 carried out. Secondly, there has been no challenge to the Prosecution's

17 case that there existed an armed conflict in Sarajevo at the relevant

18 time.

19 I also make it clear that the evidence on which the Trial Chamber

20 will rely and to which it will advert for its decision includes the

21 evidence referred to in the Prosecution's submissions, and this applies to

22 all the counts.

23 So let us look at Count 1, which charges the accused with the

24 crime of terror as a violation of the laws and customs of war, punishable

25 under Article 51 of Additional Protocol I, and Article 13 of Additional

Page 5644

1 Protocol II to the Geneva Conventions, and Articles 3, 7(1), and 7(3) of

2 the Tribunal's Statute.

3 It is alleged that the accused planned and ordered, or in the

4 alternative, aided and abetted the crimes charged in the indictment, and

5 that he had criminal responsibility for the crimes as the commander of the

6 perpetrators of those crimes. The Trial Chamber has heard evidence from a

7 number of witnesses, including David Harland, Louis Fortin, and Thomas

8 Knustad.

9 David Harland testified on the 19th of January that shells were

10 dropped by the Serbs apparently randomly across densely populated civilian

11 areas in a way that would cause a small number of casualties in a large

12 number of places. It was assumed by UNPROFOR personnel that this was to

13 keep the general level of terror high and to forestall any dramatic events

14 around which an international response would coalesce.

15 Bogdan Vidovic testified that Martindvor, and in particular -- I

16 misread that. He testified that Marindvor, and in particular an

17 intersection in Marindvor, were under constant sniper fire, originating

18 from positions of the VRS including from the Metalka building.

19 Other witnesses have testified that the several areas in

20 Sarajevo -- that several areas in Sarajevo were under constant sniper fire

21 from Serb-held positions, and that they would have to move carefully to

22 avoid being shot.

23 There is evidence that the locations from which snipers operated

24 were under the control of the Sarajevo-Romanija Corps or the SRK.

25 Milan Mandilovic testified that the State Hospital was exposed to

Page 5645

1 both shelling and sniping, and that all of the 12 floors of the hospital

2 were impacted by artillery fire. The side of the hospital overlooking

3 Mount Trebevic was hit the most. According to Bakir Nakas, from 1994

4 until 1995, the Kosevo Hospital and its compound were hit dozens of times

5 by shells.

6 There is also evidence that modified air bombs were used by the

7 SRK to shell civilian areas or buildings of Sarajevo. In addition, the

8 Trial Chamber received documentary evidence detailing attacks on civilians

9 by way of shelling and sniping.

10 Let us now turn to Counts 2, 3, and 4, which charge the accused

11 with murder, a crime against humanity, for conducting a coordinated and

12 protracted campaign of sniper attacks upon the civilian population of

13 Sarajevo, killing and wounding a large number of civilians of all ages and

14 sexes. Count 3 charges the accused with inhumane acts, again a crime

15 against humanity; and Count 4 charges the accused with unlawful attacks on

16 civilians.

17 The Trial Chamber has heard evidence from a number of witnesses,

18 including Sanela Dedovic, Witness W-35, and Witness W-62. The evidence of

19 these witnesses indicates that sniping took place in several places around

20 Sarajevo. Sanela Dedovic testified that when she was 12-years-old, she

21 crossed a street near a feature called Sharpstone in the north-east of

22 Sarajevo. She was shot at and was hit in the ankle by a bullet which

23 ricochetted off the pavement. There is evidence that the Sharpstone

24 feature was a position of the VRS.

25 Witness W-35 recounted how Alma Kotuna was shot while she was

Page 5646

1 travelling on a tram near the old town of Sarajevo. When the tram reached

2 the Holiday Inn Hotel and the museum, she was shot in the leg. There is

3 evidence that the tram had been shot at from a location where the VRS held

4 positions. The bullet that hit Alma Kotuna in the leg severed an artery.

5 There is also evidence of sniping in the west of Sarajevo.

6 Witness W-62 testified that 14-year-old Adnan Kasapovic was shot dead on

7 his birthday while trying to cross a passageway. There is evidence that

8 he was shot from the Institute for the Blind in Nedzarici, a known

9 sniper's nest of the Serb army.

10 Let us now turn to Counts 5, 6, and 7. Count 5 charges the

11 accused with murder, a crime against humanity, punishable under Articles

12 5(a), 7(1), and 7(3) of the Tribunal's Statute, and this for conducting a

13 campaign of artillery and mortar and modified air bomb shelling on to

14 civilian areas of Sarajevo and upon its civilian population. It is also

15 alleged that these attacks were deliberate and indiscriminate and/or

16 excessive and disproportionate to the concrete and direct military

17 advantage anticipated.

18 Count 6 charges the accused with inhumane acts, a crime against

19 humanity; and Count 7 charges the accused with unlawful attacks on the

20 civilians, a violation of the laws or customs of war.

21 The Trial Chamber has heard evidence from a number of witnesses

22 who testified as to how civilian areas in Sarajevo were shelled. These

23 witnesses include Enes Jasarovic and Witness W-138.

24 Enes Jasarovic testified as to how, on the 24th of May, 1995, a

25 250-kilogram modified air bomb hit the Safeta Zajke Street in front of

Page 5647

1 number 43. Two people were killed, five people were injured in the

2 explosion. Several buildings in the vicinity were severely damaged which,

3 according to some evidence, is a characteristic of the explosive charge

4 used.

5 Enes Jasarovic also testified that another air bomb hit the

6 transformer station on Majdanska Street, very near to Safeta Zajke Street.

7 At the transformer station, a further two people were killed and four

8 people were injured. There is evidence that the modified air bomb at

9 Safeta Zajke Street was fired from the direction of Lukavica, and that the

10 modified air bomb, which hit the transformer station came from the same

11 general area.

12 Witness W-138 testified about the shelling of the TV building in

13 Sarajevo. On the 28th of June, 1995, one person was killed, 28 persons

14 were injured when a modified air bomb struck the TV building. The air

15 bomb had come from a westerly direction, and Rijalda Musaefendic testified

16 that Ilidza lies to the west of the TV building.

17 I turn now to some specific issues of liability under Article 7(1)

18 and 7(3) of the Tribunal's Statute.

19 There is evidence that during the indictment period, the accused

20 was the commander of the SRK, the area of responsibility of which

21 encompassed Sarajevo. There is also evidence that one of the first

22 actions he took as commander was participating in negotiations for an

23 anti-sniping agreement with the ABiH and subsequently signing that

24 agreement. According to Ghulam Mohatarem, UNMO protested at meetings at

25 which the accused was present about the occurrence of sniping.

Page 5648

1 There is also evidence that the accused had effective control over

2 the troops sniping at civilians, and that he knew or had reason to know

3 that his subordinates were about to commit the crimes and failed to take

4 the necessary measures to prevent such acts or to punish the perpetrators.

5 With regard to the shelling of Sarajevo, there is evidence that

6 the accused planned and ordered the use of modified air bombs in attacks.

7 There is documentary evidence that a protest letter was sent to him

8 personally after shelling incidents. Finally, there is documentary

9 evidence that the accused acknowledged that the SRK had shelled the TV

10 building.

11 In the Trial Chamber's view, the above-mentioned evidence is on

12 the basis of the criteria previously discussed capable of supporting a

13 conviction for the crimes charges in Counts 1, 2, 3, 4, 5, 6, and 7.

14 Accordingly, the Defence submission is dismissed.

15 Is there any other matter?

16 MR. WHITING: Yes. Your Honour I do have one final matter to

17 raise, and it's a kind of sad matter for me personally. This marks the

18 end of my participation in the case. I am leaving to go back to the

19 United States to take up other responsibilities there. I will be

20 teaching, and I can take to you more about that later. But it's been a

21 pleasure and a honour to represent the Prosecution in this case before

22 Your Honours, and it is with a heavy heart that I leave the case at this

23 stage.

24 However, it's lifted a great deal because I'm going to be leaving

25 it in the hands of Mr. Waespi. He will be in charge of the case from here

Page 5649

1 on, and he also will be supported by the team that you see before you and

2 other members of the team that have appeared before you. I have every

3 confidence that together under the direction of Mr. Waespi that they will

4 continue to lead the Prosecution in the manner that you will expect.

5 So with that, I say good-bye to Your Honours and to Defence

6 counsel, and I will following this closely from my new position in the

7 United States.

8 Thank you, Your Honours.

9 JUDGE ROBINSON: Well, Mr. Whiting, you really have taken me by

10 surprise. I had no intonation at all. Of course, I'm not privy to what

11 happens in the Prosecutor's office. I can only say on my behalf, and I'm

12 sure I speak on behalf of the Trial Chamber, that we are very sorry to see

13 you go. I think your participation in the case, the way you have led the

14 Prosecution has been exemplary, and I take some comfort that you're moving

15 to an area which I can call my greatest love; that is, teaching. And may

16 I inquire what you will be teaching, or is that a secret?

17 MR. WHITING: No, no. It is not a secret, but I don't want to

18 make this about me. But I will be teaching law students how to be

19 prosecutors both in terms -- I am going to be a clinical law professor at

20 the Harvard Law School starting in September, and so I will be teaching

21 about domestic prosecutions, but also starting a clinic and teaching about

22 war crime prosecutions. So I will be trying to send my students here to

23 get experience and teaching them about what is happening here and other

24 Tribunals in the world, as well as prosecutions back home in the United

25 States.

Page 5650

1 JUDGE ROBINSON: Well, I'm happy to hear that and the Chamber

2 wishes you everything that is good in your new profession, and everything

3 that have you done here leads us to conclude that you will be successful.

4 I also wanted to commend you for the spirit of cooperation that you have

5 promoted between the parties. It is certainly the best that I have seen

6 in the eight to nine years that I have been trying cases at the Tribunal,

7 and I'm quite sure that that spirit of cooperation will continue.

8 Mr. Tapuskovic, I know, will see to that, and Mr. Waespi in his

9 new role as leader of the Prosecution team. So, once again, we wish you

10 Godspeed and great success in your teaching endeavours.

11 MR. WHITING: Your Honour, thank you very much for your words.

12 They mean a lot to me. I very much appreciate them.

13 JUDGE ROBINSON: Mr. Tapuskovic.

14 MR. TAPUSKOVIC: [Interpretation] Your Honour, I thank you for

15 presenting me with an opportunity to address you after having heard that

16 Mr. Whiting will be leaving the case.

17 On behalf of my entire team, I wish to express our gratitude and

18 pleasure for having been able to cooperate with Mr. Whiting. Indeed,

19 throughout proceedings, there were no communication problems concerning

20 the task that we embarked upon, and I am rest assured that that spirit

21 will stay with us for the rest of the proceedings.

22 On behalf of my entire team, I wish him all the best in his

23 teaching career, and I truly mean it. Therefore, I needn't say anything

24 else.

25 I wanted to ask something else, however, concerning the leave to

Page 5651

1 appeal your decision on established facts. When can we expect such a

2 ruling to be made because it will have an impact on the preparation of our

3 case.

4 JUDGE ROBINSON: We will give that decision today.

5 MR. TAPUSKOVIC: [Interpretation] Thank you.

6 JUDGE ROBINSON: Yes. The decision is in the affirmative, will be

7 in the affirmative in respect of both parties. We will grant the

8 certification.

9 MR. WHITING: Thank you, Your Honour. And if I could say thank

10 you to the Defence counsel for their words, and the feelings are fully

11 reciprocated. I also appreciated the cooperation, and I am sure that it

12 will continue.

13 Thank you.

14 JUDGE ROBINSON: Yes. We will resume on Thursday, the 24th of

15 May, unless I'm corrected by the legal counsel, Thursday, the 24th of May

16 at 2.15.

17 --- Whereupon the hearing adjourned at 1.12 p.m.,

18 to be reconvened on Thursday, the 24th day of May,

19 2007, at 2.15 p.m.