Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21966

1 Friday, 9 May 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 10.34 a.m.

5 JUDGE ORIE: Madam Registrar, would you please call the case?

6 THE REGISTRAR: Case number IT-98-29-T, the Prosecutor versus

7 Stanislav Galic.

8 JUDGE ORIE: Thank you, Madam Registrar. Since Judge Nieto-Navia

9 has no ear phones, we'll have to wait for a second.

10 Good morning to everyone on what will be the last day of this

11 trial.

12 Today, the bench will put questions to the parties and ask for

13 clarifications on issues that are not yet clear to us. I'd like to start

14 with one question and ask both parties about it. Perhaps first the

15 Prosecution.

16 My question is about the agreement of the 22nd of May of 1992. I

17 take it that you're aware of the agreement I refer to at this moment. May

18 I ask the Prosecution first whether the Prosecution takes the view that

19 this agreement entered into force because all ratifications were there?

20 MR. IERACE: Good morning, Mr. President. Mr. Mundis will respond

21 to any questions that you have in relation to the law so I'll hand over to

22 Mr. Mundis.

23 JUDGE ORIE: Mr. Mundis, what's the view on the completeness of

24 the ratifications in view of Article 6, paragraph 2 of this agreement?

25 MR. MUNDIS: Mr. President, the Prosecution does in fact take the

Page 21967

1 view that the agreement which the parties have signed entered into force

2 pursuant to the terms of Article 6 of that agreement.

3 JUDGE ORIE: May I ask the Defence what their position is?

4 MR. PILETTA-ZANIN: [Interpretation] Mr. President, the Defence has

5 some doubt. We remember a witness who pointed out this issue that we

6 didn't raise but there was a witness that indicated that certain

7 agreements had in fact been obtained and actually signed by Mr. Alija

8 Izetbegovic but that they weren't ratified in a technical sense of the

9 term, and as a result, had not entered into force. So it is an open

10 question and it is not for the Defence to respond to it. Thank you.

11 JUDGE ORIE: Well, Mr. Piletta-Zanin, in your pre-trial brief you

12 said that the agreement was valid and you did not give any reasons in

13 respect of ratifications why it would not be valid in your final brief so

14 a clarification on your part would not -- would not something -- would not

15 be something that would be beyond what could have been asked from the

16 Defence.

17 Mr. Mundis, was this agreement ratified by Croatia, as far as you

18 are aware of?

19 MR. MUNDIS: Mr. President, I'm not aware of Croatia having

20 ratified this agreement but as the Prosecution in our written submissions

21 has made clear, which, if you'd like to be -- like me to be heard on, I

22 can elaborate upon, the Prosecution also would have the position that this

23 agreement, even if the special agreement is not in force, that the parties

24 are nevertheless bond pursuant to Additional Protocol I itself and that

25 those provisions do reflect customary international law.

Page 21968

1 JUDGE ORIE: But that's a -- the question is now whether this

2 agreement would apply or not because you refer to Article 6 of the

3 agreement and said that the terms of Article 6, the agreement would be --

4 would have entered into force, whereas Article 6 reads that the agreement

5 will enter into force on the 26th of May, if all parties have transmitted

6 to the ICRC their formal acceptance of the agreement by the 26th of May.

7 MR. MUNDIS: Yes, Mr. President, the reference on the first page

8 of this document to the Croatian Democratic Community of course is the HDZ

9 within Bosnia-Herzegovina. This agreement between the parties represents

10 the three factions within Bosnia-Herzegovina so the Prosecution would

11 contend that Croatia was not a party to this agreement and thus the issue

12 of whether or not Croatia agreed to the terms of the agreement is not

13 really at issue in this case.

14 JUDGE ORIE: And do I then understand you well that the

15 ratification by the -- by Bosnia-Herzegovina would cover also the Croatian

16 party to this agreement or the Croatian --

17 MR. MUNDIS: That is correct, Mr. President.


19 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President, the

20 penultimate point we agree on the penultimate point with the Prosecution.

21 And we don't see why this document should have been ratified, either by

22 Croatia or any other state, with the exception of BH, that is to say

23 Bosnia and Herzegovina, since the three other parties were not states,

24 they were political parties, political organisations, but certainly not

25 states, so I think that we have managed to reach a substantial agreement

Page 21969

1 on this issue. The Prosecution and the Defence have reached an agreement,

2 no ratification could have been in effect because we are not talking about

3 states and I'm referring to the signatories after the first.

4 MS. PILIPOVIC: [Interpretation] Your Honour, I would just like to

5 add something. I just wanted to add something to what my learned

6 colleague has just said with regard to clarification -- clarifying

7 Protocol I, that is to say the signed agreement, its implementation, apart

8 from the fact that my colleague pointed out that the agreement was

9 ratified by party representatives not by states, not by state

10 representatives but by party representatives I would like to say that

11 Bosnia and Herzegovina is not a successor state of the Federal Republic of

12 Yugoslavia and that Yugoslavia doesn't have anything to do with the signed

13 agreement. And that that agreement which was signed by the

14 representatives of these political parties doesn't provide for the

15 implementation of Protocol I but only for some of the principles that

16 relate to civilians in Protocol I.

17 JUDGE ORIE: Would this influence in whatever way the binding

18 effect of this agreement to the conflict? The parties to the conflict?

19 MR. MUNDIS: Mr. President, we've set forth in our written

20 submissions the position that Bosnia-Herzegovina was in fact a state party

21 to Additional Protocol I and pursuant to both the four, 1949 Geneva

22 Conventions and the Additional Protocols which set forth provisions that

23 permit parties to sign special agreements, that this special agreement in

24 fact was supplemental to the four, 1949 Geneva Conventions and the two

25 Additional Protocols there to and that on the basis of Bosnia-Herzegovina

Page 21970

1 being a state party to those agreements, and this special agreement of 22

2 May, 1992, that in fact, the three, if you will, warring parties within

3 Bosnia-Herzegovina pursuant to the terms of this special agreement thereby

4 made the terms of Additional Protocol I which are specified this in

5 agreement applicable to the armed conflict on the territory of

6 Bosnia-Herzegovina.

7 JUDGE ORIE: May I then -- you're referring to Bosnia and

8 Herzegovina as a party to the four Geneva Conventions and Protocol II and

9 Protocol II. For Protocol I of course that would suggest that the

10 conflict was of an international character.

11 MR. MUNDIS: Of course Additional Protocol I by its terms only

12 applies to an international armed conflict. However the Prosecution

13 position is that this agreement made those specific provisions applicable

14 in a non-international armed conflict as evidenced by the fact that it was

15 three internal political parties within Bosnia-Herzegovina who

16 specifically agreed to abide by those provisions notwithstanding the fact

17 that the treaty, Additional Protocol I would otherwise not be applicable

18 by its terms to the conflict in Bosnia.

19 JUDGE ORIE: It was the last part of your answer that was --

20 [Trial Chamber confers]

21 JUDGE ORIE: Mr. Stamp, since you have in your last answer --

22 Mr. Mundis, sorry that I'm making a mistake. Everyone has his own

23 problems. I'm mixing you up. You were emphasising that it was through

24 this 22nd of May agreement that Additional Protocol I would be applicable

25 but nevertheless, Article 6 says that all parties should have transmitted

Page 21971

1 their formal acceptance of the agreement by the 22nd -- the 26th of May,

2 1992 and that brings us back to the first question: What about the formal

3 acceptance, I called it the ratification, but I should have spoken about

4 formal acceptance rather.

5 MR. MUNDIS: Mr. President, we have no evidence of the transmittal

6 of formal acceptance to the ICRC. We do of course have evidence based on

7 this document that the parties agreed to these terms but we simply do not

8 at this point have evidence before this Trial Chamber that in fact this

9 purely technical issue of transmitting the agreement to the ICRC by the

10 26th of May actually happened.

11 JUDGE ORIE: If, just for argument's sake, we would assume that

12 the Croatian Democratic Community would not have transmitted their formal

13 acceptance to the ICRC, would that affect the binding force of this

14 agreement?

15 MR. MUNDIS: Mr. President, pursuant to the terms of Article 6 of

16 this agreement, it clearly states all parties so that would by the terms

17 of the agreement result in the fact that the agreement would not have been

18 entered into force. Again, at this point the Prosecution would rely on

19 the fact that the parties have signed the agreement, as evidenced by

20 Prosecution Exhibit 58, clearly demonstrating an intent to be bound by the

21 terms set forth in the agreement.

22 JUDGE ORIE: Yes. Could I have the view of the Defence on this

23 issue?

24 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. It seems

25 and we mentioned this a minute ago, but the Defence is not in a position

Page 21972

1 to answer this question and what you spoke -- what you mentioned as a

2 ratification, I don't think I could intervene on that point. I see that

3 the Prosecution.

4 JUDGE ORIE: Please proceed.

5 MR. PILETTA-ZANIN: [Interpretation] I apologise. I noticed that

6 the Prosecution doesn't know very well whether these -- the four necessary

7 ratifications were implemented or not and if the formal acceptance of this

8 was necessary and was not implemented then obviously the legal

9 consequences should be noted. Otherwise the act might not be complete, if

10 it didn't have all the necessary -- if all the necessary preconditions

11 hadn't been met.

12 JUDGE ORIE: Yes. May I ask you, Mr. Piletta-Zanin, if let's just

13 assume that the parties to the -- who had transmitted their formal

14 acceptance to this agreement, if these parties would have acted in

15 accordance with this agreement, for example, I draw your attention to

16 article 5, implementation, each party undertakes to designate liaison

17 officers to the ICRC. If for example, the parties who had transmitted

18 their formal acceptance would have appointed such liaison officers, would

19 that change anything in the view of the Defence, although your answer was

20 not very clear, you said the legal consequences had to be drawn from the

21 fact that it was not -- you didn't say what the legal consequences were

22 but if you would assume that liaison officers were appointed, would that

23 change anything in the legal consequences to be drawn?

24 MR. PILETTA-ZANIN: [Interpretation] Well, Mr. President, that

25 would change the whole history of these proceedings, not just in legal

Page 21973

1 terms but in factual terms because there would have been a mechanism of

2 immediate information, and we wouldn't be here in such a case. I will

3 just confer for a minute.

4 [Defence counsel confer]

5 MR. PILETTA-ZANIN: [Interpretation] In legal terms, of course,

6 that wouldn't have much of an effect we would certainly agree on that.

7 But what I wanted to say is that if these mechanisms of information had

8 actually been functioning as they should have functioned, we certainly

9 wouldn't be here today.

10 JUDGE ORIE: Yes. Mr. Mundis?

11 MR. MUNDIS: Mr. President, if I could briefly make two points.

12 First, it's a generally recognised principle of international law that

13 states and I would argue by analogy this agreement would fall within that

14 category, that states which have signed agreements pending formal

15 ratification are bound to an adhere to the terms of their agreement and to

16 do nothing which would be contrary to the express agreements which they

17 have reached while the ratification and notification process is pending.

18 First we would say that this treaty or this special agreement would be

19 analogous to a treaty in that respect with respect to that general

20 principle of international law.

21 Second, the issue particularly with respect to whether or not the

22 HDZ ratified this agreement or in fact all three of the parties

23 transmitted their acceptance of this agreement to the ICRC, is an issue

24 which is not in the Prosecution's submission arisen during the course of

25 this trial. It was not an issue which the Defence specifically addressed

Page 21974

1 in great detail in their written submissions and the Prosecution, if it

2 would be of assistance to the Chamber, would seek leave to attempt to put

3 additional evidence before the Chamber with respect to the agreement and

4 transmittal of the parties' agreement to the ICRC.

5 JUDGE ORIE: Yes. I do understand that. May I first ask you,

6 Mr. Mundis, whether it results from the first part of your answer that on

7 from the 26th of May, since the parties were supposed to transmit their

8 formal acceptance by the 26th of May, that after the 26th, the agreement

9 could be considered not -- at least that the parties could not be expected

10 to act in accordance with the -- with the agreement, because you said that

11 during the ratification period, which ends on the 26th of May.

12 MR. MUNDIS: Mr. President, with all due respect the Prosecution

13 would submit that the 26 May, 1992, 1800 hours deadline was simply an

14 administrative detail, if you will, and that in fact the date of this

15 agreement, 22 May, 1992, would be the date upon which the obligations of

16 the parties would begin to run and that in fact that date would or that

17 agreement would remain in force from that date afterwards, and that the

18 transmittal to the ICRC of their formal acceptance was purely an

19 administrative detail so that the agreement could be placed on file with

20 the ICRC, which as the Chamber is aware, is the designated depository

21 institution for the four, 1949 Geneva Conventions and the two Additional

22 Protocols there to.

23 JUDGE ORIE: Yes. Referring to the second part of your answer,

24 you said the issue was not raised during trial. Is it the position of the

25 Prosecution that as far as the applicable law is concerned, that the

Page 21975

1 Chamber should follow the parties if they would agree on the applicable

2 law where the Chamber might have doubts as to the applicable law or might

3 have a different position? I mean is it something that is in the realm of

4 the parties to agree upon or is it something the Chamber should --

5 MR. MUNDIS: Certainly the applicability of the law,

6 Mr. President, is an issue for the Trial Chamber but it would seem that if

7 in the event the parties have agreed on what the applicable law is that

8 that would certainly inform the Trial Chamber's decision, but clearly, the

9 applicability of the law or the law which this Chamber will apply is a

10 question for this Trial Chamber.

11 JUDGE ORIE: Yes. May I ask the Defence whether they share this

12 view? The last part. Whether you share the view that where the parties

13 are not contradicting each other, I'm not saying that they are not, but if

14 they would agree on the applicable law, that nevertheless it would be for

15 the Chamber to --

16 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I'm not sure

17 that the parties always agree on the applicable law. What I said a minute

18 ago was that it wasn't for the Defence to respond to this issue. We have

19 provided certain elements so we have certain opinions, but we saw that we

20 don't agree on applicable law. For example, when we arrive on conclusions

21 as -- with regard to Protocol 1 or Protocol 2, et cetera, et cetera. In

22 such cases with regard to such issues we can see that the parties are not

23 in agreement.

24 JUDGE ORIE: The Chamber noticed that you did agree but that you

25 do not agree any more.

Page 21976

1 [Trial Chamber confers]

2 JUDGE ORIE: I have no further questions at this moment on this

3 issue but the other judges might have additional questions and might have

4 other questions as well so I'd first like to ask Judge Nieto-Navia to --

5 JUDGE NIETO-NAVIA: Thank you, Mr. President, I will start the

6 question to Mr. Mundis regarding the -- what he said on the analogy of

7 this agreement with the law of treaties. You said, Mr. Mundis, that

8 before the ratification of a treaty, the parties are bound to the terms of

9 the agreement and shouldn't do anything which is contrary to the

10 agreement. I agree with you on the second part, according to the law of

11 treaties to the Vienna convention but if the first part, that is that the

12 parties were bound or are bound to the agreement, which is the purpose of

13 the ratification?

14 MR. MUNDIS: Your Honour, it would seem that the -- that in many

15 national jurisdictions, ratification is required so that the --

16 particularly with respect to non-self-executing treaties, it would seem

17 that the primary purpose of the ratification process is to ensure that

18 the -- in those systems which require ratification for the treaty to be

19 accepted as a legal institution within the state, within its domestic

20 system that that's the primary purpose of the ratification of the treaty.

21 JUDGE NIETO-NAVIA: So the primary purpose is not to give a

22 definite concept -- the definite approval to the agreement?

23 MR. MUNDIS: No, Your Honour. It would give the definite

24 agreement of the state to the terms of the treaty by ensuring that the

25 full weight of the state's legal institutions are behind the state's

Page 21977

1 agreement to be bound by the terms of the treaty so that it's an

2 important -- ratification serves to ensure that a state is fully bound or

3 expresses its intent to be fully bound by the agreement with the full

4 weight of the national legal institutions in support of what typically the

5 executive has done in signing the treaty.

6 JUDGE NIETO-NAVIA: You said that you considered the ratification

7 is just an administrative detail. Okay. I have some questions on the

8 other issues, unless Judge El Mahdi --

9 JUDGE ORIE: Mr. Piletta-Zanin?

10 MR. PILETTA-ZANIN: [Interpretation] Yes. If I may have your

11 leave, I don't think it is true to say that the ratification is simply the

12 execution. I think my learned colleague confuses what we call the

13 instrumentation of the ratification of the law, the ratification itself is

14 superior to the one that when it's just concluded. So that the act in

15 question can be redressed in all the necessary forms according to its

16 existence, and that to a superior level, in general, to the ones that --

17 to those that establish the actual act. And I'm sorry for interrupting.

18 JUDGE EL MAHDI: [Interpretation] Mr. Mundis, I'd like to draw your

19 attention to the formulation used of the Article 6, paragraph 2 of the

20 agreement of the 22nd of May, 1992. If we look at this carefully, we can

21 see that the parties do reserve the right of applying the agreement if all

22 the parties, and I will now quote in English, [In English] "The present

23 agreement will enter into force on 26 May at 24 hours if all parties have

24 transmitted." [Interpretation] Which could indicate that it wasn't simply

25 a formality, as you say, a formality, to ratify this agreement but the

Page 21978

1 parties expressly reserved the right to not apply this agreement, not

2 implement it, unless all of the parties to the agreement transmit their

3 ratification. Does that change your opinion somewhat, if you can give me

4 your position in the light of this formulation in this paragraph?

5 MR. MUNDIS: Your Honour, if I could, I think that the

6 continuation of that paragraph is important to understand the Prosecution

7 position. Article 6, paragraph 2, continues that the parties have

8 transmitted to the ICRC their formal acceptance of the agreement, and it

9 is that formal acceptance which represents the national authorities or in

10 this case the parties, the political parties' putting their full weight

11 behind what the senior representatives of those parties have agreed to,

12 and in fact, the specific language of this provision indicates that what

13 is required by the 26th of May at 1992 at 1800 is their formal acceptance

14 and the Prosecution would argue that the parties have accepted this

15 agreement on the 22nd of May and what then remains to be done is simply a

16 formal acceptance to be given by the 26th of May.

17 JUDGE EL MAHDI: [Interpretation] So you don't make a distinction,

18 you don't differentiate between the signatures put on the agreement on the

19 formal acceptance? Rather the signing of the agreement on the formal

20 acceptance? It's a draft agreement? Or is it an agreement which is

21 executive in itself and which doesn't have to have other formalities? I

22 have some difficulties following this, following the language of this

23 paragraph, which says basically what it boils down to, that the agreement

24 itself is applicable regardless of the conditions because it seems to me

25 that the language expresses that [In English] their formal acceptance

Page 21979

1 [Interpretation] it does indicate or it could indicate that the agreement

2 is just -- this agreement is just a provisional agreement, it is not a

3 formal agreement, so with all the possible consequences, legal

4 consequences, it isn't or it might not be possible to be executed, to be

5 implemented.

6 MR. MUNDIS: Your Honour, with respect to the point as to whether

7 it's a draft agreement, the Prosecution would be of the position that it's

8 certainly not a draft agreement, it's been signed and no where on the face

9 of the agreement do we see any indication that it is a draft agreement.

10 Rather, the signatures on the bottom of the agreement would indicate that

11 it is not a draft agreement.

12 With respect to whether or not it's an executing or

13 non-self-executing document, the Prosecution's position is that the

14 document simply required transmittal to the ICRC of the formal acceptance

15 by a certain date, as indicated by the document, and that that formal

16 acceptance was merely an administrative detail which would permit the ICRC

17 to be in possession of the formal acceptance as the depository institution

18 for agreements, special agreements, as well as the four Geneva Conventions

19 and Additional Protocols there to.

20 JUDGE EL MAHDI: [Interpretation] Very last observation, please,

21 I'm sorry, but what you are saying is that you're interpreting the express

22 language that the present agreement will enter into force if all parties

23 [In English] have transmitted to the ICRC their formal acceptance

24 [Interpretation] as not having legal consequences, that the agreement is

25 applicable whether the parties have transmitted their acceptance of the

Page 21980

1 agreement or not. Is that what your position is?

2 MR. MUNDIS: Mr. President, prior to answering that, if I could

3 have a very brief moment to consult, please?

4 JUDGE ORIE: Perhaps if this issue would raise further issues that

5 would need consultation, we might have a break then later on, and then you

6 might come up with responses after that short break. Mr. Piletta-Zanin?

7 MR. PILETTA-ZANIN: [Interpretation] Mr. President, as far as the

8 Defence is concerned, I think there is no need to confer because I think

9 we can see the thing simply, matters simply. This is not a question of it

10 being a draft. It's just the implementation or not. What we call a

11 technically suspensive condition.

12 JUDGE ORIE: Then I'd like to give an opportunity to Judge

13 Nieto-Navia to put any other questions or perhaps that are related to this

14 issue but it's not the only issue.

15 JUDGE NIETO-NAVIA: Thank you, Mr. President. I think that these

16 questions should be answered by Mr. Ierace but I will not break my lance

17 for that. The first question is the following. Speaking on the 6th of

18 May about incident 22, Mr. Ierace said that the Prosecutor could not

19 assert the place where the bullet came from, and you added, but it is not

20 important. If you don't know where the bullet came from, how can you

21 charge that crime to the accused?

22 MR. IERACE: Good morning, Your Honour. When I said that, I

23 should have made more clearly -- made clear the position of the

24 Prosecution, which is that it does not matter where specifically on the

25 territory held by the SRK the bullet came from. In other words, one must

Page 21981

1 be mindful of specifically what it is that the Prosecution sets out to

2 prove in relation to the scheduled sniping incidents.

3 Your Honour, the Prosecution does not set out to establish the

4 identity of the particular subordinate of the accused who fired the

5 bullet. The Prosecution invites the Trial Chamber to take into

6 consideration other relevant bodies of evidence, such as that, in relation

7 to this specific scheduled incident, the Sarajevo Romania Corps held the

8 territory of the Nedzarici, that within that territory, the accused

9 enjoyed command and control of his subordinates, right down to the level

10 of those responsible for operating the infantry weapons. It certainly

11 matters whether the bullet came from the side of the confrontation lines

12 controlled by the Sarajevo Romanija Corps but once it's established it

13 came from that side, thereafter it's of no consequence whether the bullet

14 came from the school of theology or from somewhere on the territory

15 between the school of theology and the confrontation lines.

16 JUDGE NIETO-NAVIA: Thank you, Mr. Ierace. We are now speaking

17 about incident number 13. You said that even if the father was a

18 combatant, the victim was a 15-years-old child. My question is: Given

19 the circumstances of the case, that there was a barrier, that the truck

20 was going at some speed, you said 20 to 30 kilometres, could a sniper be

21 aware of the fact that there was a 15-year-old child in the truck?

22 MR. IERACE: Mr. President, Your Honour, I think that it's

23 important to consider on the basis of the evidence, what picture presented

24 itself to the person responsible for firing the bullet. We can deduce

25 from the evidence that the sniper would have observed a truck with no

Page 21982

1 military markings, indeed specifically some civilian markings, that is

2 that it was a butcher's truck, butcher being written on the side of the

3 truck. No military equipment around, except for the French APC vehicle

4 that was 100 metres further up the road. The occupants of the vehicle,

5 only two, weren't dressed in military uniform, no weapons were there. So

6 if one places oneself in the position of the shooter, the first question

7 to be asked is: What was it about that potential target that indicated it

8 was a legitimate target, that one or both of the occupants were

9 combatants? And the answer to that is nothing. One must then allow for

10 the possibility, as remote as it seems on the evidence, that the shooter

11 had some personal information that led him to believe that one or both of

12 the occupants were in fact combatants. There is no evidence at all to

13 suggest that but let's assume for the sake of the argument that there was

14 some knowledge that the shooter had that the driver was a combatant. The

15 next step in our process of thinking is, well, how does the principle of

16 proportionality apply to that situation, if he had that personal

17 knowledge? The situation that then presents itself is that the passenger

18 was not a combatant, certainly was not a combatant. He may or may not

19 have discerned his age, the fact that he was a child, from that distance

20 and so on, but one must apply the, for lack of a better term, the standard

21 of proof that's required as a result of Article 13. In other words, the

22 shooter must have removed any doubt that the target is a military target

23 and then consider whether the principle of proportionality would be

24 offended. I don't suggest for a minute that a shooter would think of it

25 in these formal, technical terms but rather put more simply, would it be

Page 21983

1 appropriate to target a combatant when in the same line of sight or very

2 close to it is someone who is not known to be a combatant? A very high

3 risk is involved, which is demonstrated by the fact that the bullet hit

4 the door of the truck. So the Prosecution says that firstly there were no

5 military indicia and if there was any personal knowledge, unfounded as it

6 in fact was, that the driver was not a proper target in any event.

7 JUDGE NIETO-NAVIA: My question arose because you stressed the

8 fact that the victim was a 15-years-old child. That was the origin of the

9 question. Of course I understand that the truck was not marked with --

10 so, okay. Thank you.

11 Speaking about the orders received by the SRK troops once a week,

12 not to target civilians, you said the following: That is inconsistent, if

13 they were not targeting civilians, why the orders? Those are your words.

14 Would you have a better or a worse case if they wouldn't have received

15 those orders?

16 MR. IERACE: The Prosecution does not accept the evidence that

17 they received those orders. The Prosecution does that because it has

18 regard to the evidence of Witness D and another witness who will remain

19 unnamed, evidence which is inconsistent with that aspect of these Defence

20 witnesses so the Prosecution first seeks to point out the inconsistency

21 within that aspect of the Defence evidence. Why would they receive those

22 orders with such frequency if they weren't targeting civilians? Whether

23 we would have a better or worse case, if it wasn't for that evidence, I

24 suppose it could be said that there would be -- it would be a better case

25 for the Prosecution if that evidence didn't exist at all but given the

Page 21984

1 evidence, one must first decide what weight to attribute to it. The

2 Prosecution says no weight for the reason I've indicated, and Prosecution

3 submits therefore that having done that analysis, the Prosecution is no

4 worse off.

5 JUDGE NIETO-NAVIA: On incident 25, you said, and I think that we

6 have evidence on that, that the victim was warned by ABiH soldiers because

7 there was some shooting in the area. My question is: If there was a

8 combat, could you speak of the liberated targeting of civilians?

9 MR. IERACE: Your Honour, it's I think important to recall the

10 precise evidence in that regard, which was this: The witness said that

11 she and her girlfriend approached the road, some ABiH soldiers on a

12 balcony called out to them that snipers were active, snipers were active.

13 She gave no evidence of any fire emanating from the ABiH side. So when

14 one talks about -- first I think one has to assess what was the action

15 that was occurring before she entered that scene together with the victim.

16 The evidence in that regard I would respectfully submit does not allow one

17 to conclude that there was lawful armed combat in place at all. It may be

18 that the snipers were targeting combatants before she and her friend

19 sought to cross the street. It may not be. It's open in that sense. But

20 the question then comes back to again the principles of distinction and

21 proportionality. If we place ourselves in the position of the shooter,

22 let's assume that he had previously, he or she, been engaged in lawful

23 targeting of ABiH combatants in that area. It was manifestly obvious, the

24 Prosecution submits, that there were civilians living in the same area.

25 He had an obligation, a duty to target with that in mind, to remove any

Page 21985

1 doubt that these targets were combatants, and here we have not only the

2 age of the two girls at the time but also their appearance, both had

3 evidence as to the length of their hair, their clothes and so on, no

4 military clothing involved.

5 JUDGE NIETO-NAVIA: So what you're saying is that the shooting

6 that you spoke about was sniper's fire, that's --

7 MR. IERACE: Those were the words. The evidence was they were the

8 words used, "there was snipers active".

9 JUDGE NIETO-NAVIA: Speaking of the about the Kosevo hospital you

10 said there that no military were hit, only civilians, and your conclusion

11 was was that it was retaliatory, not counterbattery fire. My question is

12 whether retaliatory fire is allowed in war.

13 MR. IERACE: No, is the short answer to that, Your Honour. We

14 heard evidence as to what is meant by the term counterbattery fire. That

15 is a behaviour which makes perfect sense from a military perspective. To

16 retaliate in the sense of hitting an unlawful target, is certainly --

17 well, as I've indicated by the terms, that's an unlawful form of

18 behaviour, and one has to analyse the evidence in relation to the nature

19 of the return fire, the timing, what it actually hit, whether it succeeded

20 in neutralising the mortars over a very long period of time, almost two

21 years, in order to deduce, we submit, quite confidently that it was

22 retaliatory and not counterbattery. If I could say this also in relation

23 to your question, Your Honour, having regard to the precise wording of

24 your question, whether retaliatory fire is allowed in war, these are

25 terms, retaliatory fire, counterbattery fire, I think it's important to

Page 21986

1 have regard to the specific circumstances beyond that terminology as well.

2 Thank you.

3 JUDGE NIETO-NAVIA: Well, I have a short question and I am looking

4 for a short answer: Who did control the sport stadium?

5 MR. IERACE: Which one? There were two. There was the stadium

6 near Hrasno and there was a stadium to the north near the Kosevo hospital.

7 I take it you mean Hrasno.


9 MR. IERACE: In -- well, I can keep my answer --

10 JUDGE NIETO-NAVIA: We heard evidence --

11 MR. IERACE: Yes. And the evidence that it was the ABiH included

12 not only General Karavelic but civilians and soldiers who lived in Hrasno,

13 such as Mrs. Mukanovic's husband. The Prosecution says, in short, that

14 the SRK controlled the stadium, but if it didn't, in the view of the Trial

15 Chamber, it makes no difference having regard to the undisputed area to

16 the southeast of the stadium itself, immediately to the southeast, higher

17 ground, including the police academy which was controlled by the SRK. No

18 dispute about that. Your Honour, I should point out, excuse me -- I'm

19 sorry, I should correct myself, General Karavelic said that it was the SRK

20 that held the stadium together with local residents who also said that,

21 thank you.

22 JUDGE NIETO-NAVIA: On the water collection incident, you said

23 that the house at the mouth of the trench towards the tunnel, that the

24 house was only 120 metres away of the spot of the incident. Is it

25 possible that the that was an error and that it was directed towards the

Page 21987

1 house and not towards the people queueing for the water?

2 MR. IERACE: Mr. President, Your Honour, there is an issue of

3 timing, that is when the tunnel opened, but first --

4 JUDGE NIETO-NAVIA: I know that the tunnel at that time was not --

5 MR. IERACE: Yes. I would hand over to Mr. Stamp to respond

6 further to that question.

7 MR. STAMP: Well, the brief answer, if it pleases you, Your

8 Honour, is that the house could not have been the target because the house

9 had no significance at the time of the shelling, so the issue of error in

10 trying to target the house would not arise. But if there was another

11 target, the question of error in so far as it may arise is in the realm of

12 what is merely possible. One has to resort to the evidence and look at

13 the evidence quite clearly of those persons who were there, who could

14 speak of what is happening within the vicinity of the water line. There

15 was no military target in the neighbourhood. The --

16 JUDGE NIETO-NAVIA: The house was not a military target?

17 MR. STAMP: The house was not a military target at the time of the

18 shelling. The house became a military target weeks after the shelling.

19 JUDGE NIETO-NAVIA: How many weeks?

20 MR. STAMP: According to the witness Hadzic, construction of the

21 trench from the houses started about ten days, I think he said, after the

22 31st of July, when the tunnel opened. That would put it at least three

23 weeks after the incident. There is also a document presented by the

24 Defence witness Rado Radinovic from the command of the ABiH, giving them

25 instructions in taking steps for crossing the runway of the airport, and

Page 21988

1 this document is dated sometime after the 12th of July, 1993. That also

2 is proof indicating that the house and the tunnel were not in use and it

3 confirms what the witness Hadzic said. The witness Karavelic also said

4 the same thing that the tunnel, the house and the tunnel did not come in

5 use until August. This is what Karavelic said, and Grebic another

6 witness, Husein Grebic who was a part of the ABiH, he also confirmed that

7 the tunnel was not in operation at that time. The important thing it is

8 submitted is to look at the evidence as a sequence of events. The

9 shelling occurred on the 12th of July. The tunnel opened on the 31st of

10 July according to Hadzic or the 1st of August according to Karavelic.

11 Because of the opening of the tunnel, people started to gather in various

12 places in the area, and that is when it was determined that they would

13 build a trench to the tunnel. The entry to the tunnel was some 300 metres

14 from the incident. So I will concede that in respect to every single

15 shooting with a firearm, even with a sniper rifle and shelling, there is

16 always a possibility of error.

17 JUDGE NIETO-NAVIA: Yes, of course.

18 MR. STAMP: Always. One has to --

19 JUDGE NIETO-NAVIA: That was not the question. The question was

20 whether the SRK could be firing at the house because there was a

21 construction, and then --

22 MR. STAMP: Construction, it's submitted, did not begin until ten

23 days after the opening of the tunnel and that construction or modification

24 of the house, construction of a trench that led to the house.

25 JUDGE NIETO-NAVIA: Yes, of the trench. The house was at the

Page 21989

1 mouth, let's say, of the --

2 MR. STAMP: Of the trench.

3 JUDGE NIETO-NAVIA: Of the trench, okay. Thank you.

4 We heard about the existence of a sniper rifles in general but

5 yesterday, Mr. Ierace, speaking about one incident you said that the

6 source of fire was just to the north of Ozrenska Street, do you remember

7 that case in Ozrenska Street. And you said that the snipers were equipped

8 with night sights. I couldn't find the source of that assertion about

9 night sights.

10 MR. IERACE: Your Honour, if I have a few minutes, I think I can

11 find that specific reference. Perhaps I could indicate later on this

12 morning what that page reference is.

13 JUDGE NIETO-NAVIA: Thank you. No further questions.

14 MR. PILETTA-ZANIN: [Interpretation] Mr. President?


16 MR. PILETTA-ZANIN: [Interpretation] Mr. President, could the

17 Defence respond to what the Prosecution has said?

18 JUDGE ORIE: To a limited extent. We are putting questions to --

19 we are asking more or less for clarifications of what the parties have

20 said but if there is an urgent need to respond, I'll give an opportunity,

21 but done briefly. It's not a new debate we are in.

22 MR. PILETTA-ZANIN: [Interpretation] May I do it now?


24 MR. PILETTA-ZANIN: [Interpretation] Thank you very much. Very

25 simply, the Defence has always said that the chief question was the intent

Page 21990

1 when it comes to shots. With regard to the first two incidents, I am not

2 referring the second which was mentioned by Judge Nieto-Navia and one has

3 to say that the truck in question had been requisitioned by the army.

4 Secondly, Mr. Ierace said that it was hit because it was fired, and

5 therefore, we shall have the cemeteries of cars painted red because

6 everybody thought that -- the third question was the hospital. The killed

7 soldier, he has according to -- it was to the Prosecution to show the

8 presence of soldiers or not, and when such a building is fired at, one

9 doesn't know where the shots are coming from. And my final point, and I

10 shall leave the rest, et cetera, because it's not very important but I'm

11 referring to the water line, the water line and the house. We are told

12 that the trench was built later but the Defence wishes to say two things

13 with this regard. When such a large tunnel is being built, it does not go

14 unnoticed, and it is said that the Serbs had their intelligence sources

15 and so they were perfectly aware of that. And when somebody digs

16 something, there are usually teams and these teams are visible. That is,

17 they are seen. It may be civilians who were forced to do that or somebody

18 else, or soldiers, but they can be seen, and also it was said that five or

19 seven hundred days of command. But how many water lines were there during

20 all that time and how many water lines were fired -- were hit?

21 JUDGE ORIE: [Previous translation continues] ... What I said

22 before that a very short response was possible, that it became more or

23 less a restart of the debate.

24 MR. PILETTA-ZANIN: [Interpretation] My apology.

25 JUDGE ORIE: Mr. Ierace.

Page 21991

1 MR. IERACE: Thank you, Mr. President. In response to the

2 question asked by Judge Nieto-Navia, the page reference is 1934, the

3 evidence of witness D.

4 JUDGE ORIE: Then I'd like to give an opportunity to

5 Judge El Mahdi to put questions to the parties.

6 JUDGE EL MAHDI: Thank you, Mr. President. [Interpretation] If I

7 may, I'd like to ask the Prosecution to clarify a point in paragraph 62.

8 Towards the very end of it. It is page 22, and I quote [In English] "The

9 Prosecution submits that during the accused's command, the targeting of

10 civilians through shelling and sniping was the principal instrument of

11 this terrorisation and in this sense constituted a covert campaign. [No

12 interpretation] ...

13 MR. IERACE: I didn't have a translation but I think my French

14 is --

15 JUDGE EL MAHDI: [Interpretation] Could you explain to me what

16 covert campaign means?

17 MR. IERACE: Thank you, it was sufficient on that occasion.

18 Covert in the sense that the accused was not publicly proclaiming that he

19 was targeting civilians. Campaign in the sense that at least in the

20 English language, when one looks at the definition, I think it covers this

21 pattern of behaviour. In other words, various resources were marshalled

22 to achieve a particular objective. The behaviour of the accused was

23 characterised by a degree of planning, allocation of his assets, the

24 giving of orders to enable this end result, and that's what the

25 Prosecution means by the use of the word "campaign." It wasn't an order

Page 21992

1 given on one specific occasion. It involved the structure of his corps in

2 order to achieve it.

3 JUDGE EL MAHDI: [Interpretation] Thank you. And yet another

4 question. You said, and I'm quoting you [In English] "May have been

5 responsible for some isolated incident against their own civilians."

6 [Interpretation] What do you mean exactly by some isolated? And elsewhere

7 you said, not on a large scale. What do you mean by -- what do you think

8 when you say not on a large scale? Does it mean dozens of incidents?

9 Does it mean hundreds of incidents? Isolated? What do you mean by

10 "isolated"? And what would be the legal consequences arising from your

11 assertion that the Muslim party or the Bosnian Presidency at times fired

12 at its own citizens?

13 MR. IERACE: Thank you, Your Honour. What I mean to convey by the

14 use of the word "may" is an acceptance on the part of the Prosecution that

15 there was evidence tendered before the Trial Chamber effectively -- well,

16 to that effect. I have in mind, for example, evidence of suspicions

17 entertained on the part of senior UN personnel, that there were occasions

18 when there were instances, rather, when the -- some Bosnians, that is

19 persons whom they suspected to be at least sympathisers with the

20 Presidency cause who were responsible rather than elements on the SRK-held

21 side of the confrontation lines. Another example, I think one I referred

22 to this week, was the evidence of I think it was Commandant Hamill who

23 said he looked at a tank round impact at Kosevo hospital in December 1993.

24 And although it wasn't a full analysis that he did, his preliminary

25 conclusion was that the round must have emanated from inside the city.

Page 21993

1 It's important I think to always keep in mind that there has been no

2 conclusive evidence in that regard, for instance, in relation to that

3 incident, because there wasn't a full analysis. A number of scenarios,

4 inconsistent with the conclusion that there was deliberate fire from

5 within the confrontation lines have not been excluded, such as accident.

6 The consequences? First, I think the next aspect to Your Honour's

7 question was the extent of it. Can we quantify it? What does the

8 Prosecution say as to quantification? The -- there was no doubt, the

9 Prosecution submits, having regard to the evidence that if it happened, it

10 constituted an absolute minority of the volume of fire that was directed

11 at civilians either deliberately or indiscriminately, and I emphasise the

12 use of the word "if", if it happened.

13 The consequences at law, in terms of this trial, are these: One

14 must keep in mind the specific charges against the accused, and the use

15 that was made of the scheduled incidents, that is they were illustrative.

16 Assuming that the Trial Chamber makes a finding of fact that civilians

17 either may have been targeted from within the confrontation lines or were

18 targeted from within the confrontation lines, and assuming that the Trial

19 Chamber makes a further finding of fact contingent upon an earlier finding

20 that it did happen, that the extent of it was absolutely minimal, it does

21 not assist the accused at all in responding to the charges against him.

22 As I indicated during the week, it's not a question of either-or. Rather

23 as well as.

24 Your Honour, in your question, you referred to the Presidency. In

25 my submissions I was careful not to refer to the Presidency in making

Page 21994

1 submissions on this topic because there is no link established between

2 these incidents or the suggestion of these incidents and either the ABiH

3 or other forces associated with the government itself. One recalls the,

4 for instance, on a slightly different issue, the evidence of General

5 Karavelic in relation to the suggestion that mobile mortars were fired --

6 were engaging in screen fire but firing to positions on SRK-held

7 territory, and he said that he made every effort he could. He received

8 such reports from the UN and made every effort he could to locate those

9 units and was particularly frustrated by the suggestion that they were

10 firing from the area of the state hospital because that was very close to

11 his headquarters. But even so he was unable to arrive there on time. He

12 and his forces.

13 So again, if it happened, and certainly there is strong evidence

14 that there was screen firing from the vicinity of the PTT and on occasions

15 the Kosevo hospital, there is also strong evidence that there weren't

16 units within the ABiH. So I think it's important that we keep that

17 perspective. If it happened, there were persons within the confrontation

18 lines, no strong evidence as to who they were associated with, ultimately

19 it's of no assistance to the accused.

20 JUDGE EL MAHDI: [Interpretation] I'm proceeding along the same

21 lines. Do you exclude whatever intervention of Croats? Because it seems

22 that there were some indications that Croats changed camp during the

23 events in 1992 to 1994. Would you exclude a possible intervention of the

24 Croat side in the events around or within Sarajevo?

25 MR. IERACE: I do, Your Honour. The -- while it's -- we

Page 21995

1 understand that at various times during the armed conflict in Sarajevo,

2 there were Bosnian Croatian units, the evidence is also that they were

3 subsumed into the ABiH, that there was a Croatian unit set up. It seems

4 that at some stages, there were independent units of Bosnian Croatian

5 military operating but the evidence has never, during the trial, reached

6 the point of establishing that such units were engaged relevantly, in

7 terms of the targeting of civilians. Whatever military role they may have

8 played when not a part of the ABiH seems to have been confined to

9 legitimate military activities for the purposes of this trial, in other

10 words there is no evidence that it went beyond that, in terms of the

11 evidence we've heard in this trial.

12 JUDGE EL MAHDI: [Interpretation] Thank you. And my last question

13 has to do with the paramilitaries. It is quite possible that there are

14 some indications in the record that for at least a certain period of time,

15 they were uncontrollable and General Galic complained about their

16 insubordination. Do you agree with that fact, that there were

17 paramilitaries who acted independently of exact strict military structure

18 and can you -- what can you say that as of such and such date, there are

19 no more paramilitaries? Can you say that categorically and emphatically

20 that as of such and such date there are no more paramilitaries who are

21 outside who are not placed under the command of General Galic?

22 MR. IERACE: In relation to the second part of the question, I

23 think it is possible to say that by the first few months, say by March,

24 1993, the evidence indicates that the accused did not have an

25 insubordination problem with the -- within the SRK. To come to the first

Page 21996

1 part of the question, while there is evidence that there were disciplinary

2 issues from early September, when the accused assumed his command, there

3 is absolutely no evidence at all that the insubordinate units were

4 responsible for targeting civilians, contrary to the wishes of the

5 accused. If I could put that another way, there is no suggestion in the

6 evidence that the individuals or units with which the accused had a

7 discipline problem were acting contrary to his orders in relation to the

8 targeting of civilians. The witnesses called by the Defence who gave

9 evidence of the insubordination, went on to qualify the issues involved,

10 and the issues had nothing to do with that, with the targeting of

11 civilians. The Defence has never called -- has not called a witness or

12 pointed to a document or any other form of evidence which links the

13 insubordinate units to that practice.

14 The most prominent unit that might qualify for the term

15 paramilitary in the SRK was Aleksic's unit, at the -- positioned at the

16 Jewish cemetery, and of course, Colonel Indic described them as Chetniks.

17 But again, typical of this aspect of the evidence in the trial, there was

18 no suggestion that they were acting against the orders of the accused on

19 the issue of civilians. Thank you.

20 JUDGE EL MAHDI: Thank you, thank you, Mr. President.

21 JUDGE ORIE: Mr. Piletta-Zanin?

22 MR. PILETTA-ZANIN: [Interpretation] Mr. President, very briefly.

23 The Defence has the following comments. I note that the question was.

24 Asked about legal consequences. We do not have the answer. That is not

25 the proper answer. As for whether there is any evidence about active

Page 21997

1 paramilitary units, I say yes, there is Kraljevic if not there, then on

2 the other side. And where were those units -- whether those units or

3 whether Croat units were responsible for the crisis at question, I would

4 say that it is the Prosecutor who needs to prove that a particular fact is

5 the fact that that was done. It's not up to the Defence to prove the

6 contrary, that the accused had nothing to do with that. Thank you.

7 JUDGE ORIE: I would have a few more questions as well. First a

8 question for the Prosecution.

9 In the indictment, the unlawful attacks committed through sniping

10 is speaking of deliberate attacks. At the same time, we find in some

11 sniping incidents qualifications, as indiscriminate attacks. Would you --

12 is my understanding right that your explanation you gave in response to a

13 question of one of my fellow judges on the incident where the butcher's

14 truck was hit, would that be the explanation of how deliberate attacks

15 relate to indiscriminate attacks?

16 MR. IERACE: Mr. President, I don't think I used my words well

17 earlier on. The Prosecution says that whether the -- whether civilians

18 are targeted specifically, I think that's a better word, or

19 indiscriminately, both types are deliberate. In the case of incident 13,

20 the Prosecution does not know whether the shooter aimed at specifically

21 the 15 year old or the father or both, but makes the observation that the

22 evidence suggests that that was an instance of specific targeting, that

23 one or both of them were specifically targeted. An example of

24 indiscriminate fire is perhaps incident 10, where the target is the

25 glowing window from Ozrenska Street. The shooter then presumably wasn't

Page 21998

1 to know if there was even someone behind the light but fired

2 indiscriminately.

3 JUDGE ORIE: That would still be a deliberate attack.

4 MR. IERACE: Yes, yes, that is a form of deliberateness.

5 JUDGE ORIE: Then my next question would be the PTT building. The

6 PTT building was not used by civilians. It served as the UN headquarters,

7 as a matter of fact. Is it your view that when the PTT building was

8 attacked, that that had any relevance in view of the counts of the

9 indictment? Or is it just separate?

10 MR. IERACE: Mr. President, there is some evidence that there were

11 civilians operating in the PTT. If I could refer to two categories of

12 such civilians, UN staff had civilians working for them. An example is

13 the Bosnian Serbian secretary of General Abdel-Razek. We've heard other

14 evidence as well of local staff. The second category are civilians who

15 took shelter in the PTT billing, such as the mother of Milada Halili.

16 That aside, if I could address, I think your fundamental point, you are

17 correct in, as I discern your assumption, that that is not squarely

18 related to the charges against the accused. Those charges are directed

19 specifically at the civilian population of Sarajevo rather than the UN

20 personnel who were nevertheless an unlawful target.

21 JUDGE ORIE: But that's not the -- these are not the civilians

22 you -- that was not part of the terror, that was not part of the counts of

23 the indictment?

24 MR. IERACE: Could you excuse me just for a moment,

25 Mr. President?

Page 21999


2 [Prosecution counsel confer]

3 MR. IERACE: Precisely, Mr. President. I think that's an

4 important point. The Prosecution does not say that the objective of the

5 campaign was to terrorise the UN personnel but rather the body of

6 civilians who resided in Sarajevo separate from the UN personnel.

7 JUDGE ORIE: May I ask you one question? You said that the mother

8 of one of the witnesses took shelter in the PTT building. It's my

9 recollection that it was the post office, but was that same? Or she

10 worked in the post office, as I remember, or am I totally wrong?

11 MR. IERACE: Mr. President, the reference in the evidence was on

12 occasion to the post office but specifically in relation to the PTT as

13 well, but we didn't hear any other evidence to that same effect, so there

14 is a -- it is a grey factual issue of course.

15 JUDGE ORIE: It's not of major importance I would say.

16 MR. IERACE: No. I think the aspect of that which is most

17 interesting is that she removed herself from the front line area because

18 of personal safety considerations and placed herself more centrally in the

19 city, in an institution that she thought would be safe and it didn't work.

20 JUDGE ORIE: Yes. And then another question for you, Mr. Ierace.

21 What is exactly the position of the Prosecution in respect of the

22 possibility of mortar units firing at their own initiative? Does the

23 Prosecution accept that it would be reasonably possible that such firing

24 at its own initiative took place?

25 MR. IERACE: There are some examples that come to mind from the

Page 22000

1 evidence, such as Witness D with the drunken mortar units at Grbavica but

2 I think there is another body of evidence that is more instructive and

3 that is the evidence of the observations of UN personnel such as

4 Henneberry, that he watched mortar units firing indiscriminately from Lima

5 positions, I think Lima 7 was one that he nominated. You may recall,

6 Mr. President, evidence that the crew would kick the mortar and then fire

7 it. The Prosecution case in relation to that is that that was within the

8 expected boundaries of behaviour entertained by the accused. A corps

9 commander does not nominate mortar targets or artillery targets. A corps

10 commander drafts a plan with the assistance of his operational staff.

11 That plan then becomes the framework for his subordinates to operate

12 under. The Prosecution case is that this behaviour by mortar units firing

13 of their own initiative came within that plan. Other witnesses who

14 observed such behaviour by mortar crews gave evidence on occasion that

15 liaison staff from the headquarters were with them at the time that they

16 made such observations. That is evidence which builds this -- is a

17 foundation for the Prosecution's submission that the behaviour clearly

18 would have been reported back to the headquarters through those officers

19 who had brought the journalists and the like to those positions where they

20 made those observations, and if it was contrary to the accused's wishes,

21 then it would have stopped, and it didn't. So the accused on the evidence

22 contemplated that crews would act in this fashion, of their own volition,

23 from time to time, and that was acceptable.

24 JUDGE ORIE: Since you take it that those incidents would be

25 reported, would you think that for those -- for this firing at own

Page 22001

1 initiative, that it would be more appropriately to put that under

2 responsibility under 7(1) or 7(3)?

3 MR. IERACE: 7(1).

4 JUDGE ORIE: Thank you. I have two more questions, one for the

5 Defence and one for the Prosecution. I'd like to keep them for after the

6 break so that the Prosecution also has an opportunity to inquire on the

7 issue that we discussed before.

8 Mr. Piletta-Zanin?

9 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. Will we

10 be allowed to respond to several issues in a minute very briefly.

11 JUDGE ORIE: As you did it before we could do it now.

12 MR. PILETTA-ZANIN: [Interpretation] I'll do it now, gladly,

13 Mr. President. I've made a note of certain matters here and very briefly

14 I'll return to the issue of the UN building. It seems that for the

15 Prosecution this is part of the infliction of terror, the Defence takes

16 note of that and that is all. Secondly, I'll quote what Mr. Ierace said,

17 he said that the shots from the other side represented an absolute

18 minority. My question is, first of all, how can one know about this, so

19 no investigations were carried out, and how can one affirm this? Because

20 no investigations were conducted. Thank you.

21 JUDGE ORIE: I would have to check but is it correct that terror

22 was -- that the PTT building was given the place as just -- I'm not quite

23 sure.

24 MR. PILETTA-ZANIN: [Interpretation] Mr. President, a minute ago,

25 Mr. Ierace said that it was a matter of terrorising the civilian personnel

Page 22002

1 who was working there and he mentioned the secretary of General

2 Abdel-Razek so it means that these shots -- [no interpretation]

3 [Microphone not activated] [English] was that the secretary of

4 Mr. Abdel-Razek was within the building and that therefore there would be

5 terror on that basis, at least that is what I heard myself.

6 JUDGE ORIE: Yes. That's not exactly what he said. Of course he

7 mentioned the secretary of General Abdel-Razek but he did not -- he said

8 at the end of his line, those charges are directly specifically at the

9 civilian population of Sarajevo rather than to the UN personnel who were

10 nevertheless an unlawful target. That's what he said. But the first

11 mentioning of civilians in the building was, as far as I understood, a

12 response to my question, and my question was that -- not being used by

13 civilians, and I think it was a correction to my suggestion that there

14 were no civilians in that building at all. But there is no suggestion

15 that the attack on civilians within the PTT building was part of the

16 terror.

17 We will adjourn until 25 minutes to -- no, let's take half an

18 hour. We will adjourn until 20 minutes to 1.00, and I assume that we will

19 then finish in approximately not more than 20, 25 minutes.

20 --- Recess taken at 12.10 p.m.

21 --- On resuming at 12.46 p.m.

22 JUDGE ORIE: I was about to ask two more questions to the parties.

23 The first question would be for the Defence. What is the view of the

24 Defence on the duties of the BiH authorities in view of evacuating

25 civilians from where they lived if it was close to the confrontation lines

Page 22003

1 and apart from what their duties, also, what is the legal basis for such

2 duties?

3 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. A very

4 delicate question. And I think I see where you want to go with it. I

5 think that the first basis is natural law. The right of people to be

6 protected by their governments and by their states. I think that is the

7 first basis. And now to answer the question as to whether it's Protocol I

8 or Protocol II, what I can say is that it is certainly not Protocol I that

9 is concerned, Protocol I upon which one should base oneself. We should

10 base oneself on a very natural fact and that is the fact that it is not

11 acceptable, if it is possible, to evacuate people, not to do so. That is

12 the Defence's position, and I have to say with regard to this subject,

13 Mr. President, that if, for example, there are military means, equipment,

14 such as lorries and one allows civilians to enter, one is taking risks,

15 and this is by no means Protocol I that is concerned. We should see

16 which -- what is really pertinent is probably Protocol II but the Defence

17 will not express or is not expressing a definite position with regard to

18 this matter. Thank you.

19 JUDGE ORIE: Yes. Well, I know what is not a legal basis and you

20 say the natural law is as a matter of fact the basis on which the duty

21 rests. Is that -- no further sources? No further authorities?

22 MR. PILETTA-ZANIN: [Interpretation] Mr. President, perhaps there

23 are but I don't think it is for the Defence to formulate them. It is

24 obvious that it's a principle. It is obvious that within the framework of

25 Protocol II, this principle is likewise set forth and there is a decision

Page 22004

1 here and contains an argument which is founded on an ad absurdum argument

2 and we are shown that even in the case of Protocol II we don't see why a

3 state in the case of an internal conflict, would protect its civilians to

4 a lesser extent than in the case of an international conflict. We are all

5 well aware of this fact but we are saying that it is not Protocol I that

6 is applicable and we remain open to other possibilities. Thank you.

7 JUDGE ORIE: [Previous translation continues] ... apply but on the

8 other hand, there is not -- it's not well understandable why civilians

9 should be less protected in an internal conflict as they would be in an

10 international conflict. Is that --

11 MR. PILETTA-ZANIN: [Interpretation] Yes. It could be summarised

12 like this, to the extent that if we interpret both protocols in this

13 manner.

14 JUDGE ORIE: The Prosecution, Mr. Ierace, you just have explained

15 to us what you understood the campaign to be, you talked about a degree of

16 planning, allocation of assets, giving of orders to enable the result

17 envisaged. What I'd like to ask you is, in the opinion of the

18 Prosecution, is it possible that the accused could be held responsible

19 under Article 7(3) in his position as commander, for a campaign which

20 would then be or have to have been orchestrated or organised by his

21 subordinates, that means a campaign -- let me just -- under Article 7(3),

22 I think it's fair to say that it's the subordinates who commit the acts

23 necessary to qualify as a crime, and under Article 7(3) it's the commander

24 who did not prevent them to do so or did not punish them if they had done

25 so, so I'm asking you how you see the situation where a military commander

Page 22005

1 would be held responsible for a campaign of shelling and sniping under

2 Article 7(3).

3 MR. IERACE: Mr. President, in that situation, it doesn't matter

4 what the motivation was for these subordinates to engage in those unlawful

5 activities. It doesn't matter whether the motivation was, as it happens,

6 a campaign organised by the accused's senior subordinates. What matters

7 is that they engaged in unlawful conduct, they were secondly subordinate

8 to the accused, and thirdly, the accused failed to exercise his

9 responsibilities under 7(3). Mr. President, I think it's appropriate also

10 to observe that in certain circumstances, 7(3) can be transformed into

11 7(1) and this is such a circumstance, in particular the duration of the

12 behaviour, the unlawful behaviour, by the subordinates. Put simply, if

13 the accused becomes aware that his subordinates are engaged in unlawful

14 activity and declines to take steps available to him to not only punish

15 them but also prevent them from continuing to engage in such activity,

16 then one can conclude that effectively that 7(3) behaviour is transformed

17 into 7(1), he knows about it, he chooses to allow it to continue, when

18 that happens for such an extended period of time, the distinction between

19 7(1) and 7(3) blurs to a point where it effectively becomes 7(1).

20 Specifically, one can then conclude that that behaviour has been adopted

21 by him and that brings it within 7(1).

22 JUDGE ORIE: Yes, but that still would be a situation where the

23 and I'll repeat your words, where the degree of planning and allocation of

24 assets and giving of orders would be on the subordinate level but finally

25 by accepting that this happens at a lower level, that it would fall into

Page 22006

1 7(3) and if that takes too long, then finally, you say that could convert

2 more or less in 7(1).

3 MR. IERACE: Yes, he adopts it by knowingly failing to act.

4 JUDGE ORIE: Yes. Thank you.

5 These were my questions. I gave an opportunity to the Prosecution

6 to reflect for half an hour more on the issues regarding the 22nd of May,

7 1992 agreement.

8 MR. IERACE: Mr. President, just before Mr. Mundis responds to

9 that opportunity, might I add in relation to the last issue that the

10 transformation of 7(3) behaviour into 7(1) behaviour was something

11 referred to in our pre-trial brief. Thank you.

12 MR. MUNDIS: Mr. President and Your Honours, with respect to the

13 22 May, 1992 agreement, the Prosecution has three brief remarks, final

14 remarks, to make. First, the Prosecution would note that in the Blaskic

15 judgement of 3 March, 2000, rendered by Trial Chamber I, in the context of

16 an internal armed conflict between -- or involving Croatian, Bosnian Croat

17 forces, the Trial Chamber in that case accepted the 22 May, 1992 agreement

18 as being the basis upon which, or one of the two bases upon which Articles

19 51 and 52 of Additional Protocol I were applied with respect to that

20 conflict. Certainly that would be one factor that the Prosecution would

21 ask this Trial Chamber to take into consideration. You will find

22 references to that agreement in the Blaskic judgement at paragraphs 80,

23 81, 172, and 173. With respect to the issue of ratification, Ian Brownlie

24 in his treatis entitled the Principles of Public International Law,

25 addresses the issue of ratification and specifically states that

Page 22007

1 ratification involves two procedural acts. The first one he describes as

2 being a constitutional act, that is an act of the appropriate organ of the

3 state, and the second act being an international procedure which he

4 characterises as bringing a treaty into force by a formal exchange or

5 deposit of the instruments of ratification. He goes on to state that this

6 is an important act involving consent to be bound. He goes on, however,

7 and I will quote, "Everything depends on the intention of the parties

8 where this is ascertainable." He concludes by citing of course to Article

9 14 of the Vienna Convention whereby there is reference to ratification

10 being ascertained from the intention of the parties to the agreement, and

11 that's at page 607 in Principles of Public International Law.

12 JUDGE NIETO-NAVIA: I'm sorry, I couldn't heard the name of the

13 author.

14 MR. MUNDIS: Ian Brownlie. The third point which the Prosecution

15 would point to is that in the event the Trial Chamber and we have briefed

16 this issue but I think it merits brief recitation. In the event the Trial

17 Chamber determines that the agreement is not in effect, of course the

18 interlocutory appeals decision of the Appeals Chamber in the Strugar case

19 which this Trial Chamber, I think, is aware of clearly indicates that

20 Articles 50 and 51 of Additional Protocol I reflect customary

21 international law and that Article 13 of Additional Protocol II reflects

22 customary international law and so we would rely on that as a fall-back

23 position in the event that the Trial Chamber finds the agreement not to be

24 applicable.

25 One moment, Your Honour.

Page 22008


2 [Prosecution counsel confer]

3 MR. MUNDIS: Mr. President, as a final point, I note in the

4 Defence pre-trial brief, the heading at page 43, status of additional or

5 excuse me, status of Article 51 of Additional Protocol I and Article 13 of

6 Additional Protocol II as laws or customs of war, paragraphs 8.10 and

7 8.11, and in particular, paragraph 8.11 of the Defence pre-trial brief,

8 where the following sentence occurs: "The Defence is not disputing the

9 fact that both parties to the armed conflict were bound to uphold

10 provisions of the Geneva Conventions and Additional Protocols I and II."

11 JUDGE ORIE: Mr. Mundis that's what I referred to as a matter of

12 fact when I said that the parties did agree on the applicability and do

13 not agree any more. That's -- thank you for your explanation. Yes?

14 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President.

15 Mr. President, I wanted to say in fact that we raised this matter, this

16 problem, but what I would like to underline very briefly if you will allow

17 me to do so, is that I'll leave here far more wiser than before but it's

18 not a matter of ratification here. It's a matter of something else. It's

19 a matter of transmitting, of formal acceptance, as well as it has been in

20 the declaration in English. Thank you.

21 [Trial Chamber confers]

22 JUDGE ORIE: Then all the questions of the bench have been

23 answered and we have come to the moment where this trial is concluded and

24 where the Chamber will have to prepare its judgement. We spent well over

25 200 days in this courtroom, mostly in this courtroom. We spent these 200

Page 22009

1 days with many people. Everyone having his own task in this trial. Not

2 only the Prosecution and the Defence team, but also the interpreters.

3 Without them the trial would be totally impossible. The same is true for

4 the technical assistance we have from those who are in the technical

5 booth. But the same is true as well for security, for the representative

6 of the registry, who has been with us for all these days. Those

7 supporting the chambers, the legal officers, the ushers who have assisted

8 us during all these times, and the transcribers who have put on paper

9 whatever was said in this courtroom.

10 There is one person in this courtroom I have not mentioned yet and

11 that's you, General Galic. We have not often heard your voice. To some

12 extent that is a consequence of the procedural system that has been

13 adopted in this Tribunal. To some extent it is also a consequence of the

14 decisions the Defence has taken, decisions of course that are fully

15 respected by this Chamber, but it resulted in not having heard your voice

16 very often. At the same time, of course, we the Chamber is aware of how

17 important these days have been for you, because you were here, you were

18 charged by the Prosecution, you were defended by Defence team. So

19 therefore although we might not have heard your voice very often, that

20 does not mean that you were not in the centre of our attention all these

21 more than 200 days.

22 I'd like to thank all those who have participated in this trial.

23 The Chamber has very much appreciated the seriousness with which everyone

24 has fulfilled its task in this trial, the way you performed your duties,

25 of course duties that are not the same, duties that are quite different

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Page 22016

1 for the parties.

2 We have had good days and sometimes we had days that were a little

3 bit less good but nevertheless, the Chamber is highly appreciative of the

4 way that everyone contributed to this trial. The Chamber will have to

5 deliver judgement. The Chamber will try to do that as soon as it can, in

6 order not to -- in order to prevent that the long waiting will be an extra

7 burden, first of all for, of course for you, General Galic, but also for

8 the parties.

9 On the other hand, I cannot give you a clear indication on when we

10 will deliver judgement. That depends from quite a number of

11 circumstances, some of the circumstances are beyond the control of the

12 Chamber, some are under the control of the Chamber. The Chamber will try

13 to deliver a judgement before the summer recess, but I add immediately to

14 that that this is not a commitment as to this date. The only commitment

15 the Chamber makes is that we'll try to do it as quickly as possible,

16 without, of course, sacrificing what is our main task, and that is to do

17 justice.

18 We will adjourn for an indefinite time, until the judgement will

19 be delivered.

20 --- Whereupon the hearing adjourned at

21 1.08 p.m.