Tribunal Criminal Tribunal for the Former Yugoslavia

Page 19054

1 Wednesday, 13 July 2005

2 [Prosecution Closing Statement]

3 [Open session]

4 --- Upon commencing at 9.00 a.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you call

7 the case number, please.

8 THE REGISTRAR: [Interpretation] Thank you, Mr. President. Case

9 number IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir

10 Kubura.

11 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

12 Could we have the appearances for the Prosecution, please.

13 MR. MUNDIS: Good morning, Mr. President, Your Honours, counsel,

14 and everyone in and around the courtroom. For the Prosecution, Matthias

15 Neuner, Tecla Henry-Benjamin, Daryl Mundis, and our case manager, Andres

16 Vatter.

17 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis.

18 Could we have the appearances for the Defence, please.

19 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President.

20 Good morning, Your Honours. On behalf of General Hadzihasanovic, Edina

21 Residovic, lead counsel, and Stephane Bourgon, co-counsel.

22 JUDGE ANTONETTI: [Interpretation] Thank you.

23 And the other Defence team.

24 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On

25 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and our legal

Page 19055

1 assistant, Nermin Mulalic.

2 JUDGE ANTONETTI: [Interpretation] On the 13th of July, 2005, I'd

3 like to greet everyone present, the three representatives of the

4 Prosecution, the five Defence lawyers, as well as General Hadzihasanovic

5 and Brigadier Kubura. I would also like to greet everyone else in the

6 courtroom.

7 Today the Prosecution will be completing its closing argument,

8 after which General Hadzihasanovic's Defence shall commence with its

9 closing argument. As far as I have been told, the Prosecution has another

10 two hours and 42 minutes available. I don't know how many seconds they

11 have remaining.

12 Without wasting any more time, I will now give the floor to the

13 Prosecution.

14 MS. HENRY-BENJAMIN: Good morning, Mr. President. Good morning,

15 Your Honours. And to my colleagues, good morning.

16 Mr. President, yesterday at the end of the session I delivered my

17 submission with respect to Bugojno in a very condensed form because of the

18 constraints of time. But nevertheless, even though it was condensed, I

19 think it was sufficient enough to convey the Prosecution's point with

20 respect to the facilities in Bugojno.

21 One striking thing about the facilities in Bugojno is that it is

22 common to all the other facilities -- all the other detention facilities

23 that were operated by the ABiH 3rd Corps and also all the facilities,

24 including those in Bugojno, had within it two common threats: One, the

25 physical conditions -- the deplorable physical conditions that existed in

Page 19056

1 the facilities; and, two, the cruel and inhumane treatment that all

2 detainees were subjected to endure. And I think even though I may have

3 raced it through, I think the Trial Chamber would have been appraised

4 of -- of the situation at the time in Bugojno in the detention facilities.

5 As I indicated as well yesterday afternoon, that the second limb

6 of my submission deals with the notice aspect with respect to the accused

7 General Hadzihasanovic and the Bugojno facilities.

8 Mr. President, Your Honours, I wish to submit, or I believe that

9 there can be no doubt -- or rather, there should be no doubt in the minds

10 of Your Lordships that the evidence presented by the Prosecution in the

11 conduct of this case through its witnesses and its -- in its final brief

12 and in the conduct of -- and again here today and yesterday has

13 demonstrated that the soldiers of the ABiH 3rd Corps, in particular the

14 soldiers and military police of the OG Zapad and the 307th Motorised

15 Brigade, operated a number of detention facilities in its -- in its AOR,

16 including those located in the town of Bugojno.

17 Further, contrary to the submissions in the final brief for the

18 Defence of the accused General Hadzihasanovic, there is no doubt that each

19 and every one of these facilities run by the ABiH soldiers of the 3rd

20 Corps subordinated to the accused General Hadzihasanovic mistreated,

21 surrendered, and captured HVO soldiers and Bosnian civilians alike.

22 Similarly, that these detention facilities, and in particular

23 Bugojno of which I now address you, were at all times guarded by soldiers

24 of the ABiH 3rd Corps. And even more, there is absolutely no doubt that

25 the evidence produced demonstrated at all times the accused

Page 19057

1 General Hadzihasanovic was aware that these ABiH soldiers under his

2 command committed the crimes as it relates to -- as it relates to Bugojno,

3 as alleged in the indictment before Your Honours today.

4 Your Honours, much has been said and has been made by the Defence

5 in their final closing brief as to whether the accused

6 General Hadzihasanovic possessed the required notice in respect of Bugojno

7 so as to satisfy the requirements under the -- the Statute.

8 Your Honours, in this light, there is much evidence to support

9 the Prosecution's allegations, and I wish to draw your attention, Your

10 Honour, first to footnote 1005, page 169 of the Prosecution's final brief.

11 In the interests of time, I would not be able to read out the entire note,

12 but from the evidence led one sees that as early as the 24th of July,

13 1993, the accused Hadzihasanovic was aware that his subordinates had

14 captured a large number of soldiers, of HVO soldiers, and detained an even

15 larger number -- and detained an even larger number of non-Bosniak

16 civilians, and in this regard, Your Honour, I would like Your Honours

17 during your deliberations to consider Prosecution's 437 -- P437, and P608.

18 Again, on the 26th of July, 1993 there's the order from Senad

19 Dautovic [phoen], Prosecution Exhibit P654, and again the order of Rasim

20 Delic of the 27th of July, 1993, when he wrote to the 3rd Corps Command

21 expressing his concern about the treatment of the Croatian population in

22 Bugojno and ordering that the HVO members who participated in combat

23 against the unit should be treated as prisoners of war and they should act

24 towards them in accordance with provisions of the Geneva Conventions on

25 prisoners of war.

Page 19058

1 Despite the above, the evidence reveals that the accused

2 Hadzihasanovic failed to take the requisite steps to act. For example,

3 Your Honours, he failed to implement the said order of Rasim Delic on the

4 27th of July, 1993, immediately or even to merely ascertain whether the

5 foundations of the numerous -- to ascertain the foundations of the

6 numerous allegations.

7 Aside from that, the Prosecution has fielded witnesses, the

8 famous (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 I could go on and on, Your Honour, but time does not permit and I

13 ask Your Honours or I draw Your Honours' attention to Prosecution Exhibit

14 441. This in a synopsis shows that only some several weeks later, on the

15 14th of September, 1993, did -- the accused Hadzihasanovic instructed the

16 commands of OG --

17 [Prosecution counsel confer]

18 (redacted)

19 (redacted)

20 (redacted)

21 Prosecution Exhibit 441 in a synopsis shows that only some

22 several weeks later, on the 14th of September, 1993, did the accused

23 General Hadzihasanovic instruct the commander of OG Zapad 307th Motorised

24 Brigade to provide the International Red Cross with access to HVO POWs in

25 Bugojno on the 20th and 21st of September, 1993. Of note, some three or

Page 19059

1 four months later after the said report, alerting him of the tortures,

2 cruel treatment, and deaths.

3 Your Honour, then we see that the -- the access to the ECMM and

4 to the locals, the accused failed to -- to allow any access -- or rather,

5 through his subordinates only much later and step by step, contrary to the

6 spirit of the Geneva Conventions. The allegations of the deaths of Mario

7 Zrno and Mladen Havranek, who had been beaten black and blue and resulting

8 in their untimely deaths and for which the authorities after investigation

9 found out that the allegations were in fact through -- were in fact

10 well-founded and true, is indeed another instance of where General

11 Hadzihasanovic was in fact very well made aware of what transpired and

12 what was going on in the detention centres of Bugojno.

13 Another witness testified that upon his return from visiting

14 Bugojno he personally wrote a report about the reported incident in the

15 furniture salon, in which a prisoner detainee had died. He further stated

16 that he forwarded the report to his superior.

17 These are just but a few instances in the evidence that was led

18 with respect to the notice that the Prosecution says that was implied to

19 General Hadzihasanovic. These are a few -- the few instances on which

20 General Hadzihasanovic was very much aware or made aware of what was --

21 what transpired in the detention centres of Bugojno and for which he

22 failed to -- to take any action either to prevent or to punish the alleged

23 perpetrators.

24 Mr. President and Your Honours, in the Prosecution's -- in the

25 Prosecution's humble view, this fully satisfies the -- under the law and

Page 19060

1 demonstrates that the accused General Hadzihasanovic did in fact have

2 sufficient notice to initiate investigations of which he failed to carry

3 out, and if he indeed did so and did so -- and if he indeed did so, did so

4 when it was a little too late in the day, long after the alleged breaches

5 were committed.

6 Unless Your Honours need any further assistance by way of

7 clarifications, Your Lordships, this, in my humble submission, on behalf

8 of the Prosecution, is the position as it relates to counts 3 and 4 of

9 Bugojno, the town of Bugojno in the municipality of Bugojno. Thank you.

10 MR. NEUNER: Good morning, Your Honours. Good morning everyone

11 in and around the courtroom. In a few seconds, I will start with

12 presentation on Guca Gora in June 1993, followed by Orasac in October

13 1993, and by Vares in November 1993, so I try to follow a chronological

14 order.

15 First of all, Guca Gora -- or ABiH control over Guca Gora was

16 established on the 8th of June, 1993. P465, a regular operations report

17 from the OG Bosanska Krajina, which has the time code 1900 hours in its

18 letterhead, says: "The 306th Mountain Brigade captured the village of

19 Guca Gora." The question is whether there was any prevention, especially

20 on that morning of the 8th of June in Travnik, a few kilometres away.

21 There was an incident with Mujahedins who had entered and demolished a

22 charge, St. John the Baptist in Travnik, and at the time the ABiH had

23 established control over Guca Gora in the course of the day. This

24 incident must have been known since Witness Cuskic had been early in the

25 morning already in Travnik and had seen what had been done there to the

Page 19061

1 church.

2 I want to talk briefly about the status of Guca Gora village at

3 the period of the ABiH takeover and Witness Camdzic told

4 Your Honours: "As we were walking through Guca Gora, I couldn't see any

5 damages. There may have been some burnt-down stables and cowsheds, but

6 the rest of the village was intact. There was no -- there were no

7 damages."

8 What has been observed by other witnesses was that furniture was

9 standing particularly outside the monastery or on the street; for example,

10 on the 13th of June, one witness, Bower said, "There was a lot of

11 furniture outside the church." Similarly, on the 16th of June, Witness

12 Mahir testified, "There were some objects in front of the monastery."

13 And again, another witness on the 12th of June, Mr. Radic,

14 through his binoculars from Cifluk, a nearby villager, he observed, "The

15 tractors and the trailers would be parked before our convent in Guca

16 Gora," and he saw people in uniform and he saw also civilians, the women

17 wearing baggy Muslim trousers.

18 So the Prosecution submits that there's an indication that the

19 surrounding of the monastery where the furniture was seen, that this

20 furniture might indicate that there was a collection point around the

21 monastery.

22 I want to deal now with the Mujahedin and especially the

23 difficult question: How did the Mujahedin come to Guca Gora?

24 First of all, the exact time of the Mujahedins' arrival to Guca

25 Gora is unclear; however, there is certain indications about their

Page 19062

1 movements before, in the days before.

2 The first document I want to show to Your Honours is dating on

3 the 22nd of May, and you see here the excerpt from Semir Terzic, and --

4 this is P474, and you see in Mehurici at the time, 22nd May, 1993, you

5 have 92 soldiers from the 7th Muslim Mountain Brigade. On the 25th of

6 May -- this is DH1071, a official note from Witness Delalic to the

7 military security of the 3rd Corps. He mentions a group of Mujahedin

8 billeted in Mehurici, and they reconnoitered an elevation: Probijeno

9 Brdo, elevation 1009. If Your Honours would look at the following map,

10 you see this elevation, 1009, and you see the name, Probijeno Brdo. So on

11 the 25th of May, 1993, you see the movements of the Mujahedin.

12 And if I go back, it says: "The group of Mujahedin was led by

13 Ramo Durmis."

14 On the 27th of May, there's a transfer order from Mehurici to

15 Radojcici, that's P481, and it says in the relevant part: "The commander

16 of the 1st Company of the 1st Battalion of the 7th Muslim Mountain Brigade

17 redeployed 20 soldiers from Mehurici sector to Radojcici village."

18 Your Honours, the Prosecution submits that this commander of the

19 1st Company of the 1st Battalion was indeed Ramo Durmis.

20 If Your Honours have a moment and look at the map here, you see

21 that Radojcici is in the lower part, about one and a half, two, up to

22 three kilometres away from Guca Gora, and this transfer was on the 27th.

23 The question is: Was it carried out?

24 On 29th of May, 1993, there was reconnaissance around Radojcici,

25 and you see here a report from a war diary of the 306th Mountain Brigade,

Page 19063

1 C18, and it's -- the relevant excerpt says: "At 1300 hours, during the

2 daylight, report from Radojcici that a scout missing of the 7th Muslim

3 Mountain Brigade." So this indicates the transfer had indeed taken

4 place.

5 What was the objective of the reconnaissance? Your Honours, you

6 have been in Guca Gora, and I was informed you have been also in Cifluk.

7 I want to show Your Honours for a -- a little excerpt from a videotape

8 now. And since you have been already on -- on site, I want to ask you to

9 try to remember where the towers of the church, the front of the church,

10 in which direction was the front of the church located, so to speak,

11 inside the valley. And I'm showing Your Honours a little portion here

12 from 1 hours, 8 minutes, 34 seconds onwards on P482.

13 [Videotape played]

14 MR. NEUNER: Your Honours have just seen this little excerpt, and

15 you have seen where the towers were standing, and I'm asking Your Honours

16 for one moment simply to look again at the map. The monastery is

17 encircled here. Just for a moment to look at the map and see from which

18 angle this reconnaissance of the monastery was carried out.

19 Your Honours have seen the video in the course of this trial.

20 You know the following story, that a certain group is then moving into the

21 monastery.

22 I want to talk about the strength of the Mujahedin at the

23 monastery. Merdan visits around 11th and 12th of June, 1993. He's there

24 for four to five hours. And how many Mujahedin does he see? "Ten to

25 fifteen were in the courtyard, mostly foreigners, and at least a

Page 19064

1 translator," that's what he says.

2 At the arrest operation a couple of days later, the senior

3 commander Mahir describes the group. He mentions several foreigners,

4 Arabs, and then he also mentions local people, "maybe 15 or 20 among those

5 we saw." So then he goes on and says, "The total number, not more than

6 25. 20 to 25." So it looks like the group was almost stable between 15,

7 10 to 20, 25 men.

8 Two days after the -- or a few days after the visits of Merdan,

9 Hadzihasanovic writes to the Supreme Command, "I am requesting your

10 stances and opinions regarding the solution to this problem."

11 Your Honours have heard evidence on how finally the Mujahedin or,

12 let's say, the military police was facing the Mujahedin. The question is:

13 When were the military police men tasked by the 3rd Corps? And Witness

14 Mahir says, "On the 15th or 16th of June." He isn't quite sure about

15 this. So between the time, let's say, the Mujahedin had moved in, Merdan

16 had met them around 11th or 12th, and the 15th and 16th, when the task was

17 issued, there was time to prepare. The Mujahedin had stayed already for

18 days around the monastery. And as I said, there was a clearly reduced

19 mobility. The group was -- the size of the group was sort of stable. And

20 unlike the locations in Mehurici and Orasac from this group, the

21 monastery -- which were in a distant valley -- the monastery itself is

22 lying at a main road, between the two main cities, Travnik and Zenica. So

23 reinforcement for an operation was easily -- was easily possible to get,

24 especially since the territory had been freshly liberated.

25 What was the mandate of the operation finally, the military

Page 19065

1 police operation? Mr. Mahir testified, "It was our aim to enter the

2 facility and protect it from being destroyed. That was our main goal. We

3 wanted to fulfil the assignment we had been given in Zenica to protect."

4 So just -- there was no rest mandate, it looks like.

5 What are the resources provided by the 3rd Corps for this task?

6 Mr. Mahir testified, "There was a total of 26 of us, 13 -- excuse me, 16

7 3rd Corps military police and then 10 -- about 10 soldiers from the 306th

8 Brigade."

9 So during the time the military police was on the spot, Mr. Mahir

10 said, "We even threatened to bring in reinforcements from Zenica, that

11 another unit would come to assist us." However, Mahir indicated, "We

12 didn't have any touch unit," so obviously the resources provided by the

13 corps weren't that extensive.

14 Then Mr. Mahir goes on: "I wouldn't try to arrest anyone. I

15 wouldn't protect the facility I was sent to protect. There are other

16 people who will arrest, establish the identity, and do all those other

17 things."

18 He even talks about an agreement. If I can use a civilian

19 expression, "We reached an agreement and then we entered the premises.

20 And that was our goal. It wasn't our intention to arrest anybody."

21 In which direction did the Mujahedin leave, Your Honours?

22 Mr. Mahir answers that: "They went towards Travnik, towards the village.

23 We didn't follow them."

24 He says later: "I would say they went off to the area controlled

25 by the 3rd Corps."

Page 19066

1 Witness HF -- Witness HE - excuse me - Witness Sefer and Eminovic

2 were all working in the security sector or in the exchange sector, so they

3 took statements. So they were familiar with investigative techniques.

4 They arrived after the monastery had been secured; however, they took no

5 pictures of the Arabic inscriptions. What did they do? They painted them

6 over. They took no statements, no documentation of the damage. It had

7 been claimed that the 306 military police had been there in Guca Gora.

8 Why weren't the 306 Military Police -- in the days before the securing of

9 the monastery, why weren't the military police of the 306th Brigade not

10 interviewed?

11 In effect, the painting-over of the inscriptions without taking

12 pictures means an alteration of a fresh crime site.

13 Your Honours, I want to address the question: Was the SVK, the

14 Supreme Command, in favour of the agreement option that the Mujahedin

15 could leave?

16 There is an order from Delic, the supreme commander, on the 16th

17 of June to Hadzihasanovic, and it's straightforward and says: "Send these

18 groups to Igman ... in case they do not accept it, show them no

19 hospitality and eventually disarm them."

20 Your Honours will note that this order -- it states at the very

21 end of this order it was sent at 1515 hours on the 16th of June, and I

22 mentioned earlier Mahir isn't quite sure when he had received his task

23 with the military police, on the 15th or on the 16th. So it is not

24 exactly clear whether this order relates to Guca Gora, comes shortly

25 thereafter, whether there were any discussions between the Supreme Command

Page 19067

1 and the 3rd Corps before. This order was sent 1515 hours on the 16th.

2 And following that -- or on the same day, there is a

3 conversation, a telephone conversation between Hadzihasanovic and

4 Halilovic. This is DH165-3. The exact event and the topic of the

5 conversation is not really clear. The Prosecution noted Visoko and not

6 Guca Gora is several times mentioned, so it is not entirely clear what the

7 main topic of that conversation is.

8 However, I want to read out a small excerpt from it. "D,"

9 standing for Dzedo [phoen] and "S," standing for Sefer. This is a

10 submission from the Prosecution. "Regarding the information that we have

11 received," Dzedo says, "about those foreigners, yes, it cannot be done

12 that way.

13 "Really?"

14 "No way. It is my third front line."

15 Sefer: "No, no, but try. It is ordered, here, two of them have

16 signed it, go. Do you understand me?"

17 Dzemo [phoen] says: "Try to send an order without that second

18 part, ordering only to send them up there."

19 Your Honours can see at the very beginning Dzemo mentions

20 information he has received. What information had Hadzihasanovic

21 available on the 16th of June, 1993?

22 I have mentioned already there was a five -- four- to five-hour

23 long encounter with the Mujahedin already by 10th of June in Merdan, and

24 he says, "I reported to Hadzihasanovic." And Witness HF has testified to

25 Your Honours, when asked about Ramo Durmis - I quote - "There were reports

Page 19068

1 saying that he was with a small group around the monastery of Guca Gora, a

2 group of Mujahedin causing problems there, when the army wanted to protect

3 the monastery." End of quote. So a small group; this is what Witness HF

4 has mentioned. Again, it is not entirely clear, since Visoko is mentioned

5 in the conversation I cited earlier, to which event this conversation

6 relates to but it certainly relates to foreigners and the dealing with

7 these problems.

8 Witness Duncan commented on Delic's order, and he says: " ...

9 Having been given this order, Hadzihasanovic has to then make a decision

10 as to where his priorities lie."

11 Your Honours, it's the Prosecution's submission the manpower

12 provided for the Guca Gora securing operation indicates the commander's

13 priorities. I'm not exactly sure about the precise figure, but the corps

14 had roughly about 25.000, 27.000 men at its disposal. A cease-fire with

15 the HVO was concluded on the 13th of June, 1993. It's DH238, so at around

16 the time of the Guca Gora securing, the cease-fire was in effect. And how

17 many soldiers or military policemen were sent? Twenty-six.

18 The question is: How big was the threat posed by the Mujahedin

19 in Guca Gora really and how big was this threat in the eyes of the 3rd

20 Corps officers?

21 There is an indication from Merdan's visit around the 11th and

22 12th of June. The question is: Was Merdan on that visit accompanied by

23 several soldiers to ensure his security?

24 I will quote from the cross-examination of Mr. Merdan.

25 Mr. Mundis: "You told us you were with your driver on that occasion. Is

Page 19069

1 that correct? Your driver drove you there?"

2 Mr. Merdan: "Yes, the driver was by the vehicle. And only the

3 driver witnessed that scene, yes."

4 Kent-Payne told Your Honours an analysis he had heard from

5 Mr. Merdan at the 3rd Corps headquarters on the 30th of June, 1993. He

6 said, and I quote, an analogy on the lines of: "But you have to

7 understand that, that the foreigners are like the -- the genie in Aladdin,

8 then. You can rub the lamp and get the genie out to help you. But unlike

9 the genie who returns to the lamp, then the foreigners are very difficult

10 to get back into their box and they're difficult to control."

11 Merdan's explanation: "I'm not familiar with the symbolism of

12 Aladdin's lamp. Perhaps I wanted to say that the issues of the foreigners

13 was a complex issue, if they were there, and we had information according

14 to which they were present in June 1993."

15 I want to move a little bit away from the securing of the

16 monastery and look just at the agreement option, which was finally adopted

17 because it was obviously favoured by the 3rd Corps. Again, the agreement

18 option marks a lost opportunity to discipline the Mujahedin unit. All

19 individual perpetrators as a result, since they could leave Guca Gora, the

20 whole unit and all individual perpetrators remained in the territory of

21 the 3rd Corps AOR. So if you don't get rid of these people, they're

22 remaining in your AOR. So retrospectively, the Guca Gora-securing

23 operation is important; it marks a crucial event, because if I don't expel

24 these people, as I'm ordered - whether later or not - if I don't expel

25 these people, they're staying on my territory. So basically

Page 19070

1 retrospectively this is preceding the formation of the El Mujahedin

2 Battalion. If I don't get rid of these people, they're staying with me, I

3 basically give them the status, which happened eight weeks later, of a

4 unit, of a detachment.

5 Having said this, I want to move to Orasac, an event after the

6 formation of the El Mujahedin Detachment.

7 First of all, the foreseeable conduct of the abductions. When

8 soldiers of the Mujahedin were captured by the HVO, that unit responded

9 with own abductions of Croats. So these are the lessons learned from the

10 Totic abduction, which was just a couple of months before the events

11 unfolding in Orasac.

12 It says: "On the 3rd of October, C13, war diary of the OG

13 Bosanska Krajina at 0800 hours, five Mujahedin soldiers crossed over to

14 the Ustasha zone by car. The outcome is unknown."

15 A more detailed description is given by Witness HE. He

16 says: "Towards the end of September 1993, a group of five Mujahedin lost

17 their way as they were travelling from Opara, following a UNHCR convoy.

18 As the convoy was passing all the checkpoints, they reached the village of

19 Trenica. The convoy passed, the Mujahedin followed them, and they entered

20 Novi Travnik. And the four of them were killed there on the spot; the

21 fifth one, who was the interpreter, I suppose, he was a citizen of

22 Bosnia-Herzegovina ... I learned that from Abu Dzafer."

23 Your Honours, mentioned are Opara and Trenica. Just to mention

24 on the map where that is, Opara is south of Novi Travnik, as is Trenica,

25 as Your Honours can see. This will be reviewed in a moment.

Page 19071

1 The survivor, the interpreter, as Witness HE said, says: "The

2 unit was stationed in Mehurici and from there we were sent to the front

3 lines." And he goes on: "After the failed attack, we were supposed to

4 return to Novi Travnik." And later on he mentions the people who were

5 killed, and he mentions Vahidin. Your Honours have heard the name of

6 Valjudin [phoen] several times during that trial. The Prosecution submits

7 Vahidin or Valjudin is one and the same person, the military commander of

8 that unit at that time.

9 Abu Dzafer visits Witness HE on a daily basis this. This has

10 been put on the record, and he even said to Witness HE he would pick up as

11 many Croats as necessary.

12 Then on the 7th of October -- this is P709 -- on the 7th of

13 October, 1993, Beba makes an announcement at an exchange commission

14 meeting with the HVO, "Unless Kadiric was released from Croat detention -

15 and here's the quote - "20 innocent Croats would be arrested in Travnik

16 every day, Croats who had voluntarily opted to stay under BH army

17 control." End of quote.

18 Your Honours have heard evidence about the two abduction waves,

19 the first one about a week after that comment and the second one 18th and

20 19th of October, ten days roughly after this comment. Your Honours have

21 heard evidence that civilians were abducted in both abduction waves;

22 clerics in the first, and I have listed here the other civilians from

23 the -- from the second abduction wave. One person was even 17 years old.

24 They were brought to Orasac. Your Honours have heard evidence

25 about this. This was not a secret location. Rather, the 7th Muslim

Page 19072

1 Mountain Brigade had meetings there, as early as July and August 1993.

2 The Prosecution's referring to P501, P500, P611. Just P611 dating 10th of

3 August, days before the formation of the El Mujahedin Unit. The relevant

4 part reads: "The 7th Muslim Mountain Brigade forward command post remains

5 in Orasac village and there are no plans for it to be relocated."

6 And, Your Honours, this is sent to the 7th Muslim Mountain

7 Brigade commander, a forward command post in Orasac village.

8 What is the knowledge of the ABiH officers about the abduction?

9 It was notorious. Ms. Popovic conducted -- contacted many, many

10 authorities, Mr. Cuskic, Mr. Alagic, civilian military authorities alike.

11 On the 18th of October, you have a conversation between Duncan and

12 Hadzihasanovic. On P216 it is noted. Here is the document. And the

13 relevant part reads: "Questions on the actions of the Muslim extremists

14 towards remaining Croat minorities in BiH-controlled areas.

15 Hadzihasanovic side-stepped the issue completely. He did not acknowledge

16 that there was a problem."

17 This is on the 15th, the first abduction wave; on the 18th/19th,

18 the second abduction wave starts. And, Your Honours, this is on the 18th

19 of October.

20 And, again, Witness HE, before the second abduction wave, what is

21 he -- what has he testified to Your Honours? "Abu Haris lied to me

22 several hours prior to the kidnapping when he told me that no further

23 measures would have been taken." So there is contact.

24 Your Honours, I want to draw your attention to the 22nd of

25 October, 1993. Mr. Duncan spoke to Mr. Merdan, source P226. Here is the

Page 19073

1 document. The relevant part reads: "Mr. Merdan stated that the 3rd Corps

2 had tasked Mr. Alagic, commander of the OG Bosanska Krajina, to resolve

3 the ongoing problem with the Mujahedin in Travnik."

4 Duncan, when questioned on P226 stated - and this is a question

5 by Mr. Bourgon - "Would you agree with me that this specific -- what

6 Mr. Merdan was referring to at that time had nothing to do with what we

7 are talking about now of resubordination but actually dealt with five

8 Croats which had been kidnapped by unknown Mujahedin elements in Travnik?

9 Would that recall some souvenirs for you?" Mr. Duncan says: "Yes." So

10 they talked about, according to Duncan's recollection, the abductions,

11 again, on the 22nd of October.

12 Merdan, when questioned by Judge Swart on that same document

13 said: "I can claim with full responsibility that Duncan Alastair never

14 told me that some Croats had been kidnapped in Travnik." The opposite.

15 So what is the correct interpretation, Your Honours, of P226,

16 referring to this remark from Mr. Merdan? Again, I want to point out

17 Mr. Merdan's testimony. He says: "I signed an order or perhaps even two

18 orders on behalf of the 3rd Corps commander according to which the El

19 Mujahedin Detachment was to be resubordinated to the OG Bosanska Krajina,

20 which was led by the late General Alagic. So if I said that,

21 Colonel Alastair Duncan probably paraphrased what I said. But I would

22 like to emphasise the fact that Duncan never told me that Croats had been

23 kidnapped in Travnik."

24 Mr. Merdan mentioned resubordination orders signed on behalf of

25 the 3rd Corps commander. Was the resubordination during the Orasac

Page 19074












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 19075

1 abductions? What does the war diary of the OG Bosanska Krajina tell

2 Your Honours? On the 27th of October, an entry at 1900 hours - that's

3 C13 - information about the 308th Brigades relating to the 24th of

4 October, 1993. On that day, an attack was carried out on the HVO

5 positions in the area of Novi Travnik, and there are villages mentioned,

6 Rankovska Kosa, Rastovci, Zubicki. The attack started at 8.30. The

7 commander of the El Mujahedin Detachment was wounded," the OG Bosanska

8 Krajina reports. "We have four dead, 17 wounded soldiers. El Mujahedin

9 has three dead and eight wounded." This indicates joint combat.

10 Here are the locations just talked about, Zubicki, Rastovci,

11 Rankovska Kosa. Your Honours will recall that the -- at the end of

12 September, beginning of October, the killed El Mujahedins, Valjudin and so

13 on, this was near Trenica, which was a little bit north of Rastovci, as

14 Your Honours can see. And I will come to Rastovci in a moment.

15 There is the arrest of 7th Krajina Mountain Brigade soldier

16 Kuduzovic one day after this joint combat, and Cuskic has testified to

17 Your Honours: "The delegation arrived at my barracks, asked to be

18 received by me. We spent more than two hours in difficult discussions,

19 and this resulted in them apologising and releasing this soldier."

20 He was asked: "Who was part of that delegation?" And Mr. Cuskic

21 says - I just quote - "On behalf of the Mujahedin, Abu Haris, the Emir,

22 the commander of that unit."

23 Again the war diary of the OG Bosanska Krajina, 27th of October,

24 1235 hours, reporting. Basically the Mujahedin requested a signature of

25 one of his commanders for the release from Novi Travnik. And who was

Page 19076

1 getting it from Novi Travnik? Your Honours have just seen the map. Beba

2 took measures to get it.

3 The release is occurring on the 27th of October, and there is a

4 mentioning in that war diary - it's P711 or C13, 27th of October - Beba is

5 again mentioned.

6 On that day there was a conversation again, Beba with ECMM, about

7 Alagic, what is he saying, and the Mujahedin: "Presently, Alagic has

8 other concerns. When these are over, he will demand control."

9 DH1968, paragraph 7.

10 Two days later, on the 29th of October -- excuse me, on the 27th

11 of October, after the release, Alagic makes a statement to the ECMM. As

12 for hostages are civilians didn't so he's not talking about Kuduzovic;

13 he's talking about the hostages for whom the Prosecution has launched this

14 section of the indictment. "As the hostages are civilians, strictly

15 speaking the matter was outside his control." And he added -- listen,

16 Your Honours. What is Mr. Alagic saying? "He is due to meet the

17 Mujahedin tonight." P177, paragraph 5.

18 And this same meeting you find another important entry on P178,

19 another detail. In this conversation, it was discussed: "There are shots

20 at a convoy near -- on a convoy near Novi Travnik, and the location is

21 Rastovci." Your Honours have heard about it. And in that conversation on

22 the 27th or 29th - I'm not sure at the moment - of October, what is

23 Mr. Alagic saying? And I have displayed that for Your Honours. He

24 says: "Alagic denied that his troops had been in that area" -- and I'm

25 referring to Rastovci here -- "but he suggested that Mujahedin units could

Page 19077

1 have been there and he would not know" -- listen -- "because they reported

2 directly to the 3rd Corps BiH." And he's talking about Rastovci area.

3 Where is Rastovci? Your Honours, if you look for a moment on this map,

4 you see it's again near Novi Travnik. There is continuing notice of the

5 3rd Corps about combat, joint combat in that area.

6 So the question is, Mr. Alagic has said, they reported directly

7 to the 3rd Corps. So in October 1993, to whom did the Mujahedin report

8 to, as Alagic, who must know it, suggests.

9 And an answer is partially provided in P618. It's an

10 extraordinary report sent to the command of the 3rd Corps. And,

11 Your Honours, "Attention the commander." Why? It's from the 9th of

12 October, so six days prior to the first abduction wave from

13 Orasac. "Representatives of the detachment El Mujahedin visited me

14 today," Mr. Cikotic writes, "and they stated their readiness to engage a

15 part of the their unit in activities in the area of Gornji Vakuf." Not

16 Novi Travnik this time; it's Gornji Vakuf, Your Honours.

17 "According to them, it is conditioned with your orders. It is a

18 list."

19 Did they report to Enver Hadzihasanovic? Again, I want to return

20 to P226 and Merdan's comment. "I claim with full responsibility that I

21 signed an order, or perhaps even two orders, on behalf of the 3rd Corps

22 commander according to which the El Mujahedin Detachment was to be

23 resubordinated ..."

24 On the 3rd of November, you have a conversation with

25 Sir Martin Garrod. When asked about the Mujahedin, Hadzihasanovic said,

Page 19078

1 "there were several kinds," he says. And I quote just one

2 sentence: "There was no special organisation of Mujahedin,"

3 Mr. Hadzihasanovic says. P181, page 8, paragraph 10.

4 At the time Mr. Hadzihasanovic has made that comment, three

5 civilians were still held in Orasac. I'm referring here to Ivo Fisic,

6 Mr. Rajkovic, and Mr. Adzaip. They were released, Fisic and Rajkovic, 6

7 November, three days after that comment, and Mr. Adzaip, after the 5th,

8 before the 11th of December, 1993. It's not exactly clear.

9 So shortly before the release of Mr. Adzaip, as I said, around

10 the 5th -- between the 5th and the 11th of December, there is an order of

11 the 3rd Corps command, C13, 5 of December, 1530 hours. What does it

12 say? "The El Mujahed Detachment is to be resubordinated to the OG." It

13 is not "subordinated," Your Honours; it is "resubordinated."

14 The question is: The Orasac abductions, were there measures

15 taken, preventive measures. Beba -- Salko Beba had heard. He was --

16 about Abu Dzafer's intentions. He was in repeated daily contact with him.

17 Repressive measures. I want to point Your Honours' attention to the

18 Kuduzovic incident. The soldier from the 17th Krajina Mountain Brigade.

19 And here Your Honours see how repressive measures could work. Even a

20 simple brigade, not a corps, a simple brigade, the 17th Krajina Mountain

21 Brigade, Mr. Cuskic could quickly -- or let's not say quickly -- but could

22 get Mr. Kuduzovic released, and it didn't intention the intervention of

23 the corps. It was Mr. Cuskic who threatened to mortar them. So there was

24 some force or at least threat of force necessary. However, a simple

25 brigade could reach the delegation that was visiting him. Abu Haris

Page 19079

1 visited him after the threat. He took it serious.

2 And my last point on Orasac is: Your Honours, please compare

3 this incident with the Totic abduction and the measures, in quotation

4 marks, the "measures" employed there. Were there investigations of the

5 3rd Corps military police? During Totic abduction, Your Honours have

6 heard evidence. Were there measures from the 3rd Corps military police in

7 Orasac taken? Was there any evidence led on ABiH cooperation with the CSB

8 Zenica, like during the Totic abduction? Were there on-site visits to the

9 known camps or locations of the Mujahedin? There were visits by Salko

10 Beba, but were there on-site visits? And similarly, the comparison to the

11 Totic abduction shows there were no visits by the HVO or international

12 representatives to possible detention locations. There was no campaign to

13 show basically the sites or the areas. There was no such campaign.

14 Your Honours, I'm coming to my last topic, Vares. First of all,

15 it overlaps to a certain degree from a timely perspective with Orasac. As

16 I said earlier, Orasac goes on until the 5th of December. But the

17 parallels end here. It is a separate incident. And Your Honours have

18 heard evidence about the acts of anger and revenge by the ABiH forces who

19 moved into an abandoned town. The question is: Were these acts of

20 revenge and anger foreseeable?

21 There was a Stupni Do massacre - Your Honours have heard evidence

22 on this - in late October 1993. So this was a clear, clear signal that

23 acts of revenge may occur, because this was a very, very serious crime

24 committed by the HVO. And Mr. Hadzihasanovic in a conversation with

25 Mr. Garrod - I'm referring to P181, page 7, paragraph 2 this time - he

Page 19080

1 stated that: "Hadzihasanovic said he had just been to Vares. He said

2 that the HVO had made a serious mistake and when there was a massacre, it

3 was difficult to control their BiH soldiers." End of quote.

4 This was in autumn 1993. And Witness Junuzevic have testified to

5 Your Honours: "That period of time is well known for being a period of

6 famine in Central Bosnia." And he goes on, "especially in Breza, Zenica,

7 and Vares."

8 There is a combat order sent by Mr. Hadzihasanovic to Kubura on

9 the 3rd of November, 1993, and I'm referring to P674, paragraph 5. And

10 you see the 3rd Corps commander is aware about that danger, or at that

11 time actually formally Mr. Hadzihasanovic was no longer the 3rd Corps

12 commander but this order is sent to Mr. Kubura. And it states,

13 advising -- instructing Mr. Kubura: "Do not allow any revenge or

14 massacres. Deal with war booty in the spirit of the 3rd Corps Command

15 order."

16 It was a multi-corps operation which unfolded to take Vares.

17 Delic had tasked - it's DH1513 - three different corps, 2nd, 3rd, and 6th

18 Corps. And within these corps, there was an OG East, and this reported to

19 the 3rd Corps. And the order of Hadzihasanovic to Kubura on the 3rd of

20 November in paragraph 4 - I mentioned it earlier, P674 - gives guidance

21 who -- to whom Mr. Kubura has to report to. "The commander OG East shall

22 command all forces to Vares."

23 And Your Honours see in evidence certain orders from OG East

24 reports back to the 3rd Corps. I'm referring to P445, P676, P793. In one

25 instance - it's P446 - the 3rd Corps instructs the OG East, so it is clear

Page 19081

1 who is reporting to whom.

2 Mr. Kubura, the latest time he arrived at the forward command

3 post in Strijezevo was on the 3rd of November. P46H -- 68, page 1.

4 The question is: Was there a change in plans. Two documents,

5 P674, paragraph 1, and P474 tell Your Honours about the axis which has

6 been to be -- or on which the 7th Muslim Mountain Brigade had to operate.

7 And initially the 7th Muslim Mountain Brigade was supposed to stay on

8 these certain axes around Vares. However, P448, page 11 tells Your Honour

9 also about one of these axes. The plan was to engage only the 7th Muslim

10 Mountain Brigade on the Visnjevik-Mir-Stupni Do-Tisovci-Przic-Dastansko

11 axis Visnje cri-Mir-Stupni Do-Tisovci-Przic-Dastansko axis, and two

12 [unintelligible].

13 However, source P468, page 1, tells Your Honours: "Our units

14 arrived early in the morning of 3 November 1993, and during the night" -

15 referring probably to the night 3 to 4 November - "We received a task from

16 the brigade commander to go to Vares itself in the early hours of 4

17 November 1993." Stay on the axis or go to Vares itself.

18 How did the -- in the multiple-corps operation, how did the other

19 commanders or even superiors react to that change? And I'm referring here

20 to the commander of the Vares tactical group and the Chief of Staff of OG

21 East -- the superior to Amir Kubura. It's P448, page 11. What does the

22 commander say? "The task was not carried out completely, because the

23 troops did not get beyond Bijelo Borje and Tisovci but headed for the town

24 instead." They were not staying on the axis; they headed for the town

25 instead.

Page 19082

1 And, Your Honours, the Prosecution submits the 7th Muslim

2 Mountain Brigade spearheaded that southern operation to take Vares.

3 Witness Podzic has told Your Honours: "About a quarter of an hour after

4 we entered" -- meaning the outskirts of Vares. "About a quarter of an

5 hour after we entered, several other units showed up." And what was the

6 task of these units? "Their task" -- I quote. "Their task was to take

7 over the lines that we had established." End of quote. Who had

8 established these lines, Your Honours? The 7th Muslim Mountain Brigade

9 spearheading that operation from the south.

10 Again P445, the commander of the 6th Corps mentions at a certain

11 point in time, 1045 hours on the 4th of November, 7th Muslim Mountain

12 Brigade had entered Vares. And what is the result of this,

13 Your Honours? "They are stealing and looting everything they see," P445

14 reports. And it is important that -- to whom does this "they" relate? If

15 you follow the text here, the Chief of Staff of the Istok OG reported that

16 the 7th Muslim Mountain Brigade -- or a battalion of the 7th Muslim

17 Mountain Brigade had entered Vares by the main road." And here it

18 comes: "They are stealing." There is no other unit mentioned here. It

19 is the 7th Muslim Mountain Brigade Battalion, and they are stealing and

20 looting everything they see.

21 Going again to the word everything. This word "everything" is

22 also mentioned in P676. And it indicates the scale of destruction and

23 looting. "This morning the ArBiH units (7th Muslim Mountain Brigade),

24 entered the town of Vares. Their arrival in town created general chaos.

25 Everything is being looted and burned." And then it comes: "Other

Page 19083

1 combatants joined the looting and burning." And the question was: When

2 was the joining?

3 An insider of -- from the 7th Muslim Mountain Brigade is also

4 reporting about war booty. He's in the 2nd Battalion of the 7th Muslim

5 Mountain Brigade. Your Honours have heard evidence this battalion was

6 moving through Vares, was not staying in Majdan, was moving through Vares.

7 And here Mr. Disdarevic [phoen], it is P468, page 2, mentions: "Battalion

8 organisation of gathering war booty, primarily foodstuff, was done well,

9 which could not be said of other brigade units or the brigade itself."

10 Your Honours, an insider is reporting here about the gathering of war

11 booty, primarily foodstuff. It was done well by his 2nd Battalion. But

12 he goes on: "It could not be said the same -- it could not be said of

13 other brigade units." He's not talking about other brigades; he's

14 talking, the Prosecution submit, about his own brigade, "or the brigade

15 itself." So there is obviously some organisation of the items which are

16 taken in Vares.

17 I want to turn to one aspect of destruction now, the

18 cross-shooting in an abandoned town. First of all, the combat order from

19 Mr. Hadzihasanovic mentioned already, P674, in paragraph 4 mentions: "If

20 the town has been abandoned, organise an attack and liberate Vares." He's

21 talking about an abandoned town. This is on the 3rd of November. Kubura

22 reports or responds back in the night of the 3 to 4 November: "The

23 population is fleeing in large numbers by passenger and freight vehicles."

24 This must be the Croat population in Vares. And he continues: "The lower

25 part of the town is completely empty." There were indication s the town

Page 19084

1 was abandoned. So Kubura had reconnaissance available prior to the 7th

2 descending to Vares that troops -- or that the town had been abandoned,

3 especially the southern part. So then there was the cross-shooting

4 occurring. And the Prosecution just wants to point out two points about

5 it.

6 Podzic had testified to Your Honours: "It was occurring at the

7 outskirts of the city. Such a formation" - the V-formation; Your Honours

8 have heard about it - "and such a movement was maintained until we entered

9 the city." So it was only on the outskirts, Mr. Podzic has told

10 Your Honours.

11 Birger has told another story. He says: "We meet these

12 attacking soldiers in the square, where the mayor's house is."

13 Your Honours, where is the mayor's house in Vares? Where is the mayor's

14 house? It is usually in the city centre. And Birger says so later on in

15 his testimony: "I meet them in the middle of Vares, in the middle of

16 Vares more or less. That means the square about the mayor's house." So

17 was it at the outskirts or was it in the middle of Vares? Was the

18 cross-shooting in V-formation only occurring at the outskirts or was it

19 going on into the city senor? Who tells the truth? The Prosecution

20 submits Birger was an independent observer, not part of the hostilities,

21 and unlike Podzic Birger knew Vares pretty well. He was permanently

22 stationed there at the time. So Mr. Birger and his orientation of Vares

23 should be a good one.

24 Kubura was in command and control during the operation. The

25 order from 1st of November, P217, from Hadzihasanovic to the 7th Muslim

Page 19085

1 Mountain Brigade says: "The brigade commander shall use the units at his

2 own discretion." So the 3rd Corps is clarifying who is in command here of

3 the 7th Muslim Mountain Brigade. And another detail: On the 4th of

4 November, Mr. Musija has testified about a Motorola, GP-300. This was

5 linking him to subordinate battalion commanders in Vares, operating in the

6 town. And this is indirectly confirmed also by Podzic, who is in the

7 northern part of the town and has testified to Your Honours. He testified

8 when asked: "Who issued you an order?" "I received an order from the

9 commander of the brigade, Mr. Kubura; it was in a written form and it was

10 forwarded to other officers in both oral and written form." So even

11 written orders did go through Vares on that day. Not only the Motorola,

12 written orders.

13 What are the measures taken in the Vares operation? The looting

14 and the destruction by the 7th Muslim Mountain Brigade and other units was

15 very intense. Your Honours have heard testimony about that. And it was

16 notorious. All superiors of Kubura and other senior commanders involved

17 ordered it to be stopped. And Your Honours find a wealth of orders trying

18 to impose quickly measures from the Supreme Command, P793, P675, paragraph

19 3; from the 6th Corps, P675, P676; from the OG Istok, P445, P676, P793,

20 P675, P468, P675, P468; from the 3rd Corps, an inference drawn from P446.

21 So basically all superiors were involved in imposing measures.

22 There are indications that even the 3rd Corps had given an order

23 to the 7th to engage the military police. On the 4th of November at 1525

24 hours, so in the afternoon, it is mentioned here, sent to OG East, "We

25 issued orders to brigades to engage all available military police members

Page 19086

1 in preventing chaos." So the 3rd Corps indicates to OG East "we issued

2 orders to brigades." Who are the brigades? The 7th Muslim Mountain

3 Brigade is in Vares at the time.

4 What is the response from the 7th on that day? DK50 tells

5 Your Honours, "We retreated." But where is the engagement of the military

6 police? Your Honours have just heard the 3rd Corps claims "we asked the

7 brigades to engage their military police." Where are the preventive

8 measures against looting and destruction in town? Not at the outskirts.

9 There is another order here from the 5 of November, and

10 Your Honours can see there are four different measures ordered to be

11 implemented. And Your Honours can also see it is delivered to the

12 commander of the 7th Muslim Mountain Brigade. It is requested to impose

13 four measures. What is the response from the 7th Muslim Mountain Brigade?

14 And, Your Honours, I especially point out the fourth measure. It

15 says: "Vehicles in which fighters are found contrary to this order shall

16 be taken."

17 First the first three orders, and then the fourth on dealing with

18 the vehicles. What is the response from the 7th Muslim Mountain Brigade?

19 Your Honours see there is three measures, the first three more or less

20 verbatim, implemented as the 7th Muslim Mountain Brigade was asked. But

21 where is the order that the vehicles have to be seized? This is P478, for

22 the record, here. Where is the order that the vehicles have to be seized?

23 Order 1, 2, and 3 is there, but -- it's implemented, but

24 implementation of the fourth one is missing. So Your Honours see how the

25 implementation on the side of the 7th Muslim Mountain Brigade is taking

Page 19087

1 place. Yes, we are implementing, but we are not fully implementing.

2 Finally, I want to talk briefly about the checkpoint.

3 Your Honours have heard several times and several witnesses talking about

4 the notorious checkpoint in the south of Vares. No Prosecution witness,

5 however, has been ever asked about this; or in other words, this

6 checkpoint -- I don't want to say "appeared" during the Defence case, but

7 there weren't any questions asked to the Prosecution witnesses whether

8 there is such a checkpoint, and especially whether such a checkpoint was

9 observed by the 7th Muslim -- was operated by the 7th Muslim Mountain

10 Brigade in the south of Vares. And there were international witnesses, I

11 believe Weckesser, the Prosecution isn't fully certain about this,

12 Garrod. There were witnesses who travelled that day southbound, leaving

13 Vares. So they testified -- they testified -- actually it is -- I see

14 here on the screen it is Weckesser and Hendricsson -- they testified they

15 travelled to or left unhindered in Vares at least until noon on the 4th of

16 November -- 4 of November. So where's the checkpoint, Your Honours?

17 And another detail: Who's the operating authority of this

18 checkpoint? Witness Podzic has testified to Your Honours: "Behind my

19 unit" - and I quote - "behind my unit, at the very entrance to the city, a

20 checkpoint had already been in the process of being set up by the civilian

21 police."

22 The same witness later on specifies what he means: "Right on the

23 heels of my unit" -- on the heels. I think the transcript is not correct

24 here. "On the heels of my unit, there was the civil police, and they set

25 up a checkpoint while I was talking to the UNPROFOR officer." So again

Page 19088

1 the civil police was setting up the checkpoint, coming after the

2 spearheading 7th Muslim Mountain Brigade units.

3 Witness Junuzevic has testified also: "I was in Pajtov Han and

4 MUP was in charge of the checkpoint there." Another indication, you have

5 the civilian authorities operating a checkpoint. Two indications for

6 this.

7 What is the conclusion? At least the checkpoint was set up and

8 operated to a certain point in time by the MUP, SJB. So a checkpoint was

9 already existing as the Defence -- a checkpoint was already existing, if

10 Your Honours believe that this checkpoint was -- operated. However, what

11 is the duty of the 7th Muslim Mountain Brigade if another civilian

12 authority is already operating a checkpoint and your soldiers are in town

13 causing troubles? It is insufficient - that's the Prosecution's

14 submission - that the 7th Muslim Mountain Brigade military police simply

15 joined in an already existing measure of other law enforcement agencies.

16 Your Honours, there is obviously already a measure established, so you

17 have forces available -- the military police, it is claimed, who was at

18 that checkpoint, why not sending them into town? Trying to sort out the

19 order or the missing order there.

20 P675 orders Kubura to cease all acts in the town of Vares, not at

21 the outskirts or even south of the outskirts only. So with the military

22 police of the 7th Muslim Mountain Brigade stationed only outside, a legal

23 vacuum was left in Vares proper. You cannot send your soldiers in town

24 and leave them for what they want to do there and then stand at the

25 outskirts with a couple of policemen and say, "Now you -- you give away

Page 19089

1 all the bags you have collected," and so on and so forth. You must solve

2 the problem on the spot, especially there was Motorola and other ordering

3 facilities for the accused Kubura.

4 So -- and the important point is there were repeated and specific

5 orders from all corps involved in the operation to do something about it.

6 Your Honours have heard about the measures, court measures,

7 testimony from Mr. Ahmetovic, who confirmed that Vares was, so to speak,

8 in the territorial jurisdiction of the Zenica District Military Court. So

9 what are the measures? And this is Hasanagic who's asked: "Were you

10 aware, sir -- or did you in any way come across any documents or

11 information concerning any member of the 7th Muslim Mountain Brigade who

12 was investigated, charged, disciplined, or in any other way prosecuted

13 with respect to alleged crimes that occurred in Vares in November 1993?"

14 The answer: "No. Not a single document of that nature ever

15 reached me, and I have no knowledge of any proceedings having been brought

16 against anyone with regard to Vares."

17 Needless to mention that there is an order in evidence that the

18 fighters of the 7th Muslim Mountain Brigade who had participated in Vares

19 could go on leave after the Vares operation was over.

20 Your Honours, this concludes the presentation.

21 JUDGE ANTONETTI: [Interpretation] Thank you. It's half past

22 10.00 now. We will have our break, and we will resume at 11.00.

23 According to my calculations, the Prosecution has another one hour and ten

24 minutes available.

25 --- Recess taken at 10.31 a.m.

Page 19090

1 --- On resuming at 11.01 a.m.

2 JUDGE ANTONETTI: [Interpretation] We shall now resume, and the

3 Prosecution may proceed.

4 MR. MUNDIS: Thank you, Mr. President.

5 We will be concluding the Prosecution's closing submissions this

6 morning. I anticipate taking about one hour, perhaps a few minutes more,

7 but certainly will be within the time allotted to us.

8 I'm going to address you briefly on the issue of the Zenica Music

9 School and repressive measures, and perhaps just a few comments about

10 the -- the counts relating to the Bila Valley. Then I'll discuss in more

11 detail the repressive measures in general, failure-to-punish aspect of the

12 case, discuss with you a little bit about sentencing, and then finally

13 conclude.

14 Let's focus, if I might, Your Honours, on the failure-to-punish

15 aspect of the music school. I'm not going to go into the actual crimes

16 that were committed there. Let me start, however, by reminding

17 Your Honours of a -- of a simple quote from the witness Hasanagic, who was

18 the assistant commander for legal affairs in the 7th Muslim Mountain

19 Brigade. And he was, as you will recall, present when that position, that

20 is, the assistant commander for legal affairs position, was formed. We

21 asked him, Your Honours, about any awareness he had with respect to any

22 7th Muslim Mountain Brigade member being investigated, charged,

23 disciplined, or in any other way prosecuted for alleged crimes committed

24 in the Zenica Music School in 1993, and Mr. Hasanagic replied that he had

25 received no such information and no such information was ever available to

Page 19091

1 him. We'll be talking a little bit more this morning about Mr. Hasanagic

2 and his precise role within the 7th Muslim Mountain Brigade, but at the

3 outset I wanted to, again, draw the Chamber's attention to the fact that

4 the assistant commander for legal affairs within the 7th was unaware of

5 any reports concerning any members of that brigade being disciplined or

6 charged in any way with respect to the music school.

7 Now, Your Honours will certainly recall we've had a wealth of

8 evidence about the relatively notorious nature of the -- the crimes

9 committed in the Zenica Music School and what was happening there.

10 Judge Adamovic, who as you will recall, is a judge of the district

11 military court or was a judge of the district military court in Zenica at

12 the relative time, has testified about how he heard such information and

13 how he would refer persons who brought that type of information to him to

14 the district military prosecutor's office for further action. And again

15 at page 9480 of the transcript, he -- he testified: "We would refer them

16 to the military prosecutor's office to start formal proceedings. It was

17 not just on one occasion."

18 Now, at paragraph 953 of the final trial brief for the accused

19 Hadzihasanovic, the following quotation is -- is stated: "If, as Adamovic

20 told, the whole city was rife with rumours about the music school, the

21 music school being a detention camp, it sounds surprising hearing from a

22 judge who received complaints from civilians about the music school that

23 he actual did not do anything to process the cases, if any."

24 The Prosecution, Your Honours, would submit that this quotation

25 is misplaced, particularly because, as we've just re-examined,

Page 19092

1 Judge Adamovic did indicate what steps he personally took, in terms of

2 informing the district military prosecutor's office, but also he went a

3 step further than that. As reflected on page 9481 of the transcript,

4 Judge Adamovic said: "An investigating judge has jurisdiction that has

5 been instituted by the prosecutor. If there is no such case, then an

6 investigating judge does not have any jurisdiction. Only the prosecutor

7 of the district military court can commence that process."

8 Judge Ahmetovic, who is an investigative judge of the Zenica

9 district military court during the latter part of 1993, also testified

10 that he did not receive any complaints or criminal records or request to

11 open any investigations with respect to the Zenica Music School. That

12 testimony is reflected on page 16218 of the transcript. And again, I take

13 you back to paragraph 957 of the Hadzihasanovic final trial brief, where

14 it is written: "If the whole city was rife with rumours about the music

15 school, the music school being a detention camp, it also sounds surprising

16 hearing from the head of the civilian police who represented the law and

17 public order in Zenica that he did not do anything."

18 Now, Your Honours, we would again submit that to a certain extent

19 that argument must also fail for the simple reason that Mr. Dzaferovic,

20 who was the president of the executive committee in Zenica at the relevant

21 time period testified at page 14227 that "The responsibility of the local

22 government was to provide the ABiH with the material and technical

23 assistance and help with mobilising people." And in response to a

24 question from Judge Swart, Mr. Dzaferovic testified that "The building was

25 mobilised for the Secretariat for Defence for Zenica municipality in

Page 19093

1 accordance with the law," and he also went on, when asked if the visit --

2 if any visitors would need permission, who -- to whom they would address

3 that request to enter the music school, and Mr. Dzaferovic testified at

4 14270 of the transcript, that "This would have been done through the 3rd

5 Corps. If a visit was involved, I couldn't directly participate in this.

6 The division of responsibilities was respected during that period."

7 And we would submit, Your Honours, that it's clear that at the

8 relevant time period the Zenica Music School was under the control of the

9 ABiH 3rd Corps and in particular the 7th Muslim Mountain Brigade. We'll

10 be addressing in a little bit more detail within the next hour repressive

11 measures in general, but our position is that -- that the music school was

12 under the control of the army, of the 3rd Corps of the army, and more

13 particularly the 7th Muslim Mountain Brigade and its military police unit.

14 Let me just spend two minutes on the -- counts 5 and 6, with

15 respect to the crimes committed in the Bila Valley or allegedly committed

16 in the Bila Valley region. We have fully briefed this -- these crimes in

17 our full -- final trial brief. What I want to ask or focus your attention

18 on very briefly is the testimony of Mr. Izmirlic. As you will recall,

19 Mr. Izmirlic produced a number of computer-generated maps. He explained

20 how those maps were created and produced, and then testified that it was

21 not possible for some of the Prosecution witnesses to see what they

22 claimed to have observed during the relevant time period on or about the

23 8th of June, 1993.

24 We would simply make two observations with respect to Mr.

25 Izmirlic's testimony: First of all, the witnesses and the locals who were

Page 19094

1 from the places about which he testified had a thorough understanding of

2 and knowledge of the spatial relationships that were involved; they were

3 knowledgeable about the locations of their own homes and the homes of

4 their friends, neighbours, and relatives, so that when a witness said, "I

5 was on a certain location and I saw a certain specific house being burned,

6 we would submit," Your Honours, that that evidence should be given great

7 weight simply because the local witnesses know the terrain.

8 Our second observation with respect to Mr. Izmirlic and his

9 testimony was that the Trial Chamber visited many of these locations, and

10 you yourselves were able to either see or not see from the locations where

11 the witnesses -- or the approximate locations where the witnesses

12 testified that they observed certain things. So our position on that

13 would be the testimony of the local witnesses should be given great weight

14 and also the fact that Your Honours had the opportunity to visit many of

15 these locations and actually see for yourself what was visible and what

16 was not visible. And that's -- those are our only comments here today

17 about the -- counts 5 and 6 as alleged in the indictment.

18 I'm now going to turn to the issue of repressive measures in

19 general, the aspect of failure to punish. We'll start from a very broad

20 proposition, as reflected in two documents, P771 and P773.

21 These are the letters, Your Honours will recall, coming from the

22 Zenica cantonal court and the Travnik cantonal court with respect to the

23 prosecution of ABiH members for war crimes. And I stress that, for war

24 crimes during the relevant time period. Now, we've heard evidence,

25 Your Honours, that the crimes in question in our indictment would not or

Page 19095












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 19096

1 perhaps would not have been classified as war crimes and that could be

2 part of the explanation for why there were no war crimes prosecutions of

3 ABiH members during -- for crimes committed during the relevant time

4 period. We acknowledge that. We simply -- those start from the -- the

5 proposition, as reflected in P771 and P773, that there were no cases

6 involving war crimes prosecutions of ABiH members for crimes committed

7 during the relevant time period and at the relevant locations as reflected

8 in the Zenica and Travnik cantonal district military courts.

9 Let's turn again to the arguments as set forth in the

10 Hadzihasanovic final trial brief. Paragraph 175, citing to DH155.2 or /2,

11 the Defence for General Hadzihasanovic says: "It is quite possible that

12 each of the violations alleged in the indictment was the object of one of

13 the criminal reports filed by the 3rd Corps in view of the nature of the

14 crimes covered by those reports." Footnote 117: "For example, see

15 DH155/2, inter alia, aggravated theft, involuntary manslaughter, murder,

16 violent conduct, unauthorised possession of weapons or explosives,

17 inflicting serious bodily harm, rape, robbery, illegal trade, taking a

18 motor vehicle, grave incidents of robbery, and violence to retain stolen

19 goods, crimes against civilians, double murder, fraud, desecration, false

20 impersonation, violating the integrity of a home, abuse in the course of

21 duty, unlawful appropriation of socially owned property."

22 Now, DH155/2 contains a list - this is the document - at the --

23 beginning at the bottom of this document is a list of the crimes which the

24 Military Police Battalion of the 3rd Corps reported in the period 14

25 September 1992 through 1 March 1994. And you will, in fact, in this

Page 19097

1 document see a listing of crimes as reported and the number of cases or

2 the number of reports pursuant to each article of the Republic of Bosnia

3 and Herzegovina Criminal Code.

4 Again, this document dated 20 March 1994 to the security sector

5 of the 3rd Corps from the Military Police Battalion of the 3rd Corps on

6 criminal reports filed. Time period covers our indictment period as well

7 as a two -- a three-and-a-half-month period prior to the indictment and a

8 two-month period or three-month period after the indictment. We see that

9 the Military Police Battalion, not any of the lower level units but the

10 Military Police Battalion of the 3rd Corps filed 377 criminal reports.

11 These 377 criminal reports involved 804 identified perpetrators and 20

12 unidentified perpetrators.

13 Paragraph C indicates a breakdown of who these persons that the

14 3rd Corps Military Police Battalion reported. About 40 per cent of them,

15 40 per cent of the 824 reported persons who were either identified or

16 unidentified, were members of the BH army. More than half of the people

17 reported during this period were either members of the HVO, civilians, a

18 sole member of the MUP, a -- four soldiers of the so-called Serbian RBH,

19 and as indicated previously, the 20 unidentified perpetrators, known here

20 by the abbreviation "NN."

21 Now, I think this document is particularly instructive for a

22 number of -- for a number of reasons: First of all, Your Honours, when

23 looking at DH155/2 should keep in mind that more than 50 per cent of the

24 reports -- the crimes reported in this document relate to persons who were

25 not members of the ABiH 3rd Corps.

Page 19098

1 Second, it's interesting to note that 274 of the reported cases

2 involved civilians, indicating that the Military Police Battalion of the

3 3rd Corps could at the very least report crimes allegedly committed by

4 civilians. That's being drawn to the Trial Chamber's attention, of

5 course, because in other places we've heard evidence that the Mujahedin

6 were a civilian law enforcement problem or not part of the army. Well,

7 the Military Police Battalion did, in fact, report crimes allegedly

8 committed by civilians. A member of the Military Police Battalion of the

9 3rd Corps was specifically asked if at any point in time the 3rd Corps

10 Military Police Battalion detained any Mujahedin. And Mr. Mujezinovic

11 testified that he was not aware of the Military Police Battalion having

12 detained anyone who called himself a Mujahedin.

13 Now, the other important thing to keep in mind, Your Honours, and

14 we would ask you to take a close look at DH155/2 for the reason that the

15 crimes listed in that document are also quite probative. If you compare

16 the crimes that are set forth in that document and the reports of crimes

17 that are set forth in 155/2, you'll see that a number of those crimes, the

18 majority of those crimes, actually, as reported have nothing whatsoever to

19 do with the crimes in this -- alleged in the indictment in this case. And

20 that actually was -- was acknowledged in part by the Defence in the

21 footnote that we saw a few moments ago, when I read out all of the crimes

22 that were contained in that footnote, including things that clearly aren't

23 charged in our indictment, such as rape.

24 So the -- the reported crimes as reflected in DH155.2 are far

25 more encompassing than what are listed in our indictment, point one; and

Page 19099

1 point two, they reflect reports about 40 per cent of which relate to ABiH

2 members.

3 Let's turn to paragraph 172 of the Hadzihasanovic final trial

4 brief, where the Defence assert "It is not possible to conclude that the

5 special military courts were not used to take preventive or punitive

6 measures against members of the 3rd Corps who had supposedly committed one

7 of the violations alleged in the indictment."

8 Well, is that true? Let's take a look at Prosecution Exhibit

9 P284. This is a document dated 10 August 1993. It's a report of the 3rd

10 Corps command concerning legality in the army of the Republic of Bosnia

11 and Herzegovina. And if we turn to section 3 of this document, which the

12 3rd Corps is reporting up the chain of command about legality within the

13 ArBiH, we find that at least as of 10 August 1993 there have been no

14 proceedings for special military courts in the zone of responsibility of

15 this corps.

16 Paragraph 171 of the Hadzihasanovic Defence brief, final trial

17 brief. The evidence also sets out that when an offence was both a

18 criminal act and a disciplinary violation, it could be dealt with as a

19 disciplinary violation. And there's a citation at footnote 106 to P325,

20 and a number of articles contained in that exhibit, and we will take a

21 look at these articles in just a moment. There's certainly nothing

22 particularly contentious about the fact that a crime or a particular

23 offence could be both a criminal act and a disciplinary violation.

24 That -- that is relatively a -- a relatively neutral statement, and we've

25 had evidence to the effect that that is certainly the case.

Page 19100

1 The issue then becomes, when you take a look at P325 -- and P325

2 actually has two documents or contained two documents. The first one,

3 when you first look at this exhibit, is the decree law on special military

4 courts. That's not what we're focussing on now. But if you go several

5 pages in to P325, you find the Rules of Military Discipline. And let's

6 take a look at some of the articles -- or the articles that the Defence

7 cite to in footnote 106 at paragraph 171 of their Defence brief.

8 Clearly the Rules on Military Discipline are -- or have been

9 promulgated and enacted to ensure discipline within the army. Again,

10 nothing particularly contentious about the general provisions, Article 1

11 of the Rules on Military Discipline.

12 Article 6 stands for the exact proposition that the Defence have

13 cited to; namely, the accountability of a serviceman for a criminal

14 offence or misdemeanour does not exclude his being held accountable for

15 the same offence as a breach of military discipline too if, according to

16 the rules, that offence also constitutes a breach of military discipline.

17 So what are these breaches of military discipline? Well, Article

18 7 of the Rules of Military Discipline set forth these breaches, and the

19 Defence have cited to three of them. This would be Article 7,

20 subparagraph 1: "Non-execution of or refusal to execute an order

21 undermining of the authority of a superior and senior officer as well as

22 the unconscientious and negligent performance of duty or obligations in

23 the line of duty." In short, Article 7(1) of the Rules of Military

24 Discipline is an orders violation, failure to follow an order.

25 Now, we've heard evidence, and I addressed you yesterday morning

Page 19101

1 right at the outset in terms of the number of orders that the accused

2 Hadzihasanovic issued to follow the law, so presumably it would follow

3 that if the 3rd Corps commander issues an order to obey the law and a

4 soldier disobeys the law, that soldier is both disobeying the law and

5 failing to follow the order of his commander. So presumably Article 7(1)

6 of these rules would in fact apply.

7 But that begs the question, Your Honours, whether someone who

8 burns down someone's house should be criminally prosecuted for that or

9 should simply be disciplined because they failed to follow the commander's

10 order not to burn down a house.

11 Let's look at Article 7, paragraph 6 of the Rules of Military

12 Discipline: "Failure to take the necessary measures to safeguard the

13 lives and health of people entrusted to him, to secure or maintain in a

14 proper state of repair facilities, objects, and means for the purpose of

15 combat readiness, and to regularly supply the military unit or military

16 establishment."

17 Now, in our respectful submission, in the context of military

18 discipline, the first clause or first phrase of this subsection is talking

19 about the responsibility of officers and non-commissioned officers to take

20 care of the people in their units, not to take unnecessary risks with

21 their people. "Safeguard the lives and health of people entrusted to him."

22 As a general rule, that is military language for "take care of your

23 soldiers."

24 Now, that could also -- that could also apply presumably to

25 persons who were being detained; that is, a commander of a detention

Page 19102

1 facility or the soldiers who are guarding people at detention facilities

2 obviously have people entrusted to them, the people being detained.

3 Again, in our respectful submission, mistreatment of detainees rises far

4 above being a disciplinary matter and is a criminal offence. We would

5 submit Article 7, subparagraph 6 of the Rules of Military Discipline is an

6 inappropriate tool to use to punish people who have allegedly committed

7 offences against civilians or surrendered HVO soldiers in detention.

8 Article 7, subparagraph 7: "Negligence in respect of property

9 entrusted to his care, appropriation of military or other property, or

10 infliction of damage to military or other property." Again, the main

11 thrust of this provision is for the soldier or officer to take care of

12 military property entrusted to his care. It prohibits appropriation of

13 military or other property or infliction of damage. Again, we would

14 submit the types of crimes alleged in our indictment are not simple

15 matters for military disciplinary courts or military -- lower-level

16 military disciplinary action. These are criminal offences.

17 Constitutional law expert Trnka was asked some questions about

18 military disciplinary courts. "If we look at the decree law on service in

19 the armed forces, where you find the provisions whereby a member of the

20 military can be sentenced to up to 60 days in prison, whether by his

21 commander or by a military disciplinary court, and keep in mind that's the

22 maximum punishment at a military disciplinary court, 60 days' confinement,

23 is that what you've just referred to when you speak about the jurisdiction

24 inside the military?"

25 "I think that this concerns the violations of the rules within the

Page 19103

1 army, and that presumably is what we were just talking about, the military

2 disciplinary rules."

3 With regard to criminal offences, says Professor Trnka, "it's the

4 military court that is responsible for such matters."

5 He goes on, and he was asked again: "I would simply like you to

6 confirm whether for each of these violations which are in the rules of the

7 military that a soldier can be punished for up to 60 days in prison or

8 detention, whether by his commanding officer or by the military

9 disciplinary court."

10 Professor Trnka says: "Naturally, it depends on the particular

11 situation, the particular case. If the danger, the threat to the social

12 order is minimal, and if there are mitigating circumstances and the crime

13 is listed in the decree that you are referring to, then yes, naturally

14 this is a situation that could occur. But if the threat posed to the

15 social order was not that insignificant, if there was a significant social

16 threat, then the entire case would have to be referred to the military

17 prosecutor's office, or, rather, to the regional military court to deal

18 with."

19 Our submissions on this point, Your Honours, are clear: The

20 crimes listed in the indictment in this case are a significant social

21 threat to the lives and well-being of the non-Bosniak population in

22 Central Bosnia. For the Defence to argue that disciplinary rules imposing

23 imprisonment of up to 60 days' confinement for the crimes in our

24 indictment is, in our respectful submission, inappropriate.

25 Let me return now to the testimony, as I mentioned earlier this

Page 19104

1 morning I would, of the witness Hasanagic, the legal officer -- assistant

2 commander for legal affairs of the 7th Muslim Mountain Brigade. He was

3 asked a number of questions concerning any measures taken against soldiers

4 of the 7th Muslim Mountain Brigade, and before I get to those I wanted to

5 briefly review what Mr. Hasanagic told us told us were his duties and

6 obligations.

7 "My other duties included the implementation and application of

8 rules and regulations, especially with regard to criminal proceedings, and

9 the point 16 of the Criminal Code, Penal Code of the former Yugoslavia,

10 which had -- which was still in force on the basis of a decree, and that

11 referred to any crimes against humanity, such as genocide, any crimes

12 committed against civilians or prisoners of war or the sick and wounded.

13 In that part of my job, it was my duty to apply the rules and to thus

14 instruct and set an example for the brigade and the subordinated units in

15 order to make sure that all soldiers were well-acquainted with those rules

16 and that they would indeed apply those rules in the field -- or rather, in

17 the course of armed conflict."

18 He was then asked what relationship, if any, he had as the

19 assistant commander for legal affairs with the 7th with the district

20 military court in Zenica. Again, having many mind what his duties and

21 responsibilities were, he told us that on a couple of occasions he visited

22 the district prosecution offices and the court for some points of

23 interpretation, in order to offer legal assistance when members of the 7th

24 were accused of some misdemeanours.

25 "How many times from the 7th of July" -- which is when he assumed

Page 19105

1 that position -- "until the end of 1993" did he go to the Zenica district

2 military court?

3 "Three or four times, roughly speaking," he said.

4 Did he have any dealings with the military court in Travnik?

5 "No, never," he told us. "Never."

6 I then asked him some follow-up questions about these times when

7 he went to the district military court in Zenica, the three or four

8 occasions. He said: "It was members 7th Muslim Brigade. One report was

9 about theft committed by one of our members, and he was brought to trial

10 and he was sentenced. He actually got a prison sentence," the witness

11 told us.

12 Then there were three more cases, again, internal affairs as they

13 were, offences against officers of the 7th, but for the most part it has

14 nothing to do with any acts aimed at persons of another ethnicity. We're

15 talking about abuse of power or of position. In that respect, I remember

16 there were reports against three of our members." I then asked him about

17 that theft case that he mentioned. "Who did this -- who was involved in

18 this? What was that all about?" "Well, the treasure of the brigade broke

19 into the brigade safe. He stole some money."

20 Assistant Commander for Legal Affairs Hasanagic was then asked if

21 he was aware of any cases that were prosecuted before the district

22 military court in Zenica where members of the 7th were prosecuted for

23 crimes committed against civilians or civilian property in 1993. "No, I'm

24 not aware of any such cases of any members having been prosecuted for any

25 such offences."

Page 19106

1 Your Honours, it doesn't get much clearer than that, coming

2 straight out of the mouth of the legal officer of the 7th Muslim Mountain

3 Brigade.

4 The same question: Travnik district military court. Was legal

5 officer Hasanagic aware of any cases prosecuted before the Travnik

6 district military court involving members of the 7th Muslim Mountain

7 Brigade for crimes committed against civilians or civilian property? "Not

8 aware of a single case," he said, "and I never spent any time at the state

9 prosecution office in Travnik in the course of the war."

10 Let me conclude with just a -- a few final comments on repressive

11 measures, failure to punish. Let's go back to Prosecution Exhibit P284,

12 the 3rd Corps report on legality in the Army of the RBiH of the 10th of

13 August, 1993.

14 Paragraph 2, or section 2: "The number and type of disciplinary

15 offences possibly committed criminal offences, and other misdemeanours."

16 This section of the report in effect deals with three types or three

17 categories of wrongs: Disciplinary offences, possibly committed criminal

18 offences, other misdemeanours. And on the 10th of August, 1993, what does

19 the 3rd Corps report up the chain of command concerning legality?

20 Regarding the criminal offences that have been committed, not a single one

21 was committed by any of the members of the 3rd Corps command.

22 Your Honours have heard the evidence - and I'm not going to go

23 through it again - or the steps taken by the Office of the Prosecutor to

24 prove a negative. You've heard Investigator Hackshaw testify about that.

25 It's been raised on a number of occasions. We will point out one final

Page 19107

1 aspect of this component of the case, if you will: By no means - by no

2 means - is the Office of the Prosecutor suggesting that a burden shifts or

3 that any burden shifts with respect to what we are required to prove.

4 However, with respect to the court archives, with respect to the relevant

5 court archives, I remind Your Honours of what Madam Residovic told us more

6 than a year ago when the Defence presented some documents to

7 General Reinhardt and the Presiding Judge asked her where these documents

8 came from, and Madam Residovic replied as follows: "In accordance with

9 the Statute of this Tribunal and the Rules of Procedure and Evidence and

10 the agreement on cooperation between the government of Bosnia-Herzegovina

11 and the International Tribunal, at the very beginning of these

12 proceedings, after our client had his Initial Appearance in the Tribunal,

13 the Defence of General Hadzihasanovic as well as General Kubura's Defence

14 addressed the government of Bosnia and Herzegovina on the basis of the

15 equality of arms, that we should be allowed access to the archives of the

16 state and other archives."

17 "The government of Bosnia-Herzegovina passed conclusions

18 instructing the state authorities to provide the investigators of both

19 teams with access to those archives. On the basis of this, the Defence

20 has managed to gain access to the state archives. First the army

21 archives; then the archives of the defence Ministry of Bosnia and

22 Herzegovina, the archives of the police, the courts, the prosecutor's

23 offices, and all the documents in the binders given to you which do not

24 come from the Prosecution are as a result of our own investigations during

25 pre-trial proceedings."

Page 19108

1 The parties have been through the archives. The parties have

2 been through the archives.

3 Our final comments to you this morning concern sentencing. We

4 have addressed briefly in our final trial brief the primary factors that

5 we assert should be taken into consideration in sentencing, the gravity of

6 the offence, aggravating factors, and mitigating factors.

7 With respect to gravity of the offence, the Appeals Chamber on a

8 number of occasions has informed that the primary consideration in

9 determining a sentence is the gravity of the crime. "Determining the

10 gravity of the crime requires a consideration of the particular

11 circumstances of the case, as well as the form and degree of the

12 participation of the accused in the crime."

13 We have alleged, and it is our submission that we have proven

14 beyond reasonable doubt, the charges set forth in the indictment. Turning

15 to the crimes that we assert have been committed by the accused

16 Hadzihasanovic, that is, the failure to prevent or punish the crimes

17 listed in the indictment - and we have no disagreement with the Defence

18 that that's what we're talking about here; it is his omission. We are not

19 suggesting that the accused bear criminal responsibility for the

20 underlying crimes but, rather, their omission - it is our position that by

21 failing to prevent or punish these crimes, the accused Hadzihasanovic

22 allowed more than 30 murders to go unsolved, to allow the perpetrators of

23 these murders to escape liability and accountability. He has allowed

24 persons who committed crimes in detention facilities to escape liability

25 and accountability. He has allowed individuals to burn and loot Bosnian

Page 19109

1 Croat homes and to avoid liability and accountability. And with respect

2 to soldiers of the 7th Muslim Mountain Brigade, the same can be said of

3 the accused Kubura. It is our submission that these crimes are both grave

4 in and of themselves because of the underlying crimes and the effect that

5 that had on the local population, but in terms of the context here,

6 because the accused Hadzihasanovic and Kubura allowed the perpetrators to

7 avoid accountability for what they have done.

8 In terms of aggravating factors, the personal circumstances of

9 the accused may be considered aggravating factors. Particularly in this

10 case, the fact that both accused are career military officers. And with

11 respect to the accused Hadzihasanovic, it is, in our respectful

12 submission, particularly aggravating that as a former military police

13 battalion commander in the Yugoslav People's Army he failed to prevent

14 these crimes or to punish the perpetrators.

15 There are no mitigating factors in this case, in our respectful

16 submission.

17 It is the practice of this Tribunal for the Prosecution to offer

18 recommendations in terms of sentencing, and in this case it is our

19 respectful submission that the accused Hadzihasanovic is guilty of the

20 crimes we've alleged in the indictment and that a sentence of 20 years'

21 confinement would be appropriate.

22 With respect to the accused Kubura, it is the Prosecution's

23 respectful submission that a sentence of 10 years' confinement would be

24 appropriate in this case.

25 Mr. President, Your Honours, although of course it goes without

Page 19110

1 saying that there have been a number of -- of persons who have come and

2 gone from the Prosecution case in this team, it has been my honour and

3 privilege to represent the Prosecution in this case. We have no further

4 submissions to make.

5 JUDGE ANTONETTI: [Interpretation] It's now quarter to 12.00. I

6 think it would be best to have our break now. We will resume at quarter

7 past 12.00 and we will then continue until 1.45.

8 --- Recess taken at 11.47 a.m.

9 --- On resuming at 12.20 p.m.

10 JUDGE ANTONETTI: [Interpretation] We shall now resume with a

11 seven-minute delay. We shall continue until eight minutes to 2.00 to

12 catch up and to give the Defence an hour and a half.

13 You have the floor.

14 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President.

15 Before I present my closing argument, Your Honour, I would like

16 to say two things: We have just heard the -- the arguments of the

17 Prosecutor and we will speak for the next six hours. But before I start

18 presenting the final argument of the Defence, I would like to say that it

19 will go down in the history of this Tribunal that in this case, in the

20 case against Hadzihasanovic, the Prosecutor has not found certain

21 mitigating circumstances.

22 Another thing that I have never experienced before is the fact

23 that in his final argument, the Prosecutor has not allowed any room to the

24 Trial Chamber to do their job. If they establish that my client -- that

25 the Prosecutor has managed to prove beyond reasonable doubt to sentence

Page 19111

1 him or, alternatively, if the Prosecutor has failed to do that, to acquit

2 the accused. These are the first things that I wanted to share with the

3 Trial Chamber after we have carefully listened to the Prosecutor's

4 argument.

5 [Defence Closing Statement]

6 MS. RESIDOVIC: [Interpretation] Your Honour, I would now like to

7 move on to the final arguments of the Defence. Our final arguments over

8 the next six hours will be presented by the counsel and the co-counsel of

9 the accused General Hadzihasanovic. Today, Your Honour, we will be

10 talking about the introductory remarks, about the theory of the defence

11 from the very outset of the proceedings, about the credibility of the

12 witnesses that have spoken about the facts before this Trial Chamber,

13 about the probative value of the elements and the evidence that was

14 presented before you, about the probative value of the testimonies of

15 the -- of the expert witnesses.

16 As for the first three things that I have just mentioned, I will

17 be presenting that to the Trial Chamber myself; whereas, the probative

18 value of the evidence and the expert witnesses will be taken by my

19 colleague, Mr. Stephane Bourgon.

20 Tomorrow the Defence will concentrate on the issues of the

21 Mujahedin, the proof with regard to certain counts of the indictment, and

22 the issue of the measures that our client, General Hadzihasanovic, has

23 taken.

24 Mr. President, Your Honours, our final verbal arguments will be

25 presented in the way that I have just explained.

Page 19112

1 Throughout our presentation of our arguments, the Defence will

2 rely on the arguments that have been presented so far and that you can

3 find in our pre-trial brief, in our opening statement, and in the final

4 written arguments and submissions. Over the next six hours, we will try

5 to use our time rationally and we'll try not to repeat the same arguments

6 again.

7 Your Honour, we are at the end of the trial against a commander

8 of the BiH army, General Enver Hadzihasanovic, at the end of a trial

9 during which both the Prosecution and Defence have presented a lot of

10 evidence. They have called a number of factual and expert witnesses.

11 At the very beginning, I would like to point out that it is the

12 Defence's position that the Prosecution has not managed to prove his case

13 against General Hadzihasanovic beyond reasonable doubt. It is up to you,

14 Your Honours, to make a decision and say whether the accused is guilty or

15 innocent. The right to the presumption of innocence has been provided for

16 by Article 21(3) of the Statute, and it clearly shows who is it who bears

17 the burden of proof. Although in his final argument the Prosecutor has

18 mentioned this issue, we have all witnessed the fact that in this

19 proceeding we have been the ones that had to prove innocence.

20 In every trial, the burden of proof lies with the Prosecutor. In

21 order for somebody to be pronounced guilty, his guilt has to be proven

22 beyond reasonable doubt for every count of the indictment, for every

23 important element of the criminal responsibility.

24 As we all know, this is a generally adopted legal standard. In

25 the sentence in the Celebici case, the Trial Chamber concluded "It is the

Page 19113

1 general principle that the Prosecutor has to prove their allegations

2 beyond any reasonable doubt." This principle is something that has been

3 adopted in the law of Bosnia and Herzegovina as well as in other European

4 states, and it has been expressed in the principle in dubio pro reo, which

5 means whenever there is a doubt, a decision has to be made in favour of

6 the accused. The Defence has presented their views with this regard, and

7 we believe that the Trial Chamber, after a thorough analysis of all the

8 evidence on their own and in their relationship will come to the same

9 conclusion, and that is that the Prosecution has failed to prove beyond

10 any reasonable doubt any of the counts of the indictment.

11 The Defence has received the final brief of the Prosecutor and it

12 has listened to their argument. Without going into the -- the detailed

13 considerations and review of this final brief, because we are going to do

14 that subsequently, I would like to point out the following: It is clear

15 that the Prosecution has chosen a selective approach to the presentation

16 of evidence in this case. The Prosecutor has completely ignored and

17 continues to ignore the Defence -- the evidence of the Defence, although

18 all this time the Prosecutor has claimed that it is their goal to

19 establish the truth.

20 A number of the Prosecutor's witnesses has not been used and it

21 hasn't been explained why some of the testimonies have not been accepted.

22 In the final brief, certain positions and theories of the Prosecution are

23 presented on some of the basic issues that have not been based on facts.

24 Instead of arguments and facts, their approach to evidence has been

25 sensationalist on a number of occasions.

Page 19114

1 The chosen approach of the total accusation has been caused by

2 the desire to arrive at the sentence of guilty even without achieving the

3 standard of the proof beyond reasonable doubt. This approach and method

4 has been further emphasised in the Prosecutor's opening statement.

5 Mr. President, we are here to try a commander. We are not here

6 to try the perpetrators of crimes in Central Bosnia. And as was said in

7 the Prosecutor's opening statement on the 2nd of December, 2003, this is

8 the first clear case of command responsibility in the history of this

9 Tribunal. This is the first trial to -- military commanders for criminal

10 responsibility based on nothing else but the behaviour of their

11 subordinates. Throughout all this trial, the Defence has emphasised that

12 one cannot forget that the object of this trial was the exercise of

13 command responsibility. General Hadzihasanovic is here because he was the

14 commander of the 3rd Corps of the BiH army. General Hadzihasanovic has

15 not been charged with committing crimes himself, for ordering, aiding, or

16 abetting, or in any other way contributing to the commission of any

17 crimes. These acts are provided for by Article 7(1) of the -- of the

18 Statute of this Tribunal.

19 General Hadzihasanovic is here, Your Honours, because the

20 Prosecutor claims that he failed to perform duties that he has as a

21 military -- that he had as a military commander. However, throughout the

22 entire trial, the Prosecutor focussed on the nature and commission of

23 concrete crimes. It is certain that the existence of crimes is of some

24 importance because their existence is an assumption of anybody's

25 responsibility, including the command responsibility.

Page 19115

1 The Prosecutor focussed on -- on crimes, but he failed to

2 establish a link between those crimes and their perpetrators, on the one

3 hand, and the accused General Hadzihasanovic, on the other hand. Although

4 the essence of this proceeding is trial responsibility, the Prosecutor did

5 not offer the structure of the command or the structure of the corps

6 through which the commander exercised his command responsibility. What is

7 even more striking is the fact that the Prosecution has not offered any

8 evidence about the behaviour and actions of General Hadzihasanovic or any

9 other way in which he performed his duties of -- as a commander.

10 Today, after their respective cases are over, and we now analyse

11 arguments of the Prosecution, we can not fail to remark that the general -

12 that the Prosecution wants to convince the Trial Chamber - is responsible

13 for all the crimes that were committed in Central Bosnia because he was

14 respectable, because he was influential, because he cooperated with

15 various bodies, because he was the commander of the 3rd Corps. The

16 Prosecution is pushing back the standard of objective responsibility into

17 the criminal practice, and this standard was long ago abandoned in the

18 jurisdiction across the world.

19 From the very beginning of this trial, the Prosecution has not

20 been able to prevent a single theory based on which the criminal

21 individual responsibility of General Hadzihasanovic for the crimes

22 mentioned in the indictment can be based. Frequent changes of the

23 position, lack of clarity, and lack of the theory of the Prosecution is

24 most obvious in the treatment of the Mujahedin.

25 To what extent the Prosecution presented and managed to present

Page 19116












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 19117

1 the presence of the Mujahedin in Central Bosnia can be illustrated by just

2 one example: The theory that the Prosecution had after the request of --

3 for acquittal, according to Rule 98, was that in June 1993 there was a

4 temporary division and confrontation between the Mujahedin and the BiH

5 army. This theory was rejected yesterday. We heard a new theory at

6 the end of this trial on the relationship between the Mujahedin and the

7 army.

8 We are kindly asking the Trial Chamber to compare the evidence

9 and what he -- what the Prosecutor said on the 2nd of December that they

10 would prove. Simply put, the Prosecutor failed to prove what they set out

11 to fail [as interpreted].

12 On the contrary, the evidence showed that the commander

13 Enver Hadzihasanovic behaved as a reasonable commander that, that he

14 complied with all the obligations that stem from the international and

15 local law.

16 The Prosecutor admitted that they do not have any direct evidence

17 on the responsibility of Commander Hadzihasanovic for the crimes committed

18 in 1993 and that they rely mostly on circumstantial evidence. However,

19 the Prosecutor had access to all the archives, the archives of the BiH

20 army, the Presidency of Bosnia-Herzegovina, the HVO, the international

21 organisations, and so on and so forth.

22 Even after six years, after the beginning of the investigation in

23 this trial, the Prosecutor admits that they still don't have any direct

24 evidence.

25 Your Honour, this trial differs from other trials before this

Page 19118

1 Tribunal by the fact that all the archives of the army to which

2 General Hadzihasanovic belonged were opened and accessible to the

3 Prosecutor. Let me just say that as part of the first disclosure, the

4 Prosecutor submitted to the Defence as many as 55.000 documents of the BiH

5 army and after that another several thousand documents. The Prosecutor

6 does not have any direct evidence not because it doesn't have any war

7 documents but for a simple reason: It is these very documents that rule

8 out the responsibility of General Enver Hadzihasanovic. All that the

9 Prosecutor can present to the Trial Chamber is circumstantial evidence.

10 It is not questionable, from the point of view of the Defence,

11 that circumstances can be acceptable evidence; however, when it comes to

12 circumstantial evidence, every established fact has to be taken into

13 account before any inference is made.

14 The main difference between the position of the Prosecution and

15 the position of the Defence with regard to the circumstantial evidence

16 is -- is the following: In order to prove an important element of the

17 Prosecution, the inference has to prove just one fact. The Prosecutor,

18 however, believes that from the totality of the facts one needs to deduct

19 only one doubt and that this proves the whole thing, although other

20 conclusions could be made based on such facts. Such a position of the

21 Prosecution weakens the Prosecution case and makes it unsustainable.

22 With regard to the position of the Prosecution, let me share

23 another comment with you. For the first time yesterday we heard

24 allegations about covering up crimes. Not for a single moment did the

25 Prosecutor present this theory during his case. Is this a new theory that

Page 19119

1 the accused cannot present his case against? As far as we are concerned,

2 Your Honour, this is a totally unacceptable and inappropriate behaviour in

3 any criminal proceeding.

4 As for the theory of the Defence, Your Honours, the theory and

5 the position of the Defence in this case have not changed from the very

6 outset of this trial. And what theory is that? Bosnia and Herzegovina

7 was attacked and there was an armed conflict going on in

8 Bosnia-Herzegovina. This conflict also existed in Central Bosnia during

9 the period of time mentioned in the indictment. General Hadzihasanovic

10 arrived in Central Bosnia with an entirely different task and an entirely

11 different mission; however, the combat and real circumstances imposed

12 themselves on him and he was forced to start establishing the 3rd Corps

13 under very difficult circumstances.

14 Colonel Schellschmidt described very clearly the position that

15 General Hadzihasanovic found himself in. And I quote, page 7920 of the

16 transcript:

17 Question: "With regard to your explanation, you also said that

18 it is very difficult to establish a corps. And if I interpret your words

19 well, you said that having been issued with an order to establish a corps,

20 if you start from scratch, it takes seven years. And if there are already

21 brigades, then it takes three years to establish a corps. My question to

22 you was: What was the position of Enver Hadzihasanovic? Could you please

23 remember what you -- your answer to my question was."

24 The witness's answer to that was: "Yes. I believe that I used

25 an American phrase, 'mission impossible.'"

Page 19120

1 In spite of that, the theory and the position of the Defence is

2 that Commander Hadzihasanovic managed to establish an army corps. All

3 this time, throughout performing his duties as the person who had a task

4 to establish a corps, he was facing two enemies -- two enemies.

5 Throughout all this -- these enemies, he made a constant effort to prevent

6 members of his corps from committing crimes and to punish the perpetrators

7 of such crimes. He performed his command duties and responsibilities in

8 keeping with the law, in keeping with the standards and practice, in the

9 most difficult circumstances that a commander can face. From the very

10 beginning, our position was clear: General Hadzihasanovic was a

11 reasonable and responsible commander who cannot be held responsible for

12 any of the crimes alleged in the indictment.

13 Our position is also that when evaluating proof on the reasonable

14 behaviour of a commander, one has to take into account the actual

15 circumstances under which General Hadzihasanovic performed his command

16 responsibilities. And for just a brief moment, Your Honours, I urge you

17 to put yourselves into his shoes.

18 What was the approach of the Defence to presenting their theories

19 and their positions? From the very beginning, the Defence has offered the

20 Trial Chamber all the evidence that proved that General Hadzihasanovic was

21 a reasonable commander who took all the necessary measures. The final

22 arguments of the Prosecutor is burdened with new arguments, new theories,

23 and new allegations. The oral arguments of the Prosecutor are similar to

24 an opening statement presenting the theory that has to be proven in the

25 future, and like that, the Defence does not offer any new theories. We

Page 19121

1 urge you to look at our pre-trial brief, our opening statement, and you

2 will see that the Defence has proven the things that we set out to prove

3 and that we have -- presenting only those pieces of evidence that we

4 promised we would.

5 As for the credibility of the witnesses, I would like to say that

6 this issue is something that the Prosecutor potentiated in their written

7 submission. The Defence believes that the evaluation of the credibility

8 of the witnesses is a very important issue and that the Trial Chamber

9 should evaluate the evidence of both parties in the proceedings and that

10 it has to put the evidence presented by the witnesses in the perspective

11 of their credibility.

12 The Defence does not share the Prosecutor's position with regard

13 to the evaluation of the credibility of the witnesses. When it comes to

14 the local military witnesses, members of the Army of Bosnia-Herzegovina

15 and other officials, the Defence believes that they are the only persons

16 who can appear as direct witnesses of the events. They are familiar with

17 the Army of Bosnia-Herzegovina, its structures, its competencies, its

18 mission, and the conditions under which it operated. They are the ones

19 who prepared, issued, and carried out orders through the chain of command.

20 These witnesses knew the army from the inside. They knew the ground.

21 They knew the relationships, competencies, and the authorities of the

22 bodies that existed at the time. These witnesses were available both to

23 the Prosecutor and to the Defence.

24 The HVO witnesses are witnesses of the enemy army who had the

25 access to the enemy and their positions with regard to the events that

Page 19122

1 took place at the time. They deliberately painted a negative image of the

2 army because of the role that they played at the time, because of the fact

3 that they were often those who caused certain events. The witness who

4 spoke about the destruction of a house and who failed or did not want to

5 talk about the total destruction of villages, such as Bandol and Velika

6 Bukovica, that were within his reach, cannot be considered a credible

7 witness. The witnesses of the HVO who saw something that, according to

8 the witness Izmirlic, was impossible to see can also not be considered

9 credible witnesses. The witnesses who worked for security services that

10 the Prosecutor called as their own witnesses can hardly be called credible

11 witnesses. Most of the HVO witnesses were under the influence of

12 propaganda and false information that the HVO disseminated in the year

13 1993.

14 The witnesses who increased the damages cannot enjoy full

15 credibility. In the Strugar case and in the sentence in that case, the --

16 it says: "Just like that, some Croat witnesses, although sometimes

17 inadvertently, seemed to have blown up the damage that was inflicted on

18 that particular day or they did not make any difference between the damage

19 that was inflicted on that day and the damage that was inflicted during

20 the previous shelling or during the earthquake that happened even before

21 that."

22 Some others tried to minimise the presence of the Croatian

23 military force in Dubrovnik. This is paragraph 7 of the first-instance

24 sentence in that case.

25 Your Honour, we have already presented our position towards

Page 19123

1 international witnesses. We would like to add to that that those people

2 who had not been familiar with Bosnia and Herzegovina before they came to

3 Bosnia during the war, their main duty was not to deal with the armies on

4 the ground and to carry out any intelligence. Their main source of

5 information were locals, who themselves were parties to the conflict. The

6 observers, as we have heard from themselves, observed during the day and

7 they didn't know what was happening during the night. Those were mainly

8 professional soldiers who looked at the things in Bosnia and Herzegovina

9 from the perspective of their own experience in their own countries. Very

10 often they did not understand the events and their causes. As they

11 testified themselves before this Trial Chamber, they did not have any

12 access to -- to the internal military documents in Bosnia-Herzegovina.

13 The witnesses who could often succumb to the influence of the

14 propaganda that sometimes targeted them as well, those were mostly younger

15 people, and among them, due to the mission that they carried out, there

16 were significance -- significant difference because of the missions that

17 they had. Those are the witnesses that should be trusted when they say

18 that they saw something personally. However, because of the

19 aforementioned limitations, their views and their conclusions have to be

20 evaluated very carefully and put in the perspective of direct evidence in

21 this case.

22 One thing that we cannot accept in this particular case is

23 hearsay evidence. Witnesses who were also victims, with all due respect

24 to their sufferings, very often increased their suffering and their

25 testimonies have to be evaluated carefully and compared with other

Page 19124

1 evidence. For example, they have to be put in perspective of the

2 international witnesses, reports on what they found when inspecting a

3 certain prison, and doctors who examined certain victims, and so on and so

4 forth.

5 On the other hand, the Defence case -- the Defence witnesses have

6 been accused in the written submission of the Prosecution without having

7 been aware of the fact that they were accused. The approach of the

8 Prosecutor towards the Defence witnesses did not follow any objective

9 criteria and were designed to discredit them. Those witnesses took the

10 solemn declaration before this Trial Chamber. They never refrained from

11 talking about their duties and about their responsibilities.

12 The Prosecution cross-examined them and they were never asked any

13 questions about the truthfulness of their evidence. If such a doubt had

14 ever been present for any of the Defence witnesses, the Prosecutor would

15 certainly not omitted -- would not have failed to ask any questions to

16 that effect.

17 The witnesses have also answered the questions put to them by

18 the -- by the Trial Chamber. None of these witnesses made up facts or

19 covered up any of them. Since most of them were locals, they have to be

20 fully believed and trusted.

21 Allow me, Your Honours, to say something briefly about the way

22 the Prosecutor presented their case. In order to justify their theory, in

23 the presentation of their case the Prosecutor often used partial

24 documents, things taken out of the context, and thus created an impression

25 of the existence of some things that in reality does -- do not exist.

Page 19125

1 In the legal culture of our country in which I gained most of my

2 experience, we rely on some principles that were known already in the

3 Roman law. One of these principles is as follows: Quod ab initio

4 vitiosum est non potest tractu tempore convalescore. What is invalid at

5 the beginning cannot become valid with the passage of time.

6 For example, the Prosecutor -- in translation, this Latin

7 sentence means "what was not valid at the beginning cannot become valid

8 with the passage of time."

9 The Prosecutor tries to put the Mujahedin under the effective

10 control of the army, and he starts doing that by interpreting the

11 interview that Andrew Hogg conducted with Abdel Aziz, although neither the

12 interview nor the testimony of this witness proves that the aforementioned

13 Arabs -- Arabs were ever under the influence of the BiH army or the

14 Territorial Defence as the legitimate armed force at the time.

15 Before I continue, Your Honours, I'm going to use a certain

16 number of documents in order to present my position with regard -- with

17 regard to the way the Prosecution case was presented. I'm going to give

18 you a very thin file containing the documents that the Prosecutor

19 mentioned yesterday, and I'm also going to show -- give you a few maps

20 that I have shown to the Prosecution during the break. I'm not going to

21 use them, but they will merely serve to illustrate the things that I'm

22 going to be talking about.

23 I have these files for the members of the Bench and for our

24 learned friends from the Prosecution.

25 Under tab 1 of this file, you will find the transcript of the

Page 19126

1 interview between Andrew Hogg and Abdel Aziz. The Prosecutor pointed to

2 the fact that this interview is proof that in the summer of 1992 Arabs

3 from various countries arrived in Bosnia and they placed themselves under

4 the control of the army. If we look carefully at the document which was

5 filed long ago, we will see, Your Honours, that in this interview the Army

6 of Bosnia is not mentioned anywhere. The Territorial Defence is not

7 mentioned anywhere, and it was the legitimate armed force in the summer of

8 1992.

9 Muslims are mentioned in this document, one of the peoples of

10 Bosnia-Herzegovina. And you have heard a number of witnesses that have

11 spoken about the attitudes of the foreigners that arrived in the territory

12 of Central Bosnia and that tried in various ways to get close to the local

13 population.

14 In this document, there is no single reference to the fact that

15 these Arabs were under the leadership of either the Territorial Defence or

16 the army. The question was put whether they were received well by the

17 local authorities, and Abdel Aziz said, "We were well received by the

18 Muslims." Again, the people.

19 The only thing that the Prosecution used to establish a link

20 between the Arabs and the then-legitimate forces of Bosnia and Herzegovina

21 is the reference made by Abdel Aziz when he said that he was under the

22 control of the Muslim forces. And as for the Muslim forces, Your Honours,

23 on several occasions we've heard testimonies of a number of witnesses who

24 testified before this Trial Chamber. In order to confirm his allegation

25 that the Muslim forces were part of the Territorial Defence, the

Page 19127

1 Prosecutor in paragraph 77 of his written brief calls upon the

2 testimony of Semir Terzic.

3 Without talking about the truthfulness of other facts that this

4 witness spoke about, I would like to draw the attention of the Trial

5 Chamber to the fact that this witness said that "The Muslim forces were

6 established on the 10th of May, 1992 and that all the -- that just like

7 all the other units, they were part of the Municipal Staff of the

8 Territorial Defence of Travnik." As for the footage where he himself

9 could be seen, the witness said it was nothing else but a pledge of

10 loyalty being taken by the members of the Territorial Defence. This was a

11 common practice, according to him, at that time.

12 The -- there is no probative to the testimony of this witness,

13 and this is confirmed by DH1663, that you will find under tab 16 of this

14 file. This is an overview of the staffs and units of the TO Travnik that

15 were under the command of the Municipal Staff of the Territorial Defence

16 of Travnik on the day of 20 May 1993.

17 In this overview, there is no unit called "Muslim forces." We

18 have heard all the commanders and chiefs of the Municipal Staff of the

19 Territorial Defence of Travnik that occupied that post in 1992 and 1993.

20 Let me remind you who they were: Zijad Caber, Haso Ribo, Hamed Masanovic,

21 Ahmed Kulenovic, Remzija Siljak, and they were all in agreement when they

22 testified that the Muslim forces were not under the command of the

23 Municipal Staff of the Territorial Defence.

24 The Prosecutor relies on the testimony that the footage was the

25 footage of a pledge of loyalty being taken by a unit of the Territorial

Page 19128

1 Defence of Travnik. If that was the case, then this footage would have

2 depicted at least one representative of the Municipal Staff of the

3 Territorial Defence, at least one of the aforementioned persons who at the

4 time held responsible positions in the Territorial Defence Staff. As we

5 could hear on a number of occasions and see on a number of occasions, none

6 of the persons that I mentioned before could be seen on this footage.

7 From the transcript that the Prosecutor offers as the proof that

8 this was the pledge being taken by the Territorial Defence and the -- and

9 the Army of Bosnia-Herzegovina, one can see that this is not the

10 pledge-taking of members of the Territorial Defence and the Army of

11 Bosnia-Herzegovina and this pledge is part of the evidence in this case.

12 The witness Terzic recognised on the footage only one person as

13 supposedly the person who was the commander of the logistical base of the

14 3rd Corps. There's no need for me to -- to offer my position on that.

15 This happened in the summer of 1992, and the corps was established in --

16 in 1993. Another proof of the Prosecutor in this case is the order of

17 General Hadzihasanovic dating back from the spring of 1993 by which he

18 ordered that the logistical bases of the municipalities, that is, the

19 civilian bodies of authority, had to be transformed into the logistical

20 base -- bases of the 3rd Corps. And this is eight months after the event

21 depicted on the footage.

22 One can believe Defence witnesses, including Ribo Haso, who at

23 the time was the commander of the Municipal Staff of TO Travnik. This is

24 proven by the official record, number P701 that, you can see under --

25 under tab 2. This note shows that this witness, the commander of the

Page 19129

1 staff of Travnik RH, which stands for Ribo Haso, he complained about the

2 establishment of the units of the Muslim forces, whose leader was Hodza

3 Muftija [phoen], and who recruited people from the regular units of the

4 armed forces.

5 The Prosecutor had an occasion to put these questions and all the

6 others to Ribo Haso, who testified here, but he failed to do it. And the

7 witness Ribo Haso was very clear when he said that in 1992 the Muslim

8 forces were not on the strength of the Municipal Staff of the Territorial

9 Defence.

10 On page 19 of the transcript of yesterday, the Prosecutor

11 mentions the witness Ibrakovic and he mentions the fact that the Arab

12 Sahar was killed near Visoko in -- in the summer of 1992. From this, he

13 infers then in 1992 the Arabs were fighting in the area of the 3rd Corps,

14 which was previously the area of the Territorial Defence, although it is

15 very clear from all the evidence that at the time the territory of Visoko

16 was not part of the territory of the 3rd Corps but, rather, of the 1st

17 Corps of the Army of Bosnia-Herzegovina.

18 Furthermore, the Prosecutor mentions the correction that he

19 suggested to the journalist Hogg, and there is a word in the interview

20 that the witness could not recognise. The word started with the

21 letter "K," and the Prosecutor said that this could be Karaula, relying on

22 the words of the witness Cuskic.

23 During the time of the interview in the summer of 1992, Karaula

24 was not the line of defence, as the Prosecutor claimed yesterday during

25 his final argument. According to all the witnesses, and especially

Page 19130

1 General Cuskic that the Prosecutor relies upon, it was only after the fall

2 of Jajce, that is, in the fall or, rather, the end of October 1992 that

3 the line of defence was established Karaula, which before that was deep in

4 the rear. In other words, direct evidence from the year 1992 clearly

5 shows that the Muslim forces that Abdel Aziz refers to in the interview

6 were not a part of the Territorial Defence or the Army of

7 Bosnia-Herzegovina.

8 Let me illustrate with a few more examples the way the Prosecutor

9 presents his evidence. When he tried to prove that the commander knew

10 about Orasac, which was the place that was later on transformed into a

11 Mujahedin camp, the Prosecutor calls upon evidence number P500 and P501.

12 This is clear in the written submission and in the final argument. The

13 aforementioned pieces of evidence have nothing whatsoever to do with the

14 Orasac that you, Your Honours, visited and that are mentioned in the -- in

15 the pieces of evidence.

16 Already on the example of Zagradje that the Prosecutor wanted to

17 place in the vicinity of Mehurici, although Zagradje was in the vicinity

18 of Kakanj, the Prosecutor had to understand based on the example of

19 Zagradje that in Bosnia several places sometimes bear the same name.

20 From his own evidence -- and now I would like you to look at the

21 evidence after tab 3 and 4 - these are P500 and P501 - one can clearly see

22 that the reference is not made to the Orasac that is a place in the Bila

23 Valley. This place, this Orasac that is mentioned in these pieces of

24 evidence, has nothing whatsoever to do with the indictment. Based on the

25 coordinates in the documents, the Prosecutor could have consulted a map

Page 19131

1 and he could have seen that the place in these documents is between

2 Fojnica and Breza and in other documents he could have seen evidence about

3 the combat activities in the area of the 6th Corps.

4 Why did Prosecutor use the word of only one member of the staff

5 of the Supreme Command in one of his footnotes? Was it to confuse the

6 Defence?

7 And now I would like you to look at the document which is under

8 tab 6, in which you will see that in this part, in the south-western part

9 next to Kakanj, you can find places called Mehurici, Orasac, and Dusina,

10 which have nothing whatsoever with the Dusina, Mehurici, and Orasac which

11 are the object of the indictment.

12 After tab 3, also south of Zenica you will find a number of other

13 places bearing the same or similar names.

14 At tab 8, you will find a place called Orasac, which is south of

15 Novi Travnik. And in 1993, it was probably under the control of the

16 Croatian Defence Council.

17 After tab 9, you will find another place called Orasac, between

18 Visoko and Fojnica. And that is a place referred to in documents P500 and

19 P501.

20 In addition to this very characteristic way in which the

21 Prosecution tries to present non-existent facts, the Prosecution also

22 tried to present the events after the establishment of the El Mujahed by

23 describing the fighting that took place at the beginning of September.

24 That is on page 29 and 30 of the transcript. Although, the Defence --

25 although the evidence P792 and P740 confirmed the testimonies of Remzija

Page 19132

1 Siljak, Vezir Jusufspahic, and others from the 306th Mountain Brigade,

2 that the El Mujahed was not resubordinated to the 306th Brigade and

3 refuted the allegations of the Prosecution about the way the fighting was

4 conducted during that period of time.

5 The lack of consistency, the lack of truthfulness and

6 sensationalism in the presentation of evidence does not concern only the

7 Mujahedin. The Prosecutor used parts of the evidence of the witness

8 Veseljak Mladen to portray a distorted picture of his testimony. What

9 this witness said about the way the Prosecutor conducted his investigation

10 about the role of the investigative judge, about the role of the military

11 and civilian police, the Trial Chamber will see in the totality of the

12 evidence of this witness and not from the distorted picture of this

13 testimony.

14 We would like to draw the attention of the Trial Chamber to the

15 pages 15.991, 15.992, 15.993, 15.994, 16.006 of the transcript, which you

16 can find under tabs 13 and 14.

17 We would like to also point out to the caricature and the

18 testimony about the theft of the cow, although the witness in question

19 explained that those were the measures that were taken in order to protect

20 the civilian population, the Croatian civilian population, and the

21 measures that were put in place in order to deal with the members of the

22 army that might have jeopardised the property and the lives of that

23 population.

24 The Prosecutor treated in the same way the document that was

25 presented to this witness and the document showed that a Croatian, a

Page 19133

1 person acted as an imposter and presented himself as a Mujahedin. The

2 Defence cannot accept that a Prosecutor behaves inappropriately before a

3 Trial Chamber and when he says that Judge Strika is an infamous

4 Judge Strika. The Prosecutor does not know the judge. The judge

5 performed his duties in keeping with the law of his state. And when he

6 refers to this judge in this way, the Prosecutor forgets that in this

7 investigation during 1993 another witness took part. He appeared as the

8 Prosecutor witness; his name is Vlado Adamovic. And this is very clear

9 from Osman Hasanagic's testimony, and this can found in the transcript on

10 pages 12.683.

11 I have tried to draw the attention of the Trial Chamber that it is

12 indispensable for every piece of evidence to be looked carefully and to

13 establish its real significance rather than to be misled by the way the

14 evidence was presented by the Prosecutor.

15 This is as much as I have had to say about the three issues that

16 I wanted to raise at the beginning of the final argument of the Defence.

17 And now I would like to give the floor to my colleague, Stephane Bourgon.

18 MR. BOURGON: [Interpretation] May it please the Court. Thank

19 you, Mr. President. Good day, Madam Judge. Good day, Your Honours.

20 My purpose is to present to you the Defence's point of view with

21 regard to the probative value that should be attached to the documentary

22 evidence, video evidence, and the testimony of expert witnesses who have

23 been heard in the course of the proceedings.

24 Before I commence with my closing arguments, Mr. President, I

25 would like to go back to an issue raised by my colleague, since I believe

Page 19134

1 the interpretation was not very clear. This has to do with circumstantial

2 evidence, and my colleague said in her own language the following: "When

3 it is a matter of circumstantial evidence, if the Defence proposes a

4 theory that states that General Hadzihasanovic is not criminally

5 responsible," that was the first issue. Secondly, "If this theory is not

6 incompatible with the evidence, in other words, if the theory is a

7 possible one, the conclusion to draw is as follows: Even if there are

8 other possible theories, General Hadzihasanovic should be acquitted."

9 Mr. President, that is the point that my colleague made, and this

10 establishes a link between circumstantial evidence and reasonable doubt,

11 and the Prosecution is trying to minimise this link.

12 I'll now move on to my first subject, documentary evidence. And

13 the first conclusion, the first thing I would like to point out, is that

14 in the course of the proceedings the Prosecution has requested that 959

15 exhibits be admitted into evidence, and that request has been granted.

16 Out of this total number of documents, about 350 documents were used with

17 the Prosecution witnesses or with Defence witnesses. About 30 per cent --

18 no more than 30 per cent of the documents used by the Prosecution were

19 verified through witnesses, and this means, Mr. President, that the

20 Prosecution has provided the Trial Chamber a bundle of about 600 documents

21 and they made the following claim: "Your Honours, we are hereby

22 presenting you with 600 documents and it is our submission that all of

23 these documents are relevant. We request that you attach as much weight

24 as possible to these documents, as they reflect the situation such as it

25 was in 1993. We request that you take charge of these documents and that

Page 19135

1 you place them within our immense circumstantial puzzle without asking any

2 questions. All you have to do is trust us and at the end of the trial, we

3 will tell you where all of these pieces fit in the puzzle."

4 The second point I would like to make, Mr. President, is that the

5 Prosecution expects that all the Prosecution -- all the exhibits that have

6 been admitted be regarded as fully valid, as if these documents were

7 completely authentic ones. The Prosecution also adds in paragraphs 5 to

8 14 of its final trial brief that the testimony that has been heard in the

9 course of the proceedings is not reliable, as it depends on the memory and

10 on the credibility of witnesses; whereas, the documents themselves were

11 drafted in 1993, at the time of the events concerned. In this respect,

12 Mr. President, one may rightly wonder what we have been doing in this

13 courtroom for over 18 months now, given such an approach. It is our

14 opinion that it would have been better for the Prosecution to file the 959

15 documents and to close its case. At least, this would have allowed us to

16 save taxpayers' money and it would have also allowed us to confirm from

17 the outset that with the exception of a number of documents where the

18 words "MOS" and "Mujahedin" appear, the Prosecution had nothing that they

19 really had to present to the Trial Chamber. And one wonders what the

20 problem is with regard to such an approach.

21 Our answer is quite simple, and this is the third conclusion we

22 would like to draw: A document that has been admitted does not

23 automatically have probative value, and this applies to the documents of

24 the Prosecution as well as to the documents that the Defence presented

25 without doing so through a witness -- through witnesses. The Trial

Page 19136

1 Chamber have mentioned in this decision -- mention this in its decision on

2 the admissibility of Defence documents, and I'll quote: "As a result, the

3 party that wishes to tender a document without doing so through a witness

4 is proceeding in this manner but is taking certain risks. The probative

5 value of the document in question could be diminished as a result."

6 And there is an additional question that arises, Mr. President:

7 Namely, what is the problem with the document that is not being presented

8 through a witness? And it's our submission today that the answer to this

9 question contains several parts.

10 Firstly, "proceeding in this manner" means that the Chamber is

11 deprived of any assistance when it come to interpreting documents, and the

12 Chamber will certainly agree that the documents concerned are a lot more

13 complicated than contracts stating that Peter bought two sacks of potatoes

14 from Paul.

15 The fourth point we would like to make, Mr. President, is that if

16 a document is not presented through a witness and if this document

17 requires an interpretation or an explanation, it is our respectful

18 submission that such a document must be interpreted to the accused's

19 advantage and such a document by itself cannot be used to establish a

20 material fact.

21 The second problem with the Prosecution's approach is as follows:

22 The accused is deprived of his right to cross-examine Prosecution

23 witnesses or the testimony of Prosecution witnesses.

24 And the fifth point, Mr. President, I would like to make is that

25 a document which is not presented through a witness cannot be used to

Page 19137












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 19138

1 prove any of the essential elements contained within the charges.

2 The third problem concerning the Prosecution documents is as

3 follows: The lack of weight of a document that hasn't been presented

4 through a witness, even if the Prosecution -- although the Prosecution had

5 the opportunity to use such a document through a witness, that it -- but

6 decided not to do so, not the present such a document through the witness.

7 That is the third problem.

8 And, Mr. President, we submit that when the Prosecution had the

9 opportunity of using a document through a witness and decided not to do

10 so, this document must be set aside. Why? For the following reasons:

11 Because this shows that the Prosecution had -- didn't rely on its own

12 documentary evidence and they didn't believe that the document in question

13 would pass the test of cross-examination.

14 I'll provide you with an example: A document that was apparently

15 shown to an HVO witness, with regard to the Totic kidnapping. There is a

16 small -- a short paragraph in this document which says that the document

17 was provided to the witness by Merdan Merdan [as interpreted], as

18 testified before the Chamber. The Prosecution did not use the document,

19 but the Trial Chamber was more far-sighted than the Prosecution and showed

20 the document to General Merdan, who said, "Well, I'm sorry, but I am not

21 able to recognise this document. I'm not familiar with these contents. I

22 did not provide someone from the HVO with a document concerning Totic."

23 This is an example, and this is the reason for which the

24 Prosecution on a number of occasions decided not to proceed in this

25 manner, and this happened on a number of occasions in the course of the

Page 19139

1 proceedings. Tomorrow I will provide you with a list of documents with

2 regard to this matter.

3 Mr. President, naturally the Prosecution may have decided not to

4 use a document because the Prosecution believed that they should leave it

5 to the Trial Chamber to decide to use a document in its place. This may

6 be part of the Prosecution's strategy and we're not claiming that they

7 don't have the right to adopt such a strategy. They might expect the

8 Prosecution to use a document that they don't want to use because they

9 know that the witness's answer might be different. This is a strategy

10 that one can be adopted, so one strategy among many others.

11 However, if the Trial Chamber does not use this document, the

12 Prosecution must be aware of the fact that they are taking certain risks,

13 that they're proceeding in this manner at their own risk.

14 I'll now deal with attaching probative value to certain

15 documents. We have already informed the Trial Chamber of our position

16 with regard to this subject. We would just like to take advantage of this

17 opportunity to sum up our position with regard to the weight that should

18 be attached to certain documents. I'll deal with various types of

19 documents, and I would first like to deal with official documents very

20 briefly.

21 For example, if we take the case of decree laws. If such laws

22 were in force in 1993 and the document was one known by persons who had to

23 apply the law, it necessarily has much probative value. And this is the

24 reason for which the Defence accepted all the documents -- agreed to all

25 the documents that were such official documents.

Page 19140

1 There are then documents that come from international

2 organisations, from the European Community Monitoring Mission, for

3 example, documents from UNPROFOR, and BritBat documents. And these

4 documents necessarily include milinfosums. For the reasons mentioned by

5 my colleague with regard to international witnesses but also, and above

6 all, given what has been said in this regard by the witnesses

7 Sir Roderick Cordy-Simpson, Colonel Stewart, and a witness whose name I

8 cannot mention and unfortunately I don't have the witness's pseudonym, but

9 it's another witness - I'll find the pseudonym later - this witness, as

10 well as the two other witnesses that I have already mentioned, dealt with

11 the subject of milinfosums. The existence of these documents is not

12 problematic in itself, and as a result the Defence immediately agreed to

13 having all these documents admitted into evidence and we didn't ask any

14 other questions. The problem is the probative value of these documents.

15 And in the best of cases the probative value of these documents is

16 minimum.

17 The witness I was referring to, Mr. President, is Witness HC.

18 There was an observation made by an international witness which is made

19 viva voce or which is contained in a document, naturally has much value

20 for the reasons already mentioned by my colleague: The witness is

21 independent, the witness is on the site, he's a member of the

22 international community, he is objective; he might say, "I saw a man with

23 a beard," and we can't doubt such a statement, but the comments made or

24 the opinions presented or the conclusions drawn from the observation made

25 by an international witness does not have any probative value unless it

Page 19141

1 has been subjected to the test of cross-examination. And that brings us

2 back to the beginning.

3 The following category of documents, Mr. President, contains HVO

4 documents. Given all the evidence that we have heard with regard to HVO

5 propaganda - and HVO has admitted that there was such propaganda, and this

6 is known by international witnesses and local witnesses - but this

7 propaganda machine has been quite clearly recognised in the evidence, and

8 we believe, Mr. President, that the Chamber has to exercise much caution

9 before granting any value to these documents. That's all the more true if

10 the documents in question were established by the HVO propaganda

11 department.

12 The Trial Chamber in the Strugar case emphasised the following

13 with regard to documents. And I quote, paragraph 7 -- I'll quote in

14 paragraph in English. [In English] "More regrettably, the Chamber has also

15 been forced to conclude that some of the oral and documentary evidence is

16 deliberately -- pardon -- deliberately contrived and false."

17 [Interpretation] Mr. President, a document is not automatically

18 true.

19 Finally, there is also the physical appearance of HVO documents

20 that can be revealing. I'm referring to the traditional indicia of

21 reliability, such as a signature, a stamp, a number of copies, a sent or

22 received stamp, or references to other documents.

23 Your Honours, it is our submission that this is applicable even

24 more to documents that are called protests [as interpreted]. I will just

25 use one example. I'll just use one example, P68 -- 694. It was a

Page 19142

1 document used by my colleague with regard to the Sretno Motel. When you

2 have a look at this document, we come to the following conclusions: It's

3 a propaganda document that was prepared by the propaganda department. It

4 was a document described as a protest. But what is more important is that

5 it's a document for which there were four copies, but there were five

6 addressees and one copy remained. Who are the two addressees who did not

7 receive a copy? With such a document, if there is no evidence heard in

8 the course of the proceedings, no weight can be attached to such a

9 document. It's a document that did not have any sent or received stamps

10 on it, a document that was allegedly sent to the joint command of the HVO

11 and the army. It was allegedly used -- it could have been used with many

12 witnesses heard by the Chamber. It's quite obvious, Mr. President, that

13 such a document has to be rejected.

14 The following category of documents I would like to deal with

15 concerns BiH army documents. These documents are interesting,

16 Mr. President, to the extent that they were used with witnesses. If that

17 was not the case, they can be used to establish the existence of certain

18 facts but one cannot use such documents or an interpretation of such a

19 document against an accused unless we have additional elements or

20 additional explications or unless we have a link between such documents

21 and other documents. And yet again we cannot attach weight to such

22 documents if it could have been used with a witness but was not used with

23 a witness.

24 And finally, there are interviews or newspaper articles, and

25 these documents have to be used with much caution, and the reason to

Page 19143

1 exercise caution when using such documents is as follows: The person

2 giving an interview, unless doing so unexpectedly, usually has an

3 objective or a message he wants to convey.

4 I'll just provide you with two examples: P112. It is an

5 interview between Hogg and Mr. Aziz. My colleague dealt with this. Who

6 is Aziz? Did the Prosecution manage to establish his identity and the

7 role he played in 1992? To put the question is to answer it,

8 Mr. President. It's quite clear when one reads through what Mr. Aziz

9 stated that he was functioning in propaganda mode.

10 The Prosecution in its closing argument failed to mention an

11 extract from the interview when he said that there were over 1.000

12 Mujahedin in Bosnia and that more and more Mujahedin were arriving on a

13 daily basis. This suffices, Mr. President, to state that no probative

14 value can be given to this document.

15 A second example I would like to provide you with is P763. I

16 think it's an internal journal from -- from a brigade in 1995. It's

17 through Mr. Aziz -- it was presented through Mr. Aziz who spoke about

18 events in 1992. Mr. President, we are all familiar with the type of

19 articles that we can final in public organisations. And this is all the

20 case when we deal with internal military journals. We do not doubt that

21 there is some substance in the Hadzic [phoen] article, but what is the

22 true part and which part concerns the history of war, "the history of

23 sin," as General Duncan would surely call it.

24 I'll now move on to my next part of my closing argument.

25 Mr. President, I would now like to deal well video evidence. Before I do

Page 19144

1 so, I would like to briefly address the matter of war journals that were

2 admitted into evidence by the Chamber on the 22nd of June.

3 Mr. President, we were asking ourselves why such a decision was

4 taken at such a stage, but it would not be appropriate for me to linger on

5 this matter at the moment, to dwell on this matter. Unfortunately, we

6 have not had enough time to include the contents of these journals in our

7 closing arguments. On the other hand, the Prosecution, given all its

8 resources, all its personnel, have had all the time they needed to react

9 to the Chamber's order. We'll take advantage of our closing argument to

10 include these journals in our submissions because the journals that we

11 have examined in detail confirm in all respects the context that we wanted

12 to demonstrate to the Chamber in the course of these proceedings, the

13 context that made the task of all the members of the 3rd Corps almost

14 impossible.

15 With regard to these journals, Mr. President, we believe that

16 they fall under the -- in the category of documents that have not been

17 attended through witnesses.

18 As far as video evidence is concerned, I'll be very brief. I'll

19 content myself by emphasising the arguments of the Defence when these

20 documents were admitted. We explained to the Chamber why a video document

21 that was obtained from an unknown source, a video document whose author we

22 did not know, a document that was compiled without knowing how, and given

23 that we didn't know when such a document was made, given that the contents

24 were used for propaganda, the objective of the video was for propaganda,

25 given that the identity of the persons concerned, with a few exceptions,

Page 19145

1 was not known, given that the sites could not be identified with a few

2 exceptions, given all of these reasons, we have explained to the Chamber

3 why we believe that such a document should not be admitted into evidence.

4 The Trial Chamber decided otherwise, and naturally we will respect the

5 Trial Chamber's decision. Nevertheless, it is our submission that this

6 video evidence should not be given any probative value.

7 In addition, Mr. President, in our opinion, given that the

8 Prosecution feels the need in its trial -- feels the need in its trial

9 brief and in its closing argument to use such evidence, shows how weak the

10 Prosecution case is.

11 I'll now move on to the last subject, Mr. President. This has to

12 do with the probative value that should be attached to expert witnesses.

13 I'm referring to expert witnesses who have testified before this Chamber.

14 First of all, there is the expert witness who testified about the

15 history of Bosnia, a Defence witness. And, Mr. President, this witness

16 drafted a report which was admitted into evidence. He then testified and

17 he was cross-examined. The Trial Chamber also had the opportunity of

18 putting questions to this witness. In our opinion, this witness assisted

19 the Chamber in a field that they were not familiar with, and this witness

20 proved, without any doubt, at least the following facts:

21 In the course of history, the territory of Bosnia, with the

22 exception of a brief period, was always recognised within well-established

23 borders. Secondly, the -- Bosnia was always a multi-ethnic, a

24 multicultural, and multi-religious community. Thirdly, the inhabitants of

25 Bosnia, regardless of the ethnic groups they belonged to, always lived in

Page 19146

1 the same areas and had done so for a long time. Fourthly, for this

2 reason, dividing Bosnia along ethnic lines could only be done with ethnic

3 cleansing, the kind of ethnic cleansing carried out by the VRS and the

4 HVO, but the ABiH did not conduct such ethnic cleansing. They just

5 defended their territory.

6 Then there was the expert in constitutional matters, another

7 Defence witness. He also drafted a report which was admitted into

8 evidence. He testified and he was cross-examined. In our opinion,

9 Mr. President, this witness was of much assistance to the Chamber. He

10 assisted the Chamber in a field that the Chamber was not familiar with and

11 he proved the following facts beyond any doubt. And yet again, he proved

12 these facts in addition to many other facts: In 1992 and 1993, the ABiH

13 was subordinated to the state. The ABiH and the 3rd Corps had no

14 authority over civilian bodies. In 1992 and 1993, the institutions in

15 Bosnia functioned but in a reduced capacity and under extremely difficult

16 conditions. The numerous changes made to the constitutional order by the

17 Presidency created the opportunity for civil organs to interfere in

18 military affairs, and there were in fact such cases of interference. They

19 interfered with the civil organs, not with the constitution. The judicial

20 system of Bosnia existed and functioned independently of the ABiH, and

21 this included military and district courts. All joint activity between

22 the army and the civil bodies was based on the principle of cooperation

23 alone.

24 Mr. President, this witness also dealt with discipline within the

25 3rd Corps as well as with delegate issues, such as granting nationality to

Page 19147

1 members of the army who were not citizens of Bosnia and Herzegovina. But

2 no one asked him any questions about this matter. We submit that his --

3 his report is reliable.

4 The testimony of the judge and Professor Trnka was never put into

5 question by the Prosecution when they cross-examined him. We claim that

6 this witness's report and the testimony of the witness should be given

7 maximum probative value.

8 And finally, Mr. President, I'd like to deal with the military

9 expert called by the Defence, General Karavelic. In one -- in his -- in

10 their brief, the Prosecution asked the Chamber not to give any weight to

11 the witness. The Prosecution mentioned the methodology employed by

12 General Karavelic. Mr. President, it is our submission that the

13 Prosecution made a very grave error in this case. How can the Prosecution

14 have any doubts about the credibility of General Karavelic given that he

15 was a key witness for the Prosecution in the Galic case, who was sentenced

16 to 20 years for the siege of Sarajevo and for the murder of such a large

17 number of people that no comparison can be made with the current case.

18 General Karavelic was also called as a witness for the Prosecution in the

19 Halilovic case. In addition, the Prosecution called General --

20 mentioned General Karavelic no less than 30 times in its final trial

21 brief.

22 Mr. President, the Prosecution cannot have its pudding and eat

23 it. What's the quality of General Karavelic as an expert? First, there

24 are objective criteria. He held the same position as the accused in this

25 case; he was the commander of an army corps. He was the commander of a

Page 19148

1 corps in the same forces. He was familiar with the objectives of the

2 army. There are subjective criteria. He was a witness and acted in the

3 same war. He had the same experience. He had to desert the JNA in order

4 to join the ABiH. It's an impossible situation. As far as qualifications

5 are concerned, General Karavelic has everything. He was a commander, a

6 member of the staff at all levels. The methodology used by the Defence

7 was as follows: There was a member of a military who came to present an

8 expert military report. The Prosecution says that there's a problem with

9 the testimony that they were provided with in summary form, but the

10 problem is that the Prosecution, if they had a problem with the facts,

11 well, the witness was there in front of them for days; the Prosecution

12 could have cross-examined the witness about the events in question but

13 they did not do so.

14 In its final trial brief, the Prosecution says that Karavelic's

15 report is just a preliminary sketch. In fact, yes, that is the case.

16 That's what we wanted. We put some very precise questions to this expert,

17 and we asked the expert to provide us with precise answers in his military

18 report, and he provided precise answers. In our opinion, Mr. President,

19 this witness's answers are extremely important. The methodology used by

20 the expert should also be emphasised here, analysed; the events at the end

21 of his report and divided them into five categories. He first established

22 the facts and then said why such a situation could have had an influence

23 on a commander at the level of which the accused commanded, at the level

24 of a commander of an army corps. He said what one could expect from a

25 corps commander in such a situation. He also described on the basis of

Page 19149

1 all the evidence that he had seen - and he had seen all the evidence - he

2 also described what the commander did, in his opinion, and then he drew

3 certain conclusions.

4 In our opinion are two possible reasons for the Prosecution to

5 complain: Did he use the right facts, and did he really report on what

6 General Hadzihasanovic had done? But it's not now for the Prosecution to

7 make criticisms. They should have done so when the witness was here.

8 That's when General Karavelic should have been told, "General, I tell you

9 that in paragraph 2B of your report you say that the general took certain

10 measures. Tell me, what kind of measures are in question? Because I do

11 not believe you." But no, they decided not to do anything. But now it's

12 too late. Nothing was done. The Prosecution made its choices. And

13 whether it's an error or not, this is not the accused's problem.

14 Was the Prosecution in agreement with the expert? Did they

15 believe that they could not attack the expert? Did they show weakness?

16 This does not concern the accused. What is important is that the

17 testimony was heard and the testimony provided was extremely relevant.

18 Two examples of questions posed by the Prosecution: In the first

19 case, the Prosecution tried to outline a question to the expert. They

20 tried to make the general say that finally in the end the situation in

21 Bosnia was not a catastrophic one. To use a very -- an expression used in

22 Quebec, "the response was flying in the face of the Prosecution." The

23 witness said that the situation was not only catastrophic but one could

24 compare such a situation with someone who lacked oxygen and was about to

25 drown.

Page 19150

1 The second example: At the beginning of the presentation of

2 their closing argument, the Prosecution quoted a paragraph from the expert

3 report according to which a commander must not allow himself to use

4 resources to deal with a case that seems to be important but will prevent

5 him from accomplishing his mission. If we judge on the basis of what the

6 Prosecution said yesterday, they didn't understand anything. The witness

7 quite clearly explained what he meant. The witness explained, "You can

8 say that General Reinhardt or such-and-such a general said that as far as

9 defending a territory is concerned, as far as the situation in the

10 territory is concerned, well, this does not change the responsibility of

11 the witness. This does not change legal observations." But the -- that's

12 what the expert witness said. He said that "One always has legal

13 obligations. But when there are no legal obligations, one must not allow

14 oneself to use resources that will put other people's life at risk and

15 that will put the survival of the state at risk. And that's the level we

16 are dealing with in the case of General Hadzihasanovic. It was the

17 survival of Bosnia that was at stake. So when the problem of the

18 Mujahedin appeared at the beginning, it was not a legal problem. It was

19 not a legal obligation. As the problem became more serious and as it

20 endangered his mission, he had to dedicate more resources to dealing with

21 this problem.

22 Mr. President, this subject has been dealt with in the questions,

23 in the case of General Reinhardt, Sir Martin Garrod, General Karavelic.

24 They all mentioned the fact that legal obligations don't change; they

25 always remain. On land, at sea, in the air. That is not the issue. The

Page 19151

1 issue is that the context can prevent someone from carrying out his

2 obligations, can make it difficult for someone to carry out his

3 obligations.

4 In the case of General Duncan -- this was not the case for other

5 witnesses, but he was the chief of -- in charge of training the British

6 Army. He refused to answer a question. He said, "We can -- we can't

7 launch an attack without first giving orders. That's incredible." The

8 same general who dismissed his own subordinate in order to put -- himself

9 invaluable for the Chamber. Mr. President, I'm now referring to the

10 witness Cameron Kiggell because I put a question -- or I believe that the

11 Chamber put a question according to which Kiggell said something that

12 eliminated the possibility of subordinating the Mujahedin to the 3rd

13 Corps. General Duncan said, "Yes, but Mr. President, don't forget that

14 this is a very young witness I had to replace for this reason." However,

15 when we have a look at the 92 bis statement of the person who replaced

16 Kiggell, he said, "Kiggell was never replaced from 3rd Corps because of

17 competence problems." General Duncan mentioned this problem. He

18 mentioned this situation to put himself invaluable.

19 This is the type of man, the type of witness, whose attitude was

20 in all respects pro-Prosecution, someone who preferred to speak about sin

21 and a fishing expedition.

22 Mr. President, I would like to add a few things about

23 General Reinhardt but I will stop here and continue tomorrow. As my

24 colleague has already said, we will start with the issue of applicable law

25 and about the responsibility of a commander. We'll deal with the

Page 19152

1 Mujahedin, with events contained in the indictment. We'll also deal with

2 the measures taken by General Hadzihasanovic, the measures taken in 1993.

3 Thank you, Mr. President.

4 JUDGE ANTONETTI: [Interpretation] The Trial Chamber apologies to

5 the interpreters because they had to work for an additional quarter of an

6 hour, but it was necessary. So we will continue tomorrow. And the

7 Defence team for General Hadzihasanovic will continue with their closing

8 arguments.

9 We will resume at 9.00 in Courtroom III. Thank you.

10 --- Whereupon the hearing adjourned at 2.01 p.m.,

11 to be reconvened on Thursday, the 14th day of

12 July, 2005, at 9.00 a.m.