Tribunal Criminal Tribunal for the Former Yugoslavia

Page 180

1 Monday, 17 May 2004

2 [Appeal Proceedings]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 9.05 a.m.

6 JUDGE SCHOMBURG: A very good morning to everybody. May I ask

7 Madam Registrar, please, to call the case.

8 THE REGISTRAR: Case number IT-95-14/2-A, the Prosecutor versus

9 Dario Kordic and Mario Cerkez.

10 JUDGE SCHOMBURG: Thank you. And may we have the appearances,

11 please. For the Prosecution.

12 MR. FARRELL: Good morning, Your Honours. Appearing for the

13 Prosecution is Norman Farrell, Ms. Helen Brady, Ms. Michelle Jarvis, Ms.

14 Marie-Ursula Kind; and also Mr. Geoffrey Nice, the senior trial attorney

15 from trial, will be sitting in court with the appeals team. Our case

16 manager is Ms. Lourdes Galicia. Thank you.

17 JUDGE SCHOMBURG: Thank you, Mr. Farrell. May I ask for the

18 Defence of Mr. Kordic. Mr. Naumovski, Mr. Sayers, please.

19 MR. SAYERS: Good morning, Your Honours. My name is Stephen

20 Sayers, I will be appearing with my colleague Mr. Turner Smith, and my

21 Croatian colleague Mr. Mitko Naumovski. Our case manager is Mr. Zayne

22 Tweed.

23 JUDGE SCHOMBURG: Thank you. And the Defence for Mr. Cerkez.

24 Mr. Kovacic, please.

25 MR. KOVACIC: [Interpretation] Good morning, Your Honour. I am

Page 181

1 appearing together with my colleague Mr. Goran Mikulicic as Defence

2 counsel for Mr. Cerkez. My name is Bozidar Kovacic.

3 JUDGE SCHOMBURG: May I ask both Mr. Kordic and Mr. Cerkez, first

4 you feel fit today for hearing the case, following the proceedings, in

5 particular in a language you understand?

6 THE APPELLANT KORDIC: [Interpretation] Your Honours, good morning.

7 Thank you for inquiring. Yes, I can understand and follow the proceedings

8 without problem.

9 JUDGE SCHOMBURG: Thank you. You may be seated.

10 Please.

11 THE APPELLANT CERKEZ: [Interpretation] Good morning, Your Honour.

12 I feel very well, and I can follow the proceedings.

13 JUDGE SCHOMBURG: Thank you. You may be seated as well.

14 Before starting, let me turn to a short introduction. In October

15 1997, Mr. Dario Kordic and Mr. Mario Cerkez voluntarily surrendered to

16 this Tribunal. The trial proceedings commenced in April 1999 and ended in

17 December 2000. On 26 February 2001, Trial Chamber III rendered a

18 judgement, sentencing Dario Kordic to 25 years of imprisonment, and Mario

19 Cerkez to 15 years of imprisonment. They were both found guilty for the

20 majority of the 44 counts of the amended indictment of the 30th of

21 September, 1998, inter alia, crimes against humanity, grave breaches of

22 the Geneva Conventions of 1949, and violations of the laws or customs of

23 war, including persecutions, murder, unlawful attacks on civilian persons

24 and property, inhumane treatment, and the destruction or wilful damage to

25 institutions dedicated to religion or education.

Page 182

1 The Trial Chamber found that these crimes were committed during an

2 international armed conflict between Bosnian Muslims and Bosnian Croats in

3 1992 and 1993 in Central Bosnia, in particular in Lasva Valley. The

4 population of this area in 1991 was nearly 470.000 citizens, of whom about

5 48 per cent were Muslims, 32 per cent Croats, and 10 per cent Serbs.

6 According to the Trial Chamber, in late 1991, the Croatian

7 Democratic Union of Bosnia and Herzegovina, a branch of the Croatian

8 Democratic Union of the Republic of Croatia, set up Croatian Community of

9 Herceg-Bosna, a separate Croat community within Bosnia and Herzegovina,

10 with the intention that it should accede to the Republic of Croatia.

11 Thereafter, the Croatian Defence Council, HVO, was established as the

12 executive and Defence authority of the Bosnian Croat community in Bosnia

13 and Herzegovina.

14 Dario Kordic, according to the Appeals Chamber, was a political

15 leader in the Croatian Democratic Union of Bosnia and Herzegovina,

16 president of the Croatian Democratic Union in Busovaca, and finally,

17 vice-president of the Croatian Community of Herceg-Bosna.

18 Mario Cerkez was one of the founders of the HVO in Vitez and

19 finally commander of the Viteska Brigade.

20 The Trial Chamber held that a campaign of persecutions aimed at

21 the Bosnian Muslims took place in Central Bosnia, including the attacks on

22 towns and villages with concomitant destruction and plunder, killing,

23 injuring and detaining of Bosnian Muslims. According to the Trial

24 Chamber, the campaign to ethnically cleanse Lasva Valley of Muslims was

25 led by the Croatian Democratic Union of Bosnia and Herzegovina and

Page 183

1 conducted through instruments of the Croatian Community of Herceg-Bosna

2 and the HVO and orchestrated from Zagreb.

3 The Trial Chamber found that Dario Kordic was a political leader

4 and played a principal role by planning, preparing, and ordering those

5 acts of the campaign which fell in his sphere of authority.

6 Mario Cerkez participated in the execution of the plan by

7 commanding the Viteska Brigade during the attacks on Vitez, Stari Vitez,

8 and Donja Veceriska.

9 Both Dario Kordic and Mario Cerkez were held individually

10 responsible pursuant to Article 7(1) of the Statute. In addition, Mario

11 Cerkez was also found guilty pursuant to Article 7(3) of the Statute based

12 on his superior responsibility and failure to prevent these crimes

13 committed during the attacks and to punish those who were responsible for

14 them.

15 The Trial Chamber held that the well-organised and planned HVO

16 attacks in Lasva Valley culminated in the massacre in the village of

17 Ahmici on the 16th of April, 1993, where more than 100 Bosnian Muslims

18 were murdered, including 32 women and 11 children. The Trial Chamber was

19 convinced that Dario Kordic was present at meetings where the attack on

20 Ahmici was authorised and that he was associated with an order to kill all

21 military-aged men, expel the civilians, and set fire to houses in Ahmici.

22 As regards Mario Cerkez, however, the Trial Chamber was not

23 satisfied that he bore any responsibility for the attack on Ahmici.

24 The Trial Chamber found beyond reasonable doubt that during the

25 HVO offences, many hundreds of Bosnian Muslim civilians were arbitrarily

Page 184

1 and unlawfully detained in makeshift camps as part of a common plan and

2 held under inhumane conditions. The Trial Chamber held that Dario Kordic

3 was responsible for the unlawful imprisonment of detainees in the area for

4 which he had authority. Mario Cerkez, as commander of the Viteska

5 Brigade, was held responsible for unlawful imprisonment and inhuman

6 treatment committed in the detention facilities in Vitez.

7 Furthermore, the Trial Chamber found that the common plan

8 comprised a pattern of unjustified destruction, plunder in the locations

9 attacked by the HVO at mosques, and other religious and educational

10 institutions were deliberately targeted. It held that Dario Kordic and

11 Mario Cerkez were involved in these offences in those places where they

12 had been finally found responsible for attacks.

13 This judgement was appealed by all parties for different,

14 sometimes overlapping, reasons. Dario Kordic and Mario Cerkez base their

15 respective fundamental appeals on numerous alleged errors of both fact and

16 law. In their opinion, also the sentences are not justified.

17 The Prosecutor has appealed the acquittal of Mario Cerkez in

18 relation to the crimes committed during the attack on Ahmici. She has

19 also appealed the sentences meted out by the Trial Chamber against Dario

20 Kordic and Mario Cerkez.

21 During the pre-appeal proceedings, various grounds of appeal were

22 withdrawn, not the least due to the further developed jurisprudence in the

23 Tribunal since February 2001. In relation to some of the locations

24 mentioned in the charges, the Prosecution has conceded that the trial

25 judgement does not contain factual findings. In this context, I would

Page 185

1 like to refer particularly to pages 163 to 165 of the transcript of the

2 pre-appeal conference held the 6th of May, 2004.

3 I have to recall once again that an appeals hearing is not the

4 place to re-argue the case. As regards the scope of an appeal, all

5 parties have received the relevant parts of the Kunarac appeal judgement.

6 In this context, I want to repeat my current request to all parties: When

7 referring to a document or transcript, please mention the number or page

8 number in concreto already in the beginning of the relevant submissions so

9 that we can have the same document before us. Please also indicate when

10 you have concluded your argument on a concrete point, giving, hereby, the

11 Judges a chance to put questions to you, if necessary, without

12 interrupting your line of thoughts.

13 The Appeals Chamber will focus today on the appeal lodged by Dario

14 Kordic, tomorrow primarily on Mario Cerkez's appeal, and finally, on

15 Wednesday, on the appeal of the Prosecutor.

16 Instead of paraphrasing in more detail the various grounds of

17 appeal raised by the parties, I should like to give, without further ado,

18 the floor to the Defence of Dario Kordic.

19 Mr. Sayers, I understand that Mr. Kordic's Defence has split up

20 the submissions amongst counsel. Who wants to take the floor first?

21 Mr. Sayers?

22 MR. SAYERS: Thank you very much, Your Honour.

23 Let me just say by way of introduction that the principal

24 appellate briefs in this case were filed three years ago. In all candour,

25 they look a little fossilised in light of the jurisprudence that has been

Page 186

1 developed by the Appeals Chamber in the intervening three years. They

2 have a certain antique look to them. For that reason, we have prepared a

3 very visual presentation today focused specifically on the points of

4 appeal which we consider to be the most important. Slides that will come

5 up on the screen will have detailed references to the exhibit numbers,

6 page numbers of the transcript, and most pertinently, to paragraph numbers

7 of intervening Appeals Chamber judgements and Trial Chamber judgements

8 decided over the last three years.

9 As the Appeals Chamber is well aware, there has been significant

10 development in the jurisprudence relating to the level of specificity

11 required in pleadings. The concept of joint criminal enterprise has

12 virtually been developed since 2001, when I do not believe there had ever

13 been references by that name to that concept of liability. I am sure I do

14 not need to remind the Appeals Chamber of the enormous girth of this case.

15 According to one representative of the Tribunal, this was the longest war

16 crimes trial ever tried, at least before the Milosevic case, which is just

17 about half over, as I understand it.

18 There were over 241 witnesses who testified, because many

19 testified by transcripts from other cases. There were 4.665 exhibits in

20 this case, many of which popped up, as the Appeals Chamber knows, in the

21 middle of trial, towards the end of trial, and right at the end of the

22 trial. Indeed, the appeals process has been protracted for three years

23 largely because of -- it's difficult to find an appropriate adjective, but

24 let's just say a protracted period of continual disclosures under a rule

25 which features very centrally in this case, Rule 68. In fact, last

Page 187

1 Thursday we received two more disclosures, one relating to ABiH plans to

2 attack the Croats in the Lasva Valley, the other one relating to

3 detentions and a report from Zlatko Aleksovski to his commander, Colonel

4 Blaskic, on the conditions in the detention facilities.

5 That wasn't the last disclosure. We received another one on

6 Friday, the 14th of May. This was a detailed synopsis of proceedings in

7 the district military courts prepared by the district military prosecutor

8 of the HVO, Zeljko Percinlic.

9 The organisation of the argument I have set out on the slide

10 that's before the trial. I will take care of the fair trial issues.

11 Dario Kordic contends that he did not receive equality of arms. There

12 were numerous Rule 68 violations. Indeed, violations more serious than in

13 any case tried before this Tribunal, and in fact more serious than in any

14 national jurisdiction of which I am aware. These violations go to the

15 root of a fair trial in this Tribunal.

16 I will then proceed to look at the unacceptably vague indictment

17 in this case, an indictment which I must say presented the apparently

18 irresistible opportunity to the Prosecution to mount a moving target case

19 against Mr. Kordic. We had no idea from month-to-month what theory of

20 liability was being pursued against Mr. Kordic, and it changed, and it

21 changed radically right at the end of the case from a national case over

22 31 municipalities over a huge period of time, to one single meeting on one

23 afternoon on one day. Nowhere alleged in the amended indictment.

24 I will then deal with the central witness in this case, Witness

25 AT, who talked about that meeting. And the two paragraphs which are

Page 188

1 absolutely central to the Trial Chamber's findings are paragraphs 630 and

2 631 of the trial judgement. We'll be paying considerable attention to

3 those.

4 In addition, we are aware of no case before this Tribunal, none

5 whatsoever, where a conviction has been based upon purely uncorroborated

6 hearsay from a single witness, especially a witness such as this, a

7 convicted murderer, a self-confessed liar, and a man who attempted to

8 perpetrate a fraud on this Tribunal, on his own Trial Chamber, on the

9 Appeals Chamber and, we would argue, on the Kordic Trial Chamber too.

10 I will then proceed to authentication and Exhibit Z610.1 in

11 particular, the book of observations of an unidentified duty officer

12 prepared at a time unknown by persons unknown and for which there was no

13 authentication. The three witnesses who addressed it testified variously,

14 one, that there were anomalies that could not being explained; two, that

15 components of this document had been faked and fabricated; and three, that

16 the document did not appear to be a military document in the normal

17 format.

18 I will then proceed, if I have time, to deal with the Rule 98 bis

19 issues and also armed conflict and international armed conflict.

20 The Appeals Chamber asked us to address count-by-count the

21 findings of the Trial Chamber. The Appeals Chamber cannot be unaware that

22 that's almost impossible to do because each doubt has numerous individual

23 locations. So the way we've tried to do it is to break down the elements

24 of the crime and proceed meticulously, location by location, to analyse

25 whether the elements of the crime as to each location have been made out.

Page 189

1 Mr. Smith will also address the law of persecution which, as the

2 Trial Chamber noted, was the broadest count in this indictment. I would

3 say to call it the broadest count in this indictment would be an

4 understatement of great dimensions.

5 Mr. Naumovski will then proceed to examine the same sorts of

6 things with respect to village-specific locations. I've actually got the

7 order reversed on this slide here; he's going to deal with the Kiseljak

8 area first. Again, convictions there based apparently upon the

9 uncorroborated testimony of a single witness, Witness Y, and establishing

10 what? That Mr. Kordic was present at a particular place at a particular

11 time. Not that he was doing anything, because the witness didn't hear

12 Mr. Kordic say anything, didn't see him do anything; mere presence. And

13 in light of the jurisprudence from this Tribunal within the last month in

14 the Krstic case, the Potocari incidents specifically addressed in

15 paragraph 98 and 149 and 248 of that opinion, that's a finding which has

16 particular pertinence.

17 And I will conclude with the sentencing appeal.

18 Turning first to the general standards of appellate review. I had

19 intended to spend some time on that, but I'm happy to say that our efforts

20 in that regard were fruitfully truncated. The Kunarac appeals judgement

21 provides the governing standards of review, so I won't go into those

22 particularly. We acknowledge that as to errors of law, it's our burden to

23 prove that the error of law affected the outcome. We will look at

24 substantive errors of law and procedural errors that were committed by the

25 Trial Chamber.

Page 190

1 As to errors of fact, again we concede not every error of fact

2 results in an acquittal or a reversal. We have to show that the error of

3 fact has resulted in a miscarriage of justice. What is that? A

4 miscarriage of justice occurs when there has been a grossly unfair outcome

5 such as, for example, when a defendant is convicted of offences in the

6 absence of factual findings, which we know has occurred here, despite a

7 lack of evidence on essential elements of the crime, which we will go into

8 in detail.

9 The key concept in any case like this is a very simple concept in

10 essence: It's linkage. In the Delalic appeals judgement, the Appeals

11 Chamber emphasised that it is the Prosecution's burden to prove the link

12 of control and great care must be taken lest an injustice be done in

13 holding someone accountable where the link of control is absent or too

14 remote. Nor is this any mystery in this case, because in the closing

15 argument held on the 14th of December, 2000, this precise point was made

16 to the Prosecution by the Presiding Judge and conceded by the Prosecution.

17 That is the issue in this case, as the Presiding Judge said, the link of

18 control, linkage with crimes and the establishment of the necessary mens

19 rea for the imposition of criminal culpability for those crimes.

20 As the Prosecution itself has acknowledged in its brief, linkage

21 is what counts in this case, and Kordic's position is that no linkage was

22 established.

23 I might just say that the Galic trial judgement issued in December

24 of last year made the point that there are only two cases which have

25 examined the concept of an attack on civilians; Blaskic and Kordic. Now,

Page 191

1 it's true that Galic probably is the third case, but there is no

2 jurisprudence from this Chamber on the law relating to attacks on

3 civilians, although there is some evidence that the Kunarac -- from the

4 Kunarac Appeals Chamber that emphasises that in order to establish an

5 attack on civilians, the civilian population must be the primary, not

6 merely an incidental, target of the attack.

7 Just a word on burden of proof. I'm sure I don't need to spend a

8 lot of time on this. It's pretty obvious. The Prosecution bears the

9 burden of proof at all times, arguably even on appeal, of proving guilt

10 beyond a reasonable doubt, but more importantly, as to each element of

11 each offence. Failure to prove it with respect to any element of an

12 offence results in an acquittal. Furthermore, it bears emphasis that even

13 the gravest of suspicion, as was the case in the Simic contempt judgement

14 where Mr. Avramovic was found not guilty of contempt of this Tribunal, but

15 even the gravest suspicion cannot prove guilt beyond a reasonable doubt.

16 Circumstantial evidence, the centre of the conviction against

17 Mr. Kordic, paragraph 13 of the judgement in this case described variously

18 by the Prosecution as subtle, difficult, and complex. A great deal of

19 evidence which goes one way goes the other, says the Prosecution in the

20 opening statement. How important, then, is it to make sure that the

21 Prosecution discharges in a subtle, difficult, and complex case its

22 fundamental duty of disclosing in a timely fashion exculpatory evidence,

23 or to use the apt phraseology of the Rule, as soon as practicable.

24 Because it's the Prosecution that has to prove the case, not the other way

25 around, as the Presiding Judge reminded the Prosecution at TR28306. In

Page 192

1 fact, during the closing argument the Presiding Judge made the point to

2 the Prosecution that much of your case hangs on inferences, and that's

3 exactly where we are.

4 The law of inferences we've summarised on this slide. For an

5 inference to be reached it must be the only inference that can reasonably

6 be reached on the evidence. If there's another conclusion available on

7 that evidence, then it is the duty of the Trial Chamber to acquit. The

8 Trial Chamber, of course, cannot draw the inference least favourable to

9 the accused. It is Mr. Kordic's position that that happened time and

10 again in this case, and we would submit that it is apparent from looking

11 at the judgement.

12 Thirdly, and equally significantly, the Vasiljevic Appeals

13 judgement issued this year, just two months ago, made the point with

14 respect to mens rea that where mens rea is based upon inferences, special

15 attention must be paid to the acts of the accused because if the acts of

16 the accused are ambiguous, then he cannot be convicted. Here it's

17 difficult to say what the basis of the conviction was because no acts of

18 Mr. Kordic were really specified in the central paragraphs, paragraph 630

19 and 631, of the judgement. All we know is, from Witness AT, that Mr.

20 Kordic was supposedly present at a particular place at a particular time.

21 We have no idea what was said. In fact, we have no idea who said what

22 because no one was present at the central meeting. There's no proof of

23 that whatsoever and, therefore, nothing which would allow an inference one

24 way or the other as to what Mr. Kordic would have said if he had been

25 there.

Page 193

1 THE INTERPRETER: Would counsel please slow down a little. Could

2 the counsel be asked to slow down.

3 JUDGE SCHOMBURG: Please slow down a bit. Thank you.

4 MR. SAYERS: The law of inferences was canvassed on the 14th of

5 December, 2000, and concessions were made by the Prosecution that the law

6 is as I have just outlined it. And I have highlighted the transcript

7 reference on this slide 28303 to 304.

8 Turning to our first specific ground of appeal, ground of appeal

9 1-D, we were asked in the pre-appeal stage to address timely access.

10 Mr. Kordic takes the position that even if equality of arms means only

11 equal access to procedural relief, if that's all it means in this

12 Tribunal, and that is apparently what the law is, if that's the narrow

13 definition of what equality of arms does mean, then Mr. Kordic was denied

14 it. He made a motion for access to closed-session materials in the

15 related Lasva Valley cases before trial; denied. During trial twice;

16 denied. Oh, and why? Because the Prosecution had represented to the

17 Trial Chamber not once but twice that all exculpatory evidence had been

18 produced, and it had not been, as the Appeals Chamber is well aware. The

19 exculpatory evidence of General Blaskic was that Mr. Kordic was nowhere to

20 be seen in the HVO chain of command. Nowhere. He was a civilian.

21 General Blaskic was not subordinated to Mr. Kordic in any sense

22 whatsoever. None of that was produced to Mr. Kordic while,

23 simultaneously, the Prosecution was seeking the imposition of a life

24 sentence against Mr. Kordic under a theory of command responsibility

25 pursuant to Article 7(3) of this Tribunal's Statute.

Page 194

1 Now, equality of arms is a very important concept. What's it

2 designed to do? It is designed to make sure that parties are free to

3 present their case under conditions that do not put them at a disadvantage

4 vis-a-vis the other party.

5 In the Hadzihasanovic case, the Trial Chamber emphasised that the

6 Defence is always entitled to seek material facts from any source to

7 assist it in its case, which is what Mr. Kordic did, but as I've said,

8 those efforts were -- those efforts were unsuccessful.

9 Now, how is this depicted by the Prosecution? Well, we know this

10 is depicted as a genuinely troubling episode according to the consolidated

11 respondent's brief paragraph 2.22. There was nothing episodic about this

12 non-disclosure or belated disclosure. It continued throughout the case,

13 and before the case, actually. Take a look, for example, at Witness AT.

14 When did this witness testify? One week before the close of all of the

15 evidence. Exhibit Z610.1. When did this exhibit come into evidence?

16 December 1, 2000, one week before the close of all of the evidence.

17 Under Article 21(4)(a) and (b), fair trial guarantees demand that

18 an accused have fair notice of the charges against him so that he has

19 adequate time and facilities for the preparation of his defence.

20 Associated issues are Rule 68, the right to timely access to exculpatory

21 material at a time when the accused still enjoys the presumption of

22 innocence, when the burden of proof is affirmatively upon the Prosecution

23 to prove guilt beyond reasonable doubt as to each element of each offence,

24 and when the accused still enjoys the benefit of all inferences in his

25 favour.

Page 195

1 Before trial, an order was entered compelling the Prosecution to

2 turn over exculpatory material and witness statements. And why? Well, we

3 know: Proper protection of the rights of the accused is overriding. And

4 that order was particularly appropriate because, as we've stated on the

5 slide before this Appeals Chamber, the Prosecution had plenty of time to

6 get it right. Five years of investigations before this trial began, as

7 Mr. Goldstone told Judge McDonald in 1995, full support of the Muslim

8 authorities of the Federation, as the representative of the Muslim

9 authorities of the Federation assured the Trial Chamber again in 1995.

10 Four entire trials: Furundzija, Aleksovski, Kupreskic, Blaskic. Hundreds

11 of witnesses, thousands of exhibits. There is no excuse for the frenzy

12 that occurred at the first few months of this case, with continual

13 disclosures of literally tens of thousands of pages of documents upon

14 Kordic. When he should be preparing to get the trial under way, he was

15 still discovering what the Prosecution's case assertedly was.

16 Why is timely disclosure important? The order entered on Rules 68

17 and 66 on 26 February 1999 made this point, and it made it cogently, in

18 our view. It permits the Defence to get a clear and cohesive view of the

19 Prosecution's strategy and to make appropriate preparations. We never had

20 that opportunity.

21 Despite having plenty I have time to get it right, as we said, the

22 Prosecution moved for extensions of time right before the trial, and

23 those motions were granted. We received, I believe, some 361 witness

24 statements, plus associated documentation, not simply a month before

25 trial, but a month into the trial. The Kupreskic appeals judgement made

Page 196

1 appropriate observations with respect to the fairness of such a procedure.

2 I believe the witness statements regarding Witness H, the central

3 witness in that case, indeed the linchpin of the evidence in that case,

4 were delivered to the Defence one month before the trial began.

5 When were the statements of Witness AT delivered to Mr. Kordic?

6 September and early October 2000, one and a half years after the trial had

7 started.

8 The moving target presented to us raises questions of fairness.

9 As the appeals -- as the Presiding Judge stated, the Trial Chamber ought

10 to know the case it has to decide by the end of the Prosecution case, a

11 relatively elementary point, it might be thought. Well, if it was

12 reasonable for the Trial Chamber to know the case it had to decide before

13 this -- before the Prosecution rested its case, surely it was not

14 unreasonable for the Defence to know the case it had to meet before the

15 end of the Prosecution's case. And for our other arguments on this point,

16 we rely upon our brief.

17 Let me turn now to Rule 68. There are three versions of Rule 68

18 that have applied throughout the protracted history of this case. The

19 differences in the Rule make no difference in this case, because the

20 overriding obligation is still the same. The Prosecution must disclose,

21 as soon as practicable, exculpatory evidence. This is not a difficult

22 rule to understand.

23 As I stated in my opening comments, the non-disclosures here are

24 the worst example of non-disclosures in any reported case in this

25 Tribunal, far worse than in Krstic, just a month ago, worse than in any

Page 197

1 other case in my national jurisdiction of which I am aware, even worse

2 than the egregious non-disclosures involved in the case decided by the

3 United States Supreme Court two months ago, Banks.

4 Now, what are the sources of the obligations of disclosure here?

5 It's not simply Rule 68. There were two separate orders entered by two

6 separate Trial Chambers, this one and the Blaskic Trial Chamber, before

7 the trial began, ordering disclosure of any exculpatory evidence to

8 Kordic from the closed-session materials in the Blaskic case and

9 otherwise.

10 Exculpatory evidence must be disclosed, if it's available, before

11 trial. Here it was available. It should have been produced as soon as

12 practicable.

13 What's the importance of Rule 68? The Tadic appeals judgement

14 made by the point that the right to a fair trial is central to the rule of

15 law. It upholds due process of law. Indeed, the Prosecution has

16 recognised that disclosure obligations must be fulfilled by its office

17 and that that is essential for a fair trial. Ironically, this was in a

18 pleading that was filed two months before the Prosecution's consolidated

19 respondent's brief in this case, contending that it hadn't violated Rule

20 68 in any way.

21 Furthermore, three years ago, the point was made - and it was

22 reiterated two months ago in the Blaskic Appeals Chamber - that the

23 obligation to disclose is not a secondary one, to be accomplished after

24 everything else has been done. It is as important as the obligation to

25 prosecute. But apparently in this case, that is not the case to the

Page 198

1 Prosecution. The obligation here, in the Prosecution's view, is a

2 secondary one, and it's only to be complied with after everything else has

3 been done, after a conviction has been obtained, partially, I might add,

4 through the suppression of critical exculpatory evidence, and discharged

5 only after the accused has found out about the non-disclosure as a result

6 of his own motions practice, fortuitously stumbling across references to

7 the concealed material in the Prosecution's other confidential submissions

8 in other cases.

9 The importance of the Prosecution's obligations under Rule 68 can

10 scarcely be overemphasised. The principle of a fair trial cannot be

11 frustrated by the Prosecution's inability to disclose exculpatory

12 evidence. That is an observation made when the Prosecution was saying,

13 "We have so much material, it's very difficult to sift through it all,

14 please allow us a little latitude in disclosing this because of the

15 magnitude of the materials we have to go through." But not in this case.

16 Because as the Appeals Chamber knows from submissions made in this case,

17 this wasn't a mistake. We had originally thought that this non-disclosure

18 was a mistake, that the matter just got lost in the shuffle, as it were,

19 that it was the product of overwork, perhaps inadvertence, perhaps

20 negligence. But it wasn't. It was deliberate. The Prosecution's Blaskic

21 trial team prepared summaries of the extensive testimony of General

22 Blaskic. They gave them to the Prosecution's trial team in this case.

23 They were looked at, scrutinised, analysed, and the decision was made

24 consciously and deliberately to withhold that material from Kordic. Now,

25 the question is: Is this acceptable conduct before this Tribunal?

Page 199

1 Actually even asking the question, how could it be?

2 Speaking for myself, in my national jurisdiction, in the lowliest

3 court, the general district court of Fairfax County, in a misdemeanour

4 Prosecution, if exculpatory evidence of this magnitude had been withheld,

5 the prosecutor responsible for it would be subject to the severest of

6 disciplinary sanctions and would probably be disbarred.

7 The scope of the disclosure obligations imposed upon the

8 Prosecution are not mysterious. Rule 68 includes all information in any

9 form that falls within the description of Rule 68, according to the 11th

10 of May, 2001, decision in this case.

11 Material that is exculpatory will of course always be material for

12 the preparation of the Defence, as the Delalic Trial Chamber observed.

13 Rule 68 is a rule that must be interpreted broadly, not narrowly. It one

14 of the most onerous responsibilities of the Prosecution.

15 And why? Because guilt by association is not a concept that is

16 acceptable in this Tribunal or indeed in any tribunal. The Prosecution

17 itself recognises this, and as I've said, the Prosecution in this case

18 sought a life sentence under Article 7(3) based upon the proposition that

19 Mr. Kordic was somehow a military commander. This information was

20 absolutely refuted by General Blaskic but that refutation was deliberately

21 suppressed. General Blaskic's testimony was at all times available to the

22 Prosecution. The closed-session testimony was at all times available to

23 the Prosecution. The closed-session testimony was not available to Kordic

24 until it was ultimately produced, and I will go into the chronology of

25 that in just a minute.

Page 200

1 How did we find out about it? Well, we asked for access to

2 confidential appellate submissions in other cases, and lo and behold, we

3 find two things: One, in Kupreskic, in a confidential basis, the

4 Prosecution says about Witness AT, "Well, he couldn't have been -- could

5 not conceivably have been aware of the nature and content of the political

6 leadership meeting held in the office of Blaskic on the 15th of April."

7 So that's the Prosecution's submission in the Kupreskic case. Witness AT

8 didn't have a clue about what the nature and content of the political

9 leadership meeting on the 15th of April, 1993 was.

10 And secondly, we find out in the Blaskic case, where apparently

11 General Blaskic's new defence on appeal is that Kordic was exercising

12 covert military power unknown to the military commander of the entire

13 Operative Zone, we find that the Prosecution relies upon the general's own

14 testimony that Kordic exercised no military power at all.

15 Blaskic refutes the proposition that Kordic exercised any military

16 control, according to the Prosecution's confidential submissions. Citing

17 closed-session testimony that Kordic personally was not in the chain of

18 command. He did not function within the chain of command between the

19 military police and the battalion. He was associated only with the

20 civilian authorities.

21 Nonetheless, in its sentencing appeal, the Prosecution urges the

22 Appeals Chamber to increase the sentence upon Mr. Kordic because, it is

23 said, the Trial Chamber failed to take proper account of the powers,

24 positions and responsibilities of Mr. Kordic.

25 The Prosecution has taken inconsistent positions in the various

Page 201

1 appeals. For example, with respect to Novi Travnik, General Blaskic was

2 not convicted for the events that occurred in Novi Travnik in October

3 1992. Kordic was. Let's consider the non-disclosed testimony of General

4 Blaskic with respect to those events. As I've said, Kordic was not in the

5 chain of command. You can see that on the screen. As to the Novi Travnik

6 fighting, the general stressed that, "I personally was leading the

7 operations and conducting them while I was there. When I state that I am

8 leading military operations, I am saying that I am commanding the military

9 operations. When I was there, Kordic did not lead any military

10 operations."

11 Now, was any of this ever disclosed to Kordic by the Prosecution?

12 No. Indeed, the Prosecution called witness after witness, most notably

13 Lieutenant Colonel Stewart, to try to establish that Kordic did exercise

14 military power in that location. But look at what the military commander

15 of the entire region says; he did not. We did not have that.

16 The statements of the local or regional political representatives

17 were not, according to General Blaskic, "binding on me. Kordic was not

18 within the framework of my command --"

19 THE INTERPRETER: Kindly slow down. Thank you.

20 MR. SAYERS: Indeed, in response to a pointed question from the

21 Presiding Judge in the Blaskic Appeals Chamber, here's what the general

22 had to say about his position vis-a-vis Kordic: "I was not subordinated

23 to him at all. His statements and views were never binding on me and I

24 never received them as such." Never disclosed.

25 Banks v. Dretke. I won't spend very much time on this, this is

Page 202












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Page 203

1 just a case from a national jurisdiction. We expressly recognise that.

2 What was suppressed there? In that case, the accused had already been

3 convicted of murder. That conviction was not at issue in Banks versus

4 Dretke. What was at issue was the death sentence imposed upon Banks in

5 the sentencing hearing, and it was at that hearing that the Prosecution

6 withheld from Banks the fact that its principal sentencing witness, Robert

7 Farr, was actually a paid informant, an issue that went directly centrally

8 to the credibility of the Prosecution's principal witness. Withheld. And

9 what did the Supreme Court say? "The suppression by the Prosecution of

10 evidence favourable to an accused upon request violates due process where

11 the evidence is material either to guilt or punishment ..."

12 "The Prosecution's deliberate deception of a court and jurors by

13 the presentation of known false evidence is incompatible with rudimentary

14 demands of justice."

15 And I emphasise "rudimentary."

16 "As soon as practicable"; what does that mean? Is it hard to

17 understand? No. It's the raison d'etre behind Rule 68. Two points in

18 this regard need to be made. First, the raison d'etre behind the

19 disclosure rules is to permit the accused to make effective use of

20 exculpatory material. Effective use at trial so that it can be used in

21 cross-examination of Prosecution witnesses. This means disclosure as soon

22 as practicably possible so that the Defence can use this material in

23 cross-examination of witnesses whom the Prosecution intends to call.

24 Again, I emphasise "at trial."

25 I've said that the decision not to disclose here was deliberate.

Page 204

1 What's the proof of that, the Appeals Chamber may ask. Just take a look

2 at confidential annex 10 to the -- this says 8th of May, it's actually 8th

3 of March, 2004 Prosecution response. The Prosecution knew what the

4 general had said in closed session, knew exactly what he'd said, and it

5 decided to suppress it.

6 Now, here's what the Krstic appeals judgement had to say just a

7 month ago: "The disclosure of exculpatory material is fundamental to the

8 fairness of proceedings before the Tribunal. Considerations of fairness

9 are the overriding factor in any determination of whether the governing

10 Rule has been breached." And you can see for yourselves, paragraphs 180

11 and 211: "Grand declarations of general principles, underscoring the need

12 to enforce this Rule as a central component of the right to a fair trial."

13 So the question before this Appeals Chamber is a pretty serious

14 question today. Are these just words or do they mean something? Are the

15 legal principles that the Appeals Chamber has articulated very -- in a

16 timely fashion and in a very affirmative way in Krstic, are they to be

17 enforced? Because if they are to be enforced, they must be enforced in

18 this case. It is unacceptable in any system of civilised justice for the

19 Prosecution to -- to suppress evidence and then to tell the Trial Chamber

20 that it actually has not been suppressed.

21 In this case, there were two express representations made. One

22 was on the 20th of July -- sorry, the 20th of January, 1993, and one was

23 on the 3rd of August -- I said 1993. The 20th of January, 2000, I'm

24 sorry, and the 3rd of August, 2000. That's what really makes the

25 violation in this case egregious, we would submit to the Appeals Chamber.

Page 205

1 We were seeking the admission of access to the closed-session testimony of

2 other witnesses in the related Lasva Valley cases, Blaskic being one of

3 them.

4 On the 20th of January, just two days after Lieutenant Colonel

5 Stewart had finished his testimony about Novi Travnik, the Prosecution

6 said, "Don't grant this motion, we've disclosed everything. My word on

7 that should be good enough, and if it isn't, I should like to know why."

8 That's exactly what the Prosecution told the Trial Chamber and the Trial

9 Chamber agreed. It denied our motion.

10 The same thing happened on the 3rd of August, 2000, after the

11 Witness AO debacle, after it turned out following Witness AO's testimony

12 that critical exculpatory material had been in existence. The Prosecution

13 knew about it. It had been in its files for years. That material was

14 only delivered after the witness had already testified and left The

15 Hague. As a result of that, we asked for a Krnojelac certification that

16 in fact the Prosecution had complied with all of its obligations under

17 Rule 68. The Trial Chamber was told once again: We've done that. We've

18 disclosed everything. If my word on that isn't good enough, I should like

19 to know why.

20 Again, by that time, the decision not to disclose had been made.

21 As a result, our motions for access were denied at trial. That's an

22 unacceptable situation, we would submit to the Appeals Chamber.

23 Let me turn to the defective indictment in this case. A bad,

24 overly broad indictment leads to a confused, jumbled judgement. It allows

25 the Prosecution to mount a moving target case that is very difficult to

Page 206

1 follow. Comment was made at the last Status Conference that it's a really

2 difficult issue to find your path through this judgement of the 26th of

3 February, 2001.

4 The obligation to draft a precise, detailed indictment is one of

5 the minimum fair trial guarantees any accused enjoys in this Tribunal

6 under Article 21(4)(a). He has a right to be informed promptly, which

7 means before the trial begins, and in detail, in detail, of the nature and

8 cause of the charge against him. And why? So that he may have adequate

9 time and facilities for the preparation of his defence.

10 The indictment is the primary accusatory instrument in this

11 Tribunal, and it must, in detail, state the material facts underpinning

12 the charges against an accused, and that's stated in no uncertain terms

13 three years ago in the Kupreskic appeals judgement.

14 I emphasise once again: Here there were five years of

15 investigation before the trial began, four entire Lasva Valley trials.

16 There was a full opportunity to amend, if fresh evidence actually did

17 emerge at trial, to amend the indictment to provide the level of

18 specificity required by the law. The indictment, nonetheless, was not

19 amended. Kordic's motions to dismiss the amended indictment as unduly

20 vague were denied.

21 What was the nature and the cause of the charges against Kordic?

22 The Appeals Chamber should pay detailed and particular attention to the

23 case against Kordic as stated in this amended indictment. Paragraph 35:

24 A political, military campaign to persecute and terrorise Bosnian Muslims.

25 Where? Throughout the 31 municipalities of the Croatian Community of

Page 207

1 Herceg-Bosna and in the municipality of Zenica. What was Kordic's

2 asserted involvement? And we urge the Appeals Chamber to pay particular

3 attention to paragraphs 25 and 26 of the amended indictment.

4 Here's the involvement of Kordic, in the Prosecution's view,

5 before trial: He had various high-ranking positions. He was a definite

6 and integral and important figure in the whole campaign. He had power,

7 authority, and responsibility to direct, control, and shape its policies

8 and their execution; to prevent, limit, or punish crimes, violations or

9 abuses which occurred or were carried out in this putative campaign.

10 That's the case against Kordic.

11 What case did we have to meet? We know, because the Trial Chamber

12 encapsulated it perfectly in its 6 April 2000 decision. "The Prosecution

13 case relates to the participation of the accused, Dario Kordic, in the

14 highest levels of government, and the Defence should prepare its case

15 accordingly."

16 And that's precisely what we did, Your Honours. That's exactly

17 what we did. We called national politicians, to former Prime Ministers,

18 chiefs of the Main Staff of the HVO, numerous staff officers of the

19 Central Bosnia Operative Zone, including General Blaskic's second in

20 command, Major General Filipovic; his Chief of Staff, Brigadier Nakic; and

21 numerous other officers. We called various brigade commanders, not only

22 from the Central Bosnia Operative Zone but from other operative zones.

23 Now, given the case that was made out against Mr. Kordic, what did

24 the judgement conclude? He was not a commander. He was not a superior.

25 He had no position in the HVO chain of command. He had no power to order

Page 208

1 HVO military units. He had no power to prevent crimes. He lacked

2 effective control over HVO military forces. He had no power to punish.

3 He was not in the highest echelons of government. He was not an architect

4 of the campaign of persecution. He was not the prime mover in it. He was

5 a civilian. He was a regional political leader, but not the only one.

6 So what was he convicted of? Well, it wasn't based upon

7 participation at the highest levels of government. It wasn't based upon

8 the fact or the legal finding that he had the power, authority or

9 responsibility to direct, control, or shape the HVO or HZ HB policies, or

10 the execution of those policies, as charged. Instead, he was convicted of

11 offences and participation in events that were not charged anywhere in the

12 amended indictment. You can search high and low, and you won't see a

13 reference to the meeting of the 15th of April, 1993, which is the linchpin

14 of the conviction, paragraphs 630 and 631. These events are not charged

15 anywhere in the amended indictment let alone in detail as required.

16 Kordic repeatedly objected to the moving target case that the

17 Prosecution was mounting against him at trial. 20th of July; 3rd of

18 August; 25th of September; 12th of October, 2000. We've summarised some

19 of those on this. This is not an argument that was not -- that was

20 crafted specifically for the appeal. This was an objection that was made

21 contemporaneously at trial and on numerous occasions. In fact, the best

22 depiction of what this case was, was from one of the members of the Trial

23 Chamber who described this as a case of juridical impressionism, a very

24 eloquent and accurate visual image, as the Judge was making the point to

25 the Prosecution that the case cannot be constructed as we go along, but it

Page 209

1 was. That's exactly what it was.

2 Couple of the -- a couple of examples. The Convoy of Joy. There

3 are ten paragraphs of the judgement devoted to this particular incident in

4 June of 1993, months after the principal events that are at issue in the

5 judgement. No mention of it anywhere in the amended indictment, but the

6 best example is the murder case that was mounted, the case within a case,

7 against Mr. Kordic, the alleged murder of Mirsad Delija on the 25th of

8 January, 1993. According to the judgement, the Prosecution case was that

9 Kordic was somehow implicated in this murder but found that his alleged

10 involvement had not been made out. Alleged where? Not in the amended

11 indictment.

12 The law on this area is relatively simple. It's clear and it

13 should be. It comes from the Kupreskic appeals judgement which found that

14 there was a defective indictment in that case. And why? For the same

15 reasons as in this case. There was an additional detail in Kupreskic

16 which is particularly pertinent to this case. The Appeals Chamber

17 commented that it might have some reluctance to acquit an accused who had

18 been convicted simply because of a defective indictment, but it was

19 fortified in its conclusion that that should, nonetheless, be the result

20 in the case because the linchpin of the conviction in that case was the

21 testimony of a single witness, uncorroborated, Witness H, just like in

22 this case.

23 However, Witness H was not a convict. Witness H was a victim,

24 completely candid, a young lady with no criminal record, who did not

25 relate hearsay but related percipient first-hand testimony, visual

Page 210

1 identification testimony found not to be of sufficient basis by the

2 Appeals Chamber to found a criminal conviction. The parallels between

3 Kupreskic and this case are fairly striking.

4 What are the legal tests? To evaluate an indictment, you must see

5 whether it sets out the material facts, sets out the material facts of the

6 Prosecution case with enough detail to inform a defendant clearly of the

7 charges against him so that he can prepare his defence.

8 Let's go back to the decision on the 98 bis motion from the Trial

9 Chamber. What was the case according to the Trial Chamber? Participation

10 at the highest levels of government. "Prepare your case accordingly,

11 Mr. Kordic." That's what we did.

12 Pleading in detail is a must. If you know the identity of the

13 victim, the time and place of events, you've got to allege it. Here this

14 was the fifth Lasva Valley case. There were no identifications of

15 specific events, no identification of any asserted victims by name,

16 nothing.

17 More importantly, it's essential, as the Rasevic decision just a

18 few days ago emphasised, that it's essential for the accused to know from

19 the indictment just what his proximity to the events at issue is. He's

20 got to know if he's alleged to have committed crimes, what crimes, when,

21 and how. Again it might be thought that that is a relatively elementary

22 proposition, and we submit that it should be elementary. That's exactly

23 what an indictment is supposed to do. It's supposed to tell you, "You

24 committed a crime. Here's when, here's how, and here's who the crime was

25 committed against." And this indictment just doesn't do it.

Page 211

1 The only exception to that general rule of pleading is, and we

2 fully recognise it, that where the sheer scale of the alleged crimes makes

3 it impracticable to require a higher level of detail, then that level of

4 detail does not have to be given, but here it was hardly impracticable

5 after, as I have said, four full trials.

6 The Prosecution did change its case in mid-trial from a case of

7 participation of the accused at the highest levels of government, over 31

8 municipalities and Zenica, over three years to two hours in one afternoon

9 on one day in General Blaskic's office. What happened there? Who knows.

10 There wasn't any evidence of that. Who said what? Who knows. The Trial

11 Chamber didn't know. This Appeals Chamber don't know. No one knows. Who

12 saw Kordic actually in the meeting? No one who testified directly. All

13 we've got is hearsay testimony from Witness AT.

14 These were the material facts: That there was a meeting held in

15 the office of General Blaskic on the 15th of April, 1993, at which

16 planning, instigation, and ordering of crimes occurred. Those were the

17 material facts. Where were they alleged? Nowhere in this amended

18 indictment, but they were alleged in a corrected amended indictment filed

19 in the Ljubicic case. Paragraph 23 of that case alleges specifically the

20 meeting on the 15th of April, 1993, presumably now based upon the

21 testimony of Witness AT.

22 Now, the Prosecution is expected to know its case before it goes

23 to trial. This is an elementary principle outlined in the Kupreskic

24 appeals judgement. "If it doesn't plead material facts with enough

25 specificity, doubt must arise as to whether it is fair to the accused for

Page 212

1 the trial to proceed. It is not acceptable for the Prosecution to omit

2 the material aspects of its main allegations with the aim of moulding the

3 case against the accused in the course of the trial depending on how the

4 evidence unfolds." That's exactly what Kupreskic said, but what happened

5 here? It did -- the Prosecution did precisely what Kupreskic teaches is

6 not permissible. It omitted the material facts with the aim of moulding

7 the case against Kordic depending on how the evidence unfolded, and that's

8 what happened.

9 The allegations in Kupreskic, just as in this case, were broad and

10 imprecise, but actually, if you take a look at Kupreskic, the allegations

11 were even more specific than in this case. Specific dates were mentioned

12 in the amended indictment in that case. Specific allegations about the

13 accused's asserted involvement in paragraph 9 of the indictment in that

14 case. Much more specific than in our amended indictment in this case,

15 Your Honours.

16 The identities of the victims were known in Kupreskic. They were

17 nowhere alleged in this case. In fact, the case against Zoran and Mirjan

18 Kupreskic "was dramatically transformed from alleging integral involvement

19 in the preparation to alleging mere presence when the crimes occurred."

20 And that's exactly the kind of transformation that occurred here. The

21 amended indictment in no way particularised what form the alleged

22 participation took, nor does it in Kordic's case.

23 Similarly, and I will defer to Mr. Smith on this, the persecution

24 charges are framed in the amended indictment in the broadest conceivable

25 way. They are umbrella charges, but the Kupreskic -- in fact, the

Page 213

1 persecution charge was defined in the judgement in paragraph 28 to be the

2 broadest count in the amended indictment.

3 The Prosecution must particularise the material facts relating to

4 persecution. If it does not, then the -- then the indictment is

5 defective. Persecution cannot -- cannot because of its nebulous character

6 be used as a catch-all charge. Pursuant to elementary principles of

7 criminal pleading, it is not sufficient for an indictment to charge a

8 crime in generic terms. An indictment must delve into particulars. And

9 that's what we have here, a defective indictment.

10 Examples of defective indictments, more specific, ironically, than

11 in our case. The Kunarac case, for example, there was a rape of one

12 witness, FWS-50, that was nowhere alleged in the amended indictment. The

13 evidence relating to this was disregarded by the Trial Chamber. The same

14 thing in Naletelic. Evidence regarding the destruction of the mosques in

15 Doljani and Mostar disregarded because they were not alleged anywhere in

16 the indictment, unlike the destruction of a mosque in Sovici. So the

17 Prosecution knew how to plead the destruction but it failed to do so with

18 respect to Doljani and Mostar so those incidents were disregarded.

19 Similarly, we've outlined a portion of the Kupreskic oral argument

20 where the Prosecution said you need to put a list of the individuals you

21 have killed. That's a natural consequence of the crime that you are

22 pleading. Didn't occur in this case.

23 Now, what is a material fact? We are perfectly prepared to be

24 governed by the Prosecution's view of what is a material fact on this

25 issue. A material fact is a fact upon which the verdict is critically

Page 214

1 dependent. That's according to one of the Prosecution's pleadings in the

2 Blaskic appeal in 2002, and we absolutely agree with it. In the

3 respondent's brief in Blaskic, the Prosecution said that the indictment

4 must set out the particular acts of the accused himself or the particular

5 course of conduct on his part which were alleged to constitute that

6 responsibility. They must be clearly identified. We agree. Take a look

7 at the amended indictment and reach your own judgement upon whether it

8 satisfies those criteria. We would submit it does not.

9 For example, examples of adequate indictments: Hadzihasanovic.

10 The specific dates of massacres by the ABiH and the names of the victims.

11 We've put a reference to an exhibit here, Exhibit Z1190. It's an ironic

12 exhibit in some ways because it is actually an indictment prepared by the

13 ABiH authorities against Mr. Kordic and about 29 other Bosnian Croats.

14 And if you actually take a look at that, prepared as it was under

15 difficult circumstances of wartime, it's pretty specific. It's got the

16 names of witnesses, it's got particular incidents, it's got particular

17 assertions of what Mr. Kordic supposedly did; participated in a planning

18 meeting sometime in mid-April 1993, according to that indictment. It's

19 far more specific than the indictment in this case.

20 Blagojevic: Detailed dates of times and meetings. But most

21 importantly, in Krstic, look at this: Specifically in the indictment it

22 was alleged that there were three meetings, not just on particular days

23 but at particular hours. 2000 hours on 11 July 1995. Three hours later

24 on the same day, 10.00 in the morning on the next day.

25 The Ljubicic corrected amended indictment, we would submit to the

Page 215

1 Appeals Chamber, is a model of particularity. The material facts are

2 there pleaded in detail.

3 As required by Article 21(4)(a), the planning meeting in the Hotel

4 Vitez, specifically alleged. At least Ljubicic is on notice of the

5 material facts underpinning the charges against him. A privilege denied

6 to Mr. Kordic.

7 Judged by the governing legal tests erected by the Kupreskic

8 appeals judgement and by the other cases elaborating the Tribunal's

9 jurisprudence in this area, Kordic submits that the indictment in this

10 case, the amended indictment, is unacceptably vague. As a result, Kordic

11 was subjected to juridical impressionism, a case constructed as we go

12 along, to use the words of one of the Trial Judges, a moving target case,

13 to use Kordic's words at trial.

14 The Prosecution was permitted to mould its case depending on how

15 the evidence unfolded, and this was unfair. It's incompatible with the

16 fundamental guarantees assured to any accused by the Tribunal's Statute

17 that he has the right to a fair trial.

18 Let me turn now to Witness AT.

19 JUDGE SCHOMBURG: Do you think you can make it within the next

20 five minutes or -- because it would be not helpful for all of us if you

21 have to break your arguments on this issue.

22 MR. SAYERS: I appreciate that there is a tremendous amount of

23 information going before the Appeals Chamber, and I think that this would

24 probably be a better place, a more logical place to break, Your Honour.

25 JUDGE SCHOMBURG: Thank you. May I ask you one question

Page 216

1 beforehand. Is the intention of the Defence -- you have shown us a number

2 of slides -- to give to the Prosecution and to the Judges copies of the

3 slides shown during your submissions?

4 MR. SAYERS: We had hoped, Your Honour, that that would be the

5 position of the Appeals Chamber because of the tremendous amount of

6 information that comes before your eyes. We have prepared CDs with all of

7 this information on it and they're available to be distributed to the

8 members of the Appeals Chamber and the Prosecution, yes.

9 JUDGE SCHOMBURG: We will discuss it during the break. The trial

10 stays adjourned until 11.00 sharp.

11 --- Recess taken at 10.28 a.m.

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

13 JUDGE SCHOMBURG: Please be seated.

14 Mr. Sayers, before you continue, could you please be so kind and

15 provide the parties and the Bench with a copy of the US Supreme Court

16 decision Banks v. Dretke, because apparently it's not in the book of

17 authorities.

18 MR. SAYERS: Your Honour, Banks v. Dretke was attached as Exhibit

19 number 1 to the response filed by Mr. Kordic in February of this year

20 regarding the supplemental reply, regarding Rule 68. We would absolutely

21 be prepared to provide additional copies.

22 JUDGE SCHOMBURG: Let's have another look. We tried to find it in

23 the book of authorities. Thank you.

24 MR. SAYERS: Happy to do so.

25 Your Honours, let me turn to Witness AT, in some respects a

Page 217

1 central issue in Mr. Kordic's appeal. The importance of the evidence of

2 this witness cannot be underestimated. It was central to the planning,

3 instigating, and ordering convictions. The Prosecution has recognised the

4 importance of this testimony in its written submissions. Very important

5 evidence, extensively relied upon by the Trial Chamber, is how it was

6 described in the Kupreskic oral argument. The consolidated respondent's

7 brief filed in this case, the significance and consequence of Witness AT's

8 evidence cannot be disputed or underestimated.

9 And it's been recognised by the Appeals Chamber as well just a

10 month or two months ago in the Blaskic, 4th of March 2004 decision. The

11 Trial Chamber relied in the Kordic case on the testimony of Witness AT to

12 convict Kordic for the crimes in Ahmici.

13 Based upon the hearsay testimony of this witness -- as I've said,

14 a man convicted of murder, a man who admitted that he had lied to his own

15 Appeals Chamber and Trial Chamber, a man who tried to perpetrate a fraud

16 upon this Tribunal. Based upon the testimony of this witness, the Trial

17 Chamber reached these conclusions:

18 It was entitled to draw an inference that Mr. Kordic was involved

19 in the plan hatched at the meeting held on the 15th of April, 1993; that

20 Kordic was associated with orders for killings and detentions; he thus

21 would have approved of General Blaskic's orders to kill; and that these

22 orders would not have been given without political approval from the local

23 leadership.

24 We submit that these findings are clearly erroneous. The chain of

25 command within the HVO was completely uncontroverted at trial. We'll

Page 218

1 bring this up shortly. We've actually got the exhibits for the Trial

2 Chamber.

3 The chain of command was a conventional, vertical chain of

4 command. At its pinnacle was the supreme commander of the Croat Community

5 of Herceg-Bosna, Mate Boban. He was the supreme commander. He was the

6 president. I noticed in the introductory remarks by the Presiding Judge

7 today that the Appeals Chamber is of the view that Mr. Kordic was the

8 vice-president of the HZ HB. That in fact is not the case. He was the

9 vice-president of the Presidency of the HZ HB. It sounds like an

10 artificial distinction, but it really is not. The supreme commander of

11 the HZ HB -- of the HVO was the president of the HZ HB. The president of

12 the HZ HB also happened to be the president of the legislature, of which

13 Mr. Kordic was one of the two vice-presidents. But the supreme commander

14 had under him the Defence department headed by Bruno Stojic. Under the

15 Defence department was the Main Staff of the HVO, headed at various times

16 by Brigadiers Petkovic, Praljak, and Roso. Underneath the Main Staff were

17 the four operative zones, each headed by its own commander; in the CBOZ

18 case, General Blaskic; and under the operative zones, various commanders -

19 brigade commanders, military police, and so forth.

20 Did the chain of command operate in a vertical fashion? It did.

21 The local political leaders played no role in any of the cease-fire

22 negotiations. Here's an example in the cease-fire agreements that led to

23 the conclusion of the fighting in April of 1993. D83/1 is an order from

24 the supreme commander of the HVO, Mate Boban, to the HVO Main Staff in

25 Mostar. On the same day, having received that order, the Main Staff

Page 219

1 issues orders to each of the commanders of the operative zones. And

2 that's Exhibit D84/1. And on the same day, having received orders from

3 his direct military superior, Brigadier Petkovic, in the case of the

4 Central Bosnia Operative Zone, Colonel Blaskic at that time issued Exhibit

5 Z715 to all of his subordinate brigades, including the 4th Battalion of

6 military police, to cease-fire.

7 So there you have it. Chain of command operates in the expected

8 conventional vertical fashion, with no involvement of the local political

9 leaders. And it's not clear from the judgement why the Trial Chamber

10 concluded that local political leaders, or any input from local political

11 leaders in this vertical chain of command actually occurred.

12 Now, if I might request that we go into closed session for just --

13 or private session for just a minute.

14 JUDGE SCHOMBURG: Please, private session.

15 [Private session]

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12 [Open session]

13 JUDGE SCHOMBURG: Please continue.

14 MR. SAYERS: As I've stated, the Kunarac appeals judgement

15 emphasises the importance, central importance, of contemporaneous

16 objections. Contemporaneous objections to the testimony of this witness

17 were registered in writing and orally. Hearsay evidence is, of course,

18 admissible under the law of this Tribunal. But it must be reliable

19 evidence. The Trial Chamber is required to pay special attention to

20 indicia of reliability, and ordinarily, hearsay evidence is entitled to

21 less weight than direct testimony. Although admissible, it's rigorously

22 scrutinised.

23 In the sister Tribunal, the ICTR, it has been stated that such

24 testimony is to be assessed with caution. Akayesu appeals judgement.

25 Commentators have made the observation in the context of European Court of

Page 221

1 Human Rights jurisprudence that it would not be fair to convict an accused

2 based solely on hearsay evidence, especially where the accused did not

3 have the chance to confront and examine the witness.

4 Now, who was the witness in this case? The witness in this case

5 was actually Ljubicic and not Witness AT. And I've put the central

6 testimony on this slide here. "I did not see him with my own eyes." This

7 is as to Mr. Kordic. Didn't see him any time. "My knowledge comes from

8 Pasko Ljubicic." Who, of course, Witness AT, with his professional

9 background, at that time knew not to be available. Absolutely perfect

10 insulation for the witness, attempting to buy a discount from his

11 sentence, having fought in his corner 'til the last, having been

12 unsuccessful in foisting upon the Trial Chamber and the Appeals Chamber a

13 perjured alibi defence, comes up with a story that is uncheckable because

14 the declarant, Mr. Ljubicic, at that time, anyway, was not available. He

15 was a fugitive from justice.

16 What evidence was there of who said what at this central meeting?

17 I've said before, I'll say again, it deserves emphasis. There was no

18 evidence. No evidence from anyone who was there, but there was evidence

19 to controvert it. Two of the putative attendees, or at least one of the

20 putative attendees and one possible attendee specifically controverted the

21 testimony of Witness AT at trial. One was Zoran Maric. We've put his

22 testimony on the screen, TR27956. Never heard there was a meeting, was

23 not at this meeting.

24 What kind of a witness is Mr. Maric? He has no criminal record.

25 He's a former president of the parliament of the Central Bosnia canton of

Page 222

1 the Federation. He is a currently member, I believe, of the parliament of

2 the Republic of -- or the Federation of Bosnia-Herzegovina. No reasoned

3 decision was articulated by the Trial Chamber of why this testimony was

4 rejected.

5 The second person identified as a possible attendee was Jozo

6 Sekic. We called him in rejoinder, just as we called Mr. Maric. He too

7 denied: "I wasn't at the meeting. Furthermore, even though I was the

8 president of the HVO civilian government in Novi Travnik, I never heard of

9 any such meeting, and to my knowledge, no one from Novi Travnik was

10 there."

11 Again, it bears mentioning that the jurisprudence on this point is

12 particularly important. Single witness, uncorroborated testimony,

13 especially when it's hearsay, must be rigorously scrutinised. The Trial

14 Chamber, according to the Kupreskic appeals judgement, must be

15 particularly rigorous in the discharge of its obligation to assess the

16 credibility of the testimony before it.

17 And here, as the judgement says, there was no direct evidence

18 supporting the account given by Witness AT of this meeting. It is

19 literally uncorroborated hearsay.

20 Now, the law of corroboration in this Tribunal is relatively well

21 recognised. We fully recognise it. The testimony of a single witness on

22 a material fact does not require, as a matter of law, any corroboration,

23 and that's true. That's the general declaration of legal principle that

24 governs this particular part of Kordic's appeal. But it's absolutely

25 clear when the Appeals Chamber considers how other Trial Chambers and how

Page 223

1 other Appeals Chambers have actually approached this issue of the

2 necessity of corroboration or the importance of corroboration, that the

3 absence of corroboration in this case is particularly significant.

4 Cases in which factual findings in other cases have been

5 overturned are fairly legion in this Tribunal. For example in Delalic,

6 factual findings were overturned by the Appeals Chamber, despite the

7 burdens of persuasion on appeal that attend an appellant. In Kupreskic

8 the Appeals Chamber noted that corroboration assumes greater importance

9 when single witness testimony is involved. Here, even though the

10 Prosecution tried to argue that the testimony of Witness HH was

11 corroborated in some general details, the Appeals Chamber insisted no,

12 that was not corroboration, because corroboration must be specific. It

13 cannot be general. Therefore, the testimony of Witness JJ in Kupreskic

14 was found not to amount to corroboration as a matter of law. As a result,

15 the Appeals Chamber, as I've said, was fortified in its decision to

16 dismiss the indictments or to acquit Zoran and Mirjan Kupreskic because of

17 defective indictments. In addition, the presence of the central testimony

18 in that case, the linchpin of the testimony against them, was not found to

19 be reliable.

20 Similarly, Krnojelac, Vasiljevic, Krstic; factual findings

21 overturned.

22 We are fully aware of the jurisprudence that governs requests to

23 this Appeals Chamber to overturn factual findings made by a Trial Chamber.

24 The Aleksovski appeals judgement outlines those principles in paragraph

25 63. In Delalic, for example, the -- even though there was a huge amount

Page 224

1 of evidence about the evil actions of Delic and the numbers of times that

2 he had been involved in beatings. As to a particular incident of

3 beatings, the Appeals Chamber found that no reasonable tribunal of fact

4 could have found on the evidence presented that he had participated in

5 that incident.

6 In Kupreskic, as I've said, even though the eyewitness presenting

7 identification testimony was found to be confident and forceful, her

8 testimony was not shaken in cross-examination, the same formula used in

9 paragraph 630 of the trial judgement in this case, and I might add in

10 paragraph 725 of the judgement insofar as Witness Y is concerned. Despite

11 that, despite the fact that she had no criminal record, despite the fact

12 that it was eyewitness testimony rather than hearsay, this was found not

13 to be a sufficient basis upon which to found a conviction.

14 There were inconsistencies in her prior statements. She had added

15 new details in her testimony, not found in her prior statements, and

16 that's very significant because, as the Appeals Chamber will know from

17 comparing the prior statements of Witness AT to his trial testimony, he

18 added details, added filigree, added items of information designed to

19 impart a more credible aspect to what he had said at trial from what he

20 had said in his prior statements. "New details supporting his claim," to

21 use the words of the Kupreskic appeals Judgement. His story underwent,

22 frankly, not a degree of development but an entire chapter of

23 development. It was subject to elaboration and diversification, just like

24 Witness Agnes in the Simic contempt judgement.

25 The flip side of the analysis is in the Krnojelac case. There,

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Page 226

1 the commander of the KP Dom was acquitted of certain crimes connected with

2 detention facilities, and the Appeals Chamber said wait a minute; this

3 fellow was a commander of the facility. He walked by walls which were

4 bullet pockmarked and there were bloodstains all over them. There's no

5 way he couldn't be aware of the foreseeable risk that people were being

6 mistreated, people over whom he had supervisory responsibility.

7 Therefore, no reasonable trial Chamber could have acquitted him on that

8 evidence.

9 In Vasiljevic, a particularly chilling example of cold-blooded

10 murder of people on their knees begging for their lives and shot to death,

11 as I've said in cold blood. Nonetheless, even there on particular

12 incidents of conviction such as prospective killings of workers from the

13 Varda factory, no reasonable tribunal of fact, based upon the evidence

14 presented, could have come to a conclusion of guilt beyond on reasonable

15 doubt. Similarly with respect to Vasiljevic's asserted membership in the

16 Lukic group. Again, uncorroborated testimony of Witness VG14. That alone

17 is not enough.

18 Most pertinently, in Krstic, here you've got an inference of mens

19 rea from certain circumstantial evidence, and again, the Krstic appeals

20 judgement is significant in this regard. You've got to have direct

21 evidence of the specific mens rea, and if you don't, if you're relying

22 upon the actions of the accused, which are subject to various

23 interpretations, one consistent with guilt, one not consistent with guilt,

24 the inference that has to be drawn is the one in favour of the accused.

25 The evidence fails to establish the direct involvement of the

Page 227

1 Drina Corps in carrying out the executions and as such cannot be relied

2 upon as evidence of Radoslav Krstic's direct involvement in assisting the

3 executions. Similarly, the court rejected the very vague must-have-known

4 formulation in that case because General Mladic had a homicidal plan and

5 Krstic was one of his subordinates. Krstic must have known of the

6 homicidal plan and therefore mens rea could be inferred. The Appeals

7 Chamber appropriately rejected that vague formulation and, frankly,

8 criticised the vague phraseology of the Trial Chamber's findings in that

9 regard.

10 It should be clear by now that despite the Trial Chamber's

11 assertions that if General Mladic knew about the killings then Krstic must

12 have been known, the Trial Chamber did not actually establish from

13 Krstic's contacts with Mladic during the relevant period that Krstic, in

14 fact, learned of the intention to execute. And that's exactly what we

15 have here. The same principle of law applies to the inference involved in

16 this case.

17 Now, Witness AT himself was not at the April 15th meeting. He did

18 not hear what the participants said. He could not give any testimony

19 about that. He didn't see Kordic at any time. He didn't hear Kordic.

20 He didn't speak to Blaskic. And apart from his testimony, there was no

21 evidence that General Blaskic had given any orders to kill. This is the

22 same situation as envisaged in paragraph 98 of the Krstic appeals

23 judgement less than a month ago.

24 This witness testified, as I've said, just over a week before the

25 close of the evidence in this mammoth case. This witness was sprung on

Page 228

1 Kordic after, months after the close of his case in chief. This witness

2 did not rebut anything that Kordic said. It did not rebut anything

3 that -- any evidence that Kordic introduced. This witness was providing

4 fresh evidence. And that, we would submit, was unfair right at the end of

5 the trial.

6 Prior appellate decisions in this regard: The Haskic decision in

7 July of 2000. The Prosecution had a number of theories of Mr. Kordic's

8 whereabouts on the 15th of April. One of them was that he wasn't really

9 in the Central Bosnia Operative Zone headquarters. He was actually in

10 Donja Veceriska, based upon the hearsay statement of a dead witness,

11 supposedly, Midhat Haskic. The Appeals Chamber said that this was not

12 sufficient as the only proof of the accused's presence in a particular

13 time at a particular place. It would not be possible to convict Kordic on

14 the basis of this statement alone if the evidence was uncorroborated.

15 The next appellate decision was the one dealing with Rule 94 ter

16 corroboration affidavits. Rule 94 ter has since been deleted, but it was

17 very useful in this case. It actually saves a lot of trial time. We

18 were able to introduce affidavits to corroborate facts directly, facts

19 that were testified about in examination by witnesses here. The Appeals

20 Chamber emphasised that proper protection of the rights of the accused is

21 overriding, but for corroboration to exist in terms of the affidavit

22 there's got to be a clear link between the fact described in the affidavit

23 and the fact testified about in the direct testimony of the witness.

24 General background does not amount to corroboration.

25 THE INTERPRETER: Could the counsel be asked to slow down a

Page 229

1 little, please.

2 JUDGE SCHOMBURG: Would you please slow down again.

3 MR. SAYERS: My apologies. I know I'm a notorious offender on

4 this and I'll try my best to slow down.

5 One month ago, as to a particular incident in the Krstic case, the

6 Appeals Chamber noted, very pertinently, that it was hesitant to base any

7 decision on Mr. Deronjic's testimony without having corroborating

8 evidence. And as a result, the combination of the circumstances in that

9 case, the Appeals Chamber was cautioned against relying on that evidence

10 alone.

11 One particularly poignant example of the role of corroboration

12 comes from the Naletilic trial judgement, which we commend to the Appeals

13 Chamber's attention. I've excerpted a series of statements or

14 observations and rulings made by the Trial Chamber. In this case, the

15 Trial Chamber recited the general rule; single witness testimony on a

16 material fact does not require corroboration as a matter of law. Let's

17 take a look at how the Trial Chamber actually approached this issue.

18 Reports of members prepared by a particular battalion

19 corroborated, so reliable. Particular evidence corroborated by the Rados

20 diary, so reliable. Documents corroborate witness testimonies. Witness

21 statements corroborated by Exhibit PP. ECMM and UNPROFOR witness

22 testimony, corroborated by testimony of many eyewitnesses. And it goes

23 on. Example after example of where testimony is accepted because it's

24 corroborated.

25 But what happens when testimony was not corroborated? There were

Page 230

1 two examples, and those are on the bottom of slide 180 here. Witness AF,

2 who placed Naletilic in the role of a perpetrator of torture and

3 mistreatment at the Sovici school was rejected because this testimony was

4 not corroborated by other witnesses. Similarly, the Chamber finds that

5 the testimony of a single witness that he was told about mistreatments at,

6 I think it's Dobrkovici, actually, lacked sufficient probative weight for

7 a finding by the Chamber.

8 In Kunarac, the testimony of Witness AS that she was repeatedly

9 raped by Kovac was corroborated by Witness FWS-87 and accepted. How could

10 it not be under the appalling circumstances of that case? But the Trial

11 Chamber said that as to the testimony of Witness FWS-48, there was no

12 supporting evidence to dispel the Trial Chamber's doubts about the

13 witness's testimony, and therefore not convicted based upon that.

14 In Vasiljevic, the trial judgement had more or less the same sorts

15 of observations. We've already gone over the Simic contempt judgement.

16 Even grave suspicion is not enough to establish proof beyond a reasonable

17 doubt; considerably more would be required before Mr. Avramovic could be

18 found guilty.

19 The same is true in the ICTR. We've summarised these on slide

20 184. Musema appeals judgement. The -- I hope I'm saying this right --

21 Ntakirutimana judgement and sentence of the Trial Chamber. Rutaganda, the

22 Niyitegeka judgement and sentence. That is a particularly interesting

23 case. In that case, Niyitegeka was found to have abducted a young girl,

24 spent half an hour in his car with her, kicked her out of the car, shot

25 her to death, and subsequently, based upon the hearsay testimony of a

Page 231

1 witness that this accused had supposedly raped the girl while she was in

2 the car, the Prosecution asked the Trial Chamber to believe that the

3 offence of rape had been made out. Notwithstanding the murder,

4 notwithstanding the circumstances, the Trial Chamber said: That's not

5 enough. That's -- uncorroborated hearsay testimony is not enough to

6 establish that a rape has also occurred.

7 The same is true in terms of the jurisprudential argument we're

8 making at the ECHR. Jurisprudence: Hearsay testimony should be

9 approached with great caution. If it's not corroborated, it's not enough.

10 The Saidi case, drug trafficking case, stands for that proposition, as

11 does Kostovski. And most pertinently, the Unterpertinger case, where

12 there was actually a fairly significant amount of evidence in terms of

13 police reports, medical reports, and divorce files, but the out-of-court

14 statements made by two witnesses were the central feature of the

15 conviction, and that was found to be insufficient to found a conviction.

16 Now, let's consider what the Trial Chamber ruled in this case.

17 Because I think the approach taken by the Trial Chamber is absolutely

18 telling. Witness K: Testimony about what Mr. Kordic supposedly said in a

19 TV broadcast; rejected. No tape produced, so the Trial Chamber can place

20 no reliance on the hearsay evidence. Nura Pezer: No corroborative

21 evidence; testimony rejected. Witness AC: Without support about what

22 Mr. Kordic supposedly said in a TV conference, no reasonable -- no

23 reliance could be placed upon that. The same with respect to Witness H,

24 Witness AP, and Witness I. The only exception in this case, Witness AT.

25 Judged by a different rule. Yet, the Trial Chamber admits that this

Page 232

1 witness could not bring himself to tell the full truth about his own

2 involvement. What the Trial Chamber really meant was, well, he lied about

3 what he was doing in Ahmici on the 16th of April, 1993, and as the Appeals

4 Chamber well knows, that's exactly what he did. He lied about what he was

5 doing in that village on that day.

6 Now, the lying alibi defence. The Trial Chamber observed that the

7 defence of the alibi was withdrawn and was not true, and then immediately

8 proceeds to the next proposition. With all due respect to the Trial

9 Chamber: Not so fast. Let's think about that. The Trial Chamber

10 appeared to try to draw a distinction between lies assertedly told by

11 lawyers representing an accused and the accused himself. It makes no

12 difference who told those lies, whether it was the lawyer or the accused,

13 because the principle of unity of counsel and client is absolutely

14 uppermost in this Tribunal. The principle of unity is fundamental to the

15 process of this Tribunal is an argument made by the Prosecution itself,

16 not once, but twice. December 2001; 6 of February, 2004. I might say

17 that the December 2001 pleading was filed two months after the

18 Prosecution's respondent's brief was filed in this case, where Kordic's

19 argument was depicted as being an overstatement and an exaggeration.

20 But there's no question. The principle of unity of identity

21 between client and counsel is indispensable to the workings of the

22 International Tribunal. So it doesn't make a difference who told the lie,

23 whether it was his counsel -- whether it was his counsel or whether it was

24 him.

25 Could we have a brief private session, Your Honour?

Page 233

1 JUDGE SCHOMBURG: Private session, please.

2 [Private session]

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21 [Open session]

22 JUDGE SCHOMBURG: You may continue, please, Mr. Sayers.

23 MR. SAYERS: Since my time is short, I'm going to truncate this

24 discussion somewhat, Your Honours, but let me just turn to the first

25 meeting. There are three meetings that the Appeals Chamber must focus

Page 235

1 on. The first is the asserted meeting of political and military leaders,

2 followed by a second meeting of military commanders, followed by a

3 gathering of military policemen in the TV room of the Hotel Vitez. As

4 I've said, no one knows who said what because no witness was called, other

5 than Brigadier Grubesic, who was supposedly present at the second

6 meeting. He testified that he was not, that he had never heard of any

7 such meeting.

8 Now, the orders to kill, the central orders in this case. When

9 were they given? Here's what the Trial Chamber concludes: Well, I

10 conclude -- we conclude there were two sets of orders, orders to kill,

11 orders -- military-aged males, and orders not to leave any living

12 witnesses. We conclude that one was given in the first meeting of

13 political and military leaders, but we're not sure about the second.

14 Here's the key testimony, Your Honours, and there it is in the words of

15 the witness himself: "Your Honours, the first time I heard of that

16 order, that all able-bodied Muslims had to be killed, was something that I

17 heard for the first time in the Bungalow." So how could the Trial Chamber

18 conclude that the first set of orders must have been given at the first

19 meeting, while the second set of orders, it couldn't be sure that it was

20 given at the first meeting? There is simply no evidentiary basis

21 whatsoever upon which the Trial Chamber could reach that conclusion.

22 Furthermore, with respect to Mr. Kordic's whereabouts, there was

23 evidence that he was actually present at his own headquarters on

24 Mount Tisovac, where he returned after the press conference on the 15th of

25 April, from Brigadier Grubesic. And we've summarised that evidence on

Page 236

1 slide 210. Which raises some important questions about the law of alibi

2 in this Tribunal. When are you supposed to assert an alibi? You are

3 supposed to assert it as soon as practicable, under Rule 67(A)(ii), but in

4 any event, before the commencement of trial. How are you supposed to do

5 that if the indictment doesn't contain an allegation of where you

6 supposedly were at a particular time and what you supposedly did? You

7 can't. But Kordic submits that the evidence established, at least a

8 reasonable possibility, if he had been given a chance to assert an alibi

9 having been given a reasonably detailed indictment and had asserted it,

10 the evidence asserted -- established at least a reasonable possibility

11 that he was present on Mount Tisovac as stated by Brigadier Grubesic.

12 Just a few concluding comments with respect to Witness AT. There

13 are tremendous inconsistencies between the prior statements he gave and

14 between the trial testimony he gave. He stated in his first statement on

15 the 25th of May, 2000, that there was a possibility that Kordic was

16 supposedly present at the Hotel Vitez headquarters on the 15th of April,

17 1993. In his second statement -- actually, he said in his first

18 statement - I'm sorry - "I do not remember mentioning Dario Kordic being

19 present." That was what he said his first statement. That's all that he

20 had to say in his first statement about Kordic's asserted presence at that

21 time.

22 In the second statement, this was elevated from that to, "It's

23 possible that he was present at the meeting," and then at the trial, for

24 the first time he said: "Well, Ljubicic told me he was present at this

25 meeting." That's the only state of the evidence. "I was told by Ljubicic

Page 237

1 that he was supposedly present." As you can see, a degree of development

2 from "I don't remember Kordic being present" to, "Maybe, it's possible he

3 was there," to, "He was there." That's exactly the same kind of

4 elaboration and diversification of the story present in the Kupreskic

5 appeals judgement and the Simic contempt judgement.

6 Other inconsistencies. I won't spend too much time on this. The

7 witness's statement that he couldn't speak Croatian. "Even today I cannot

8 speak Croatian," he said in his 17th of August, 2000 statement. And why?

9 Because he actually issued an order in Croatian to the subordinate units

10 of the Jokers that he commanded, Exhibit D348/1. And look at the date.

11 The date of this exhibit was the 8th of April, 1993, one week before

12 Ahmici. What did he say about this document? Well, it's fictitious, it's

13 false, he said. It was planted. But at trial he recognised that the

14 signature was his.

15 Could we have a brief private session, Your Honours.


17 [Private session]

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Page 239

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11 [Open session]

12 MR. SAYERS: For evidence to be admissible in this --


14 MR. SAYERS: Please forgive my acceleration, Your Honours. I'm

15 due to hand off to Mr. Smith in ten minutes and I can see him champing at

16 the bit, so I'll try to move as quickly as I can.

17 Reliability is the golden thread that runs through whether a

18 document can be admitted in this case. This whole discussion concerns

19 specifically Exhibit Z610.1. If the evidence is not reliable, how can it

20 possibly be admitted in this Tribunal? Rule 89(C) demands that evidence

21 be reliable. And whose burden of proof is it?

22 THE INTERPRETER: Could counsel be asked to slow down, please.

23 Thank you.

24 MR. SAYERS: That it is incumbent upon any party to authenticate

25 the documents it tenders upon complaint of the other party. And

Page 240

1 ironically, in direct examination of the very first witness called by

2 Kordic in this case, that precise point was made in no uncertain terms,

3 I'm embarrassed to say, to me. You've got to lay the foundation for

4 evidence for it to be admitted.

5 One good example of the problem caused by this is Exhibit Z437.1,

6 noted in the judgement at footnote 1052. The Defence points out that this

7 document is neither stamped nor signed, and even though no witness

8 authenticated it, no one said it was a correct document, the one person to

9 whom it was shown, (redacted) I don't recognise it and

10 it doesn't look like a genuine document to me. But what does the Trial

11 Chamber say? "We find it a genuine document there being no evidence that

12 it is not, despite the evidence of a stamp and a signature."

13 Your Honours, it's not the -- it's not the obligation of the

14 Defence to prove that a document is not genuine. It's the obligation of

15 the Prosecution to prove that it is if it tenders that document.

16 Furthermore, if the Defence tenders a document, it's its obligation to

17 prove that it's a genuine document, that it's reliable, of course.

18 The Tribunal's jurisprudence establishes that reliability is the

19 central component of admissibility, as I've said. We've summarised that.

20 The Tadic decision says that documents can be admitted for a limited

21 purpose, but if they're subsequently shown to be unreliable, then they can

22 later be excluded. Kordic made precisely such a motion with respect to

23 some of the -- two separate documents, Exhibit Z1406.1 and 1380.4, but

24 that was a completely unsuccessful endeavour on his part.

25 The 22nd of September, 2000 decision in this case establishes --

Page 241

1 sets out the proposition that there is no legal basis for the applicant's

2 argument that proof of authenticity is a separate threshold requirement

3 for the admissibility of documentary evidence. That's in this case, and

4 the citation was to Delalic. When you go back and take a look at the

5 Delalic decision, it's true that legal proposition is cited. But there's

6 absolutely no legal citation for it. There's no footnote, no authority

7 cited. It's a pure ipse dixit. And with full respect to the Appeals

8 Chamber, Kordic suggests that that, ipse dixit, is wrong for the reasons

9 stated in the Galic trial judgement. It is indeed incumbent upon the

10 party tendering evidence to prove that it is authentic, reliable, upon

11 complaint of the other party.

12 Furthermore, in this case, Rule 89(E) should be taken into

13 account. The Trial Chamber had full power to require the Prosecution to

14 come forward with some proof of authenticity. It did not exercise its

15 powers under Rule 89(E), and it's hard to imagine a case in which those

16 powers more appropriately exercised or invoked than in this case, where

17 Exhibit Z610.1 was actually an important document and relied upon by the

18 Prosecution.

19 This is exactly the kind of self-propelling evidence that has the

20 power to get to the Appeals Chamber or the Trial Chamber under its own

21 steam, to use Judge Robinson's very appropriate graphic analogy in the

22 Aleksovski dissent he filed in February of 1999.

23 Other authorities supporting Kordic's argument comes from the ECHR

24 and from other noted commentators. The Matogrosso report says the case of

25 Allan v. The United Kingdom, would not be admissible in evidence because

Page 242

1 its author could not be found to vouch for its accuracy and be cross

2 examined on its contents.

3 THE INTERPRETER: Kindly slow down for the interpreters.

4 MR. SAYERS: -- authenticity has featured. Two examples, Your

5 Honour, in the Vasiljevic case. The Visegrad health centre records

6 tampered with, not reliable, exactly like Z610.1. No one testified that

7 the records were made contemporaneously. In that case, excluded. In this

8 case they come into evidence.

9 A name had been overwritten. "Lukic" had been overwritten with

10 "Bogic." In this case, as we know, the entry saying "war diary 15 April

11 1993" had been overwritten by someone on the January 29th 1993 entry. By

12 whom? Who knows. As you can see, we've highlighted on this slide where

13 that overwriting occurs. That's the English translation. Exactly the

14 same as in the Visegrad health centre records in the Vasiljevic appeals

15 judgement.

16 By contrast in the same case, the Uzice hospital records found to

17 be completely reliable, but there was no evidence that they had

18 been tampered with and inconsistencies were convincingly explained by

19 witnesses. It didn't happen here, though.

20 The Prosecution has not been shy about making the same sorts of

21 authenticity objections that we ourselves made throughout the case. The

22 next series of slides summarise Prosecution submissions, and you'll see

23 again and again and again the Prosecution says, "We object to this

24 document. Unsourced, unsigned, unsubstantiated. We don't know who wrote

25 it. We have no opportunity to cross-examine. The provenance of the

Page 243

1 document is unclear, anonymously written, veracity can't be determined.

2 Unsourced, unsigned." Again and again, in pleading after pleading. We

3 agree with the Prosecution with respect to all of those objections, every

4 one of them.

5 In this case, the Prosecution has said: "Well, we object to any

6 documents when we don't have the opportunity of challenging the

7 authenticity or opposing their use," to quote the ECHR jurisprudence in

8 the Allan case. And we completely agree with that too.

9 The same is true in the ICTR. In fact, the Appeals Chamber in the

10 Musema appeals judgement stated: "The party relying on a document must

11 establish that it has sufficient indicia of reliability."

12 That's where the burden of proof lies, upon the party tendering

13 the document. And here, Exhibit Z610.1 was subject to contemporaneous

14 objections in writing and orally. The authenticating witness produced by

15 the Prosecution couldn't authenticate it, Marko Prelec. With respect to

16 the overwriting, he said, "I have absolutely no idea who did it." He

17 didn't know who the duty-officer was. By the way, nor did Witness AT. And

18 given the location of Witness AT's office, his inability to identify the

19 duty-officer is particularly significant.

20 Mr. Prelec said, "I have no idea who wrote that entry in the

21 middle. I wouldn't know where to start." Witness AT: "Parts of it have

22 been faked." The Prosecution's own witness says parts of the document that

23 it tendered into evidence, after the testimony of this witness, had been

24 faked. So parts of it were unreliable. Brigadier Grubesic, same thing.

25 "Self-evident," he says. "Parts of it have been interfered with." The

Page 244

1 question was actually asked by the Judge, "Well, Where does --" one of the

2 Judges, "Where does this document purport to come from? There's no

3 indication on it. What you're seeking to put in evidence here has no

4 indication whatsoever as to its origin." Exactly right. The Judge was

5 completely right.

6 So why did the Trial Chamber allow it in? Well, it's a document

7 contemporaneously made, it carries its own authenticity, and it's signed

8 by General Blaskic. Let's consider that for a minute and I'll end on this

9 note.

10 There was no proof by anybody that it was contemporaneously made.

11 And in prior pleadings, the Prosecution has said, "The Prosecution is

12 unable to confirm, with respect to a particular document, that the

13 signature on the document belongs to Colonel Blaskic." So an objection

14 is made by the Prosecution. "We don't know whether this document is

15 signed by Colonel Blaskic or -- was signed by Colonel Blaskic or not."

16 Okay. If -- who actually authenticated the signature of the document in

17 this case, Exhibit Z610.1? No one.

18 Here's the signature page, Your Honours. Take a look at it. Two

19 signatures on there. Both purport to be those of General Blaskic.

20 They're both different. Which one is his?

21 Well, let's go to another document. That's a document containing

22 the uncontroverted, the authentic testimony of General Blaskic, an order

23 he signed on the 16th of April. Here are the three signatures, one, two,

24 three. All different. Which one is his?

25 Well, in conclusion, I can't tell you. The Trial Chamber couldn't

Page 245

1 tell you. The Prosecution couldn't tell you, and didn't try. How are you

2 going to make the decision?

3 And what's the law on that? It's pretty simple. The mere

4 resemblance to other documents issued by the Crisis Staff is insufficient

5 to determine authorship, according to the Simic sentencing judgement. No

6 evidence to identify conclusively the signature of its president, Blagoje

7 Simic. Therefore, the document is inadmissible. And that's exactly what

8 the ruling should have been in this case. This document came into

9 evidence at the last minute in the December -- 1st of December 2000

10 decision, a large quantity of last-minute document were excluded. Why?

11 Because to admit them at this late stage of the case would be unfair and

12 because the Defence would have no opportunity now of cross-examining

13 anyone about this them.

14 But this document was treated differently? Why? For no good

15 reason. This document was subjected to precisely the same objections and

16 no one authenticated it, the signatures were not authenticated, there was

17 no evidence it was contemporaneously written. The authentication witness

18 couldn't authenticate it. Witness AT said parts of it had been faked.

19 How can you have any reliance in a document like that? But more

20 importantly, for the jurisprudence of the Tribunal, who bears the burden

21 of proof, of reliability of documentary evidence it tenders? It's got to

22 be the party that tenders the evidence.

23 Thank you very much.

24 JUDGE SCHOMBURG: May I ask my colleagues: Are there any

25 questions related to this chapter on fair trial, 68, and Witness AT, and

Page 246

1 document 610?

2 Judge Guney, please.

3 JUDGE GUNEY: [Interpretation] Mr. Sayers, thank you very much for

4 the submissions you've just made, which I followed with great interest.

5 Having said that, I hope that you will agree with me if I say that the

6 precise identification of certain areas indicated by your client,

7 Mr. Kordic, is very important.

8 In your fourth ground of appeal, Mr. Kordic states that the Trial

9 Chamber found him responsible of a crime without having made the required

10 factual findings. First, it appears pertinent to ask the question, that

11 is, to specify the counts that he invokes there. I would be grateful if

12 you could clarify this. Thank you.

13 MR. SAYERS: Judge Guney, I would be delighted to answer the

14 question, but with the Appeals Chamber's permission, I defer that to my

15 colleague, Mr. Smith, who is prepared to answer that question

16 specifically.

17 JUDGE SCHOMBURG: Thank you. I think Judge Guney agrees.

18 Judge Weinberg de Roca, please.

19 JUDGE WEINBERG DE ROCA: Mr. Sayers, as to the authenticity, has

20 Mr. Blaskic been asked if it is his signature?

21 MR. SAYERS: Absolutely not, Judge Weinberg de Roca. Nowhere

22 during his testimony, nowhere during the appeals hearing, no evidence

23 whatsoever.

24 JUDGE SCHOMBURG: Judge Mumba, please.

25 JUDGE MUMBA: Thank you, Counsel, for elucidating the points,

Page 247

1 factors, regarding the rule on practice of disclosure by the Prosecution.

2 Do you accept the assertion that, in spite of the rigorous provisions and

3 the pronouncements by various Trial Chambers and Appeals Chambers on this

4 obligation by the Prosecution, that in any event evidence in the public

5 domain is available to all, including the accused?

6 MR. SAYERS: I think the Judge is asking whether access to

7 open-session material may somehow alleviate the obligation of the

8 Prosecution to disclose.


10 MR. SAYERS: Our position is that it does not. If the material is

11 available in open session, it's got to be disclosed as soon as

12 practicable. The rule means what it says. It does not need to be

13 rewritten. That provision is very important. It does not need to be

14 deleted from the Rule. And here's why: In our trial, we experienced

15 extraordinary delays in obtaining access to portions of the open-session

16 testimony of the general. I'm not confident even today that we ever got

17 it all. Pieces of it were produced over a very protracted period of time,

18 in no particular order. The numbering of pages made it extraordinarily

19 difficult to match pieces up with what we had been given, because

20 occasionally we were given LiveNote transcripts, occasionally unofficial

21 transcripts, occasionally official transcripts. So I have to say, it's

22 extraordinarily difficult to be confident to say that we had access to it

23 all. Today, we have access to it all. It's all on the Internet, but it

24 was not available that way at trial. And that was why it was extremely

25 difficult to follow. But even if it had been, we should not have been

Page 248












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

13 English transcripts.













Page 249

1 subject to those huge delays in getting this material ourselves when it's

2 the obligation of the Prosecution to disclose exculpatory material as soon

3 as practicable.

4 And let me just conclude by saying this: This was a case where

5 the Prosecution was seeking a life sentence against our client for command

6 responsibility under Article 7(3). Think of this: The testimony of the

7 military commander of the entire area that our client had no military

8 responsibility was withheld from us, never disclosed. When did we ever

9 get a disclosure of the open-session -- sorry -- of the open-session

10 testimony of the general? Never. And that's the same with

11 Witness C1 in Kupreskic, the 14th of July 2000 testimony of this

12 witness. When did we -- when was that disclosed to Kordic? Never. And

13 as I've said, the closed-session testimony of this witness, which actually

14 spanned a very considerable portion, 426 pages, was disclosed to us in

15 three stages. The first was on the 23rd of May, 2003.

16 JUDGE MUMBA: Yes. I think the other details were given in your

17 main submission. I just wanted to follow up that notwithstanding your

18 submissions that the amended indictment was still not clear, it didn't

19 specify the allegations, some of which the Trial Chamber had difficulty

20 with in making findings, notwithstanding that, don't you accept, Counsel,

21 that it is the duty of an accused person who has been served with an

22 indictment, which makes, albeit broad allegations as to his conduct, to

23 search, first of all in his memory, search where he is alleged to have

24 been at various times in the indictment, and also search for possible

25 material evidence in support of whatever his defence may end up being

Page 250

1 because he too has a duty, in a way, to defend himself and also to be able

2 to effectively cross-examine Prosecution witnesses, right from the

3 beginning of the trial?

4 MR. SAYERS: The answer to your question, Judge Mumba:

5 Absolutely. The accused has a duty to search his memory when he's

6 asserted to have been present at a particular place at a particular time

7 in an indictment, and to conduct the necessary investigations. But that's

8 not what happened here. Don't forget, this amended indictment didn't

9 allege that he was present anywhere at a particular time. It asserted a

10 case of the broadest conceivable political/command responsibility against

11 Mr. Kordic over a wide swathe of territory during a three-year period.

12 And it's true, we specifically stated to the Trial Chamber, that's the

13 case we were directed to answer, that's the case we were told to answer.

14 And that's the case we did.

15 JUDGE MUMBA: Thank you.

16 JUDGE SCHOMBURG: Judge Pocar, please.

17 JUDGE POCAR: Counsel, I thank you for your arguments on several

18 issues. There is one point on which I would like to be clear as to your

19 submission, concerning the Witness AT, and that's the following:

20 Although, in general, the testimony of one witness does not need

21 corroboration per se, your point is, if I got it correctly, is that in

22 this case, that testimony indeed did require corroboration to be admitted.

23 Now, is that because it was hearsay evidence and that, in general,

24 hearsay evidence would require corroboration of a single witness, or

25 because, in this particular case, due to the fact that that witness was a

Page 251

1 witness that may have a certain interest in the case, it required

2 corroboration?

3 MR. SAYERS: I think the answer to the question, Your Honour, is

4 both arguments. Hearsay testimony, generally, has less weight than direct

5 testimony. Does it require corroboration if it comes from a single

6 witness? It does not. That is the jurisprudence of this Tribunal. We

7 clearly recognise it.

8 But consider the circumstances of this witness: Under the

9 circumstances presented here, for all of the reasons stated in the

10 numerous cases decided by the Trial Chambers and by the Appeals Chamber,

11 looking at the testimony of a single witness, the circumstances of that

12 witness's testimony have to reinforce the Appeals Chamber's confidence

13 that that witness is absolutely true. If there are circumstances which

14 jeopardise that confidence, then the requirement for corroboration

15 elevates in importance considerably, and in no case more than this one.

16 As I've said, I'm not aware of any case in this Tribunal where any

17 conviction, let alone so many convictions, have been based upon the

18 uncorroborated hearsay testimony of a single witness, especially a witness

19 like this one.

20 JUDGE POCAR: Now, the point you make appears to be conceded by

21 the Trial Chamber in the judgement, and indeed, in paragraph 630, the

22 Trial Chamber looks at corroborating evidence. Finding it in

23 circumstantial evidence. Now, is that your point, that for the purposes

24 of corroborating testimony of a single witness, hearsay witness in these

25 circumstances, the reliance on circumstantial evidence is not enough, in

Page 252

1 general terms, or are you challenging the value of the circumstantial

2 evidence relied upon by the Chamber, or both?

3 MR. SAYERS: To answer your questions directly, Judge Pocar, we

4 make a variety of arguments, but the most important ones are these: The

5 law of corroboration in this Tribunal is that corroboration of the general

6 circumstances of the witness's testimony is not enough. The corroboration

7 has to be focused specifically on the material fact asserted by this

8 witness. Now, the material fact asserted by this witness was Mr. Kordic's

9 asserted presence at this putative meeting, a meeting -- well, now, what

10 corroborating evidence is there relating to that? There is none. Not any

11 evidence, and I don't think that would be contested by the Prosecution.

12 What the Trial Chamber tried to do was to string together a set of

13 inferences and said: Well, we can -- you know, what happened later in the

14 day tends to show that what -- that the version of events told by Witness

15 AT has validity, the sequence of the orders, things of that variety.

16 That's not direct corroboration. It's not corroboration at all, actually,

17 under the law of the Appeals Chamber. And that's one of the points we are

18 making.

19 And secondly, the importance of the requirement for corroboration,

20 I rely upon my previous discussions of that particular subject.

21 JUDGE POCAR: I thank you. Now it's quite clear what the point

22 is. I thank you.

23 JUDGE SCHOMBURG: As a follow-up: I think we are all aware that

24 the Trial Chamber warned itself, in paragraphs 619 through 630. Would

25 you, finally, come to the conclusion, and for what reason, that no Trial

Page 253

1 Chamber of fact could, based on the conclusions and the circumstantial

2 evidence described in these paragraphs, could come to the conclusion that

3 the Trial Chamber was satisfied that Mr. Kordic was present at the

4 meetings of politicians?

5 MR. SAYERS: Thank you, Your Honour. With respect to that

6 question, that's a fairly easy question to answer, I believe. What

7 corroboration was there of the material fact about which this witness

8 testified, which was, A, that there was a meeting. Nothing but his own

9 unvarnished word. We had two rebuttal -- rejoinder witnesses who

10 controverted this witness, both no criminal records, both men of

11 substance.

12 Second, that orders to kill were issued at this meeting. What

13 possible basis was there for that conclusion? No reasonable tribunal of

14 fact could have reached that conclusion beyond reasonable doubt, because

15 there was no evidence to support it.

16 Then thirdly: What evidence to support that version of events

17 came from any of the other 240 witnesses in this case, 31 transcript

18 witnesses, hundreds of witness in four other cases, thousands of exhibits

19 in those cases and in this case, and, ironically, Exhibit Z610.1? In

20 fact, the Trial Chamber I think reminded -- interrupted me during my

21 cross-examination and said the witness will be able --

22 THE INTERPRETER: Could counsel be asked to please not to speed

23 up.

24 MR. SAYERS: Sorry. Of a meeting between politicians and military

25 leaders. So, quite simply, there is actually no corroboration of the

Page 254

1 material fact rather than the general circumstances of this witness's

2 testimony, and under those circumstances, especially given the, dare I

3 say, baggage of this particular -- that this particular witness carried,

4 no reasonable tribunal of fact could have reached a conclusion that that

5 meeting occurred beyond a reasonable doubt, let alone who said what at

6 it. Because what is the evidence? Even this witness couldn't tell the

7 Trial Chamber what it was. He didn't see Kordic, didn't hear him, didn't

8 hear anyone at the meeting. That's the state of the evidence. We don't

9 know what happened at it.

10 JUDGE SCHOMBURG: Thank you for these additional arguments. And

11 now Mr. Smith, please.

12 MR. SMITH: Thank you, Your Honours. I will address, for the

13 remainder of this session, chiefly the question of the findings and

14 whether the findings are properly supported, a question adverted to

15 earlier by, I believe, Judge Pocar. Before doing so, I will, however, say

16 very briefly two things about the nature of the judgement: First, that

17 what is charged in the amended indictment and found in the judgement is a

18 broad form of persecution. You've seen the formulation before. Central

19 Bosnia and beyond, extending to Zagreb, essentially persecution at the

20 national level. What the Trial Chamber had evidence -- or adduced,

21 advanced evidence to attempt to support, however, was a much narrower form

22 of persecution, limited to attacks on villages in the Lasva Valley, and

23 not indeed, really, as in many other cases, specifically aimed at forcible

24 removal, but attacks on villages. And I will talk at greater length about

25 that this afternoon.

Page 255

1 The second major thing about the judgement is that the category of

2 intent involved for the joint criminal enterprise finding, in our

3 judgement, is category number 3, and that is because the Trial Chamber

4 infers, in paragraph 829, one of the crucial findings paragraphs, that

5 Kordic shared the discriminatory intent, as I have on the screen for you.

6 So it -- I'm sorry. If I said category 3, I meant category 1. Category 1

7 intent, in our judgement, and in our judgement, the joint criminal

8 enterprise finding goes only to count 1. Counts 3 through 43, the finding

9 in the -- on the subsequent pages of the judgement, paragraph 834, appears

10 to be direct participation through planning, instigating, or ordering,

11 sometimes perhaps committing, but very difficult to determine, based on

12 the language used by the Trial Chamber in specific cases.

13 Let me turn, then, to this question of findings. Were proper

14 findings made by the Trial Chamber for each element of each crime, each

15 count, each location, and each date? The short answer to that question,

16 Your Honours, is no. And two things follow: Number 1, the convictions

17 must be reversed on these grounds alone. Number 2, the Trial Chamber's

18 decision cannot qualify as a reasoned decision. The first issue one of

19 substance, the second issue one of procedure.

20 Now, in an attempt to respond to Your Honour's request on this

21 point of findings, we have prepared a tabular analysis of the findings by

22 count, with the elements of each crime down the left side of the table.

23 And I would like to pass those out at this time, if we could have

24 assistance. And with the --

25 JUDGE SCHOMBURG: May I ask the Prosecution: Any objections?

Page 256

1 MR. FARRELL: I'd prefer to see it before making any decision, if

2 you don't mind.

3 JUDGE SCHOMBURG: Could it please be passed first to the

4 Prosecution

5 MR. SMITH: Your Honour, may I have leave to explain it while the

6 counsel is examining it?


8 MR. SMITH: Thank you. In the interests of time. We have set out

9 the elements for Article 7(1), individual participation, that is,

10 committing, ordering, instigating -- planning, instigating, or ordering,

11 and for Article 7(1) under the joint criminal enterprise theory. And we

12 have then set out along -- those elements down the left side and the

13 alleged locations along the top of the table. We have then also set out

14 the elements for each count individually on a separate page or pages, with

15 the elements down the left side and the villages alleged in the indictment

16 for each specific count along the top of the page. Then we have filled in

17 this matrix as best we could, indicating where we submit a finding was

18 made; where we submit, with blank, there was no finding made; and

19 commenting on the nature of the finding. Because in many cases, the

20 findings are conclusory [sic] only and there are -- there is technically a

21 finding. The Trial Chamber will say: The following counts are made out.

22 And so in one sense, there's a finding, because implicitly every

23 necessary element should have been taken into account. But that's a

24 conclusory finding and, in our judgement, it really does not make the

25 specific findings. We have scored that conservatively on the table by

Page 257

1 saying: There's a finding there, but it is conclusory. We've also

2 identified implied findings, inferred findings.

3 And one other thing I will explain about the nature of the table:

4 We deal with mens rea for the underlying perpetrators in each of the

5 sheets dealing with an individual count, but we deal with the mens rea of

6 Kordic, Mr. Kordic, who is not the primary perpetrator in any of the

7 counts, under the rubric of mens rea for Article 7(1), committing,

8 planning, instigating or ordering, as it turns out, for the particular

9 situation, and for persecution under the Article 7(1) joint criminal

10 enterprise part of the table.

11 Now, at this point, I don't know whether the Prosecution is ready

12 to take a position.


14 MR. FARRELL: If it will assist the Court, of course, and if the

15 Court feels inclined to receive it. The only thing I would say is it's

16 quite honestly impossible to, at this point in time, make any assessment

17 of this, and this is no disrespect to Mr. Smith. I mean, it's just a

18 comprehensive document. I can't say whether it's accurate or not. And I

19 note that though it may not necessarily -- it's case specific, I note that

20 in the Krstic case, that the Prosecution attempted to file a summary of

21 the findings and the evidence and the Court in the Krstic case disallowed

22 this material which the Prosecution put forward in the Krstic case. But

23 if you'll find it of assistance. But one, it's impossible to tell. Two,

24 it appears to include in some of the slides submissions which are not in

25 the -- well, I have no idea whether they're in the brief, so we're not in

Page 258

1 a position to really respond in detail. I'm sorry.

2 JUDGE SCHOMBURG: Maybe it will be of assistance for your response

3 later, because we know about the difficulties and to identify specific

4 locations. So if you don't object, and with a view to the watch, I think

5 we can decide after the break. But I see there's a question.

6 [Appeals Chamber confers]

7 JUDGE SCHOMBURG: So let us come back to this after the break, and

8 I think it doesn't make any sense that you start your submissions right

9 now. Therefore, the trial stays adjourned until 2.00.

10 --- Luncheon recess taken at 12.28 p.m.

11 --- On resuming at 2.02 p.m.

12 JUDGE SCHOMBURG: Please be seated. Before you start, Mr. Smith,

13 we discussed it briefly during the break, the issue of the charts you

14 wanted to provide us with, and of course the Rules provide for written

15 submissions before trial and oral submissions. If the intention is to

16 support your oral submissions by charts in the way it was done by

17 Mr. Sayers, I think there would be no problem and then we can ask later on

18 the Prosecution whether there are any objections to deliver copies of this

19 supporting flips or charts to the Bench, and to the Prosecution, of

20 course, but of course it can't be a third chance to provide a written

21 submission.

22 So can you please tell us what you intend and how you intend to

23 proceed.

24 MR. SMITH: Yes, Your Honour. It is intended as an aid to

25 argument, as the rest of the slide presentation is, and it was prepared

Page 259

1 expressly as the result of a suggestion during the pre-trial process for a

2 very complicated set of conclusions and findings in the opinion, and I

3 simply intend to argue the main conclusions about the findings in answer

4 to Judge Guney's question based on the analysis that is in this document

5 which then the Appeals Chamber and the Prosecution can examine.

6 JUDGE SCHOMBURG: Right. If it's in support of your submissions,

7 and indeed it's true, in preparation of this appeal hearing. Of course,

8 and I didn't ask to go through count by count but to be very detailed, and

9 I think we all have to be very precise on the arguments to be found or not

10 to be found in the judgement, and therefore, I think there is nothing

11 wrong if you continue this way and then let's ask afterwards the

12 Prosecution whether there are any objections or not and maybe only

13 tomorrow. Let's wait and see.

14 Please continue and, in general, we had only already one request

15 by the Prosecution that it might be that Prosecution needs a little bit

16 more time. If you need a little bit more time, it's no problem. It's

17 better to be more precise than to be more fast. Thank you.

18 MR. SMITH: Thank you, Your Honour. Let me proceed, then, by

19 addressing the findings in this case, and in effect to answer the question

20 put by Judge Guney.

21 The Trial Chamber, as Your Honours will recognise, made conclusory

22 findings in many cases. The Trial Chamber was wrong on reciting evidence

23 that was said was advanced by the parties. They did that at great length,

24 the Prosecution on the one hand, the Defence said on the other hand. Then

25 they had a tendency to append to that long recitation of evidence very

Page 260

1 short, brief paragraphs in which their own findings were asserted. Those

2 were generally short, sketchy, conclusory, and did not disclose the

3 reasoning of the Trial Chamber nor provide any real explanation either to

4 Mr. Kordic or to the Appeals Chamber of the basis on which the conclusions

5 were reached.

6 Let me give examples. There are no express findings in most cases

7 in this judgement on most of the elements for most of the locations, et

8 cetera. The best example may be paragraph 649 of the judgement. This

9 constitutes the main set of factual findings on the main underlying crimes

10 at the main locations. It deals with counts 3, 4, and 7 through 20, and

11 it deals with the Lasva Valley villages, the heart of the case, Ahmici,

12 Nadioci, Pirici, Santici, Vitez, Stari Vitez, and Veceriska. This is a

13 seven-line paragraph which makes six key points.

14 First, it rejects the Defence case out of hand; second, it says

15 that the evidence clearly points to organised HVO attacks in these areas.

16 The Defence can agree to this. There were, in fact, HVO attacks,

17 simultaneous ABiH attacks, in our submission. But this does not say that

18 these attacks were against civilians or in any way illegal. They were

19 military actions and this sentence says nothing more.

20 It says that its findings must be seen against the background of

21 the 15 April 1993 deadline, but that is an assertion which is belied by

22 the finding in the Naletilic trial judgement at paragraph 23 that there

23 was no deadline as such as of 15 April 1993, as the Trial Chamber relates.

24 Second, the Trial Chamber says that its findings must be seen

25 against the background of the wider attack on Vitez and the Muslim

Page 261

1 villages of the Lasva Valley. But this is precisely what is at issue in

2 the finding. This is circular, to see the finding in light of the matter

3 at issue in the finding.

4 Then the Trial Chamber simply lists counts, lists localities, the

5 seven villages, and then makes an attempt to bridge over its lack of

6 specific findings by saying "The underlying offences are made out." That

7 phrase "made out," in gross with no reasoning. That's all. No express

8 findings, much less reasons, for all of the multitude of necessary

9 findings as to elements and counts and villages in that matrix encompassed

10 in that one generalised statement.

11 But let's go beyond this one example to other examples in the

12 judgement.

13 There are, for example, no express findings on the Article 5

14 general elements that I could find in the opinion. There is no express

15 finding that there was an attack on a civilian population squarely

16 addressed. There is no finding that there was a widespread attack

17 squarely addressed, or a systematic attack squarely addressed.

18 Another example: There are no express findings of crimes -- that

19 crimes, relevant crimes, were committed against "civilians," or against

20 "civilian objects," or against "protected persons." And this matters,

21 because in detention, they simply say "Bosnian Muslims." That's the

22 quotation. Bosnian Muslims were detained. They take no position on

23 whether they were civilians or protected persons or combatants or whether

24 the defendants couldn't tell the difference at the time of the detention.

25 There is also no express finding of discriminatory basis for each of the

Page 262

1 underlying persecutory attacks which, of course, are here, these attacks

2 against villages which are charged individually also as crimes in counts 3

3 to 43.

4 There is no express finding, for example, in count -- as to count

5 4 that the damage was "extensive" to civilian property. There is no

6 express finding for count 38, that the damage at the relevant locations

7 was "large scale," that it was "not justified by military necessity," or

8 that it caused "grave consequences to the victim."

9 There was no express finding as to counts 21 and 22, as I just

10 indicated, that it was civilians or protected persons that were detained,

11 simply a finding that it was Bosnian Muslims, undifferentiated. No

12 express findings for count 39 that there was appropriation with intent to

13 permanently deprive the victim, and no finding that what the victim was

14 deprived of had sufficient value that it caused "grave consequences" for

15 the victim.

16 This next example is particularly egregious. Paragraph 834(C), at

17 the end of the opinion dealing with the individual crimes 3 through 43,

18 finds Mr. Kordic guilty under counts 38 and 39 at a number of locations.

19 But if you will look at paragraph 809, which backs up those findings for

20 counts 38 and 39 in paragraph 834(C) and compare the findings, what you

21 find is that there are 15 villages for which Kordic was convicted either

22 under count 38 or count 39 or both which -- for which there is no

23 necessary factual predicate finding in paragraph 809 because they are

24 omitted by the Trial Chamber in paragraph 809. And these include

25 Kiseljak, Visnjica, Gacice, Behrici, Svinjarevo, Gomionica, Gromiljak,

Page 263

1 Polje Visnjica, Rotilj, Tulica, Han Ploca, Grahovci, Veceriska, Donji

2 Veceriska and Jajce.

3 JUDGE SCHOMBURG: Sorry, may I interrupt you. We have to be

4 extremely careful what this Appeals Chamber is seized of at this point in

5 time. You should be aware in relation to count 39, that already the Trial

6 Chamber found at paragraph 35 of the 98 bis decision of 6 April 2000 that

7 in relation to a number of villages or hamlets mentioned by you, there was

8 no case to answer. In addition to this, on the Status Conference the 6th

9 of May, 2004, the Prosecution conceded that the Trial Chamber did not make

10 necessary factual findings in relation to Vitez and Donja Veceriska. So

11 therefore, we should be extremely careful what we are still seized of.

12 MR. SMITH: Indeed. You're exactly right, Your Honour. I have

13 tried to be, and Your Honour should check my list against both paragraphs

14 809 and paragraph 834(C) and these other dispositions to make certain that

15 I have it right and carve it down if I have missed something. As I

16 indicated earlier, this is very complicated, and we have been responding

17 as rapidly as we could to Your Honour's request.

18 There is no finding at all as to Kordic's -- no express finding as

19 to Kordic's mens rea as to counts 3 through 43 for Kiseljak villages, Novi

20 Travnik, Busovaca, and Merdani. There is no express finding of Kordic's

21 mens rea as to counts 3 through 43 for Ahmici, any of the other Lasva

22 Valley villages, Ocehnici, detention offences, counts 38 and 39, and count

23 43. The only express finding on mens rea at all in the opinion relates to

24 count 1, persecution, in paragraph 829 of the decision where it is found

25 that Kordic was "acting sharing the discriminatory intent" of the joint

Page 264

1 criminal enterprise, the basis for our assertion that the conviction rests

2 on a category 1 offence.

3 There are also imprecise and inconclusive findings in many cases.

4 For example, and I will simply list several, paragraph 586 relating to

5 Busovaca. Kordic is said to be "implicated in" the attack as a "leader

6 exerting both political and military authority." From this finding, it is

7 not possible to determine whether the Trial Chamber meant that he

8 committed the offence because he was present in Busovaca during the

9 fighting and he was not present at most of these locations for most of

10 these events. Was it therefore direct commission they had in mind? Did

11 they think that he planned it or that he instigated it or that he ordered

12 it? One doesn't know, and as I will argue subsequently, there isn't

13 evidence in any case in any of those situations.

14 Paragraph 631. Kordic "associated with" the giving of an order.

15 Again, imprecise, inconclusive.

16 Paragraph 669, Kordic "involved in" attacks because "associated

17 with" the orders. Paragraph 726, Kordic "associated with" the giving of

18 orders. And paragraph 800, "Bosnian Muslims" found arbitrarily imprisoned

19 without, as I indicated earlier, distinctions made as to the relevant

20 legal categories of person involved.

21 Thirdly, besides lack of findings altogether or conclusory, and

22 the second category I just covered, imprecise and inconclusive findings,

23 there are inconsistent findings in the opinion.

24 Paragraph 576, Merdani, for example. Evidence found by the Trial

25 Chamber to be insufficient for finding an attack on either civilians or

Page 265

1 civilian objects at Merdani. Yet they found the evidence sufficient for

2 count 38, wanton destruction, and that in fact was based simply on

3 evidence by a witness who saw Merdani being shelled from a distance. No

4 other evidence as to any of the necessary elements of that crime.

5 I have already mentioned the inconsistency between paragraphs 809

6 and 834(C) and the list of villages.

7 In paragraph 842, Kordic is held responsible for detention crimes

8 in areas for which he had "political responsibility," but he had no --

9 there's evidence that he had no such responsibility for Kiseljak, and even

10 Prosecution witnesses agreed that he had no political authority in any

11 real sense in Vitez, and that eliminates the necessary predicate for

12 detention findings at every location except Kaonik in Busovaca

13 municipality.

14 JUDGE SCHOMBURG: Sorry to interrupt you again. On the transcript

15 it reads in paragraph 842. 842 is --

16 MR. SMITH: It should be 802, Your Honour. Thank you.

17 One other potential inconsistency I will mention. Should the

18 persecution count be upheld, which Kordic argues strongly it should not

19 be, but should it be, then counts 7, 10, and 21 become cumulative under

20 the recent case law of the Appeals Chamber, because they are crimes,

21 individual crimes under Article 5 also charged as persecutory acts, and if

22 they are found as persecutory acts to uphold the persecution conviction,

23 then the Krstic appeal judgement paragraphs 230 through 33 indicates that

24 they are cumulative.

25 There are a number of legal conclusions in the judgement which are

Page 266

1 not backed up with factual findings, and Your Honours have discussed

2 several in the pre-trial process. One in particular additional, however,

3 that I would mention. In paragraph 669, Kordic is found "involved in" the

4 April attacks on all of the Kiseljak villages for which he was alleged to

5 be guilty in April in Kiseljak, because of course there are two time

6 periods for Kiseljak, April and June. And the chief basis for that

7 holding is an order by Blaskic, which the Prosecution argues inferentially

8 refers to Kordic, but that order applies only to the village of Gomionica,

9 yet it is used as the basis for holding Mr. Kordic guilty as to all of the

10 other villages in the Kiseljak area in April.

11 These, then, are the chief arguments I would make from the table.

12 There are also a number of findings. In the interests of time I will not

13 go over them, but Your Honours should look carefully at them, where the

14 finding is only by inference and stated by the Trial Chamber only to be by

15 inference. The plan, the joint criminal enterprise for a campaign of

16 persecution is only an inference circumstantially arrived at. Kordic's

17 intent, sharing the discriminatory intent, in paragraph 829 is only an

18 inference circumstantially arrived at.

19 In short, necessary findings were not made. They were not

20 properly made. They were inconsistent in many cases. For this reason, in

21 our judgement, when you look at the matter count by count, not a single

22 count survives as a substantive matter. And secondly, this judgement is

23 not a reasoned opinion. It does not give Mr. Kordic the notice he is

24 entitled to on appeal to deal with the case as reasoned by the Trial

25 Chamber and the convictions against him, and it does not assist the

Page 267

1 Appeals Chamber in its effort to take a hard look, as it now does, at

2 judgements on appeal in order to prevent invalidity of convictions,

3 prevent the omission of reversal where there is an invalidity in the

4 conviction, and to avoid a miscarriage of justice.

5 I propose now, Your Honour, to turn to the main substantive errors

6 by the Trial Chamber in its evaluation of counts 3 through 43 and then of

7 count 1, persecution, which I will tackle in the next period.

8 First, I would like to set out but very briefly the nature of the

9 Trial Chamber's errors to make clear that we are not simply re-arguing our

10 case below. And if you will look at the slide material now, you will see

11 that the first type of error we complain of at various locations in our

12 briefs and in arguments is that either there was no evidence at all for a

13 finding, there was no reliable evidence, or that there was no sufficient

14 reliable evidence.

15 Secondly, we sometimes believe that the Trial Chamber failed to

16 take into account critical evidence, and I am omitting the examples in the

17 interest of time.

18 Third -- let me go back a moment. The Trial Chamber sometimes

19 made erroneous evaluations of the evidence. And finally, there are many

20 categories where there were other reasonable inferences available on the

21 facts on a particular issue and the Trial Chamber failed to take the

22 inference most favourable to the accused, which is an error both -- that

23 is an error of law and involves an error of fact on the grounds that no

24 reasonable Trial Chamber should have done that.

25 All of the errors we deal with go to essential findings on

Page 268

1 essential elements of the crimes at various locations and under various

2 counts. Thus they all demonstrate a miscarriage of justice, if we are

3 correct, as well as the invalidity of the conviction involved.

4 I turn next to the core of all of the counts, both persecution and

5 involving the individual crimes, and that is the allegations of illegal

6 attacks, HVO military attacks on villages. These are the basis both of

7 the individual crimes and, therefore, a fortiori, of the persecutory acts.

8 The central legal issue involved in these attacks is, in fact, whether or

9 not they were directed against legitimate military objectives and did not

10 cause civilian losses clearly disproportionate to the military objectives

11 achieved, because they are military attacks by soldiers. And the first

12 question is: Was this a legitimate attack against a military objective?

13 Or, on the contrary, was it, as the Prosecution alleges, an attack

14 directed primarily against civilians or civilian objects, depending upon

15 the relevant count, in which case it was not an attack against a

16 legitimate military objective.

17 If these -- if these were legitimate military operations without

18 disproportionate civilian damage, then they were not war crimes, nor were

19 they persecutory acts.

20 In short, even before the mid-1993 fighting, the Muslims - and I'm

21 now talking about the general context of this fighting - the Muslims

22 controlled much of the four Central Bosnia municipalities in which the

23 Trial Chamber found Croat persecution. From June 1993 on, the Muslims

24 controlled virtually all of the municipalities of Central Bosnia except

25 for four small Croat pockets, one of which, Vares, subsequently fell in

Page 269

1 the fall. The outnumbered and surrounded Croat community in the Vitez,

2 Busovaca and other Croat pockets - the other two - suffered greatly in the

3 winter of 1993-1994, and came close to complete defeat before they were

4 saved by the peace agreement in the spring of 1994.

5 It is important, and I emphasise, it is important to consider at

6 the macro level the military context in asking one's self the question of

7 whether it is plausible, it is reasonable to believe that the Croat

8 community and its institutions in Central Bosnia, if you adopt the narrow

9 view of the persecution allegations and finding, would have set out to

10 persecute the much more numerous Muslims that surrounded them and cut them

11 off from the rest of the Croat community in Herzegovina.

12 In short, Your Honours, this is Central Bosnia. What may have

13 happened in Herzegovina is one thing. The question you are faced with is

14 the plausibility of a criminal plan, a joint criminal enterprise for a

15 plan of persecution, a campaign of persecution in Central Bosnia by this

16 community. It just doesn't add up before I even start talking about the

17 specifics.

18 And I now want to turn to the first set of villages I will deal

19 with, and I will now deal with several villages and with the detention and

20 destruction of religious objects findings for the remainder of the hour,

21 Your Honour.

22 So let's turn to --

23 JUDGE SCHOMBURG: If need may be, please tell us. We could also

24 change the schedule that you can continue until 3.30. This would make no

25 problem at all. We don't want to interrupt you unnecessarily.

Page 270

1 MR. SMITH: Will that throw us off schedule thereafter, Your

2 Honour? Because I have -- the reason I ask is I have, obviously, another

3 30 minutes, from 3.30 to 4.00, to deal with persecution and mens rea.

4 JUDGE SCHOMBURG: It's up to you to decide what fits best in your

5 programme.

6 MR. SMITH: The short of it is if it is extra time, I will take

7 it. If it is a rejuggling of time, I will take the break at 3.00 and

8 begin the discussion on persecution and mens rea at 3.30, Your Honour.


10 MR. SMITH: So I take it then I shall stop at 3.00.

11 Let's take the village attacks. Now, Mr. Sayers has already dealt

12 with Ahmici and the chief evidence at Ahmici, and I'm going to deal with

13 Nadioci, Pirici, and Santici, and then I'm going to deal with other

14 villages. And I do this in each case by listing the substantive offences

15 that are at issue so that that is clearly in mind, then examining the

16 Trial Chamber judgement and its reasoning. I will not repeat this orally

17 and I sometimes don't repeat it in slides, this business about the

18 reasoning, because it's the same in every case. The role is as a

19 political leader. The evidence is, in paragraph 834, as to the individual

20 counts, the Trial Chamber simply throws up its hands and says we rely on

21 the evidence already referred to as to persecution for findings for

22 individual crimes, and I will not dwell on that each time, nor the fact

23 that they generally reject the Defence case out of hand. I will also not

24 dwell each time on the background cited by the Trial Chamber, which I've

25 already addressed.

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Page 272

1 So let me turn immediately to the evidence. In each of these

2 cases, after discussing the Trial Chamber's judgement, I go to the

3 evidence. First the convictions, then the Trial Chamber's judgement, then

4 the evidence.

5 These villages were guarded and defended. The Trial Chamber cited

6 evidence on Ahmici but not as to Nadioci, Pirici, or Santici. They never

7 cited any evidence that there was any massacre in these three associated

8 villages on the same scale as in Ahmici. And this goes to Your Honour's

9 inquiry in the pre-trial process as to whether there are factual findings

10 to back up the convictions of Mr. Kordic for counts 7, 8, 10, and 12 of

11 these villages in the judgement, and it is our submission that there is

12 not.

13 Now, despite the Prosecution's arguments in brief that Ahmici is a

14 separate location from these three nearby -- is not a separate location

15 from these three nearby villages, I simply refer you to the judgement,

16 which treats these villages separately from Ahmici. So the evidence for

17 Ahmici does not go to the situation in these three distinct surrounding

18 villages.

19 In candour, I must tell Your Honours that while not in the

20 judgement, there was some evidence, not cited by the Trial Chamber, that

21 military-aged men, some of whom who had been on armed patrol the night of

22 the 15th and the morning of the 16th, were apparently killed in the

23 fighting. There was some evidence, secondhand, non-specific, suggesting

24 possibly some civilian casualties from in or around these villages. And

25 this is important, because Your Honours must focus on whether there is

Page 273

1 actually evidence that there were civilians as opposed to combatants

2 involved where there's an alleged crime. Now, in Ahmici there clearly

3 were civilians. There's no question about it. And as executed, Ahmici

4 was clearly a war crime. The issue there is what happened in the planning

5 process, and we have argued Mr. Kordic simply had nothing to do with that

6 and was not involved. I should say also, Ahmici was, as we've argued in

7 briefs, a very strategic location. Notwithstanding that, the attack, as

8 executed, did constitute a war crime.

9 Now, there is notified as to Kordic's involvement in these Nadioci

10 attacks, Pirici and Santici. There is no evidence that a crime was

11 planned for these three villages at the -- any putative April 15th

12 meeting. Even if there were evidence that there was a crime planned as to

13 Ahmici, not so as to this and all of the other Lasva Valley villages.

14 In short, then, after coming to conclusions from the evidence, the

15 question is: What are the Trial Chamber errors? And we've tried to be

16 precise about this in each argument.

17 No recent decision, which I've already addressed and I won't

18 repeat. No proof beyond reasonable doubt of Kordic's involvement as to

19 these villages, because there is simply no evidence that he planned any

20 crime at these villages. And I summarise that on the slide.

21 No evidence that he ordered any crime. No evidence that he had

22 any authority to order any perpetrator, and no evidence of any deliberate

23 order by Kordic in execution of which any perpetrator committed any crime

24 at these villages. Indeed, no evidence of any intent or desire, much less

25 even awareness that there was going to be a crime. And this is true once

Page 274

1 you get outside Ahmici and that meeting relating to Ahmici and all of the

2 locations. And of course, it's our submission that that evidence is

3 insufficient as to the meeting in Ahmici itself and Mr. Kordic's

4 involvement.

5 Likewise, no evidence of instigation, simply lack of evidence.

6 Where is Mr. Kordic in all of this? And no proof of his mens rea.

7 And I turn to Vitez and Stari Vitez. And I am going to cover this

8 only very summarily. The story here is there is no evidence linking

9 Mr. Kordic to the Vitez, Stari Vitez fighting, no evidence that he had any

10 mens rea as to that fighting, and I should note that the damaged mosque in

11 Ahmici -- in Stari Vitez was being used by a sniper. That's what the

12 evidence shows.

13 And I turn now to the Novi Travnik situation. Now, in Novi

14 Travnik, you have heard already something about, and there's been a good

15 deal about in the briefing, the question of who was in charge at Novi

16 Travnik. And because Your Honours, I think, are aware of that issue and

17 up on it, I am not going to deal with it right now. Rather, I'm going to

18 deal with a very important issue.

19 You will notice there are only two counts involved at Novi

20 Travnik, count 38 and count 39, wanton destruction and plunder. And in

21 order to find that there was wanton destruction, there has to be evidence.

22 There is evidence that during the conflict, a number of Muslim-owned

23 buildings were burned or demolished. That evidence, however, is - and

24 cited by the Trial Chamber - seems to be secondhand. The gentleman simply

25 reports that it's his understanding that this took place, and it does not

Page 275

1 establish in any case anything other than that he says those buildings

2 were damaged. It does not establish that the HVO troops caused any

3 relevant damage, does not establish that that damage was in the zone of

4 the fighting or not in the zone of the fighting. Indeed, it appears not

5 to be in the zone of the fighting, because the fighting ran through the

6 middle of town, and this appears to be elsewhere. And it does not show

7 the damage to be large scale. In short, as with so many of the findings,

8 virtually all of the findings, when you dive down and look at the specific

9 facts and the specific elements, it evaporates.

10 In short, Novi Travnik was an episodic flare-up over control of

11 the strategic military arms factory during which there simply isn't

12 adequate proof that there was -- there were violations of all of the

13 elements of counts 38 and 39, whatever you think about Mr. Kordic's

14 participation, and we know that he was not in command.

15 I will go on to Busovaca and Merdani. Our argument in Busovaca is

16 that there was an attack. There was fighting in January, no question.

17 The issue is whether there is proof of war crimes and of whether Kordic is

18 linked to any specific proved war crime and whether he had mens rea, and

19 there's findings and evidence of his mens rea as to any specific war

20 crime.

21 The conclusion that there were war crimes in Busovaca rests on

22 several bases: first, the testimony of Witness AS; secondly, an UNPROFOR

23 report; thirdly, the Trial Chamber cites the 20 January alleged ultimatum,

24 and it draws the conclusion from these three events that the HVO

25 attacked the ABiH using the ABiH attack the day before in Kacuni as a

Page 276

1 pretext. And the Trial Chamber concludes that there was only "some

2 defence," minimising the evidence and saying the Croats attacked first,

3 and the Muslims, there was just some defence. Well, let's look at the

4 facts.

5 As to Kordic's culpability, not the question of war crime now but

6 the question of Kordic's culpability, the Trial Chamber cites three main

7 pieces of evidence: first, a tape recording of a telephone conversation

8 between Colonel Blaskic and Mr. Kordic; secondly, miscellaneous

9 military documents mentioning Kordic, involving Kordic, from which

10 inferences are argued; thirdly, testimony that Kordic at times during

11 that fighting was where any sensible would have been, which is in a

12 basement in the headquarters of the units involved in the PTT building, in

13 the basement office.

14 The Trial Chamber also relies in a very unspecified way - again

15 imprecision in analysis - on Kordic's alleged control over roads, but

16 never says why that matters. And the Trial Chamber finds Kordic, as a

17 result, implicated in the attack; and I indicated already, one simply

18 can't know on what basis, whether as a committer, planner, instigator, or

19 order -- person ordering.

20 Well, let's take a look at the testimony of Witness AS. Witness

21 AS testified - this was a Prosecution witness, their star witness at the

22 end of their case - that Blaskic personally commanded the January military

23 operations. Witness AS listed military actions at several locations in

24 which he participated, but he gave no details as to those actions. He

25 testified that his police unit never attacked civilians deliberately, that

Page 277

1 he never -- was never ordered to attack defenseless civilians, and that

2 his police unit was never ordered to attack or set fire to Muslim

3 villages. Witness AS never mentioned Kordic in connection with any of

4 these military operations.

5 Witness AS testified, in fact, that the person he interacted with

6 was Ljubicic, his commander, who got his orders from Colonel Blaskic by

7 telephone, for reasons I will indicate in a moment. In short, Blaskic was

8 the military leader, he said, and Kordic had political responsibility.

9 Let's turn now to the -- let's me go back a moment. I'm sorry.

10 Witness AS did mention the word "cleansing," and despite all of

11 this other testimony, that's what the Trial Chamber seized on, that word

12 "cleansing" in the English translation. That word, if you examine the

13 transcript carefully, was placed in the witness's mouth by a leading

14 question from the Prosecution. That's the derivation of that terminology.

15 And Your Honours had been through the question whether when one uses that

16 term and in the military context one is talking about mopping up or urban

17 fighting generally or whether one can really safely infer that this

18 witness, who was simply responding to the question from the Prosecution's

19 counsel, intended to say in complete contradiction to the rest of his

20 testimony that his unit and he had engaged in a war crime in ethnic

21 cleansing.

22 Now, let's turn to the UNPROFOR report. That report is -- there

23 is a contrary report, a contemporary -- that report, first of all, is from

24 the Kiseljak headquarters, a higher level, removed somewhat from the

25 action. And there is another ECMM report, Z454, that gives a more

Page 278

1 accurate assessment of the fighting. It does not blame the Croats, the

2 way the UNPROFOR report does, and it does not cite the 15 January

3 "declaration" as a causative factor for the fighting in Busovaca in

4 January.

5 Let's turn to that declaration. The text of that declaration says

6 -- first of all that, declaration is designed to be an implementation of

7 the Vance-Owen Plan. If you look at the text, you will see on its face

8 that there is no ultimatum. There is a proposal for on a reciprocal basis

9 for separating and mutually subordinating these two forces that were on

10 the same ground at the same time causing great difficulty which resulted

11 ultimately in their getting into a civil war later on in April.

12 The Croats, furthermore, agreed before the "deadline" ran to

13 renounce and withdraw this alleged ultimatum. Furthermore, the fighting

14 began at Gornji Vakuf on the 11th, and that's before the deadline ran. So

15 Z390.2, that UNPROFOR report at headquarters, they just got it wrong.

16 That January "declaration" did not result in the Gornji Vakuf fighting.

17 Now, let me be very brief about the nature of the military actions

18 here. The record is clear that there were extensive ABiH preparations

19 around Busovaca. Troops concentrated, the area was sealed off from

20 Kiseljak and stayed that way for the rest of the war. Most of the Muslim

21 population left Busovaca right before the fighting, secretly. And just

22 before the fighting, the ABiH captured 16 HVO soldiers up on the Busovaca

23 plateau. As I said, they sealed off Busovaca and Vitez from Kiseljak, and

24 they began the fighting on the 24th at Kacuni.

25 Let's look at the evidence from the BritBat observers. Lieutenant

Page 279

1 Colonel Stewart and Major Jennings agreed that the Kacuni killings were

2 the principal catalyst for the Busovaca fighting but not that they were a

3 pretext as the Trial Chamber found. The fighting itself began early on

4 January 25th, as reflected by the evidence, with shooting and shelling

5 from all sides. The Croats then moved on the morning of the 25th of

6 January to disarm 50 to 100 TO members, Muslim combatants, who were in

7 fortified positions in and around Kalice Strane [phoen], which, if you

8 look at the map, you can see is a Muslim area on a hill immediately

9 overlooking the downtown area of Busovaca, threatening, almost by

10 pistolshot, the downtown area of Busovaca. The Muslims were warned but

11 they refused to surrender, and the fighting having commenced, the Croats

12 attacked that community to eliminate that threat to the heart of Busovaca.

13 And this is recorded in milinfosums and the testimony of Brigadier

14 Grubesic. The ABiH attacked the Croats in Milovace [phoen], and there was

15 fierce fighting on both sides, and I've provided citations. The 17th

16 Krajiska Brigade attacked Javor, and I've provided citations. The attacks

17 by the ABiH then continued for several days. Colonel Blaskic operated by

18 telephone from Kiseljak, where he was cut off.

19 On the question, then, whether there was a Croat attack and some

20 defence, look at Colonel Stewart's contemporaneous diary and consider

21 that, strategically, the Muslim objectives were to cut off communications

22 at Kaonik and Kacuni and to isolate -- to cut the pocket in half,

23 essentially, so that Kiseljak was isolated from Vitez and Busovaca. The

24 HVO then counter-attacked, and these are the counter-attacks that Witness

25 AS spoke about and participated in. Indeed, his unit did try to take

Page 280

1 Merdani on the 27th but failed. During this entire set of attacks, the

2 HVO was greatly outnumbered in Busovaca. They were on the ropes.

3 Lieutenant Colonel Stewart blamed the Muslims in his book and in

4 his testimony. Major Jennings shared this view and said that the Muslims

5 refused to discuss Kacuni. They were very uncooperative. And most

6 importantly, Blaskic was caught out of position. Now, if this wasn't a

7 Croat deliberate, planned Croat attack against the Muslims as a part of a

8 campaign of persecution to be kicked off in January in Busovaca, why was

9 Blaskic in Kiseljak when the fighting began when his headquarters was in

10 Vitez? No responsible military commander plans an attack, a campaign of

11 persecution, and then gets caught out of his headquarters when his plan

12 goes into the operation. Yet this is not a fact that the Trial Chamber

13 discussed. They basically ignored this, but it's very, very telling.

14 Now, as to Kordic's role, the BritBat officers were told directly

15 by Kordic that he had no military authority in this same time period.

16 Blaskic himself said he was the commander on 1st of February and that

17 Kordic had no military authority, as reported in an UNPROFOR report.

18 There we go. And Kordic did take an active role in this fighting. No

19 question about it. This was in his backyard. His family lived in

20 Busovaca, and he was the senior political leader on the spot when Blaskic

21 was caught off base. He spoke daily to the press, spent time in his

22 office, spent time in this more secure headquarters, he was copied on some

23 of the military communications, he did use his influence to try to help

24 the HVO receive reinforcements. He had telephone conversations with

25 Blaskic, but listen and read very carefully the content of that telephone

Page 281

1 conversation. It relates to an artillery attack, not a war crime. Kordic

2 has to ask Blaskic to consider various military steps, and the text of

3 that discussion makes it clear that the HVO officers would not obey

4 Kordic. "I told him but he won't do anything without it." And I will get

5 to that in a moment. There it is.

6 I must conclude quickly, but the short of it is that Kordic tried

7 on some occasions to meddle in artillery activities but that meddling was

8 generally rebuffed. That is what the text of the tape reflects. That is

9 what the documents reflect when you analyse them carefully, as we have

10 done in the brief.

11 I submit to you, therefore, that at Busovaca, there is no proof of

12 specific war crimes. The Trial Chamber is wrong on the facts that the

13 Croats attacked the Muslims is the beginning of a coordinated campaign of

14 persecution when Blaskic was out of position, and in any case, Kordic

15 participated as an active political leader would be expected to

16 participate; in public statements, present in headquarters occasionally,

17 trying to get logistical assistance, sometimes being copied on military

18 correspondence with Blaskic out of position. But Kordic was not the

19 military commander. He did not have responsibility for the fighting.

20 There was, in any case, no war crime proved. And when you look at the

21 facts after the event and you look at the Busovaca Joint Commission's

22 report, it was the Croats who were most severely damaged, both in terms of

23 personal injury and property damage during the Busovaca affair.

24 I will rest on brief, Your Honour, on the issues involving the

25 unlawful detention and the destruction of institutions dedicated to

Page 282

1 religion or education and begin after the break on the question of

2 persecution and then mens rea.

3 JUDGE SCHOMBURG: Thank you very much. The Appeals Chamber stays

4 adjourned until half past three.

5 --- Recess taken at 3.00 p.m.

6 --- On resuming at 3.32 p.m.

7 JUDGE SCHOMBURG: Before I give you the floor again, Mr. Smith,

8 may I ask you the following, because it seems to be the correct order

9 before addressing mens rea issues. In your brief of 9 August 2001, in

10 footnote 211, you mention that the Trial Chamber's conviction as to

11 Merdani is an error for all reasons, and so on.

12 During the Status Conference held the 6th of May, we addressed

13 this question because, in fact, according to the judgement, your client

14 was found not guilty in relation to count 37. And the Prosecution

15 clarified that it's not disputed that Kordic has been acquitted for the

16 crime of destruction of property not justified by military necessity,

17 although paragraph 576 of the Trial Chamber concludes that the crime in

18 question was made out in Merdani.

19 What now? Your client is found not guilty. Apparently you appeal

20 the finding of not guilty. Can I take it that you are withdrawing this

21 appeal?

22 MR. SMITH: Indeed, Your Honour.

23 JUDGE SCHOMBURG: Thank you. It's accepted by the Prosecution?

24 MR. FARRELL: Yes, of course, Your Honour. Thank you.

25 [Appeals Chamber confers]

Page 283

1 JUDGE SCHOMBURG: The Trial Chamber accepts this as well. Thank

2 you. Please proceed.

3 MR. SMITH: Your Honour, I will speak until 4.00, but may I deal

4 with two housekeeping matters initially? First, we have given to the

5 Prosecution and other counsel these disks with the slides, and I would

6 tender them now officially to the Registry, if Your Honour chooses.

7 JUDGE SCHOMBURG: I think the best way would be to postpone it.

8 If not, the Prosecution is already ready to give submissions on this

9 question.

10 MR. FARRELL: If I may, Your Honour. The Prosecution's position

11 is that they -- the characterisation with -- I mean, obviously as it

12 represents my learned colleague's position, the characterisation of the

13 elements or the characterisation of whether the Trial Chamber made certain

14 findings are not accepted by the Prosecution, as you can imagine. We

15 don't accept -- I'm sorry, Your Honour. We don't accept the conclusory

16 findings as to how they slot the evidence or the findings into the counts

17 or the elements. That's obviously the subject matter of the appeal. And

18 since it represents an opportunity by the appellants to put forward their

19 submission in that regard in writing, as we don't accept many of the

20 conclusions that we had the chance to look at at lunch, that if you do

21 accept it as a form of their written submission of how the trial judgement

22 should be read, then the Prosecution should be given the opportunity, if

23 we feel necessary, at some point in time, to respond. Thank you.

24 JUDGE SCHOMBURG: Let's postpone our decision until later. Please

25 understand that the Trial Chamber has to confer about this. And please

Page 284

1 make one clear distinction: I think you want to tender first the CD-ROM

2 with the flip charts highlighted this morning. Are there any problems

3 with this for the Prosecution? The entire CD-ROM, as related to

4 Mr. Sayers' contribution.

5 MR. SMITH: And mine, Your Honour.

6 [Appeals Chamber confers]

7 JUDGE SCHOMBURG: This is the first part. Then you intended to

8 provide us with both charts, and then, in addition, those slides we have

9 seen during your submissions the last hour. And as for the slides, are

10 there any problems? I think we should be very precise on this.

11 MR. FARRELL: Regarding the slides, which constitute to a certain

12 extent their submissions, I can't see -- you've seen them. They are their

13 submissions. I don't see any problem with those.

14 JUDGE SCHOMBURG: Then this is accepted. May I ask the usher,

15 please, to distribute one copy to the Prosecution and to the Bench.

16 MR. SMITH: And copies here. I believe the Prosecution has a

17 copy. And we will hold these until the morning, Your Honour, as I

18 understand. Or do you want those distributed now?

19 JUDGE SCHOMBURG: Let's decide later on the charts, because they

20 have not yet been part of your submissions, your oral submissions. And

21 let's wait and see until the end.

22 MR. FARRELL: If I may just ask one point of clarification. Does

23 the CD contain -- and it's not to Your Honour, obviously. Does the CD

24 contain, in the slide part of Mr. Sayers' presentation, more than was

25 presented today? Just so I can check. I'm going on what was presented

Page 285

1 this morning, but I don't know what's on the CD. I'm sorry.

2 MR. SMITH: I think it does include slides on his sentencing

3 argument this afternoon. It does not, I believe, include slides on the

4 response to your appeal that we will argue on Wednesday. Is that

5 accurate, Mr. Sayers?

6 MR. SAYERS: Actually, it contains everything. All of the slides

7 on all of the arguments that we intend to be making to the Appeals

8 Chamber.

9 [Appeals Chamber confers]

10 JUDGE SCHOMBURG: Taking into account that it will cover also the

11 response to the appeal by the Prosecution, I think it's only fair to wait

12 until the end, and then finally decide upon the admissibility. Thank you.

13 So let us wait.

14 MR. SMITH: Your Honours, much of what I have already said relates

15 directly to numerous material, Trial Chamber errors, as to both the

16 crucial persecution and the mens rea issues. I now turn to deal with each

17 individually.

18 I'm starting with persecution, and I am starting with the question

19 of the adequacy of the indictment insofar as it relates specifically to

20 persecution and specifically to joint criminal enterprise. And these are

21 quotations similar to those that Mr. Sayers used this morning from the

22 Vasiljevic trial judgement and the Kupreskic Appeals Chamber.

23 The point is that the amended indictment is defective, in our

24 submission, because it charges, number one, a broad, non-specific campaign

25 of persecution; number two, as charged, extending to areas for which no

Page 286

1 specific evidence was offered, where Kordic had no political influence,

2 and as to which Kordic was found not guilty.

3 The Appeals Chamber has held that, as to -- now switching to joint

4 criminal enterprise, that using the concept of joint criminal enterprise

5 to define individual responsibility requires a strict definition of common

6 purpose and that the persons within the group have got to be identified as

7 precisely as possible. In short, the Krnojelac appeals judgement has

8 established four requirements for the Prosecutor in pleading joint

9 criminal enterprise.

10 First, that he must plead the common purpose or design

11 specifically. That was not done in this case. The language in the

12 indictment, and I've cited the paragraphs, says only that Kordic, together

13 with certain persons, did X, Y, or Z. There's no mention of common

14 purpose or design there.

15 Second, the Prosecution must specify carefully the purposes of the

16 common purpose, and here the allegation is very broad and generic of a

17 campaign of persecution. Must also identify as precisely as possible the

18 principal perpetrators. But when you look at the amended indictment, you

19 find that it charges, in a formulaic way, over and over, Kordic together

20 with various members of the HDZ, BiH, the HZ HB, HR HB and their leaders,

21 armed forces, and agents. Simply vague and non-specific.

22 And fourth, the Prosecution must charge the specific category of

23 joint criminal enterprise, or common plan, as it was then called, that

24 they are alleging. Not done in the indictment or even in the pre-trial

25 brief. Paragraph 26 of the amended indictment mentions foreseeability but

Page 287

1 not specifically in the context of the common plan for joint criminal

2 enterprise, and foreseeability is relevant for many reasons as to various

3 elements.

4 Even if the amended indictment were read to have pled a category 3

5 joint criminal enterprise, that is not what Kordic was convicted on. Then

6 there is a mismatch between the pleading and the conviction, because he

7 was convicted of a category 1 joint criminal enterprise.

8 Now, in dealing with persecution, what is alleged is a political

9 military campaign of persecution, in itself a very vague concept. I've

10 dealt with the military side at some length, and I will again briefly. I

11 turn now to the political side.

12 The Trial Chamber's judgement found Kordic criminally responsible

13 for participation in this campaign of persecution for essentially two

14 reasons: Due to his status and due to his role. Insofar as his status is

15 concerned, they found that he was the political leader of the Bosnian

16 Croats in Central Bosnia, but, of course, as Mr. Sayers has indicated,

17 only a local leader, not engaged at the highest levels. And, of course,

18 he was, as you would expect of any political leader during a time of

19 military operations, associated with military leadership. That's not

20 surprising and not per se criminal.

21 As for his role, Kordic was said to have, as a political leader,

22 participated in certain political events; the HVO takeover of the

23 municipalities and certain military events, the attacks that I've already

24 discussed.

25 The accused, in terms of evidence relied on as to role. The

Page 288

1 accused's positions, relied upon by the Trial Chamber, are his positions

2 in a political party. Not in the government, not in the military.

3 Mr. Sayers has made these points. The evidence in the case, however,

4 demonstrates, by the testimony of Mr. Vucina, who was an outstanding and

5 credible witness, a representative in the House of Representatives of the

6 Federation of Bosnia-Herzegovina and well placed to know the truth of what

7 he testified to on the point I'm coming to, because he was the president

8 of the Executive Committee of the HDZ BiH during the war.

9 What he said was that during the war, during the period that this

10 indictment deals with, the political party was dormant and inactive and

11 that events were directed by and actions taken by the government and the

12 military during that wartime period.

13 Now I am going to turn to dealing with the political aspects of

14 the charge of persecution, and I am going to begin by reflecting upon a

15 statement by the Presiding Judge in this case. He said: "I hope this

16 isn't going to end up as being a trial about politics." But it did end up

17 being a trial about politics, and it did because that is the way the

18 Prosecution pled the case and that is the way the Prosecution tried the

19 case.

20 Turning to the political events. There were two main sets of

21 political events that the Trial Chamber focused on and that were discussed

22 and dealt with in the evidence. One is the establishment of the HZ HB and

23 especially its purpose. And this was at the national level, and that's

24 what I will deal with first. Secondly, then there were - and I'll come to

25 this - HVO attacks -- sorry, HVO take-overs of municipalities alleged, and

Page 289

1 I will deal with that as well. In fact, I will deal with each in turn.

2 First, the purpose of the HZ HB. This is the national-level

3 issues. Kordic, of course, found not to be involved in the national

4 leadership. But nonetheless, the Trial Chamber concludes that the Bosnian

5 Croat institutions intended to secede from the RBiH and associate with

6 Croatia, and that is what we must examine. The conclusions of the Trial

7 Chamber on this matter deal mainly with events during the earliest period

8 covered by the amended indictment in the fall of 1991, and in fact some of

9 them before the period of the amended indictment, although the Trial

10 Chamber does mention a few events in early 1992.

11 The Trial Chamber's analysis of these essentially historical and

12 political matters, which we examined at great detail in our trial brief in

13 an annex and in the brief itself but had no room to do in our Appeal

14 Brief, has some critical and material errors. The Trial Chamber, for

15 example, concluded that Mate Boban became president of the HZ HB the

16 following month after Mr. Kljuic resigned. That is simply not the case.

17 It concluded that the Croats took advantage of the Muslims in the gaining

18 of weapons in the period when the JNA was leaving the facilities at the

19 Slimena barracks. That, for the reasons that I've set out, is in error.

20 The credibility of the Trial Chamber's grasp of the national

21 political situation was fatally undermined by its gross error in

22 concluding that Mr. Kordic was exercising power politically and became

23 vice-president of the HR HB, the political successor to the HZ HB. Simply

24 not the case.

25 The Trial Chamber, as to this whole issue at the national level,

Page 290

1 failed to cite, failed to credit, in most case, the official documents

2 that Kordic has cited, and the credible witnesses Kordic put on, stating

3 and establishing, for example, that the Bosnian Croats advanced a

4 legitimate political objective, that their institutions were only

5 temporary, that they were independent of the -- they were not independent

6 of the RBiH, never asked to be independent, never urged annexation to

7 Croatia by force. They were not and never purported to be a sovereign

8 government under international law, and there was a great deal of

9 confusion about the use of the term "sovereignty," meaning sovereignty of

10 a constituent people within a political community in the Balkans versus

11 sovereignty in the international law sense, which they did not claim. The

12 evidence establishes that there was no de jure discrimination, and it

13 established no de facto discrimination.

14 There was evidence that I want to pause on, however, and that is

15 the Tudjman transcripts. Evidence put in by the Prosecution of the

16 meeting in Tudjman's office on December 27th, 1991, which is said by the

17 Trial Chamber to be incriminating.

18 Nonetheless, it does not establish that even if secession was

19 dreamed of at the early stages of the breakup, in the fall and winter of

20 1991, that it was intended to go forward then or to be done by force. It

21 was to be considered only as a last resort. Tudjman told the Bosnian

22 Croat leaders to negotiate with the Muslims in December of 1991. He never

23 instructed that BiH was to be partitioned, never instructed that the

24 Croats there were to secede at that time, never instructed or demonstrated

25 any desire that the Bosnian Croats should proceed by force or threat of

Page 291

1 force.

2 Notwithstanding all of this evidence, the Trial Chamber has found,

3 with no explanation, that there was an intent to secede. But even if

4 there were, that finding accords only legitimate political objectives. It

5 is clear on its face that this finding can support no conclusion of either

6 discrimination or persecution. It contains no finding of intent to use

7 force, and even if it had, use of force to achieve legitimate political

8 end is not a war crime before this Tribunal.

9 Switching to the alleged HVO takeovers. This Tribunal, in

10 language in several opinions, Judges have concluded that the forcible

11 takeover of a city or town does not constitute a war crime or a separate

12 claim under Article 5. And there is a great deal of evidence that I do

13 not have time to go over dealing with the take-over in Busovaca,

14 establishing point by point in our briefs that the allegations as to

15 discrimination after the takeover cannot, in fact, be maintained on the

16 facts, and we have argued that the take-over itself was a reasonable

17 political response by the group that controlled the government at that

18 time to the situation created by the Muslims in their attempt to take the

19 weapons at the military barracks at Kaonik.

20 And I'm now going to turn to mens rea.

21 JUDGE SCHOMBURG: Would it be appropriate? Judge Weinberg de Roca

22 has a question. Please.

23 MR. SMITH: Yes, Your Honour, of course.

24 JUDGE WEINBERG DE ROCA: You have repeated that Mr. Kordic has

25 been found responsible for areas where he had no political influence, and

Page 292

1 I would be grateful if at this stage you could specify in which areas you

2 submit he had political influence and which are the areas which you submit

3 should be excluded. Thanks.

4 MR. SMITH: He had political influence in Busovaca. Later, during

5 the war, he had political influence in that region, that pocket,

6 Vitez-Busovaca area. But in terms of political influence in Vitez, for

7 example, in the spring of 1992, when there was a take-over, that was not

8 his bailiwick, and it would take me a moment to find it and I may give it

9 to you after I've sat down at some point, but there is Prosecution witness

10 evidence to that effect. But he was completely cut off from Kiseljak.

11 That was Ivica Rajic territory, and the evidence is clear on that matter.

12 May I then proceed with mens rea, Your Honour?

13 JUDGE SCHOMBURG: Please do so. Thank you.

14 MR. SMITH: Special care has to be taken with findings of criminal

15 intent. The Appeals Chamber has taken the view that an inference of

16 intent, when intent is inferred, it must be the only reasonable inference.

17 The Krstic facts, dealt with by Mr. Sayers this morning, demonstrate that

18 inferences from mere presence, inferences of shared intent from mere

19 presence, even where the person was present at a meeting and therefore had

20 knowledge of what was going on, are insufficient; there's got to be

21 evidence of mens rea.

22 I want to discuss briefly what the record shows about mens rea.

23 From a brief examination of the facts, it is clear that there is no

24 evidence that Mr. Kordic intended to cause Muslims harm, much less to

25 cause their removal, because they were Muslims rather than persons in

Page 293

1 political or military opposition to him and his community in the

2 conditions they both faced, not created by either community in Bosnia at

3 that time. This is seen in his character, his words and writings, his

4 actions toward Muslims, and his actions in support of peace. And we have

5 outlined these in our briefs at some length.

6 I will simply say that - and I want to underline - when all was

7 said and done, at the end of the conflict, Mr. Kordic exercised leadership

8 in having the political solutions adopted by the Croat community in

9 Central Bosnia, who were not happy with what the deal that was being

10 served up for them by the -- because the Croat community was dominated

11 politically by people in Herzegovina. But Mr. Kordic took a lead, even at

12 risk of his life, and in an official position aided in the implementation

13 of the peace after it was achieved, and that is an extremely significant

14 and telling point.

15 I will conclude, Your Honour, by saying that the Trial Chamber

16 applied 20/20 hindsight, circumstantial hindsight, on events, political

17 and military, to conclude, to conjure up, indeed, a joint criminal

18 enterprise and a campaign of persecution against Croats in Central Bosnia

19 where there simply was none, and therefore, and that's why there's simply

20 no evidence of it. This is an inferential case from political events that

21 have other reasonable explanations, as we have briefed, and military

22 events that have other reasonable explanations.

23 In a context in which both communities were struggling with a

24 situation, refugee flows, lawlessness, matters not created by them but

25 which Mr. Kordic and other leaders in both communities had to deal with as

Page 294












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

13 English transcripts.













Page 295

1 best they could, and with the Serbs aiding, the two communities fell to

2 fighting, and there were political and military events which we have

3 explained. The reasonable inferences were ignored by the Trial Chamber

4 that are favourable to the accused, and that's critical.

5 The Appeals Chamber must rescue the credibility of this Tribunal

6 and of the development and application of new and evolving use of

7 international criminal law, in the eyes of history and in the eyes of the

8 world, by being extremely careful with the application of the concept of

9 persecution, to political and military events which have reasonable

10 explanations and where there are reasonable inferences about the way

11 persons behaved. And I am focusing on Central Bosnia.

12 There was no joint criminal enterprise. There was no campaign of

13 persecution in Central Bosnia. There was fighting. There were lots of

14 bad things that happened. A plan of persecution by this minority

15 community outnumbered, surrounded, simply doesn't add up. Dario Kordic

16 was a responsible political leader in a very difficult time. He did the

17 best he could. He did not have the requisite discriminatory mens rea that

18 the Trial Chamber could only infer from political events and military

19 events which he necessarily participated in in his role as a political

20 leader. And he was not responsible for the crimes at Ahmici.

21 And Mr. Naumovski will now deal with the three villages -- sets of

22 villages that I omitted in my discussion, Your Honour.

23 JUDGE SCHOMBURG: Thank you, Mr. Smith. Any questions? Not the

24 case.

25 Then Mr. Naumovski, please.

Page 296

1 MR. NAUMOVSKI: [Interpretation] I do apologise, Your Honour. Can

2 you just give me a moment to prepare. I am ready now, Your Honours. I do

3 apologise.

4 Your Honours, I will continue on, but I will discuss primarily the

5 Kiseljak area and the events that took place there. It is the contention

6 of the Defence, and you will see from the arguments that follow, that the

7 conclusions of the Trial Chamber on the criminal responsibility of

8 Mr. Kordic for the events in Kiseljak - and when I say "Kiseljak," I am

9 referring to the entire municipality, as well as the town; that is, over

10 ten villages and the town of Kiseljak - that the evidence is very tenuous,

11 and, in our view, unfounded. Almost all the conclusions about the events

12 in Kiseljak are summed up in paragraph 668 and 669, and paragraph 724 and

13 725 of the judgement.

14 I have also prepared certain slides, and I hope that this will

15 make it easier to follow my argument.

16 All the evidence analysed by the Chamber boiled down to a single

17 piece of evidence for each event, and I will tell you what events these

18 are. There is no linkage with Mr. Kordic as far as the events in Kiseljak

19 are concerned, let alone any visible elements of Kordic's mens rea.

20 Mr. Kordic has been found guilty on counts 3 and 4, for the village of

21 Rotilj, unlawful attacks on civilians, for April 1993; and for Rotilj,

22 Tulica, Han Ploca, and Grahovci, counts 7, 8, 10, and 12. I will not read

23 each count.

24 Also, in relation to the town of Kiseljak and the villages of

25 Svinjarevo, Gomionica, Polje Visnjica, Rotilj, Tulica, and Han Ploca,

Page 297

1 Articles -- counts 38 and 39. There are also the villages of Visnjica,

2 Behrici, and Gromiljak, count 38; and count 43, which refers to the

3 village of Han Ploca in June 1993.

4 What does the judgement say about the events in April, April 1993?

5 The Trial Chamber established, in paragraph 753, that the evidence does

6 not show that Mr. Kordic had control over Kiseljak, because his influence

7 and authority were concentrated in the Lasva Valley. In the same

8 paragraph, the fact that Kordic was the leading political figure in

9 Central Bosnia does not of itself establish that Kordic was involved in

10 this offence outside his sphere of authority, and the attack was not part

11 of any common plan or design to which he was party.

12 The attacks in the Lepenica Valley, which starts about 25

13 kilometres away from the Lasva Valley -- and these valleys, as the Chamber

14 knows, were completely cut off as of the 24th of January, 1993 -- these

15 attacks, according to the judgement, as stated in paragraph 669, occurred

16 two days after the attacks in the Lasva Valley. According to the

17 conclusion of the Trial Chamber in paragraph 753, these attacks were part

18 of a pattern of attacks on Muslims in Central Bosnia.

19 I have to say, however, that the Trial Chamber concludes, in

20 paragraph 753, that with regard to Stupni Do, the attack by forces which

21 had come from Kiseljak were not part of an overall plan of which -- in

22 which Mr. Kordic would be a participant, and Mr. Kordic was acquitted of

23 this.

24 As for the events in April, the judgement states that Blaskic's

25 order of the 24th of September, that is, Prosecution Exhibit Z733 -- I do

Page 298

1 not wish to enter into problems of identification because this may or may

2 not be Blaskic's order, because he did not sign it himself, but everybody

3 refers to it as such, and so I will too. And in paragraph 668, it states

4 that Blaskic informed the leadership of the HZ HB of everything. I have

5 to say that the original document in Croatian is different because the

6 original states: We informed the very top leadership of the HZ HB of all

7 this.

8 We can have this document placed on the ELMO if Your Honours so

9 wish. I have already distributed copies to the interpreters. However,

10 based on this document, only on document Z733, the Trial Chamber concludes

11 in paragraph 669 that Blaskic would not have undertaken these attacks

12 without political approval, and the further conclusion is drawn that the

13 top leadership was in fact the local leadership embodied in the person of

14 Dario Kordic. They say that Blaskic could not easily have communicated

15 with someone like Mate Boban in Mostar. This is the case that the Trial

16 Chamber accepted.

17 Based on this, the Chamber concluded that Kordic was linked with

18 the issuing of orders to attack villages, including Rotilj. That's

19 paragraph 669. I will repeat what my colleague Mr. Smith said. This

20 refers -- this document refers only to the village of Gomionica, which is

21 only one of ten villages in the Busovaca municipality. So I have to say I

22 fail to see the link between this document and other villages, including

23 Rotilj. The Chamber has reached similar conclusions with respect to

24 events in 1993.

25 Let me just remind you that the entire indictment and judgement

Page 299

1 was based on two events, or rather, two time periods, one in April and the

2 other one in June. It was found that the villages of Tulica, Han Ploca

3 and Grahovci, to the south of Kiseljak along the road to Sarajevo, were

4 attacked on the 13th of June. The Trial Chamber considered, in accordance

5 with what was said about the events in April, that these -- all these

6 attacks were part of an unceasing attack by the HVO.

7 The Trial Chamber accepted the statement of a witness about

8 Kordic's presence in Kiseljak on the 14th of June, based on what the

9 witness said that he had seen in passing in a five-second time period. I

10 have to say that ever since we began working on this case long ago, in

11 1997, up to today, there has been a considerable development of the

12 jurisprudence of this Tribunal, and this is something that we are very

13 pleased about, and it seems to us that this Tribunal's credibility is

14 growing due to this. And this is also what my colleague Mr. Sayers

15 mentioned about witness statements that have not been corroborated in any

16 way.

17 So both with respect to the attacks in June, based on this witness

18 statement, the witness said that he had seen Mr. Kordic for five seconds,

19 the attacks, according to the Trial Chamber, could not have been launched

20 without the approval of the local political leadership in the person of

21 Dario Kordic. Paragraph 726. And that is why Mr. Kordic was linked to

22 the order that these attacks be launched.

23 This, however, is what the evidence states. Kiseljak was a

24 territory under the command of Ivica Rajic. Major Baggesen testified to

25 this, transcript 7759.

Page 300

1 Brigadier Wingfield-Hayes, who testified two days before the close

2 of the Prosecution case and who was the third in command in the UNPROFOR

3 headquarters in Kiseljak, said that he had never seen Mr. Kordic in

4 Kiseljak. Transcript 16168. And he also said that Mr. Kordic was not a

5 person who should be consulted if there were any problems in Kiseljak,

6 because Mr. Rajic was the local commander.

7 I will not go into this any further. I will simply refer to the

8 testimony of the Prosecution witness, Brigadier Winfield-Hayes.

9 Let me say a few words about the location of these villages.

10 Rotilj, as can be seen from the map adduced to the judgement, was located

11 just to the rear, west of Kiseljak, in a valley above the town. Tulica,

12 again, was militarily important because it was between the HVO and ABiH

13 lines. Han Ploca/Grahovci, which are interconnected along the road, were

14 militarily important because they were outside a main road junction, with

15 key roads running to Sarajevo and Mostar. I am mentioning all this

16 because I wish to say that the Trial Chamber failed to pay attention to

17 this military aspect. All the villages I have mentioned, and some others

18 as well, were in the area of war operations. Sometimes there were -- some

19 of them were at the front line, others were being defended. For example,

20 Witness AL, Prosecution witness, transcript 15554, said that the civilian

21 population left Behrici, but 50 or 60 Muslim men stayed to fight and

22 controlled the village for over two months. Behrici was part of the ABiH

23 and the HVO front line.

24 Prosecution Witness D says Gomionica was held by ABiH troops. Also

25 Prosecution Witness AM, Major Baggesen, and others, made similar

Page 301

1 statements.

2 The Trial Chamber, based on these two pieces of evidence, Z733 and

3 Witness Y, considered that Mr. Kordic was linked to the events -- the

4 attacks that took place in the Kiseljak municipality and that he was

5 responsible, without mentioning any facts that would prove that Mr. Kordic

6 participated in or planned any of these attacks, let alone proving

7 elements of his mens rea.

8 I do not want to waste time, so I think it is time to move on to

9 slide 21, and this is what I wanted to point out.

10 Z733, the Prosecution exhibit, deals only with the village of

11 Gomionica, as explicitly stated in paragraph 1 of this document. In this

12 order, Blaskic --

13 [Appeals Chamber confers with legal officer]

14 JUDGE SCHOMBURG: Please continue.

15 MR. NAUMOVSKI: [Interpretation] Thank you. In this order,

16 Blaskic, among other things, in paragraph 4, on which the conclusion of

17 the Trial Chamber is based, says: We have informed the very top of the HZ

18 HB, with whom we are in constant communication, of all of this."

19 The judgement says that the local politician, Mr. Kordic, embodies

20 that top, but in the entire file, there is no document where Blaskic would

21 use this expression "the very top." The very top, in this particular

22 case, cannot refer to Mr. Kordic, because Mr. Kordic was not the very top

23 of the Croatian Community of Herceg-Bosna.

24 According to the way Colonel Blaskic addressed Mr. Kordic, this

25 can mean only one thing. It can mean only the president of the community

Page 302

1 of Herceg-Bosna and his associates in Mostar, because, referring to

2 Mr. Kordic, he always called him either "Mr. Kordic" or by his title, but

3 never said about him that he was the very top. Mr. Kordic was not the

4 very top, as the Trial Chamber itself concluded, saying that he was not in

5 the highest echelons of power among the Bosnian Croats. Therefore, we

6 contend that this is very stretched, this conclusion that Blaskic was

7 referring to Kordic.

8 What does this document show? It shows that Blaskic informed the

9 very top of the Croatian Community of Herceg-Bosna, but it doesn't mean

10 that he asked for approval from the very top of the Croatian Community of

11 Herceg-Bosna to launch military action in the village of Gomionica only.

12 We in the Defence fail to understand paragraph 769, that Blaskic would not

13 have launched a military operation without the approval of Mr. Kordic.

14 This is not a request for approval for an attack; it's only information as

15 to what is happening in the village of Gomionica.

16 In paragraph 839, we see what I said a moment ago, that the

17 judgement itself considers that the evidence does not confirm that Kordic

18 was -- that Kordic was at the top echelons of power in HB because of that.

19 JUDGE SCHOMBURG: Mr. Naumovski, we want to be very clear about

20 the content of document 733. You were kind enough to give us a copy, and

21 I don't know how best to do it. Unfortunately, it seems to be that the

22 English translation does not correspond with the French translation.

23 Therefore, if you could be so kind and read out the paragraphs you are

24 referring to from this document and then it may help us.

25 And I apologise to the interpreters to task you with translating

Page 303

1 something which is normally not your job.

2 MR. NAUMOVSKI: [Interpretation] Mr. President, I have facilitated

3 the work of the interpreters because I have prepared a copy for them. So

4 they have the text in the three languages. I apologise that during the

5 deliberations we didn't notice the errors in the translation, but the

6 original, of course, is in Croatian, so I will read out point 1: "This

7 evening you must take Gomionica or early in the morning." I think that is

8 enough from that point 1, because no other place is mentioned and the

9 operation is mentioned after that.

10 And then we come to point 4 of this order, which

11 says: "Generally, at all positions, the situation is under control. And

12 we have informed the very top of the HZ HB of everything, with whom we are

13 in constant contact."

14 This point 4 is the reason for which Mr. Kordic, in my conviction,

15 was convicted of everything and found guilty of everything done in

16 Kiseljak in April 1993, because there was absolutely no other evidence of

17 that.

18 JUDGE SCHOMBURG: I thank you, and the interpreters.

19 MR. NAUMOVSKI: [Interpretation] Therefore, what my colleague said

20 earlier on is this: It is one thing to establish a piece of evidence and

21 then to see what the accused has done, which is simple, and then to

22 ascertain the elements of his consciousness, the mens rea, and so on and

23 so forth. Here, the Court, from a very pure and clear-cut document and

24 clear-cut information about the events, comes to the conclusion in

25 paragraph 669 that Blaskic would not have launched the attacks without

Page 304

1 political approval precisely of Mr. Kordic. Now, that is completely

2 unacceptable to us and is a very weak argument, because it is not

3 substantiated by proof and evidence. If we look at this document relating

4 to Gomionica, which is a piece of information, and it draws conclusions

5 for villages in the whole region, and then this information means

6 political approval.

7 I don't want to tire you with this point too much. I should like

8 to go on to the next document, which is a very vital one as well.

9 Everything that happened in June 1993 is based on the testimony of

10 Witness Y, who testified on the 3rd and 4th of December, 1999. And the

11 transcript is 11000 or thereabouts, some page or line thereabouts.

12 Now, what did Witness Y actually say? Witness Y said that he saw

13 Mr. Kordic at the barracks in Kiseljak and that at that point in time,

14 Mr. Kordic was surrounded by some unknown individuals. He went on to say

15 that he saw Mr. Kordic, as he was walking, while he was going to wash, and

16 that he was 8 to 14 metres away from Mr. Kordic at that point in time, and

17 both of them, as we have established, were moving, on the move, walking to

18 and fro, and that all this lasted for a flat five seconds. So that is

19 what the witness said.

20 I do not wish to tire Your Honours or to repeat what my colleague

21 Mr. Sayers has already said, but as I said a moment ago, with the

22 development of jurisprudence in the Tribunal, which is progressing in the

23 right direction, I would nonetheless like to say that this is something

24 that has not been substantiated by any evidence and has not been

25 substantiated by any witness testimony that Mr. Kordic was actually in

Page 305

1 Kiseljak. Mr. Kordic was a well-known personage. You would see him on

2 television. Everybody knew what he looked like. And quite simply, in the

3 judgement, mention is made of the fact that the Defence did not prove that

4 Mr. Kordic was not in Kiseljak at the material time, that is to say, in

5 June 1993.

6 I fully accept the allegations made by Her Honour Judge Mumba that

7 it is up to the Defence to prepare itself, to prepare the defence case,

8 and to be trial-ready. However, I would like to say that it is almost

9 impossible, or rather, absolutely impossible, to defend oneself from

10 negative circumstances or to prove a negative circumstance at all. So

11 therefore, it was impossible to prove that Mr. Kordic was not in Kiseljak

12 from the 4th to the 8th or whatever the date was, as it says, in Kiseljak,

13 because he was not able to be in Kiseljak in the first place. And even if

14 he was in the barracks, this should have been -- rang the alarm bell for

15 the Trial Chamber to focus on what the witness actually said, because in

16 Kiseljak we had the centre of the UNPROFOR headquarters, Kiseljak was

17 militarily interesting intelligence-wise. So they all oversaw the

18 barracks. That is absolutely true, and nobody ever saw Mr. Kordic. And

19 not a single document, all the milinfosums, not a single one of them, not

20 a single intelligence report ever said that Mr. Kordic was ever seen in

21 Kiseljak in the summer of 1993.

22 And ultimately, Mr. Wingfield-Hayes didn't see him either, the

23 number-three man in UNPROFOR. And I'm sure he would have heard -- had

24 Mr. Kordic been there, and he was actually asked that in the courtroom.

25 In a completely inexplicable way, the Trial Chamber accepted this

Page 306

1 gentleman's testimony that he had been -- that he had seen Mr. Kordic in

2 some dramatic circumstances, according to him, and the Trial Chamber did

3 not accept at least six or seven witness testimonies that Mr. Kordic was

4 accused of. However -- and this was never corroborated.

5 But let's move on. Let it be true that Witness Y did see

6 Mr. Kordic, although we consider that that is impossible and that he must

7 have made a mistake. Witness Y said nothing about what Mr. Kordic was

8 doing; whether he was issuing any orders, whether he was committing any

9 crimes, whether he was planning any crimes, ordering, planning any acts.

10 All he did say was that he saw him passing by, passing by the corridor.

11 I consider, and that is the position of my Defence, that -- and

12 our Defence, that the Trial Chamber should have paid due attention to the

13 testimony by Witness Y, especially as it based their stand on Mr. Kordic's

14 participation in the crimes on that testimony and all the mens rea on the

15 part of Kordic for those crimes. And the Trial Chamber failed to look

16 into how Mr. Kordic could have been there in the first place. I think

17 Witness O said something to that effect in the cross-examination during

18 the trial, that Kiseljak was -- or rather, Busovaca was cut off from

19 Kiseljak from the 24th of January, 1993, right up until the Washington

20 Accords in the spring of 1994. So that is a fact.

21 I do not wish to tire Your Honours now with some of the facts, for

22 instance, the problem of identifying the individual. Mr. Sayers spoke

23 about that at length. I would just like to indicate the Appeals Chamber

24 judgement in the Vasiljevic trial judgement of the Trial Chamber, et

25 cetera, and the Kupreskic judgement as well. Let me conclude. This

Page 307

1 document, Z733, in itself or with respect to any other evidence, does not

2 show that Mr. Kordic should have given any political approval, neither did

3 he have any part in the events that took place in the villages mentioned

4 in April 1993. Also, on the basis of witness testimony, including the

5 testimony of Witness Y, even if we do accept the conclusion made by the

6 Trial Chamber that he did indeed see Mr. Kordic, all we can conclude from

7 that is that Mr. Kordic was seen there, and nothing other than that,

8 absolutely nothing. Let me remind you once again of the Krstic judgement

9 with respect to the events in Potocari, because I think that that is the

10 only reasonable solution in cases where there is not a shred of evidence

11 to prove anything else other than that person was in one place at one

12 time. Otherwise, if any of us happens to be just by chance -- and I

13 apologise for this comparison, but if it so happens that we happened to be

14 somewhere where somebody was killed, we would all be murderers or be

15 incriminated.

16 So looking -- and this is quite unacceptable from the legal aspect

17 and from the aspects of life in general. So this is not sufficient to

18 prove guilt. And I put it to you that there is no proof and evidence that

19 Mr. Kordic had any power or influence to wield influence of the events in

20 Kiseljak. The attacks there, as I have said, in view of military targets,

21 were justified, and it has not been proved beyond reasonable doubt that

22 the operations were illegal and unlawful, that they were attacks against

23 civilians, or rather, civilian facilities, and there is no proof of this,

24 that it was military necessity either. And it is for all these reasons,

25 as far as this part of my presentation is concerned, that the only

Page 308

1 reasonable conclusion is that Mr. Kordic -- that nothing was proved that

2 Mr. Kordic had any connection at all with these events, least of all that

3 these two pieces of evidence, document 733 and Witness Y testimony, would

4 be sufficient to establish his guilt.

5 I have overstepped my time somewhat. I did want to make certain

6 other points about the events in the village of Loncari and Donja

7 Veceriska and Gacice, however, I will now cede the floor to Mr. Sayers and

8 we'll see whether we'll go into those points later on if there's time.

9 Thank you.

10 I apologise. Of course, if there are any questions from Your

11 Honours, I should be happy to answer them.

12 JUDGE SCHOMBURG: Judge Guney, please.

13 JUDGE GUNEY: [Interpretation] Mr. Naumovski, I must say that I'm

14 a little perplexed, faced with the terms that were used by you and by your

15 colleagues during your submissions, with respect to the prerogatives and

16 power and authority of Mr. Kordic. Now, would you try and assist us,

17 please, and help us clarify certain points. Because on the one hand, he

18 was a man of politics, he was a civilian exerting considerable influence

19 and power in Central Bosnia, on the one hand, according to paragraphs 836

20 of the judgement, for example, and 839, although he played an important

21 role in military affairs and sometimes even going towards giving orders

22 and controlling HVO forces. "While he played an important role in

23 military matters," et cetera, et cetera, paragraph 839.

24 Finally, we come to document Z733 and the fourth paragraph, in

25 which it says that the situation is under control at all the positions and

Page 309

1 we have informed the top leadership of everything and we are in constant

2 contact with the leadership. I think that you said that they exerted

3 influence. Sometimes you used the word "authority," exerted authority.

4 Your colleague used similar terms. So I think we should spend some time

5 to actually delve into what we mean by this authority. What was the

6 authority, influence, and prerogatives of Mr. Kordic, in actual fact, in

7 light of the elements that I have just quoted? So would you be so kind as

8 to help us out on this point, please, and develop arguments to help us

9 clarify. Thank you.

10 MR. NAUMOVSKI: [Interpretation] Yes, Your Honour. I shall be

11 happy to do so, Judge Guney. May I just make a few statements before

12 that? The Croatian Community of Herceg-Bosna, as my colleague said before

13 me, had its civilian structures of authority and the military chain of

14 command. Mr. Kordic was a politician who did not have any administrative

15 authority in Central Bosnia, because the Prime Minister of the civilian

16 government of the HVO, Mr. Brnik, had his deputy. He was Ante Valenta,

17 and he had his headquarters in that same Lasva River Valley. Therefore,

18 all these civilian organs of power and authority in the municipalities of

19 Busovaca, Vitez, and Novi Travnik were, in actual fact, subordinated - I'm

20 talking about civilian authorities - to Mr. Valenta, as the "deputy of the

21 Prime Minister" of the Croatian Community of Herceg-Bosna. And from this,

22 we come to what I want to tell you: Mr. Kordic was a politician. He did

23 not have any administrative authorisations and competences or military

24 ones either. He started his political career, if I can put it that way,

25 within the party to which he belonged, and he belonged to the party since

Page 310

1 the beginning of 1990 or 1991. Later on, he grew to become, and of course

2 circumstances pushed him in that direction, he became a sort of popular

3 tribune in the Lasva River valley, and that in fact is reflected in the

4 judgement in paragraph 839, that he remained a civilian. So he remained a

5 civilian with no administrative powers. He couldn't, for instance,

6 replace the president of the civilian HVO in the Busovaca municipality,

7 Mr. Maric. He didn't have the authority to do that, for example.

8 Therefore, he was a politician who emanated from the party and became a

9 popular Tribune with great authority among the people. People came to him

10 for assistance, asked for his help, and that is how Mr. Kordic came to be

11 involved in some circumstances and events. The Convoy of Joy, for

12 example, in the summer of June 1993, not far from Vitez, where Mr. Kordic,

13 by wielding his authority, endeavoured to have certain problems resolved.

14 So people came to him for help. He was an individual without any

15 administrative authority or competencies. That's who Mr. Kordic was. So

16 when I and my colleagues speak about certain authority and influence, we

17 mean political influence that he wielded, not actual power in his hands to

18 undertake one thing or another thing in the administrative or military

19 sense at all.

20 JUDGE SCHOMBURG: I just have a follow-up question. I'm aware

21 that you dealt with Kiseljak and the surrounding municipalities. However,

22 let's please have a look on paragraph 577 of the judgement. And please

23 accept this as a question under the heading "Right to be heard." Isn't it

24 true that it seems to be that there Mr. Blaskic and Mr. Kordic acted

25 apparently on the same level, if not -- it's referred to -- if this tape

Page 311

1 is not disputed, and the intercept, Kordic saying to Mr. Blaskic: 100

2 should be killed for every one friend. There was a close link between the

3 politicians and the military.

4 MR. NAUMOVSKI: [Interpretation] I apologise. I didn't hear what

5 he said. What was the quote?

6 JUDGE SCHOMBURG: I quoted from the intercept of January 1993.

7 You can find it in paragraph 577 of the judgement.

8 MR. NAUMOVSKI: [Interpretation] Yes. I have seen that.

9 Mr. President, the situation, as far as the Defence is concerned, is quite

10 simple in this regard. The question and the date, and Mr. Smith said a

11 moment ago, who attacked whom in January 1993. Therefore, the strong

12 forces of the Bosnia-Herzegovina army, who were preparing, as has been

13 proved, were on the attack. And of course, the position of the people who

14 were within the pocket was to do anything they could. Now, what

15 Mr. Kordic and Blaskic spoke about, their conversation, and he was the

16 other side of the pocket in Kiseljak, he went to visit his father, as far

17 as I gather, is essentially - I don't know how else I can say this, and I

18 think we said this once in our response - was a joke, an unrealistic fact.

19 This never actually happened. This event never actually happened. There

20 was no VBR that was attacking, nor were there any consequences of that.

21 And so the tone of the entire conversation is one of joking. And we can

22 see that it is not a conversation between people planning to launch a

23 serious military attack. And that is what we claimed all along, and the

24 tape proved that in itself. So there were no consequences, nor did this

25 event ever take place, this shelling, I mean. It never took place.

Page 312

1 JUDGE SCHOMBURG: Thank you. Judge Weinberg de Roca, please.

2 JUDGE WEINBERG DE ROCA: Thank you. I have a follow-up question

3 following Judge Guney's question. It's difficult to understand -- you and

4 your colleagues are speaking about administrative authority or influence,

5 political authority or influence, and military authority or influence.

6 And it's the submission, I understand, or I understand, at least, that

7 Mr. Kordic had political but not administrative or military authority.

8 Did this political authority mean that he had authority over the

9 paramilitary groups?

10 MR. NAUMOVSKI: [Interpretation] Absolutely not, madam, Your

11 Honour. It is true that we state that Mr. Kordic did not have

12 administrative authority, but we also claim that he didn't have any

13 military authority, and numerous witnesses have borne that out. Now, this

14 might appear to be a little illogical, but in our defence case we heard

15 testimony from the main people and assistants of General Blaskic, from his

16 first deputy, the chief of staff, several commanders in his brigade,

17 brigades under Mr. Blaskic. So it is crystal clear that Mr. Kordic did

18 not have any military authority. And similarly, no power at all - perhaps

19 power would be a good word in English - over any paramilitaries,

20 paramilitary formations. Now, the difference and distinction between

21 political and administrative authority is very vital. Let me quote an

22 example. In Busovaca there was no food, for example. That was a case in

23 point. The local authorities in Busovaca had their own mechanisms of how

24 to deal with the situation, how to collect food. And when they were not

25 able to have food supplies from normal sources, if I can use that term, or

Page 313

1 from UNPROFOR, then they went to prevail upon Mr. Kordic, to ask him, as a

2 man they could believe, to wield his authority and go and see with

3 UNPROFOR, to send a telegram to Mostar, or however else, so that the food

4 could be found. And Mr. Kordic would solve the problem and the food

5 supplies would arrive in a few days' time, and the people were

6 exhilarated, but of course he wasn't able to order anyone to do this. So

7 that's what I mean, that's how he was a general type politician, if I can

8 put it that way. He had no administrative or civilian authority or

9 military authority, let alone exert an influence on any paramilitary

10 formations.

11 JUDGE SCHOMBURG: No more questions. And it would be once again

12 for Mr. Sayers, but I think it's fair enough. You are prepared for

13 another half an hour and then I think we should continue now for the first

14 15 minutes, up to 5.00, and then you may continue for another 15 minutes

15 after the break.

16 MR. SAYERS: If I might just follow up on the question that was

17 asked by Judge Weinberg de Roca with some specific references to the

18 actual testimony. Let me first point the Appeals Chamber's attention to

19 the slide that we've put on. This is the UNPROFOR -- sorry. This is

20 General Blaskic's chief of staff, Brigadier Franjo Nakic, who testified

21 quite unequivocally at trial that Mr. Kordic had no military role.

22 Next. Brigadier Darko Gelic was the UNPROFOR liaison officer. He

23 was asked, actually, the precise question that Judge Weinberg de Roca

24 asked: "Did Mr. Kordic have any military authority over any units of the

25 military police or any special purpose units, paramilitary units?" "No."

Page 314

1 "Did you ever see Mr. Kordic give orders to Colonel Blaskic?" "No." "Did

2 you ever hear that Mr. Kordic ever tried to give orders to Mr. Blaskic or

3 influence his military decisions in any way?" "No." "Did he have any

4 authority over the Jokers, the Vitezovi, the 4th Battalion of the military

5 police?" "No."

6 But who better to know whether there was authority over the

7 military police than the commander of the military police? Let's see what

8 he had to say. He was called as a Court witness. Colonel Marinko

9 Palavra, the successor to Ljubicic. He testified he was subordinate to

10 the operative zone and to the command of the operative zone. "Is that

11 correct?" "It is." "Did you ever take orders, directions or instructions

12 from Dario Kordic ever?" "Your Honours, no, never." TR27014. "Did

13 Kordic ever try to exert military influence over the soldiers under your

14 -- military police under your command or the soldiers under Colonel

15 Blaskic's command to your knowledge?" "He absolutely never did." "As far

16 as you're aware, Kordic had no authority whatsoever over the military

17 police?" He agreed with that. The proposition was put to him that "You

18 took your orders from your superior commander who, on August 1st, was

19 Colonel Blaskic; is that so?" "That is quite so." Kordic had nothing to

20 do with the running of the units, including the military police. And if I

21 may go into private session for just one second.

22 JUDGE SCHOMBURG: Please do so.

23 [Private session]

24 (redacted)

25 (redacted)

Page 315

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 [Open session]

9 MR. SAYERS: And Your Honours, that is how it was.

10 JUDGE SCHOMBURG: You may continue, please.

11 MR. SAYERS: Thank you, Your Honour. I just wanted to clean that

12 up, since there was some lack of clarity in the record on that.

13 I'd like to make three points as we draw to the close here. We've

14 got our heads down and we're headed for the finish line, I hope. Armed

15 conflict, international armed conflict, and sentencing.

16 Armed conflict. There was no armed conflict before April of 1993.

17 And how do we know that? Because the Trial Chamber told us that. We know

18 that this is very important in the Tribunal's jurisprudence because the

19 armed conflict requirement is a jurisdictional requirement for the

20 application -- for the finding of any crimes under Articles 3 or 5. Or

21 Article 2, for that matter, but there must be an international armed

22 conflict under 2. What does it mean? It means armed force between

23 states, which we don't have here, or protracted armed violence.

24 The key factual finding by the Trial Chamber here is paragraph 31

25 of the judgement. It was not until April 1993 that a generalised state of

Page 316

1 armed conflict in the form of protracted violence broke out in the

2 territory of Central Bosnia between the HVO and the ABiH. The Trial

3 Chamber then confusingly and incorrectly, we would submit to the Appeals

4 Chamber, said before that there were only localised areas of conflict.

5 Within which, it said, a state of armed conflict could be said to occur.

6 But that's not possible. To be a state of armed conflict it has to be

7 protracted, and as paragraph 31 of the judgement recognises, protracted

8 armed violence did not break out anywhere in Central Bosnia until April of

9 1993.

10 I won't belabour the definition of protracted. We've put various

11 dictionary definitions up on the screen for you. But Kordic respectfully

12 submits that by no stretch of the imagination could the brief flare-up of

13 fighting in Novi Travnik be referred to as protracted armed violence.

14 What was it? We know what it was. The Prosecution itself has made the

15 submission that the 16th of April, 1993 attacks by the HVO were entirely

16 different to what had occurred prior to that date. To use -- and the

17 Prosecution cited the very graphic and accurate testimony of one of the

18 BritBat military witnesses, the subordinate of Lieutenant Colonel Stewart,

19 Major Watters, who actually described what had occurred before the

20 protracted armed violence broke out in April 1993 as "local punch-ups

21 between small communities in different villages." And that's exactly what

22 we had in Novi Travnik and in Busovaca in January 1993, punch-ups between

23 small communities, skirmishes. There was no jurisdiction over them.

24 And the Naletilic trial judgement has reached virtually the same

25 conclusion that we're urging to the Appeals Chamber today, and that was

Page 317












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Page 318

1 although tensions gradually increased between the HVO and the ABiH in

2 Mostar, not in Central Bosnia, it only turned into a full-scale conflict

3 in mid-April 1993, and the Naletilic Trial Chamber specifically ruled that

4 armed conflict existed since 17th of April, 1993 in the relevant area.

5 If I may turn to international armed conflict. Our submissions on

6 this are very particular and very narrow. First, the legal consequences

7 of the characterisation of a conflict are particularly important, as the

8 Tadic appeals judgement said. Article 2 of the Statute applies only when

9 an international armed conflict exists. Which counts are affected in this

10 case? Count 8, count 12, and count 22, we would submit.

11 Now, what was the governing test of how to determine what an armed

12 conflict was before the 15th of January, 1999? We know that. It was the

13 International Court of Justice leading case of Nicaragua from the 27th of

14 June, 1986. What did that require? A high degree of control. And even

15 when the state allegedly, internationalising a conflict, had participated

16 in the financing, organisation, training, logistical matters, even when

17 the international influence resulted in the selection of military or

18 paramilitary targets by the state, even when the state participated in

19 planning the operations of the paramilitary units, even if that was

20 preponderant or decisive, that is still not enough to internationalise the

21 conflict according to the jurisprudence established by the Nicaragua case.

22 Without the foreign entity exercising effective control over the troops,

23 there was no international armed conflict. That was the law that existed

24 as of 1986.

25 This test was changed on the 15th of July, 1999, in the Tadic

Page 319

1 appeals judgement where this Chamber held that, with respect, it held the

2 Nicaragua test not to be persuasive. Having found that that test was not

3 consonant with the law of state responsibility or with judicial or state

4 practice, the Appeals Chamber departed from it, and that's exactly what

5 the Naletilic trial judgement accurately observed.

6 Instead, a new test was established; overall control. What's the

7 difference? Well, the difference is that this is a much lower test. The

8 requirement of overall control is nowhere near as rigorous as the

9 requirement of effective control. And the Aleksovski appeals judgement

10 paragraph 145 specifically ruled that and stated that the overall control

11 test was a new, lower test.

12 Under the principle of nullum crimen sine lege, an offence will

13 only fall within the jurisdiction of the Tribunal if that offence was

14 recognised as a form of liability under customary international law as it

15 existed at the time the offence was committed, which here was 1992 or

16 1993, when the Nicaragua test was still in effect, six years before this

17 Chamber changed the governing law in the Tadic Appeals Chamber.

18 I might also say that the defective indictment in this case fails

19 to allege the identity of the entity assertedly exercising overall control

20 over HVO forces in Central Bosnia. As a result, similar omissions

21 resulted in the Simic trial judgement, the Trial Chamber rejecting any

22 consideration of the allegedly international nature of the conflict

23 because the indictment had not alleged the specific identity of the

24 foreign entity assertedly exercising overall control. The same result in

25 Hadzihasanovic -- not the same result but a similar result, because the

Page 320

1 Prosecution was required to allege the indictment in that case to assert

2 the identity of the entity assertedly exercising overall control.

3 So our conclusion on this point is very, very simple: There was a

4 new standard, a lower standard articulated on the 15th of July, 1999. It

5 governs conduct after that date, no question about it, but not before.

6 And to conclude otherwise would violate the principle of legality.

7 And with the Appeals Chamber's permission, the Appeals Chamber

8 wants to take the break now, I'll conclude my comments very shortly

9 afterwards.

10 JUDGE SCHOMBURG: I think this is an appropriate point in time.

11 And I take it that for the purpose of your now following submissions on

12 sentence --

13 MR. SAYERS: Yes.

14 JUDGE SCHOMBURG: -- you want to tender the affidavit by Mr. Kordic

15 of 10 May 2004?

16 MR. SAYERS: Precisely so, Your Honour.

17 JUDGE SCHOMBURG: Any objections?

18 MR. FARRELL: We can make submissions at the time. No, thank you.

19 JUDGE SCHOMBURG: Admitted into evidence. And what would be the

20 exhibit number, please?

21 THE REGISTRAR: Exhibit number DAK1.

22 JUDGE SCHOMBURG: Thank you. The Appeals Chamber stays adjourned

23 until half past 5.00.

24 --- Recess taken at 5.01 p.m.

25 --- On resuming at 5.33 p.m.

Page 321

1 JUDGE SCHOMBURG: Please be seated.

2 Mr. Sayers, please.

3 MR. SAYERS: Thank you very much, Your Honour. I hope to conclude

4 in about 15 minutes with the sentencing appeal arguments made by

5 Mr. Kordic.

6 The point de depart for this discussion is the finding made in

7 paragraph 854 of the judgement that Dario Kordic has offered no mitigation

8 of these offences and there is none. Kordic's position on appeal is that

9 that observation is wrong as a matter of fact. There was considerable

10 amount of mitigation evidence offered during the trial. In this Tribunal,

11 guilt and sentencing issues must be addressed simultaneously, and that's

12 what Mr. Kordic did. The mitigation evidence was simply disregarded by

13 the Trial Chamber in toto.

14 It's also legally erroneous after the Kunarac appeals judgement

15 was issued on the 12th of June, 2002. Paragraph 362 of that judgement

16 states that family circumstances are mitigating circumstances as a matter

17 of law. And the reason that that is so is because there are two things in

18 Article 24(2) of the Tribunal's Statute that must be taken into account.

19 Obviously the Trial Chamber has to take into account the gravity of the

20 offence, but also the Trial Chamber is equally obliged to take into

21 account the individual circumstances of the convicted person. Obviously

22 if the Trial Chamber failed to take into account the gravity of the

23 offence, then it would arguably have committed an error of law. The same

24 is true if it fails to take into account the family -- the individual

25 circumstances of the accused person. This is an error of law.

Page 322

1 The individual circumstances of Mr. Kordic were not really

2 controverted at trial. He was the oldest of five children. His father is

3 a retired veterinarian. His mother is a retired paediatrician. She is

4 paralysed now but was not during the war in Busovaca. She was the only

5 paediatrician in Busovaca who stayed in that town throughout the conflict.

6 Mr. Kordic is a family man. He has three children. He and his wife were

7 married in 1986 in Busovaca. They lived in Busovaca throughout the war.

8 Their three children - Vladimir, Marija, and Elizabeta - were born

9 variously on the 14th of June 1987; Marija was born on the 9th of March,

10 1992; and Elizabeta on the 8th of July, 1995. This was established at

11 trial by the affidavit of Pero Kordic, the -- in the Status Conferences we

12 were requested to submit some additional family circumstances. We did so

13 without going beyond the confines of the request. The affidavit of

14 Mr. Venera Kordic has just been admitted. We've also asked the commanding

15 officer of the UN Detention Unit, Mr. Timothy McFadden, to submit a report

16 to the Appeals Chamber concerning Mr. Kordic's good behaviour throughout

17 the course of his seven-year detention and I would request -- we don't

18 have it yet, unfortunately, but I would request the permission of the

19 Appeals Chamber to receive that report into evidence once it has been

20 prepared and submitted. Thank you.

21 The law on this issue is relatively simple. The Kunarac appeals

22 judgement states specifically that individual circumstances are a

23 mitigating -- family circumstances are a mitigating factor as a matter of

24 law. The Appeals Chamber noted in that case that it is not clear why the

25 Trial Chamber --

Page 323

1 THE INTERPRETER: Could the counsel please slow down for the

2 benefit of the interpreters. We cannot follow at this speed.

3 MR. SAYERS: And because it had to be considered -- [B/C/S on

4 English channel]

5 JUDGE SCHOMBURG: The channel is wrong. We're receiving B/C/S.

6 THE INTERPRETER: Microphone, Your Honour, please.

7 JUDGE SCHOMBURG: The B/C/S seems to be channel 4. We hear now

8 B/C/S. Let's give it another try.

9 MR. SAYERS: Very well, Your Honour. Can you hear me now?

10 JUDGE SCHOMBURG: Yes, in English. Thank you.

11 MR. SAYERS: Just as the Kunarac Appeals Chamber observed that it

12 was not clear why the Trial Chamber had not considered the individual

13 circumstances of the accused in that case, which was why his appeal was to

14 be partly successful, the same rationale applies to this case as a matter

15 of law.

16 I'd just like to conclude my presentation in a fairly expeditious

17 way here by going through some of the character evidence that Mr. Kordic

18 adduced at trial. He's a highly religious man. After the ABiH attack at

19 Krizancevo Selo on Christmas Eve of 1993, resulting in the deaths of

20 approximately 30 Bosnian Croats in the -- just to the north-east of Vitez,

21 Mr. Kordic attended a Christmas mass. He was the only political figure to

22 do so in the basement of the church in Vitez, and that was attested to by

23 Mr. Pranjes. That is just one example of numerous other pieces of

24 evidence.

25 We submitted character witness and family information affidavits

Page 324

1 on the 14th of July, 2000. I do not believe they're referred to anywhere

2 in the judgement. Two examples would be Mustafa Tafic and Saba Hudin Tuco

3 [phoen], two Muslims who lived in Busovaca during the war and who were

4 helped by Mr. Kordic.

5 Mr. Tafic attested to Mr. Kordic's tolerant and polite demeanour,

6 never drew distinctions between people of different ethnicity, took care

7 of all of the citizens of Busovaca equally, to the extent that it was in

8 his power to do so, interceded for non-Croats who stayed in Busovaca, gave

9 them all personal help.

10 Mrs. Tuco has known Mr. Kordic for 30 years. She grew up with

11 him, went to high school with him. She attested to his character. He

12 rallied to her defence when the SDA authorities wanted to close her

13 restaurant down during the war. He successfully kept it open. He

14 arranged transportation for her, during her complicated pregnancy, to

15 Travnik hospital.

16 This is important because Mr. Kordic, as these witnesses attested

17 and the others that I'll go into in just a second, there's moderation,

18 there's politeness, there's absence of ethnic animus, the fact that he

19 went out of his way to help everyone in Busovaca, not just Croats, during

20 the war. He assumed the mantle of responsibility in a time of chaos and

21 unrest, and this case definitely shows that he has paid the price for

22 stepping up to the plate and doing what he felt it was his duty to do.

23 What are the prospects for this man's rehabilitation? Well, his

24 speeches were positive. His message was positive. Quite apart from the

25 family circumstances, his future contributions to easing tensions and

Page 325

1 contributing to rebuilding the community in Central Bosnia are certainly

2 high, as we will see.

3 We have submitted some letters that -- letters of thanks from

4 Efendi Muslija and the Muslim doctor of the Muslim hospital in Jajce,

5 Dr. Sehovic, attesting to Mr. Kordic's assistance to them during the war.

6 Niko Grubesic was a Member of Parliament of the Federation of

7 Bosnia-Herzegovina, a former mayor of the municipality of Busovaca. He's

8 known Mr. Kordic for a long time, attests to his family circumstances.

9 Never heard him express any ill-feelings, hatred or prejudice, utter a

10 pejorative comments towards members of non-Croat ethnicity.

11 And let me just pause there for a second to say this: There are

12 4.665 exhibits in this case. Where are the exhibits that contain ethnic

13 animus or pejorative comments by Mr. Kordic against supposedly the other

14 side that was being persecuted? There is a lot of characterisation of

15 what Mr. Kordic supposedly said. For example, during the press conference

16 of the 15th of April, 1993, following the execution of four of Brigadier

17 Totic's bodyguards and his abduction by ABiH forces in the municipality of

18 Zenica -- this is part of the policy of abductions by political and

19 military leaders preceding any attack that was attested to at trial as

20 being a standard ABiH tactic, and a pretty effective one it must be

21 conceded.

22 Well, we didn't really need any characterisations of what he

23 supposedly said because we have what he said. Exhibit Z665. And frankly,

24 when you take a look, for example, at Witness AK, I believe, AQ who tried

25 to -- who tried to -- to say what Mr. Kordic supposedly said, this

Page 326

1 testimony was rejected by the Trial Chamber because we know exactly what

2 Mr. Kordic said. We have a transcript of what he said, and there it is.

3 And in the time of the utmost tension, the -- just a -- before a war was

4 about to break out, did we see Mr. Kordic, like Julius Streicher, pounding

5 the table, giving a belligerent bellicose speech about the evil, the

6 embodiment of evil on the other side? We do not. And that is a fact.

7 His speeches were not inflammatory. There was no incitement to violence,

8 as Mr. Grubesic said.

9 Zoran Maric described Mr. Kordic as a very correct, very educated

10 man who wanted to help everyone. Did he ever express privately prejudice

11 towards members of any other ethnic group? No. Quite the reverse. He

12 wanted to present a united front, fight for the unity of

13 Bosnia-Herzegovina.

14 Brigadier Totic, speeches were positive not negative. Srecko

15 Vucina, the head of the office of the president - actually, Mate Boban's

16 office - and described by the Prosecution as a virtually unique witness.

17 This man knew Dario Kordic. Did he ever hear Mr. Kordic say anything

18 derogatory about anybody else, including Muslims? "Knowing him as a

19 person," said Mr. Vucina, "knowing his level of education, knowing his

20 profile, his sincerity, his devotion to family, I would say it's

21 impossible."

22 You reach your own decisions, Your Honours. You've got the text

23 of the speeches before you. You've got the testimony of the witnesses

24 before you. Is this a man who incited to violence? It is not, we would

25 submit, and there is no evidence to suggest that he was.

Page 327

1 Could I have a brief private session, Your Honour, please.


3 [Private session]

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 328












12 Page 328 redacted, private session














Page 329

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

6 MR. SAYERS: Three final points. The evidence of Lieutenant

7 General Sir Roderick Cordy-Simpson with whom Mr. Kordic dealt. He

8 testified that he met Mr. Kordic. Kordic told him he was not a military

9 man, he had no military training or background. He was a journalist by

10 training.

11 Consider this testimony from the number two person in the chain of

12 command of UNPROFOR in Kiseljak, the second highest ranking officer in all

13 of Bosnia and Herzegovina. "Did you find the views articulated by

14 Mr. Kordic regarding his concerns for his fellow Croats at any time to be

15 less than completely genuine?" And here was the answer: "I think that

16 his position was what I would have expected of someone trying to look

17 after his own population in the middle of what was a very evil civil war

18 that was raging."

19 And that's a very telling comment from the number two ranking

20 officer in UNPROFOR. Who better to know than the number two officer in

21 the main military organisation of the European Community in that -- in

22 those difficult times?

23 So in conclusion, the mitigating evidence was that Mr. Kordic was

24 religious himself, came from a religious family. He demonstrated no

25 prejudice towards his -- the Muslim community in Busovaca. He was

Page 330

1 personally courageous. His personality was, to use the phraseology of the

2 judgement, footnote 870, not vehement.

3 And this is especially the case in view of the Trial Chamber's

4 findings, and the Appeals Chamber must consider these findings carefully

5 in view of the questions the Bench has been asking us, that he was not a

6 commander, not a superior. He had no power to prevent crimes, no power to

7 punish crimes; he lacked effective control. He was a family man with no

8 criminal record, and that must be considered in mitigation under the

9 Kunarac appeals judgement.

10 Thank you very much.

11 JUDGE SCHOMBURG: I thank you for your submission, and I take it

12 that you will show to the Prosecution all the supporting slides you -- of

13 course it's no evidence, but you want to hand over to the Bench that the

14 Prosecution carefully can have a view on it, whether there may be any

15 objection.

16 MR. SAYERS: There are no secrets here, Your Honour. The

17 Prosecution has everything that we've showed to the Appeals Chamber

18 today. Everything.

19 JUDGE SCHOMBURG: Okay. Then we can expect by Wednesday an

20 informed submission by the Prosecution on these parts. Thank you.

21 I know it's now twenty-five minutes later than expected, but it's

22 abundantly clear this additional time will be allocated to the Prosecution

23 tomorrow.

24 MR. FARRELL: Thank you for that, Mr. President.

25 If I may begin, Your Honours. The appellants in their very

Page 331

1 capable submissions throughout the -- throughout the whole day today have

2 painted a picture in which, as I think my learned friend said once, the

3 whole case comes down to a two-hour meeting on one afternoon in Central

4 Bosnia. It's the Prosecution's position that the judgement in this case

5 starts at the beginning in May of 1992, and there's ample evidence to show

6 the role that the appellant played from May of 1992 right through until

7 the end of the time period for which he was convicted.

8 The meeting that was referred to will be discussed by myself and

9 will be, I'm sure, referred to by my colleagues to the extent that it's

10 necessary, but the case is, I'm sure you're aware of, you spent hours

11 working on the judgement, deals with the role of a political leader who

12 was very much involved at the political level at the high-ranking level

13 and at the operational level, and the Prosecution's submission is that you

14 cannot look at this case except through a larger lens and not the

15 microscopic one that has been presented to you today.

16 I will commence the Prosecution's submissions, and I will deal

17 with some of the submissions of Mr. Sayers dealing with the procedural

18 matters, the access matters, disclosure, Rule 68, the indictment issues,

19 and then some matters related to Witness AT. If possible, and I will try

20 to finish my portion before we finish today, Your Honours, then there will

21 be other members of the Prosecution team, with your leave, who will make

22 the remaining submissions in relation to Mr. Kordic's appeal. Thank you.

23 If I could just begin by speaking about the access issue and one

24 of the issues related to disclosure. The briefs are quite full, as I'm

25 sure you're aware, so I'll try and deal with the issues that were just

Page 332

1 dealt with today or address the ones that I can try and assist the Court

2 on.

3 First of all, the general allegation made at the beginning - or

4 submission, I'm sorry - by my learned friend was that access was denied to

5 all the closed-session material and that it was because of the

6 Prosecution's guarantee, for Rule 68 purpose, that he was denied. Well,

7 he was limited in his access to two of the Lasva Valley cases and the

8 Court did order that the Prosecution should proceed to give closed-session

9 material. One of those was the Blaskic case, as you're aware of, and

10 that's the subject matter of the Rule 68 allegation. But it's not fair to

11 say that it was the Prosecution's fault that he did not receive the

12 remaining material. The other material was disclosed to him by court

13 order, one in relation to Kupreskic, Aleksovski, and the others, and it

14 was the Trial Chamber who decided that the Trial Chamber would have to

15 send the matter back to the original Trial Chamber to make a ruling as to

16 whether or not they would get access to closed session. Those Trial

17 Chambers, the Trial Chamber that was in the Kupreskic case or the other

18 Lasva Valley cases, was the final arbiter on whether or not they would get

19 those. It's not the Prosecution's responsibility in light of the access,

20 certainly in light of the Rule 68.

21 THE INTERPRETER: Could counsel please slow down. Thank you.

22 MR. FARRELL: Thank you.

23 The second point I wanted to make about the closed session is that

24 throughout the brief, and to a certain extent throughout the submissions,

25 the focus is always on the Prosecution's failure to provide the evidence

Page 333

1 or on the Prosecution's failure to ensure access to closed session.

2 Please keep in mind that the law at the time regarding access to closed

3 session was very different than the law that applies now, and the

4 obligation is on my learned friend to point out the error by the Trial

5 Chamber. And as an Appellate Court, you're fully aware that that's the

6 ultimate goal here, is to determine whether the Trial Chamber erred and

7 what the impact of that error is.

8 Regarding the disclosure of Witness AT, the appellant said that

9 he was disclosed just at the end of trial and he testified one week before

10 the end of trial. Once again, the insinuation was that there was some

11 attempt by the Prosecution or some action by the Prosecution which

12 resulted in a violation of some disclosure obligation. I simply ask you

13 to take note of the Trial Chamber's ruling on this. The Trial Chamber

14 decided, on September the 26th, 2000, that in fact, and I'm -- well, I'll

15 refer -- it's in closed session, so I'm not going into closed session.

16 I'll simply ask you to look at the Trial Chamber's decision on the motion

17 to call Witness AT on the 26th of September, 2000, in which the

18 explanation that was provided by the Prosecution as to when the decision

19 was made and why the decision was made to call Witness AT, that was

20 completely accepted by the Trial Chamber, with no objection at the time by

21 counsel for Kordic. To come now and say that somehow there was some

22 disclosure violation when there was no allegation at the time the Court

23 gave the explanation.

24 Further, the Court decided at the time that it would put off the

25 hearing of Witness AT until the end of the case so that they had two

Page 334

1 months in which to prepare their submissions. And in fact, I'd ask you to

2 take note of the Trial Chamber's comments on the 26th of September, in

3 which they point out that counsel for Mr. Kordic frankly and properly

4 conceded on behalf of Mr. Kordic that he cannot object to the Prosecution

5 calling this witness and that he submits that the evidence should be

6 called in rebuttal. The Trial Chamber agreed and added that this would be

7 an advantage of curing any alleged unfairness. Once again, I'd ask that

8 the Court please keep in mind the decisions of the Trial Chamber when

9 dealing with these allegations.

10 Those were the two aspects of the disclosure, belated disclosure,

11 that was mentioned today. The rest are dealt with in the brief.

12 If I can now turn to the Rule 68 allegation. As this Court is

13 fully aware, in the Krstic decision, there's two steps. The first is that

14 there must be a demonstration of a violation, and the second is that there

15 must be material prejudice that was suffered.

16 The Court in the Krstic case and the Appeals Chamber in the

17 Akayesu case has held that the remedy is one that can -- if there is a

18 violation, the remedy is to try and put the evidence that was not

19 admitted, or excluded, in fact, by the allegation of Prosecution

20 violation, to bring that through admission of additional evidence in the

21 Court. That's quite clear. It's in the Krstic decision. And in the

22 Krstic decision, the Defence was able to take advantage of that. And

23 despite the fact that they both at the same time made a Rule 68 allegation

24 and a 115 allegation, the material was at least before the Court so it

25 could properly assess whether the evidence was exculpatory.

Page 335

1 I point out as a matter of procedure that you do not have the

2 Blaskic material before you. I quite frankly don't know how you're going

3 to assess whether it's exculpatory and I don't know how you're going to

4 assess it in light of the total nature of the testimony, all of the

5 testimony, to determine whether or not the passages relied upon by my

6 learned friend are accurate and whether they're clarified at any point in

7 time throughout the testimony. That was the Prosecution's submission in

8 the filing, that these allegations cannot be made in a vacuum. And I'm

9 not talking about the filing of the material as 115 evidence. That's

10 clearly not been done. In fact, my learned friend, when asked by the

11 Pre-Appeal Judge whether he wanted to rely on it and file any additional

12 material, said that he was not.

13 If you recall the filing that Mr. Kordic did immediately after

14 Mr. Cerkez filed his 115 motion, you will recall that Mr. Kordic took a

15 somewhat different position on the additional evidence than Mr. Cerkez.

16 In fact, he opposed some of Mr. Cerkez's additional evidence. But in one

17 of his filings, he indicated that he reserved the right to submit

18 evidence, and particularly the closed-session testimony of Colonel Blaskic

19 at the time, if that evidence was such that it was crucial to the case and

20 if it could affect the verdict. In fairness to the Defence, they relied

21 on the wording of Rule 115. Once they got the closed-session testimony of

22 Colonel Blaskic - and it's fair; they got it in the appellate

23 proceedings. We provide it to them - they did not attempt to submit that

24 evidence before you. And in fact, they didn't attempt to put it before

25 you for the purposes of the Rule 68 allegation. And in my respectful

Page 336

1 submission, without putting that material before you, you're in no

2 position to decide whether or not that evidence actually constitutes Rule

3 68.

4 Secondly, as we've said in our filing, the Defence has to put that

5 forward at least, in our submission, on a prima facie basis that it's

6 truthful. In other words, this is evidence they would put to a witness

7 for the purpose of cross-examination or this is evidence that they would

8 call themselves.

9 There's something, with respect, something irrational about the

10 approach. If this is such crucial evidence that is so clearly, on its

11 face, exculpatory, and is so obviously exculpatory that would demonstrate

12 that Mr. Kordic has no control in Central Bosnia, why wasn't it filed? If

13 this evidence is so crucial that witnesses would have been cross-examined

14 differently, it's respectfully submitted that the failure to seek to admit

15 it, at least to file it with the Court, or to demonstrate quite clearly

16 what witnesses would have been cross-examined differently and how that

17 could have affected the verdict, without that showing, in my respectful

18 submission, though the Court may render a decision on the scope of Rule

19 68, there is no basis for a remedy, as there's clearly no material

20 prejudice. And I note that in relation to both the testimony of -- the

21 testimony that was referred to today, and I'll leave it to the submissions

22 of today, which was the Blaskic testimony.

23 The appellant referred to two of the Prosecution's submissions in

24 relation to the testimony. The first was the Prosecution's submission in

25 the Blaskic appeal that the Prosecution put forward Blaskic's testimony

Page 337

1 that Kordic was not in the military chain of command. Just to make it

2 clear -- and I think I appreciate my friend's position that this

3 demonstrates that the Prosecution knew about this testimony at the time

4 and should have disclosed it. I think that's his position. But in his

5 brief, he also puts it forward as if it's the Prosecution's position as to

6 the truth of the contents of the testimony. I just want to make it clear

7 that the Prosecution does not take the position that Blaskic's testimony

8 is the truth. It does not take the position that Blaskic's claims that

9 Kordic was not involved and had no role in the military operations is

10 the true state of affairs. And it was put forward in the Prosecution's

11 submissions to show that Colonel Blaskic has specifically changed his

12 position on appeal, at least to the extent that his filings and his

13 submissions and his additional evidence has changed his position on

14 appeal, in light of the fact that he never testified to that.

15 I note that if this evidence was to be admitted as additional

16 evidence, if there was an application, it would have been the

17 Prosecution's position, as we've set out, that he should be called as a

18 witness and he should testify as to the propositions for which the Defence

19 is alleging his evidence stands for.

20 In the Kupreskic appeal, there was a paragraph put forward with

21 respect to the Prosecution's submissions regarding AT's knowledge or his

22 awareness of the nature and content of the political meeting. Those

23 submissions were made in the context of the knowledge of Vlatko Kupreskic

24 and whether Vlatko Kupreskic was in the chain of command, the

25 political or the military hierarchy, and that in the preceding paragraph

Page 338

1 there's a discussion about how there were political and military

2 hierarchical structures where information, orders, and assignments were

3 handed out, and that the point was that obviously Witness AT, who was not

4 at the meeting, would not be in a position and would not be privy to the

5 specific nature and contents of that political meeting. But that doesn't

6 preclude the Kordic Trial Chamber or this Court from accepting the

7 inference that the political meeting authorised the orders that came out

8 of the military meeting.

9 I'd next like to deal with the submissions that the violation was

10 deliberate. It may just be the nature of the allegation, I think - and I

11 stand to be corrected, of course, by my learned friend - that when the use

12 of the term "deliberate" was made in the submissions, it was made in the

13 sense that there was a conscious decision not to disclose Blaskic's

14 closed-session testimony, and that is the position. It's not that there

15 was a deliberate and intentional decision to withhold evidence which the

16 Prosecution knew to be exculpatory. There is a difference, and I want to

17 make it clear that it was deliberately withheld because there was a view

18 that it wasn't exculpatory, not that the Prosecution was acting in bad

19 faith and deliberately intending to withhold it in the hopes of obtaining

20 a conviction.

21 The Prosecution at trial was of the view that this could not

22 constitute Rule 68 evidence, in light of the number of factors which are

23 set out in the annex to the Prosecution's filing and in relation to -- and

24 set out in the Prosecution's submissions.

25 The issue for this Court, in my respectful submission, is not

Page 339

1 to -- well, it is to actually assess and decide on the issue of

2 credibility. To what extent can credibility affect the obligation of the

3 Prosecution under Rule 68? Is there ever a circumstance where the

4 evidence is so unbelievable or, to accept the standard under Rule 115, not

5 reasonably capable of belief that it would not be unacceptable for the

6 Prosecution to not disclose it? I think it's fair to say that in the

7 majority of cases, credibility is a matter to be left for the Bench. It's

8 a matter to be left for the Judges, and whether the Prosecution generally

9 thinks it's credible or not, that's a matter for the Bench if the evidence

10 is called. But the issue in this case is whether in the circumstances, as

11 set out in the Prosecution's brief, it was unreasonable in these

12 circumstances to consider that that was a factor in the determination of

13 Rule 68.

14 It also must be remembered it was a number of years ago these

15 assessments were being made. The law has developed, and quite rightly, in

16 this area, but at the time it was being developed there was some

17 uncertainty. There were very few decisions with respect to Rule 68 at the

18 time. It doesn't necessarily justify it if it was -- if it should have

19 been disclosed, but it does demonstrate that there was -- there wasn't

20 some clear guidance at that time. And it was also at a time where there

21 were many people working on it and different approaches from different

22 systems. I'm not particularly familiar with the civil law system, but an

23 accused or a co-accused is, as I understand it, not considered a witness

24 in relation to a civil law system, so the approach at the time was maybe

25 somewhat unclear.

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Page 341

1 But the Rule, Rule 68, does indicate that the language says

2 evidence or information. So to that extent, if that's the Court -- and if

3 the Court may well decide that credibility is not a factor for the

4 Prosecution to take into consideration, then we'll accept that the -- the

5 decision is that it should have been disclosed.

6 There were two other aspects in relation to this deliberate

7 allegation. I think I've characterised my learned friend's position

8 correctly, and I've certainly tried to make clear our understanding of

9 what the position is in relation to the deliberate nature or the conscious

10 and intentional decision not to disclose because the Prosecution didn't

11 consider it to fall under Rule 68, but there were two other examples. One

12 was referred to today. It was in relation to Witness AO, and it was

13 referred to by my learned friend in his submissions on a violation in

14 relation to Rule 68. I simply ask that you note the Prosecution's

15 submission in its brief and the comments made by the senior trial attorney

16 in the transcripts. They're in private session, so I won't go into them,

17 I'll just inform you of them. At page 27143 of the -- of the transcripts

18 wherein the Prosecution sets out the fact that it was the Prosecution,

19 after Witness AO had testified, that actually asked that further searches

20 be done in relation to this witness, and then when those further searches

21 brought up additional information, it was disclosed to the Defence

22 immediately afterwards, and then the Court ruled on the issue and actually

23 excluded the testimony of Witness AO because Witness AO declined to come

24 back for further cross-examination after the evidence had been given to

25 the Defence and they sought to cross-examine him.

Page 342

1 In my respectful submission, this actually demonstrates compliance

2 by the Prosecution, diligent efforts, and the fact that the Trial Chamber

3 took specific steps to ensure there was no prejudice.

4 The last example I would like to refer you to is an example

5 referred to in passing in the appellant's brief. It relates to a witness

6 named EE. For those of you familiar with the Kupreskic case, Witness EE

7 was a witness in the Kupreskic case, a victim, and who testified in closed

8 session, so at one point in time I will have to go into private session so

9 as not to reveal the contents of a discussion that took place during the

10 Kordic trial.

11 Witness EE was the witness who testified about the participation

12 of AT in the attack on Ahmici, and Witness EE was evidence that the

13 Defence asked for for the purpose of cross-examining Witness AT. In the

14 Defence's view, they thought that this evidence could be used to discredit

15 Witness AT when he testified by asking him about the evidence that was

16 accepted by the Kupreskic Trial Chamber.

17 On October 13, 2000 - this is after the Court had ordered that

18 Witness AT be called but still six weeks before he was called - the Trial

19 Chamber ruled that they could not disclose Witness EE's testimony to the

20 Defence. Though Witness EE's testimony would clearly be relevant to the

21 testimony of AT, the Trial Chamber said that it could not disclose it

22 because Witness EE had refused to agree and provide consent to the

23 disclosure of the testimony. So the Trial Chamber denied the motion for

24 access to Witness EE's testimony and told the Defence that they would have

25 to proceed with the cross-examination of AT without it.

Page 343

1 Now, I'd like to just go into private session, if I may, at this

2 point in time.

3 JUDGE SCHOMBURG: Please do so.

4 [Private session]

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

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11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

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12 Page 344 redacted, private session














Page 345

1 (redacted)

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7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 JUDGE SCHOMBURG: You may continue.

12 MR. FARRELL: Thank you, Your Honour.

13 I simply wanted to make this point to make it clear that when

14 you're looking at the obligations of the Prosecution and the disclosure in

15 this case, that this exhibits the fair and professional conduct of the

16 Prosecution to guarantee the fairness of the trial. And this also was in

17 relation to Witness AT, the witness who the Prosecution called in relation

18 to the meeting, as you know, in which the Prosecution took steps to ensure

19 that the Defence had ample material by which to cross-examine.

20 If I may, I'll move on to the indictment issues. Once again, in

21 my respectful submission, the starting point is first of all whether or

22 not there was a complaint at trial on the indictment; and secondly, if

23 there was a decision as a result of that complaint, whether that decision

24 was in error. That's the starting point and my submission for this

25 Chamber.

Page 346

1 Despite the submissions by my learned colleagues, they have not

2 attempted to demonstrate that the Trial Chamber was wrong in its ultimate

3 decision to not have the amended indictment provide further particulars,

4 and that decision arose out of a hearing on the 16th of February, 1999.

5 And I won't read you, but I'll paraphrase that what Judge May said was

6 that the Defence arguments do have or may have more force the closer you

7 get to trial, and that the Prosecution should consider including in the

8 pre-trial brief securing the various counts and tying them to the

9 allegations. Counsel for the Defence, Mr. Geneson indicates -- he

10 indicates to the Court that he appreciates that the Trial Chamber has

11 indicated an interest and a direction to the Prosecution to resolve some

12 of these vagueness issues, and then says: "We appreciate that."

13 He does state that until the pre-trial brief is filed, they're

14 still handicapped because of the fact that they still are basing the

15 preparation of their case on the indictment and not the pre-trial brief,

16 but he says that handicap remains until the pre-trial brief is filed.

17 There was no subsequent motion after receipt of the pre-trial

18 brief for further particulars, as far as I am aware.

19 To deal with the notice of the mode of liability, I think it was

20 Mr. -- I may be wrong. I'm not sure if there was Mr. Sayers or Mr. Smith,

21 but one of my learned colleagues indicated that -- raised the issue

22 whether the mode of liability itself -- there was notice of the mode of

23 liability, that being common criminal plan.

24 There is language throughout the indictment which comments on the

25 fact that Mr. Kordic was acting with others and he was acting with others

Page 347

1 in both the political, military campaign, but also in relation to the

2 underlying counts in the indictment. He refers to paragraph 26 of the

3 indictment and notes that though this may contain some inkling of the

4 third form of joint criminal enterprise, it's insufficient.

5 In my respectful submission, it's actually quite remarkable that,

6 at a time when the Tadic Appeals Chamber had not come out and where there

7 had not been a determination of the exact wording needed for notice, that

8 the Prosecution, in fact, uses the words "acting together" and "acting

9 jointly," and in paragraph 26, speaks about the acts of Mr. Kordic and the

10 fact that "he was aware of and had every reason to know of the dangers,

11 abuses, and consequences of the campaign's policies and objectives and the

12 courses of conduct that he and others set in motion."

13 It then goes on and lists the actions that would follow and says

14 that they were fully foreseeable. In my respectful submission, that's

15 fairly close in terms of JCE 3, when there wasn't a particular formulation

16 of wording of the JCE that could be included in the indictment. In my

17 respectful submission, the early decisions of Tadic and others that talk

18 about acting together are clear support for that form of liability.

19 But when the pre-trial brief was disclosed on March 25th, it's

20 much more extensive in terms of providing notice of the mode of

21 liability. I'd ask you to look through paragraphs 24. I won't take you

22 through the pre-trial brief, but paragraph 24, paragraph 118, paragraph

23 119, and paragraph 120. In my submission, those paragraphs of the

24 pre-trial brief clearly put the accused on notice that the mode of

25 liability has been charged. And in fact, in paragraph 119, the Furundzija

Page 348

1 judgement is quoted in the pre-trial brief, commenting on the recognition

2 of the notion of common design and joint criminal enterprise. It further

3 states that "is a knowing participant in a common plan or design," and

4 that, therefore, "liability is incurred for all acts that flow from a

5 plan, irrespective of whether he was involved in the act."

6 They cite from the Celebici Trial Chamber judgement, where it

7 refers to common plan or design where members of a group are acting with

8 common criminal purpose. It's clear that the pre-trial brief, combined

9 with the indictment, charged common criminal plan and joint criminal

10 enterprise.

11 It's interesting that in the Defence pre-trial brief -- in this

12 case, the Defence opted to file a pre-trial brief before the trial

13 started, as was their right, and they filed a pre-trial brief about a week

14 before the trial started. And in the Defence brief before the trial

15 starts, they have legal submissions on the forms of co-perpetration, the

16 forms of co-principles, what constitutes indirect responsibility, and

17 challenges the common criminal plan, or this form is vicarious liability.

18 It's quite clear before the trial started that everyone was operating from

19 the same basis.

20 There was a comment by one of my learned friends about the lack of

21 notice of victims. There is also an acknowledgement of the sheer scale of

22 this case. To list all the victims would be essentially to list most of

23 the witnesses, which you find in annex 3, I think it is, to the pre-trial

24 brief. Annex 3 to the pre-trial brief sets out a page of material which

25 lists the accused, the count, the location, the dates, and then every

Page 349

1 single location and every witness that will testify on that location.

2 Now, it doesn't specify it, quite frankly, as victims, but it's quite

3 clear when you look at them that a number of these are victims of the

4 crimes that took place.

5 There is the question of notice of the membership in a JCE

6 specific to the appellant, and the indictment speaks about the Bosnian

7 Croat leadership and lists them as members of the HDZ, the Herceg-Bosna

8 community and the HVO. There's no doubt that the HVO included Colonel

9 Blaskic at the time. You will recall that there was actually an original

10 indictment, and in that original indictment Colonel Blaskic was severed

11 because he was already in the Tribunal's custody and started his trial

12 before Mr. Kordic arrived, and if you look at the original indictment,

13 which is on the record, it charges Blaskic and Kordic jointly with the

14 unlawful attacks. It charges Kordic and Blaskic with planning and

15 executing a systematic campaign. It charges Blaskic, Kordic, and Cerkez

16 in the unlawful attacks and destruction in Vitez municipality conducted by

17 HVO forces under Cerkez. It talks about HVO forces under the direction of

18 Kordic and Blaskic arresting and detaining, some of them through the Vitez

19 Brigade and Mario Cerkez. In the pre-trial brief it lists that the

20 members of the group include the leading members of the Presidency.

21 That's paragraph 65 of the pre-trial brief.

22 In the Defence pre-trial brief filed on April 6th, there is a

23 discussion as to an explanation of the Herceg-Bosna community and its

24 membership. There's also a discussion about the distribution of power

25 between the president, the vice-president, the HVO and their relationship.

Page 350

1 There is an organisational scheme of the Croatian Community of

2 Herceg-Bosna after the establishment of the HVO, and there's a report by

3 the president, Mate Boban, of Herceg-Bosna, regarding Bosnia and

4 Herzegovina from 1991 to 1993. In my submission, there can be no doubt

5 that Mr. Kordic knew who the senior members and Bosnian Croat leaders were

6 in Herceg-Bosna, in the HDZ, and in the HVO.

7 And lastly, you may not be aware of this, but when the original

8 indictment was filed, there was the original indictment, the supporting

9 material, and a statement of facts. There actually was a 40-page

10 statement of facts attached to the original indictment which was then

11 refiled on March the 9th by the Prosecution with one of its filings and

12 incorporated in its pre-trial brief. So you essentially have two

13 pre-trial briefs, the one on March 25th and the one on March 9th which the

14 Defence got with the original supporting material. That statement of fact

15 sets out the key members of the -- sets out that the key members are who

16 were involved, including Kordic and Blaskic. It sets out the Herceg-Bosna

17 -- members of the Herceg-Bosna Presidency - Kordic, Valenta and Kostroman

18 - it sets out the role of Kordic as he is charged jointly with Blaskic,

19 and it sets out Mr. Kordic's de facto and de jure control.

20 Without going through all the specifics to his -- sorry, the

21 allegations putting him on notice of his participation in the JCE, there

22 is the original indictment which sets out the specific role in paragraphs

23 9, 10, 24, and 40. There's a listing of the actions by which he

24 participated in paragraph 10, which includes negotiating cease-fires,

25 issuing orders of a military nature, authorising travel and movement,

Page 351

1 negotiating the passage of convoys. Then there's the original indictment

2 which the Defence got which actually specifies the planning, execution, or

3 direction of Kordic and Blaskic. Then there's the statement of facts.

4 Without going through them all, I'd ask you, if it will assist the

5 Court, that in the statement of facts which they received with the

6 original material and which was incorporated as part of the record, it

7 lists in paragraph 8 the key members of Herceg-Bosna, including Kordic and

8 Blaskic. It lists the other members who were charged in the indictment;

9 Kordic, Blaskic, Cerkez, Santic, Skopljak, and Aleksovski. It lists a

10 number of paragraphs of the de facto power and gives examples of Kordic's

11 ability to exercise that de facto power. Interestingly, it includes the

12 October 1992 incident in Novi Travnik. It lists a number of times that

13 Blaskic gives orders. It lists the time when Blaskic negotiated the

14 release of three detained Muslim girls. Has three or four allegations

15 regarding April, and it lists Blaskic's participation in the Convoy of Joy

16 in June 1993 when the soldiers present would not release the convoy

17 without orders from Kordic.

18 And lastly, in the pre-trial brief, the Prosecution attached annex

19 1, and annex 1 is a chronology of every single day, date, location, event,

20 fact or event, and source, and it lists the -- all the evidence of the

21 participation of Kordic and Cerkez. This annex is the annex of the

22 evidence relating to their participation. I think it's somewhere in the

23 region of 56 pages long and somewhere in the range of 600 entries.

24 In my respectful submission, there was ample evidence putting the

25 appellant on notice, either in the indictment itself or, as recognised by

Page 352

1 the Kupreskic Appeals Chamber, through the other means by which notice can

2 be provided.

3 I just wanted to make a few submissions on the allegation that the

4 case was a moving target for the Defence. First of all, they allege that

5 the meeting on April the 15th is a material fact, material fact in the

6 sense that it would be something that should have been listed in the

7 indictment. The Prosecution's submission, without going through all the

8 material I have prepared, is that the -- a meeting is not a material fact.

9 What the indictment must do for a material fact is set out the role and

10 participation to put him on notice. There were other meetings that took

11 place. There was the meeting in Novi Travnik when he and Blaskic issued

12 the order leading military operations. There was a meeting with Colonel

13 Duncan where civilians would not move except for on the express orders of

14 Kordic. There was a meeting, or at least a communication, in Kiseljak

15 where Blaskic reports that he had informed the leadership of the HZ HB of

16 the actions taking place in Kiseljak. I could probably list about 10 or

17 15 examples where the Court found certain meetings to take place, meetings

18 of the direct involvement and participation of Mr. Kordic, and many of

19 them referred to and accepted by the Trial Chamber subsequently in its

20 judgement. It's respectfully submitted that every meeting that took place

21 that involved his direct participation in some sort of either military or

22 political action that resulted in the -- well, the allegations put forward

23 by the Prosecution in the indictment, the indictment would essentially

24 become the pre-trial brief.

25 I'd also note that when Witness AT was called, when there was a

Page 353

1 motion to bring Witness AT on September 25th, the Defence for Mr. Cerkez

2 actually raised the fact that this was a material fact. During the

3 submission, counsel for Cerkez said: This evidence by Witness AT about

4 this meeting, it's a material fact and should have been in the indictment.

5 Judge May disagreed and said: No, this is a matter of evidence.

6 At that hearing on the 25th, when the Defence made their

7 submissions, counsel for Kordic did not join in the submissions of counsel

8 for Cerkez. Counsel for Kordic did not take the position that it was a

9 material fact. In its subsequent written opposition to the Prosecution's

10 rebuttal evidence, they did not take the position that it was a material

11 fact which required it to be in the indictment.

12 The appellant has indicated in his submission that the evidence of

13 Witness AT represents a change in the Prosecution case from 7(3) to a

14 7(1), a shift from vicarious liability to an involvement in the direct

15 operations and planning on the morning of the 15th. I just have a few

16 comments in that regard.

17 First of all, I note that the Rule 98 bis, as it's called

18 now, the motion for acquittal, I think it was called back then, filed on

19 behalf of Dario Kordic on March 17th, 2000, never claimed that it was

20 solely a 7(3) case. In fact, there was 130 pages of submissions on the

21 elements of liability under 7(1). The Defence identifies the elements of

22 joint criminal enterprise and common purpose, because at this point in

23 time the Tadic Appeals Chamber decision had been rendered. And the motion

24 spends 90 pages setting out the Defence position on the facts related to

25 these forms of liability under 7(1). It doesn't appear that the Defence

Page 354

1 perceived it as a 7(3) case at the time.

2 The Trial Chamber's decision on the motion for acquittal, it's

3 correct what my learned colleagues have -- the reference to the Trial

4 Chamber decision on April 6th regarding the half-time decision, the

5 decision on the motion to acquit, it is true that the Trial Chamber held

6 that the evidence was sufficient to show that he was part of the

7 high-level Herceg-Bosna community, but the Trial Chamber also stated that

8 there was evidence of his direct involvement in nine municipalities. And

9 the Trial Chamber stated to the Defence that they were not expected, not

10 required and not expected to call evidence on the other 22 municipalities,

11 that they would have to deal with the nine.

12 Now, those nine municipalities and the evidence which was

13 presented at the halfway time demonstrate quite clearly that Mr. Kordic

14 was directly involved. It's not a 7(3) case or a vicarious liability

15 case. It's a 7(1) case based on common criminal plan.

16 He indicates that this was essentially the sole meeting which ties

17 Dario Kordic into the direct activity on the ground. Well, in fact, the

18 Trial Chamber found many other instances where there was direct

19 involvement.

20 On the night of April 16, 1993, Dario Kordic's meeting with

21 Kraljevic, the commander of Vitezovi, just outside Vitez at the Vitezovi

22 headquarters, and the Trial Chamber finds that they're looking over a

23 piece of paper with a map drawn on it, discussing what needs to be done.

24 There's a finding that he was leading military operations in Novi Travnik

25 in 1992. There's a finding that he was leading military operations in

Page 355

1 Novi Travnik in 1992. There's a finding regarding his role in relation to

2 the transport of weapons and operations. That's at paragraph 553.

3 There's a finding of a report on November 1992 about the arrest of the HVO

4 military police in Kruscica and the presence of Kordic at the Travnik HVO

5 headquarters, where the decision was made to launch an operation to

6 release the patrol.

7 It's clear that this was not a 7(3) case or a vicarious

8 liability. It was a case of his direct involvement as a planner, as an

9 orderer, as an instigator, but actually as someone who is the prime mover

10 in a common criminal plan in Central Bosnia.

11 Now, my learned friend may respond that: Well, that's his

12 definition of vicarious liability. He's not the one on the ground that's

13 getting his hands dirty. He's not the one that's committing the crimes.

14 Well, the planning of the meeting on April the 15th is not Dario

15 Kordic on the ground committing the crimes. The planning on April 15th,

16 which is not a new case by the Prosecution but just one more piece of

17 evidence of his role in planning, instigating, or ordering.

18 If I can now turn to the submissions in relation to Witness AT.

19 As I've indicated, contrary to my learned colleague's very forceful

20 submissions, this case does not come down to a two-hour meeting one

21 afternoon in April. This microscopic approach actually doesn't do justice

22 to a Trial Chamber's judgement which attempts to encompass acts from May

23 of 1992.

24 I've listed in my previous submissions examples of the direct

25 involvement of Mr. Kordic: Travnik, releasing prisoners. There's the

Page 356

1 finding, of course, that he's involved in the joint military meetings, the

2 joint military working group. I note that these are working group

3 meetings for military. This is not a political meeting. And he's even

4 perceived by the officers there to be Blaskic's superior.

5 There's ample evidence from Busovaca, from Central Bosnia, from

6 Kiseljak, of his direct involvement over an extensive period of time.

7 This case is not about one meeting. In fact, the Court could have been --

8 could have easily convicted Mr. Kordic without AT's evidence. There's

9 often cases where members at the high-ranking -- where you don't have,

10 because of the fact that insiders don't come forward or because you don't

11 have the evidence linking, directly linking a high-ranking official, where

12 the only inference to be drawn on circumstantial evidence is that they

13 were involved in a mode of participation which results in their criminal

14 liability. In fact, AT's evidence actually corroborates the rest of the

15 case, as opposed to the other way around.

16 A few submissions I wish to make regarding the concept of

17 corroboration. First of all, I would note that, first of all, there's

18 no need for corroboration in the Tribunal. I think that's fairly evident.

19 Hearsay is admissible, and you can convict in this Tribunal on hearsay

20 evidence, even uncorroborated hearsay evidence.

21 I point out the decision in Kunarac where the Trial Chamber

22 convicted Mr. Kovac of the rape of Witness AB. Witness AB was a young

23 woman who, after being raped, was sold to some soldiers, and she was never

24 seen again. This is certainly a very tragic incident, but the legal

25 principle still stands, and it doesn't differ just because of the nature

Page 357

1 of the evidence.

2 The Trial Chamber convicted Mr. Kovac as a result of another

3 witness explaining what AB confided in her. That witness, FWS-75, gave

4 evidence that AB confided in her as to the rape. AB did not testify.

5 There was lots of evidence which showed that Witness FWS-75 was a

6 believable witness. There was evidence which corroborated her as a

7 credible witness, but there isn't any other evidence that I could find of

8 the rape, of the actual acts or the acts for which at the time the rape

9 was -- took place.

10 In the Appeals Chamber judgement, at paragraphs 267 and 268, the

11 Appeals Chamber reaffirms it's settled jurisprudence that corroboration is

12 not legally required and that corroborative testimony only goes to weight.

13 It then refers to the fact that the appellant focused on two incidents in

14 his appeal, one being Witness 75 and Witness AB, and it refers to previous

15 testimony where it's recalled that AB confided in Witness 75 that the

16 appellant had raped her.

17 The Appeals Chamber upheld that conviction for the rape of Witness

18 AB even though it was hearsay evidence originating from another witness.

19 There's a difference of opinion between the Prosecution in the

20 submissions in the brief regarding what constitutes corroboration and the

21 submissions of the appellant. Essentially, the appellant has begun by

22 saying that corroboration has to be corroboration in the sense of a

23 material particular, a material fact, and has narrowed his focus as his

24 submission proceeded to the point where there's absolutely no

25 corroboration of the meeting on the 15th of April. With respect, there's

Page 358

1 no need for corroboration of the meeting in the sense of evidence showing

2 the meeting on the 15th of April. If that was the case, we'd have

3 duplicate evidence directly implicating him, we wouldn't have

4 corroborative evidence of the witness who says that there was a meeting on

5 the 15th of April.

6 Corroborative evidence is not limited to evidence which mirrors

7 AT's evidence. Corroborative evidence is evidence which tends to convince

8 the trier of fact that a witness is telling the truth. There are

9 different types of evidence that can be corroborative, but it's not

10 limited to proof that the accused committed the crime.

11 The appellant refers to an interlocutory appeal, the Appeals

12 Chamber decision in Kordic on an interlocutory appeal on the 18th of

13 September 2000, and he was kind enough to point it out to me at the break,

14 for the proposition that corroboration has to be to a material particular

15 or a material fact. Now, even if there has to be corroboration to a

16 material fact, and that's not the Prosecution's submission, the Defence

17 position that it has to show, go right to the meeting on the 15th of April

18 does not necessarily follow. There can be many other material particulars

19 in the testimony that can be corroborated which would tend to cause this

20 Court, as did the Trial Chamber, to believe the testimony of the witness.

21 In my respectful submission, you don't have to limit it to a material

22 fact. The triers of fact have to decide on the basis of the evidence that

23 is corroborative whether it convinces you that the person is telling the

24 truth. The nature of that evidence is for the trier of fact to decide.

25 The interlocutory appeal in Kordic dealt with Rule 94 ter at the

Page 359

1 time, and the focus in that case was the admission of affidavit evidence

2 to support a fact in dispute. The subject matter was whether the evidence

3 supports a fact in dispute because that was the requirement of the Rule.

4 Rule 94 says you must bring evidence which supports a fact in dispute. So

5 the focus was on what was a fact in dispute. It's not a decision as to

6 what constitutes corroborative evidence, and though it does refer to the

7 fact that there -- any evidence to support a 94 ter affidavit must be

8 focused on the facts that it's supposed to support, that's a direct

9 reading of Rule 94 ter. In my respectful submission, there was no dealing

10 by the Appeals Chamber and no submissions on the scope of corroboration

11 and whether corroboration requires corroboration of a material particular

12 or whether it can be any evidence which tends to convince the trier of

13 fact that the witness is telling the truth.

14 Without going through all the evidence, it's quite clear, in my

15 respectful submission, that, first of all, there is ample evidence that

16 shows AT is telling the truth. Secondly, there's ample evidence which is

17 corroborative of Witness AT which connects Kordic to the crimes. There's

18 the nature of the campaign itself. There's the war diary. There's the

19 meetings that I've listed, for example, in Vitezovi -- with the Vitezovi,

20 and there's the orders for the attack.

21 As I'm coming to the end of my submissions and to leave time for

22 my colleagues tomorrow, I just want to mention a few concluding comments.

23 The lying alibi defence referred to by my learned friend arose

24 from a circumstance where the Trial Chamber corrected counsel for Kordic

25 which said that AT himself had asked the Court to overlook his lies. The

Page 360

1 Court says wait a minute, AT didn't ask the Court to overlook his lies,

2 and he corrects him and says it's more appropriately and more properly

3 characterised as his defence. With respect, I don't see that correction

4 by the Trial Chamber as somehow changing its understanding that AT gave a

5 false alibi to the Trial Chamber.

6 There is reference to witnesses Grubesic and Maric and others as

7 men of substance. I'd ask you to take a look at the Prosecution's

8 response, for example, to Mr. Grubesic at paragraphs 3.180 through to

9 3.185, where it lists on three separate occasions that the Trial Chamber

10 found Mr. Grubesic not capable of belief.

11 For Mr. Maric, his evidence is even more incredible, and if you

12 look at paragraph 3.194 of the Prosecution's response, Mr. Maric, who is

13 the president of Busovaca at the time of the attack, says that when his

14 town was under attack and when plans are being made to carry out

15 operations in the area, he went home at 3.00 p.m. in the afternoon. He

16 was unaware of the significant press conference by Kordic and Blaskic, his

17 political and military superior, and he never came back from his home to

18 see what the military and civilian response was in the very town that he's

19 the mayor. No one came to see him and no one communicated with him, and

20 he knew nothing about the meeting and knew nothing about it and was at

21 home for the day. Extremely -- it's highly unbelievable.

22 Lastly, in relation to Witness AT, the trial Court was fully aware

23 of the particular nature of his evidence and the difficulties involved in

24 the assessment of its reliability. The Defence was given ample

25 opportunity, and the submissions that they've made to you today were all

Page 361

1 made to the Trial Chamber and were put in cross-examination to Witness

2 AT. The Court did not rely on AT exclusively and found that there was

3 corroborative evidence. They examined the witness's reasons for

4 testifying. They verified his accuracy, the consistency, and the

5 voluntary nature of his testimony. They looked at his motivation for

6 coming to testify before the Tribunal, and I recall the fact that he was

7 the one that contacted the Prosecution. There was no deal made. There

8 was no immunity given. There was, in fact, no agreement with respect to

9 AT at the time he testified, and he subsequently made submissions before

10 the Appeals Chamber to have his sentence reduced.

11 He spoke of the dangers that would come to him by testifying, but

12 he did it anyway. He didn't know what the evidence in the case was when

13 he came and testified. He hasn't been shown to have any particular

14 disagreement or complaint or axe to grind in respect to the people he

15 named, Maric and Grubesic. His evidence doesn't fit with everything that

16 the Prosecution put forward. In my respectful submission, it's not

17 something that was catered. In fact, you may not be fully aware that the

18 Prosecution was proceeding against Mr. Cerkez with respect to the death of

19 an individual named Trako, and AT explained to the Prosecution that

20 Mr. Cerkez was not liable for that, that it was another individual, and he

21 actually exculpated Mr. Cerkez, and that was accepted.

22 At the end of the day, the Trial Chamber heard Witness AT in

23 full. There was extensive cross-examination. Obviously, as an Appellate

24 Chamber, you'll be hesitant to intervene on matters related to

25 credibility, and in this case, this was a matter that was clearly heard

Page 362

1 and adjudicated upon by the Trial Chamber. It's especially evidence that

2 shouldn't be interfered with, where there is significant corroboration.

3 Thank you.

4 JUDGE SCHOMBURG: Thank you, Mr. Farrell. The Appeals Chamber

5 stays -- the hearing stays adjourned until tomorrow, 9.00 sharp, in this

6 courtroom.

7 --- Whereupon the hearing adjourned at 7.03 p.m,

8 to be reconvened on Tuesday, the 18th day of May,

9 2004, at 9.00 a.m.