Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17112

1 Friday, 19 August 2005

2 [Judgement]

3 [Open session]

4 --- Upon commencing at 2.09 p.m.

5 JUDGE ORIE: Mr. Registrar, would you please call the case.

6 THE REGISTRAR: Good afternoon, Your Honours. This is Case

7 Number IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.

8 JUDGE ORIE: Thank you, Mr. Registrar.

9 I see, and it's just for the record, that the Prosecution is

10 represented my Mr. Tieger and Mr. Margetts.

11 And, Mr. Josse, you are here as Defence counsel for Mr.

12 Krajisnik --

13 MR. JOSSE: That's right, Your Honour.

14 JUDGE ORIE: -- who is present as well.

15 The Chamber wants to deliver its judgement on the Defence motion

16 for acquittal under Rule 98 bis.

17 This is a judgement for the Defence motion of acquittal under

18 Rule 98 bis. The motion was made in court on the 16th of August, when

19 the Chamber heard oral submissions from both the Defence and the

20 Prosecution.

21 The Defence's motion was both general and specific. It was

22 general in that it asserted - and we should emphasise that it was nothing

23 but a bare assertion - that Mr. Krajisnik has no case to answer

24 whatsoever.

25 As for the specific Defence submissions, the Defence argued, as a

Page 17113

1 preliminary procedural matter, that the amendment to Rule 98 bis on the

2 8th of December, 2004, which changed the rule to an oral procedure, is

3 prejudicial to the rights of Mr. Krajisnik because although the standard

4 of review remains the same, the amended rule no longer allows for a

5 comprehensive review of all matters contained in the indictment. The

6 Defence argues that, as the amendment occurred while the case was

7 pending, Rule 6(D) operates to render the amendment ineffective in this

8 case.

9 The Defence's other specific submission is that there is

10 insufficient evidence on which a Trial Chamber could be satisfied beyond

11 reasonable doubt of the guilt of Mr. Krajisnik in relation to the

12 genocide of the Bosnian Croats in the territory covered by the

13 indictment. The Defence explained that, in its view, while evidence has

14 been received of wrongdoing and even atrocities against Bosnian Croats,

15 such crimes do not amount to a genocide of that group.

16 The Prosecution opposed the Defence's motion in its entirety.

17 In relation to the Defence's procedural argument, the Chamber observes

18 that except for the fact that submissions must now be oral, neither the

19 old version of Rule 98 bis, nor the current version, prescribe a format

20 for submissions. Under the old rule, the practice varied in terms of the

21 level of detail of submissions. Practice under the amended rule has yet

22 to develop, but undoubtedly it will vary according to the needs of each

23 case.

24 In the Oric case, which was the first decision under the amended

25 Rule, the parties' submissions considered the indictment in detail.

Page 17114

1 Admittedly that case was smaller than the present one. What is relevant,

2 however, is that the amended Rule did not prevent a comprehensive review

3 in the Oric case.

4 We believe that these few observations suffice to show that the

5 Defence's assumption that the amendment to Rule 98 bis precludes

6 submissions at any given level of detail is without foundation. The

7 amended Rule certainly abets the speed and efficiency of the process, but

8 it did not follow that the amendment itself had a prejudicial effect on

9 any right Mr. Krajisnik might have had under Rule 98 bis.

10 We imposed very few constraints on the Defence. On the 17th of

11 May, 2005, when we gave the Defence guidance in relation to the Rule 98

12 bis motion, we did not specify restrictions on content. We received no

13 preliminary requests by the Defence concerning the nature of its

14 submissions. It was open to the Defence to ask the Chamber for relief

15 from any unfair constraints, but the Defence gave no indication that it

16 felt any unfairness until the day of the hearing. In our view, the

17 Defence's preliminary argument must be dismissed.

18 We now turn to the general Defence assertion that there is no

19 case to answer. In the course of considering this assertion, we'll

20 address the Defence's specific argument on the question of whether the

21 charges of genocide against Bosnian Croats should be maintained. Our

22 decision will go to the heart of the issue, without too many

23 introductions and elaborations.

24 In determining a motion for acquittal, the test applied - and

25 here we are quoting the Appeals Chamber - is "whether there is evidence,

Page 17115

1 if accepted, upon which a reasonable tribunal of fact could be satisfied

2 beyond reasonable doubt of the guilt of the accused on the particular

3 charge in question."

4 It is important always to emphasise, as the Appeals Chamber has

5 done, that, and I again quote: "At the close of the case for the

6 Prosecution, the Chamber may find that the Prosecution evidence is

7 sufficient to sustain a conviction beyond reasonable doubt and yet, even

8 if no Defence evidence is subsequently adduced, proceed to acquit at the

9 end of the trial, if in its own view of the evidence, the Prosecution has

10 not in fact proved guilt beyond reasonable doubt."

11 The indictment against Mr. Krajisnik focuses on the period from

12 late 1991 to the end of 1992, when he was the president of the Bosnian

13 Serb Assembly. Mr. Krajisnik is charged with eight counts relating to

14 the treatment of Bosnian Muslims and Bosnian Croats in 37 municipalities

15 in Bosnia-Herzegovina. The first two counts are genocide and complicity

16 in genocide. There are five counts of crimes against humanity, namely

17 persecution, extermination, murder, deportation, and forced transfer as

18 an inhumane act. Lastly, there is one count of murder as a violation of

19 the laws and customs of war. The forms of responsibility charged are,

20 primarily, joint criminal enterprise and command responsibility.

21 Taken at its best, the evidence presented by the Prosecution

22 paints the following picture of evidence that took place in the

23 indictment municipalities in 1992.

24 I would again emphasise that whenever we talk about "what the

25 evidence shows," what we mean is that there is evidence which, if

Page 17116

1 accepted, could lead a reasonable tribunal of fact to conclude, beyond

2 reasonable doubt, that something or other is the case.

3 And so we turn to the general picture.

4 There is evidence that beginning in March 1992 and continuing

5 through the autumn of 1992, Bosnian Serb forces gradually took power in

6 the indictment municipalities. The precise manner and timing of the

7 takeover varied between municipalities, but followed the same general

8 pattern. First, Bosnian Serb authorities at the municipal level effected

9 the division of the local police force along ethnic lines, often

10 dismissing non-Serb policemen. As ethnic tensions mounted, both Serbs

11 and non-Serbs erected checkpoints and barricades around the towns and

12 villages to control movement of people and weapons.

13 There is evidence that in the months that followed - and we are

14 now in April 1992 - Bosnian Serb armed forces, acting in cooperation with

15 the Serb Crisis Staffs established, in accordance with the so-called 19th

16 December instructions, took control of the indictment municipalities,

17 often launching artillery and infantry attacks on towns and villages.

18 These forces consisted of some or all of the following groups: The

19 Yugoslav National Army, or JNA; the Territorial Defence organisation, or

20 TO; local paramilitary units and paramilitary units from Serbia proper;

21 local police; and, at a later stage, the Army of Republika Srpska, or

22 VRS. Areas and villages inhabited by Bosnian Muslims and Bosnian Croats

23 were specifically targeted. Any non-Serb resistance was generally weak

24 and disorganised.

25 There is evidence that during and after the attacks, many Bosnian

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Page 17118

1 Muslim and Bosnian Croat civilians, particularly men, were killed,

2 beaten, or otherwise abused by Serb forces. Civilians were

3 systematically detained for periods ranging from a few days to several

4 months in what were frequently makeshift detention facilities. Detainees

5 were, as a rule, kept in crowded, unsanitary conditions, with very little

6 food or water. Many were killed or subjected to severe physical or

7 psychological abuse, including beatings, torture, or rape. Some

8 detainees were forced to perform labour at front lines, or forced to act

9 as human shields in combat situations. There is evidence that several

10 persons used in those ways were killed.

11 There is, moreover, evidence that in many municipalities the

12 remaining Bosnian Muslims and Bosnian Croats fled as a result of a

13 campaign of intimidation and harassment. In addition to killings and

14 other forms of abuse, this campaign included destruction of Muslim and

15 Croat religious sites and burning of Muslim and Croat homes. In some of

16 the municipalities, Serb municipal or regional authorities directed the

17 large-scale forced transfer of Bosnian Muslims and Croats out of

18 Serb-controlled territory. In some cases, those who left were forced to

19 state that their departure was voluntary, pay a fee, or sign over their

20 property to the municipality.

21 We have received evidence from at least 157 witnesses, counting

22 both viva voce witnesses and Rule 92 bis witnesses, on these subjects.

23 Moreover, hundreds of adjudicated facts and items of documentary evidence

24 from the period provide additional support for these propositions.

25 In giving a legal characterisation of any incident, the Chamber

Page 17119

1 adopts and applies the Tribunal's consistent case-law with respect to the

2 definition of the elements of the crimes charged in this case, namely

3 genocide, complicity in genocide, persecution, extermination, murder,

4 deportation, and the inhumane act of forced transfer, as crimes against

5 humanity, as well as murder as a war crime. The Chamber will not further

6 discuss the law, except to the extent necessary to deal with specific

7 Defence arguments.

8 In relation to genocide, the Defence in its submission focussed

9 on the elements of genocidal incident and argued that none of the

10 elements had been made out with respect to the Bosnian Croats, except for

11 the fact that the Bosnian Croats are a protected group under the

12 definition of genocide.

13 It is necessary to emphasise that the Chamber does not agree with

14 the Defence's further submission that to prove genocide, and I quote, "in

15 part," the Prosecution must prove that the destruction of a part of the

16 group, if carried out, would have an impact on the survival of the whole

17 group. The case-law of the international tribunals does not require

18 proof of any such element.

19 In this connection, what does have to be proved is that the

20 intent of the perpetrator was to destroy a part of the group as such. A

21 part of the group is understood as a substantial part of the group. In

22 the present case, what is in question is that part of the Bosnian Croat

23 group -- what is in question is that that part of the Bosnian Croat group

24 living in the indictment municipalities. During the relevant period,

25 well over 100.000 Bosnian Croats lived in those municipalities. High

Page 17120

1 numbers of Bosnian Croats lived in Banja Luka, Brcko, Prijedor, and Kotor

2 Varos, municipalities where there was much violence against non-Serbs.

3 The evidence before the Chamber allows the conclusion that the part of

4 the Bosnian Croat group targeted was a substantial part of the protected

5 group.

6 In relation to the general picture of events in the indictment

7 municipalities, there is evidence to support a finding that the crimes

8 enumerated in each of the eight indictment counts were committed. The

9 Chamber, moreover, finds that there is evidence to support a finding that

10 crimes were committed, at least in some instances, with the intent to

11 destroy, in part, not only the Bosnian Muslim, but also the Bosnian Croat

12 group, as such. Since the evidence related to Bosnian Croats has been

13 specifically questioned by the Defence, the Chamber will concentrate on

14 the sufficiency of the evidence received in relation to this group.

15 There is evidence from which to infer that a considerable number

16 of Bosnian Croats from the indictment municipalities were killed by

17 Bosnian Serb forces during armed attacks and in detention facilities.

18 For example, the Chamber recalls the incident described by witness Ivo

19 Atlija, in which approximately 70 villagers from the predominantly Croat

20 village of Brisevo in the Prijedor municipality were killed during an

21 attack by Serb forces.

22 There is also evidence to support the inference that thousands of

23 Bosnian Croats were detained in harsh conditions where they were

24 subjected to severe physical or psychological abuse. The Chamber has

25 received evidence that Bosnian Croats were held in at least 23 detention

Page 17121

1 facilities in at least 13 municipalities. For example, between May and

2 August 1992, 125 Bosnian Croats were detained at Omarska camp in

3 Prijedor. There is also evidence that in the beginning of May 1992, 117

4 Bosnian Croats were in detention in facilities, including the Krings camp

5 in Sanski Most municipality.

6 In inferring genocidal incident, the Trial Chamber is entitled to

7 look beyond the crimes that constitute the actus reus of genocide, since

8 the intent to destroy a group as such, or in the present case the intent

9 to destroy part of a group as such, may also be evident in speeches made

10 - a subject to which we shall return - but also in acts whose effect is

11 to break up the targeted group, disperse it, and wipe out its traces from

12 a particular territory. Physical destruction of individuals is a

13 necessary component of the crime of genocide, but it is not the only way,

14 and may not even be the main way, through which the intent to destroy a

15 group, or a part thereof, is manifested.

16 In this connection, there is evidence to show mass deportations

17 or forced transfer of Bosnian Croats out of territories under Bosnian

18 Serb control. For example, large numbers of Muslims and Croats who had

19 been detained at facilities in Prijedor were later deported. In Kotor

20 Varos there were around 8.000 Croats in 1991, constituting 28 per cent of

21 the population. A report by the Banja Luka Bosnian Serb police

22 authorities states that, soon after the end of the indictment period, the

23 Croat portion of the population had dropped to 5 per cent and were, I

24 quote, "predominantly elderly people who do not pose any real threat."

25 There is also evidence to show extensive appropriation and

Page 17122

1 destruction of Bosnian Croat property, including destruction of Catholic

2 churches throughout the territory in question. Ivo Atlija, the witness

3 we mentioned a moment ago, testified that during the attack on the

4 predominantly Croat village of Brisevo in the Prijedor municipality, 68

5 houses and one Catholic church were destroyed.

6 These and similar acts by Bosnian Serb forces created an

7 atmosphere of terror, which led to the involuntary departure of large

8 numbers of Bosnian Croats from the indictment municipalities. Exactly

9 the same effect was achieved against Bosnian Muslims. Because their

10 numbers in the indictment municipalities were much higher, they were

11 victimised in much higher numbers.

12 We now turn to the evidence relating to Mr. Krajisnik's

13 responsibility for the crimes. We will first give an overview of the

14 picture that emerges from the evidence, again in the sense of Rule 98

15 bis, with respect to the position of Mr. Krajisnik in the Bosnian Serb

16 leadership. We will then deal with the evidence specifically linking Mr.

17 Krajisnik and his associates to the crimes.

18 There is evidence that by mid-1991 Mr. Krajisnik was a key figure

19 within the political leadership of the SDS. Together with other key

20 figures -- SDS -- key SDS figures, including Radovan Karadzic, Biljana

21 Plavsic, and Nikola Koljevic, Mr. Krajisnik played a central role in the

22 formulation of SDS policy.

23 Moreover, there is evidence that from the time of the

24 proclamation of Republika Srpska in January 1992 until the end of the

25 indictment period, both formal and effective power in the Bosnian Serb

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Page 17124

1 republic were concentrated in the hands of the four people just

2 mentioned, who we will refer to collectively as the Bosnian Serb

3 leadership.

4 On the formal level, Mr. Krajisnik held the position of president

5 of the Bosnian Serb Assembly from the 24th of October, 1991, until

6 November 1995. In March 1992, he became an ex officio member of the

7 National Security Council. This council was a transitional executive

8 organ of Republika Srpska, which issued instructions to and received

9 reports from municipal Crisis Staffs and met with the Bosnian Serb

10 government to make decisions on political, military, and administrative

11 matters. The other members of the Bosnian Serb leadership were also

12 members of this council.

13 The Bosnian Serb Presidency, which was at the apex of Bosnian

14 Serb political institutions, was initially composed of Biljana Plavsic

15 and Nikola Koljevic. It was later expanded to include Radovan Karadzic

16 and Mr. Krajisnik, as well as the prime minister, Branko Djeric. Mr.

17 Krajisnik was the only one of the five Presidency members to attend every

18 one of the 36 Presidency sessions for which documents are available

19 between the 12th of May and the 30th of November, 1992.

20 In addition to the positions held by Mr. Krajisnik within the

21 various organs of Republika Srpska, numerous witnesses who were in

22 frequent contact with the Bosnian Serb leadership during the indictment

23 period gave evidence that Mr. Krajisnik wielded enormous power on an

24 informal basis. Momcilo Mandic, Dragan Djokanovic, Milan Babic, and

25 Witness 528 and 680 all testified that Mr. Krajisnik was the second most

Page 17125

1 powerful member of the leadership, second only to Radovan Karadzic.

2 There is also evidence that Mr. Krajisnik and Radovan Karadzic cooperated

3 closely on all matters throughout 1992.

4 Turning now to the links between the crimes and Mr. Krajisnik and

5 his associates, there is evidence that the political platform of the SDS

6 emphasised the protection of the interests of the Bosnian Serb people as

7 well as safeguarding their physical survival in Bosnia and Herzegovina

8 and the maintenance of a federal Yugoslavia. Evidence shows that in the

9 summer of 1991, the Bosnian Serb leadership began to speak openly about

10 separating Serb territory within Bosnia-Herzegovina, with a view to

11 enabling Bosnian Serbs to remain in Yugoslavia should Bosnia-Herzegovina

12 declare independence.

13 There is evidence to support the inference that the leadership

14 subsequently set the stage for implementation of this objective. A

15 programme of regionalisation was implemented, in which Serb-majority

16 municipalities were organised into communities of municipalities or

17 autonomous regions. On the 24th of October, 1991, an SDS-dominated

18 Bosnian Serb Assembly was formed. Evidence allows a reasonable trier of

19 fact to conclude that Mr. Krajisnik used his role as Assembly president

20 to ensure support for and implementation of SDS policies, as developed by

21 the Bosnian Serb leadership.

22 There is evidence that by late 1991, the policies of the Bosnian

23 Serb leadership had crystallised into preparation for the takeover of

24 territory by force. In late 1991 and early 1992, Radovan Karadzic stated

25 on several occasions that in the eventuality of an independent

Page 17126

1 Bosnia-Herzegovina, the Bosnian Serbs would create, by any means, their

2 own political and territorial entity corresponding to approximately 70

3 per cent of the territory of Bosnia and Herzegovina. Evidence supports

4 the inference that what the Bosnian Serb leadership envisaged was an

5 ethnically purer, Serb-dominated state. The means envisaged for the

6 creation of a Bosnian Serb state included the use of extreme force.

7 There is evidence that members of the SDS party at municipal and

8 republican levels, in cooperation with the members of the JNA,

9 coordinated the covert arming of the Bosnian Serb population with weapons

10 from JNA and TO armouries.

11 At the municipal level, the drive towards a Serb-dominated state

12 saw the Bosnian Serb leadership push for the creation of separate Serb

13 administrative structures, particularly in Serb-minority areas. There is

14 evidence that on the 19th of December, 1991, the SDS leadership issued

15 instructions to SDS municipal boards for the takeover of power and

16 creation of Crisis Staffs in municipalities which were to form part of a

17 separate Bosnian Serb state. Among other tasks, the Crisis Staffs were

18 to activate mechanisms for municipal defence and prepare for the

19 establishment of Bosnian Serb state organs within the municipalities.

20 There is evidence that the instructions were subsequently implemented,

21 fully or partially, by Serb leaders in most of the indictment

22 municipalities. At the central level, the Bosnian Serb Assembly

23 proclaimed the Republic of the Serb People of Bosnia-Herzegovina, later

24 Republika Srpska, and proceeded to provide the fledgling political entity

25 with a legislative foundation.

Page 17127

1 As we have previously outlined, beginning in March 1992 and

2 continuing through to the autumn of that year, Bosnian Serb forces

3 gradually took power in the indictment municipalities. Almost

4 invariably, this takeover resulted in the commission of the crimes we

5 have described. Two important mechanisms through which the Bosnian Serbs

6 seized and maintained control of territory were the Crisis Staffs and,

7 later, the VRS. There is evidence that both received instructions from

8 and reported to the Bosnian Serb leadership.

9 The Crisis Staffs, created in accordance with the 19th of

10 December instructions, began to take over power at the municipal level,

11 coordinating the activities of Bosnian Serb municipal authorities, the

12 military, the police, and other armed forces on the ground. In May 1992,

13 the VRS began to take control of these forces. Evidence would allow the

14 conclusion that the Bosnian Serb leadership generally, including Mr.

15 Krajisnik, exercised effective control over the VRS. There is evidence

16 that the Presidency approved major military operations, consulted with

17 the VRS Main Staff on military matters, received regular briefings on the

18 military situation, and issued orders in relation to military matters

19 that were implemented on the ground.

20 On the 12th of May, 1992, the Bosnian Serb Assembly adopted six

21 strategic objectives, the most important of which was, and I quote, "to

22 establish state borders separating the Serb people from the other two

23 ethnic communities." There is evidence that these six objectives formed

24 the basis of directives from the VRS Main Staff to the armed forces on

25 the ground.

Page 17128

1 Certain statements made at the 12th of May, 1992, Bosnian Serb

2 Assembly sessions by Radovan Karadzic and Mr. Krajisnik allow the

3 conclusion that the ethnic groups targeted by the policies of the Bosnian

4 Serb leadership were the Bosnian Croats, as well as the Bosnian Muslims.

5 For example, at the session, Mr. Krajisnik said: "We are at war, and it

6 will be possible to solve this thing with Muslims and Croats only by

7 war."

8 Another example comes from Witness 623, who testified that Mr.

9 Krajisnik was, and I again quote, "obsessed," with the project of ethnic

10 division of Serbs from Muslims and Croats. According to the same

11 witness, Mr. Krajisnik said that the time had come for separate Croat,

12 Serb, and Muslim areas because a common state was no longer possible.

13 There is, moreover, evidence that the Bosnian Serb leadership was

14 fully informed about the circumstances of the takeover of power in the

15 municipalities and the consequences for the Bosnian Muslim and Bosnian

16 Croat population. On the 10th of May, 1992, at a meeting in Pale chaired

17 by Radovan Karadzic and Ratko Mladic, Miroslav Deronjic, the SDS leader

18 for Bratunac, received a round of applause upon reporting about the

19 continuing operation to drive Muslims out of his municipality. In June

20 1992, the Bosnian Serb leadership raised no opposition to Ratko Mladic's

21 proposal to shell Sarajevo, despite the arguments of another VRS officer

22 that this would clearly place civilians at risk.

23 Similarly, there is evidence that the Bosnian Serb leadership

24 received extensive information from a variety of sources about the

25 existence of detention facilities for Bosnian Muslims and Bosnian Croats

Page 17129












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Page 17130

1 in the indictment municipalities and the treatment meted out in those

2 facilities. For example, in July 1992 Biljana Plavsic stated that she

3 was aware of 3.000 non-Serbs who were being detained at Omarska camp in

4 Prijedor.

5 Finally, there is evidence that the Bosnian Serb leadership knew

6 that that Bosnian Serb forces were engaged in the forcible removal of

7 Bosnian Muslims and Bosnian Croats from Serb-controlled territory.

8 Predrag Radic described how Radovan Karadzic visited Banja Luka and

9 complained that insufficient steps had been taken to remove the Muslim

10 and Croat population still present there. There is evidence that when

11 the issue of ethnic cleansing was raised with the Bosnian Serb leadership

12 at international negotiations, they did not deny that it was taking

13 place. Their standard response was rather to allege that Muslims and

14 Croats were committing crimes against the Serbs.

15 In giving a legal characterisation of Mr. Krajisnik's

16 responsibility for the municipality crimes, the Chamber adopts and

17 applies the Tribunal's consistent case-law with respect to the definition

18 of the elements of the various forms of individual criminal

19 responsibility under Article 7 of the Statute.

20 There is evidence that Mr. Krajisnik acted in association with

21 numerous persons, including other Bosnian Serb political leaders, such as

22 Radovan Karadzic, Biljana Plavsic, and Nikola Koljevic, as well as

23 military leaders, notably Ratko Mladic, to take over Serb-majority and

24 some Serb-minority territories and join them into an independent entity

25 dominated by Serbs. There is direct evidence, as well as evidence from

Page 17131

1 which to infer, that these Serb leaders and their political and military

2 subordinates intended to accomplish the task of creating a Serb-dominated

3 territory through any means, and in particular through killings, unlawful

4 detention, physical or psychological abuse, and deportation of Muslim and

5 Croat civilians, and destruction of their cultural monuments.

6 The evidence is sufficient to infer an intent at the top level to

7 destroy not only the part of the Bosnian Muslim group living in the

8 territory slated to become Republika Srpska, but also the part of the

9 Bosnian Croat group living in that territory. In other words, the

10 evidence is sufficient to infer genocidal intent in relation to both

11 Bosnian Muslims and Bosnian Croats.

12 There is evidence to infer that Mr. Krajisnik had that intent and

13 shared it with others. He offered them significant support to help them

14 realise their intent. There is evidence supporting an inference that Mr.

15 Krajisnik, around March 1992, if not before, came to accept that the

16 events unfolding in the municipalities under the direction of the Bosnian

17 Serb leadership would escalate to genocide within the indictment period.

18 There is evidence from which to infer that Mr. Krajisnik was informed of

19 acts of genocide on the ground.

20 There is therefore evidence sufficient for the purposes of Rule

21 98 bis to conclude that Mr. Krajisnik is responsible for genocide under

22 the various headings of Article 7(1) of the Tribunal's Statute, including

23 joint criminal enterprise type 1, joint criminal enterprise type 3, and

24 complicity.

25 Since there is also evidence allowing the conclusion that Mr.

Page 17132

1 Krajisnik, by virtue of his position, had effective control over the

2 perpetrators of genocidal acts, the conclusion is supported, for the

3 purposes of Rule 98 bis, that he had superior responsibility for acts of

4 genocide, in the terms of Article 7(3) of the Statute.

5 There is, finally, evidence to infer that Mr. Krajisnik had the

6 mens rea required for conviction under the counts of the indictment

7 alleging crimes other than genocide. Here, again, there is evidence to

8 satisfy the elements of the various forms of responsibility charged under

9 Article 7 of the Statute.

10 In conclusion, the Defence motion is denied in every respect.

11 Mr. Krajisnik has a case to answer on all eight counts of the indictment.

12 Lastly, the Chamber notes certain clarifications made pursuant to

13 an agreement between the parties.

14 The first clarification concerns paragraph 17 of the indictment,

15 where the phrase, I quote, "the destruction of these groups," is to be

16 understood as "the partial destruction of these groups."

17 The second clarification is that in paragraph 18 of the

18 indictment the words, and I quote, "or other non-Serb populations," are

19 meaningless for the purposes of this case.

20 The third clarification is that in paragraph 28 of the

21 indictment, the words, I quote, "in whole," have been wrongfully

22 inserted.

23 The Chamber accepts these clarifications made by the parties and

24 will interpret the indictment accordingly.

25 It was moreover indicated by the Defence and the Prosecution that

Page 17133

1 the Prosecution would no longer rely for its case on the indictment

2 municipalities of Rudo and Sipovo, due to insufficient evidence. The

3 Chamber notes that some relevant evidence has been received in relation

4 to detention centres for non-Serbs existing in those municipalities.

5 This is a minor issue, but the Chamber nevertheless takes note that the

6 parties are in agreement that the municipalities of Rudo and Sipovo are

7 of no consequence to this case.

8 This concludes the Chamber's decision on the Rule 98 bis motion.

9 Yes, Mr. Josse.

10 MR. JOSSE: Can I raise one very minor matter in relation to the

11 decision that Your Honour has just given?

12 JUDGE ORIE: Yes, Mr. Josse.

13 MR. JOSSE: At the end Your Honour dealt with the use of the

14 words "other non-Serbs," and Your Honour mentioned one particular

15 paragraph. My understanding is it applies throughout the indictment.

16 Whenever there is a reference other non-Serbs, the point is the same.

17 JUDGE ORIE: Mr. Tieger.

18 MR. TIEGER: I believe that's essentially true, Your Honour. I

19 know from the point at which it was first pointed out through the rest of

20 the indictment that was true. I would need to see whether there's some

21 reference to non-Serbs earlier in the indictment which wasn't the subject

22 of the discussion that might not be embraced by this understanding. We

23 can certainly bring that to the Court's attention. In general, I think

24 there is an understanding and a consensus between the Defence and the

25 Prosecution on that subject, and we can clarify all of it for the benefit

Page 17134

1 of the Chamber.

2 JUDGE ORIE: Yes. Perhaps, Mr. Tieger, if you, as soon as

3 possible, verify whether the words "or other non-Serb populations" are to

4 be -- are meaningless wherever they appear in the indictment, inform Mr.

5 Josse about it. And if there are any reservations in respect of these

6 words, please inform the Chamber, and the Chamber will, as it did in this

7 decision, follow the agreed interpretation in this respect, the

8 interpretation of the indictment by the parties.

9 MR. TIEGER: We will do so, Your Honour.


11 Any other procedural issue?

12 MR. JOSSE: Just this.


14 MR. JOSSE: Your Honour. I think arrangements have now been made

15 to facilitate Mr. Krajisnik having the decision that his lawyers received

16 yesterday in relation to his request to proceed unrepresented by counsel

17 translated informally to him today. The legal officers of this Chamber

18 and, indeed, the registry representative have been most helpful in

19 indicating that me that it will be at least five days before this

20 important document, from the Defence point of view, is translated into

21 B/C/S. I was very anxious that Mr. Krajisnik know in some detail what

22 the Chamber was saying in this decision today. I understand that those

23 responsible for his detention are prepared for him to remain in this

24 building for another hour. Of course Your Honour will note Mr.

25 Karganovic is here and Mr. Karganovic will now translate the document to

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Page 17136

1 Mr. Krajisnik. I simply mention that to make sure that he is going to

2 remain here until 4.00.

3 JUDGE ORIE: Yes. If that would not have been the schedule, the

4 Chamber would have called the registry to see whether it would be

5 possible for Mr. Krajisnik to stay as long as in the building as would be

6 necessary to give further explanation by someone who reads English and

7 speaks B/C/S on the content of the reasons given to the decision in which

8 Mr. Krajisnik is not allowed to proceed unrepresented.

9 MR. JOSSE: Thank you, Your Honour. That's the only other matter

10 I wish to raise.

11 JUDGE ORIE: Yes. If there would be any problem about it, but I

12 do understand that we do not expect anything, then you always can address

13 the legal officers if -- but I do understand from nodding by the

14 representative of the registry that there should be no problem.

15 MR. JOSSE: As I emphasise, they've been very helpful to me

16 before Your Honour and Your Honour's colleagues came into court.


18 Mr. Tieger, any other matter to be raised at this moment?

19 MR. TIEGER: No, Your Honour, there is not. Thank you.


21 According to the scheduling order the Chamber has given, the

22 Defence is expected to start the presentation of its case on the 12th of

23 September. Of course the Chamber is not deaf and has heard on several

24 occasions that there was a motion for further adjournment in the air, but

25 since it has not been received we will adjourn until the 12th of

Page 17137

1 September, as matters stand now. And the Chamber will, on short notice,

2 give further instructions as to 65 ter obligations by the -- to be met by

3 the Defence.

4 MR. JOSSE: Sorry, Your Honour, I don't quite follow that last

5 sentence "and the Chamber will, on short notice, give further

6 instructions."

7 JUDGE ORIE: I think as a matter of fact lists of witnesses, et

8 cetera, has to be provided to the --

9 MR. JOSSE: I understand the Rules, but what does Your Honour

10 mean "on short notice"?

11 JUDGE ORIE: That we'll give further instructions as far as the

12 timing of that is concerned. The Chamber was a bit hesitant to do so

13 since there seemed to be something in the air, but since until now it

14 remained in the air the Chamber will take its responsibility in that

15 respect.

16 MR. JOSSE: In the unlikely event the Chamber doesn't hear from

17 the Defence, the short notice will be written notice rather than the

18 Court re-assembling and notice being given in court? It's my

19 misunderstanding, I'm sure.

20 JUDGE ORIE: Yes. There would be no need to come to the

21 courtroom and to hear what the -- what the Chamber has decided will be

22 the timing of providing lists and summaries of witness statements, et

23 cetera. It might be that you'll hear orally about this already before

24 you receive any writing, and you know that nowadays writing could be

25 e-mail, telefax, et cetera, if it's for practical matters.

Page 17138

1 MR. JOSSE: Could I just press Your Honour to this extent: Is

2 Your Honour able to give the Defence any indication as to when that might

3 be? Or is Your Honour really --


5 MR. JOSSE: Dependent on whether the Chamber hears from the

6 Defence vis-a-vis the motion. Is that the position?

7 JUDGE ORIE: No. As a matter of fact, we haven't heard anything

8 -- we do not know when a motion for an adjournment is to be expected. So

9 after having delivered the 98 bis decision, the next item on my agenda is

10 to discuss with my staff on the scheduling for pre-Defence matters.

11 MR. JOSSE: I see and I understand. Finally, could I just

12 reiterate what I said at the end of the hearing last Tuesday, because

13 that remains our position. As I say, we're giving it urgent

14 consideration beginning tomorrow I can assure the Chamber.

15 JUDGE ORIE: Yes. So it's -- your scheduling is on my agenda

16 this afternoon and it will be in your agenda the first item from

17 tomorrow.

18 We'll therefore -- as explained by me before, we'll adjourn until

19 the 12th of September.

20 --- Whereupon the hearing adjourned at 3.11 p.m.,

21 to be reconvened on Monday, the 12th day of

22 September, 2005