Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27364

1 Wednesday, 30 August 2006

2 [Defence Closing Statement]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE ORIE: Good morning to everyone.

7 Mr. Registrar, would you please call the case.

8 THE REGISTRAR: Good morning, Your Honours. This is case number

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

10 JUDGE ORIE: Thank you, Mr. Registrar.

11 Mr. Stewart, are you ready to start final argument?

12 MR. STEWART: Your Honours, yes.

13 Your Honours, just some very brief introductory points. First of

14 all, as we usually do, I'd like to introduce Mr. Nathan Rasiah, who is

15 sitting over to my left, who has been a member of the team over these

16 important final stages. Ms. Butler is still with the team, but certain

17 visa issues have turned her into a one-woman flying Dutchman, with the

18 result that she's not currently in the Netherlands, of course. But she's

19 still with the team.

20 Secondly, Your Honour, very briefly, we would -- Mr. Harmon gave

21 many thanks to all sorts of people who contributed. We would simply like,

22 very briefly, to associate ourselves with the thanks to all the support

23 that this Court has had from all concerned, interpreters and everybody.

24 If I don't go through the list again, I would like it to be understood

25 that we associate ourselves with that. And we also, in the same way that

Page 27365

1 we were very pleased to hear that, we acknowledge the courtesy and

2 professionalism from our colleagues on the Prosecution team throughout the

3 case.

4 Your Honours, so far as the material today is concerned, and

5 following the discussion yesterday evening, we have on the Defence side

6 prepared what I've called two clips. They're fairly short clips of

7 material which will go with particular areas that I propose to explore

8 later on this morning, but I'm not getting to those areas immediately.

9 Those clips will, with a fair wind, be all ready when I get to that point,

10 and for the interpreters' booth as well. But I'm not talking about

11 anything daunting, Your Honour, I'm talking about something where it's

12 going to be much easier for all of Your Honours and everybody else to turn

13 to a sheet of paper rather than have to go digging around on screens and

14 so on.

15 Your Honours, what our final submissions are not going to be today

16 is they are not going to be just another 30 or 40.000 words of supplement

17 to our final brief. They are also not intended to be a repetition of our

18 final brief. They are intended to be complementary to our final brief,

19 but more importantly, complementary to 27.000 pages of transcript,

20 thousands of exhibits, and about two and a half years of this trial,

21 because this is, after all, a final submission.

22 So, Your Honour, it's not even remotely - and how could it be? -

23 an attempt to dig into the detail of the case, except in one or two

24 illustrative ways. And what we've done is we've selected a couple of

25 areas where we will go into some detail in relation to specific items, but

Page 27366

1 they are selected by way of illustration and example of the -- of

2 underlying questions in relation to the approach to the masses of material

3 that the Trial Chamber has.

4 So I hope it's helpful to Your Honours to know where it is this

5 final submission is going and the sort of exercise that the Defence

6 considers it's engaged in today.

7 Your Honour, that doesn't mean that some very well-known aspects

8 of a trial do not, nevertheless, justify mention and justify emphasis,

9 because they do after the length of this trial and the mountains of

10 material that Your Honours face now as a rather daunting task. We must

11 acknowledge that.

12 It's elementary, but nevertheless so important to bear in mind the

13 burden of proof, to remember always that Mr. Krajisnik, when he was

14 brought to The Hague - of course we know that - six years ago, he was

15 brought here as an indicted but innocent man. He remains here today as an

16 indicted but innocent man. That's elementary. He can only be convicted

17 of any charge if Your Honours, or at least two of Your Honours, are

18 satisfied that on the evidence beyond reasonable doubt his guilt is

19 established.

20 The English courts -- but that's just courts from one country.

21 The English courts in modern times rephrased "beyond reasonable doubt" as

22 that Judges or a jury, more conventionally, must be "satisfied so they are

23 sure." But that's been confirmed as just another way, and found to be

24 more comprehensible to a jury, more readily understandable, just another

25 way of expressing that familiar test of beyond reasonable doubt. But it's

Page 27367

1 sometime useful to have that alternative phraseology in mind. It really

2 is sureness which is at the heart of it.

3 The mountains of material - and they are - that Your Honours have

4 in this case include or involve extreme variations in weight and

5 reliability, and that is an additional difficulty that Your Honours have

6 compared with many trial courts, by which I meaning judges or juries,

7 wherever, because particularly where a jury is involved, there is

8 generally much more sifting. There are quite straight gates through which

9 evidence has to get before it can be put before those responsible for the

10 final judgements on the evidence and on the facts, under whatever

11 directions of law they are given or give themselves.

12 In this particular case, the Trial Chamber, as Trial Chambers

13 generally in this institution, have taken the view that with few

14 exceptions material will be admitted into evidence and then it will be

15 weighed for whatever value it has or, possibly in some cases, just does

16 not have at all. That has produced an enormous quantity of material for

17 the parties, of course, but now, over however long it is between now and

18 the day of Your Honours' judgement, that is a daunting aspect of an

19 already daunting task.

20 There has been - and this is a Defence submission - without going

21 over the motions which we have fought and lost - we haven't lost every

22 motion on the Defence side, I'm very pleased to say; we have occasionally

23 succeeded - but we have, of course, in the course of this trial launched a

24 number of motions in relation to timing, scheduling, calling of evidence,

25 and it wouldn't be unfair to say that we have generally not been

Page 27368

1 conspicuously successful in obtaining what we sought by those motions.

2 But what's not appropriate is for us now today, in these submissions, to

3 be refighting or relaunching those motions. We don't propose to do that.

4 Subject to all appeal procedures which we have or haven't been able to

5 exhaust or which might lie ahead, those are decisions and those are, as

6 they stand, binding, and some of them will be binding forever. But it

7 still leaves Your Honours with heavy difficulties in fairly weighing the

8 evidence, because it would remain our submission, consistent with what I

9 have just said, that the course of this case has produced some significant

10 imbalances.

11 We started with, in many instances, protracted evidence of

12 Prosecution witnesses. And when I say "protracted" I'm not necessarily

13 implying any serious criticism of anybody, no, nor am I necessarily

14 throwing aside any possibility of criticism of anybody in relation to that

15 exercise. It doesn't really matter to explore that particular issue. But

16 a number of Prosecution witnesses gave evidence over really what in

17 retrospect was quite a long time, and when one looks at the many, many

18 days spent with some of the Prosecution witnesses, then one looks at the

19 really quite severe compression of time that was imposed in relation to

20 some of the later and, on the face of it, very important Prosecution

21 witnesses; and then one looks at the, in some cases, very severe

22 compression of time which was imposed in relation to Defence witnesses,

23 and then when one comes on to what in the Defence's submission is and was

24 a really extraordinary and - we don't shrink from the words - sometimes

25 frankly farcical compression of time in relation to Chamber's witnesses,

Page 27369

1 the weighing of all the evidence in this case must bear those

2 considerations in mind.

3 Look at Mr. Mandic's evidence. I don't mean look at it here and

4 now, line by line. Look at the number of days over which Mr. Mandic gave

5 evidence. Look at the number of hours over which Mrs. Plavsic gave

6 evidence. Just an example.

7 We reinforce and endorse the invitation from the Prosecution to

8 scrutinise all the material in this case in great detail. We have no

9 fears or concerns on Mr. Krajisnik's behalf from the most detailed

10 scrutiny of the material which is manageable for Your Honours. In the

11 circumstances of this case, it's liable to be dangerously unfair to the

12 Defence if there is any compromise in that work.

13 The Prosecution case has been supported by a welter of detail.

14 It's not all good detail; it's not all useful detail. But it's

15 indisputably detail. But it has also been in some ways painted, the

16 picture that the Prosecution has drawn and painted, has been in some

17 respect painted with crude, primitive lines and simple primary colours.

18 This was a brutal civil war; that's clear. That, so far as evidence was

19 required to back up what everybody in fact knew when we arrived in court,

20 but in the end evidence is important, of course, the critically important

21 thing, that was apparent from the very first witness from the very first

22 day from the very first days of the trial.

23 We have never challenged on Mr. Krajisnik's behalf, he has never

24 asked us to challenge the proposition that this brutal civil war led to

25 terrible crimes committed in many parts of former Yugoslavia, tragically,

Page 27370

1 but particularly, of course, we are concerned with Bosnia. That's

2 indisputable. Serbs against Muslims and Croats, not part of the charges

3 in this case. Terrible crimes committed by members of all those ethnic

4 groups, but it is Mr. Krajisnik who is on trial.

5 There was, and we have seen many instances, there was extreme

6 language used by participants in these terrible events. Some of the most

7 extreme was actually used by Chamber witness Mrs. Plavsic. Of course

8 there was, and we would be foolish to deny it, there was much extreme

9 language used both publicly and privately by Mr. Karadzic. And dotted --

10 perhaps more than dotted, but throughout much of the public record,

11 Assembly sessions of the Serb Republic, we see very strong stuff. And no

12 doubt if we looked all over the public record of what people were saying

13 all over the former Yugoslavia at that time, we would see thousands and

14 thousands and thousands of statements which normally we would never hope

15 to see, or hope never to see.

16 There were killings, there were rapes, there were tortures.

17 There's much undisputed evidence. Mr. Krajisnik was one of the Bosnian

18 Serb leaders. We've never disputed that. How could we? He held two

19 major positions, if we can label them positions. His first and obvious

20 position, and it was his main position - that's really the key point - he

21 was the president of the Assembly, as he had been, and there was an

22 overlapping period, of course, as he had been the president of the

23 Assembly of Bosnia and Herzegovina, both before the crisis and split in

24 October, 1991, and for some time afterwards, although the practical aspect

25 of that position, of course, faded away quite quickly in the

Page 27371

1 circumstances. That was number one.

2 And secondly, he was, throughout all the relevant period that

3 we're talking about, a member of the international negotiating team - I

4 label it that way - for the Bosnian Serbs. That is simple, as far as it

5 goes, though each of those positions -- I'm not ignoring -- I'm not

6 mentioning specifically at the moment, but I'm not ignoring the fact that

7 of course he had other functions and positions. We know all that. That's

8 on the evidence and has been explored in detail. But each of those two

9 positions that I've mentioned, president of the Assembly and member of the

10 international negotiating team, has its own complexities and lack of

11 clarity in many ways.

12 But it isn't as simple as you look at speeches of Dr. Karadzic,

13 you see the ways in which Dr. Karadzic and Mr. Krajisnik were close. And

14 they were. They knew each other. They had been involved in previous

15 events in all sorts of different ways that the Trial Chamber has seen. So

16 of course we don't contest that simple bare proposition. That would be

17 foolish as well. But you've got all those inflammatory speeches; you've

18 got an enormous crisis that developed in October, 1991. You've got arming

19 on all sides as the spectre of civil war, imminent civil war, became more

20 and more real. You had outbreak of increasingly extreme violence at the

21 end of March, beginning of April, 1992, and over the ensuing months. And

22 throughout that period, Mr. Krajisnik was, as a bare, simple label, part

23 of the overall Bosnian Serb leadership. But a definition and a label BSL

24 appearing here, there, in the next paragraph, and so on throughout the

25 Prosecution final brief, doesn't tell the story, because the more you

Page 27372

1 examine the evidence, the more question marks it raises and the more

2 doubts it raises and the more complex the position appears. Far from the

3 very basic simple picture.

4 And we have in mind in these submissions the sort of evidence

5 which we found in the early months of this trial, and then occasionally

6 after that, where a witness who had no direct knowledge, no direct

7 connection with the Bosnian Serb leadership, being asked to rank the

8 leaders in order of importance. Some of that evidence, we suggest, is

9 pretty much on a par with sending a journalist out into the street to ask

10 the first 30 people whether they think X is more likely to be the next

11 leader of the Labour Party in the United Kingdom, the Prime Minister when

12 Mr. Blair retires, or similar in other countries. That probably - we

13 suggest probably - Your Honours won't really have any serious difficulty

14 in brushing aside that sort of evidence as not really helping anybody,

15 because facts are only really useful if they're coming from somebody who

16 actually knows something or knows enough about it for their view of the

17 facts, or an opinion which represents some facts, to be valuable.

18 And as a general proposition, applying to expert evidence as well

19 as to opinions elicited from factual witnesses, but particularly perhaps

20 in the context of this bit of our submissions, when one is talking about

21 factual witnesses, opinions elicited from factual witnesses, even leaving

22 aside when they have been elicited by leading questions, but opinions

23 elicited from factual witnesses are only of any value if one can really

24 look and see if that witness actually knows some facts, and knows some

25 reliable facts which support that opinion.

Page 27373

1 I'm not going to go delving into the transcript on this, Your

2 Honour, nor am I shirking it. There are 27.000 pages of transcript there,

3 and we could take all day on this point, so I won't.

4 Mr. Krajisnik -- and this was, broadly speaking, not the usual

5 feature. These cases vary, and we are only concerned in the end with this

6 one. But Mr. Krajisnik gave evidence. Lots of defendants don't, after

7 all. Obviously, Mr. Krajisnik's overall position, including the positions

8 that I mentioned a few minutes ago - president of the Assembly, member of

9 the international negotiating team - but his other roles, his other

10 participation in the events of 1991 and 1992, they obviously raise

11 questions. It would be ludicrous to suggest they don't raise questions.

12 After all, what are we doing here? Mr. Krajisnik could see that.

13 Mr. Krajisnik could not be so naive as to suppose that his part in all

14 these events and the complexity, and the chaos as well of many of the

15 events of that time, wouldn't leave him with lots of explaining to do. Of

16 course there he was in Pale. He was personally close to Karadzic. He was

17 highly respected in the SDS and among the Bosnian Serbs, as he had been as

18 president of the Bosnia-Herzegovina Assembly. Practically nobody could

19 have come out of this war and any serious part in it, have exposed

20 themselves to 40 days of searching evidence, including nearly three weeks

21 of cross-examination, and ended up leaving no questions, no doubts, no

22 incomplete explanations.

23 It's implicit in the Trial Chamber's imposition of cut-offs on

24 both parties, witnesses' examinations, and on Your Honours yourselves.

25 You've imposed cut-offs and guillotines on your own participation in this

Page 27374

1 trial. And in principle, although we have had plenty of tussles about

2 that particular aspect of the case, the basic principle that a case can't

3 go on forever and you can't explore everything right to the bitter end and

4 down every alleyway. Of course we accept that. But it has the result

5 that a trial arising out of such complex and fast-moving and, inevitably

6 in wartime, chaotic events can never tie down all the complexities, can

7 never deal with all the questions, is always going to leave unanswered,

8 unresolved mysteries, such as why nobody ever seems to have interviewed

9 Mr. Djeric before he got here. Strange, but there it is.

10 So despite the phrase "search for the truth," it remains every

11 defendant's right - not exercised by Mr. Krajisnik in this case, of

12 course - every defendant's right to say nothing and not to face that

13 personal scrutiny, and hide behind the burden of proof. Legitimately, of

14 course, it's not hiding, except -- and we're not talking about this case,

15 after all, we're talking about a case where a defendant doesn't give

16 evidence. Again a crude view of that can sometimes be that the defendant

17 is hiding in some way. But Mr. Krajisnik didn't even do that.

18 It's important to remember that right from the outset

19 Mr. Krajisnik said he would give evidence. I can't remember exactly how

20 early in the trial it was said, but it was very early anyway. I said it

21 on his behalf as, on this point, I was instructed to do, because it's a

22 major element of the Defence. It's not a question of the day-to-day

23 running of the case. That's a major element of the case on which counsel

24 represents his client and follows his client's instructions. He never

25 resiled from that.

Page 27375

1 There were issues about timing, quite big issues about timing, and

2 there was a point at which the Trial Chamber was saying to Mr. Krajisnik,

3 If you're going to give evidence at all, it's going to be now. And he

4 did. But at that point never once was there any reluctance expressed by

5 Mr. Krajisnik or through Mr. Josse and myself on his behalf to give

6 evidence, to subject himself to what was bound to be a very extensive and

7 lengthy and, it can be said, inevitably extremely exhausting scrutiny. He

8 wasn't waiting to see which way the wind was blowing. He wasn't waiting

9 to take a major tactical decision or strategic decision, however one

10 labels it, whether, in light of the Prosecution evidence, the downside was

11 worth the upside, whether the risks of going in the box were less than the

12 risks of not going in the box, and so on. Those are legitimate decisions,

13 legitimate considerations for a defendant to weigh and be advised upon and

14 make decisions upon. It's just that it didn't arise here.

15 Mr. Krajisnik was always determined to give his account of these

16 events, give his part of it, and be interrogated. And I mean interrogated

17 in the proper and legitimate way that interrogation in court is done. And

18 he wasn't asking for any limit. He, and we on his behalf, were prepared

19 for him to be exposed to that, with whatever limits of time the Trial

20 Chamber chose to impose or not impose. And inevitably, even with 40 days

21 of evidence, inevitably there were enormous chunks of the case and

22 numerous points in the evidence that it was just completely unrealistic to

23 expect us, any of us, to have been able to explore with Mr. Krajisnik.

24 So that doesn't answer the charges, of course. That's -- we have

25 to look at all the evidence for that. But it does cast light on

Page 27376

1 Mr. Krajisnik's character then and now, which is material, and his wish to

2 tell the truth. After all, he knows -- well, he would be a far less

3 intelligent and perspicacious man than he obviously is. He knows that

4 once you put yourself in the witness box and once you subject yourself to

5 experienced professional cross-examination - leave aside

6 examination-in-chief - once you expose yourself to experienced

7 professional cross-examination in front of an experienced Bench of

8 professional Judges in an international criminal court, it's not so easy

9 to hide the truth. That's clear. Everybody -- we're not talking about

10 the Defence team here -- everybody concerned is easily good enough at

11 their job for that to be Mr. Krajisnik's position and for him to have been

12 able to see that.

13 Mr. Harmon -- I think it was Mr. Harmon. There was some changing

14 around yesterday but I think it was him for this particular bit.

15 Mr. Harmon, as is his job, he launched into Mr. Krajisnik's credibility

16 yesterday. We can understand, Mr. Krajisnik can understand, that's what

17 Mr. Harmon would do. The Trial Chamber will weigh the content, all the

18 evidence and Mr. Krajisnik's, the gravity of the charges, the accusations

19 and the evidential points which in the course of the case have been shown

20 to be unfair or unfounded. That's bound to happen. Again, I'm not

21 suggesting that in a case of this size and complexity, the Prosecution is

22 not going to find among the hundreds - hundreds - thousands of allegations

23 they make, some are going to collapse and end up in dust. The same is

24 going to happen on the Defence side. Not everything ends up, at the end

25 of the trial, as either party suggests. But it's part of the examination

Page 27377

1 and it's part of the evidence of Mr. Krajisnik that the man giving

2 evidence -- I'm talking particularly about Mr. Krajisnik now and not

3 talking about other witnesses for the moment. He's defending himself --

4 well, through us, he's defending himself against the gravest charges there

5 are. He is having, again understandably, legitimately in a trial of this

6 nature, he's having accusations put to him which are outrageous to him in

7 many instances, and in a number of instances are clearly not right in the

8 nature of things.

9 So in the course of 40 days of evidence, realistically there's

10 going to be a wide variation in the tenor of the evidence, the tenor --

11 the balance of the answers. Some answers from somebody in Mr. Krajisnik's

12 position are going to be clearly correct. Some are going to be utterly

13 convincing. At the other end of the spectrum, it would be astonishing if

14 in the course of 40 days of evidence, any witness for practical purposes,

15 but certainly any defendant who exposes himself to give evidence, isn't

16 going to give some answers which the Trial Chamber won't swallow. That's

17 normal. It would be an extraordinary trial if that didn't happen.

18 Now, of course, what's important is how big the questions are, how

19 big the answers are on those particular points. That's another matter.

20 But we would endorse and concur with our learned friends on the

21 Prosecution side in a number of simple approaches to the case, not

22 surprisingly, because we do similar jobs in our very different ways on the

23 different sides of the courtroom. The evaluation of any witness's

24 evidence is not an all-or-nothing exercise, except in the rarest cases.

25 I'm paraphrasing and probably not so elegantly expressing what

Page 27378

1 Mr. Harmon said yesterday. But you don't look at a witness's evidence

2 usually and say, Well, I don't believe a single word of it, or a witness's

3 evidence and say, I accept absolutely everything that that witness says.

4 Many witnesses, there's going to be a combination of true and false.

5 Nearly all witnesses, if there's not some combination of true and false,

6 there's a combination of right and wrong in the sense that their

7 description really isn't an apt description. They come infected by their

8 own, sometimes inevitable, human deficiencies in memory after many years,

9 particular personal feelings and convictions about the events concerned.

10 It's a complex exercise in relation to Mr. Krajisnik himself, for the

11 reasons I've just summarised. They are familiar to Your Honours, but not

12 everything which is already familiar to Your Honours is therefore not

13 worth saying today. It's a complex exercise, particularly in relation to

14 Mr. Krajisnik's evidence, but more widely.

15 I've used the phrase "search for the truth" because it's been used

16 quite a lot in the course of this trial. If you do a LiveNote search, a

17 guess would be that the first person to use the phrase was Your Honour

18 Judge Orie, but it doesn't matter because the phrase has been used on a

19 number of occasions. And it was used yesterday in the Prosecution's

20 submissions, particularly in the part of Mr. Harmon's submissions where he

21 was rejecting the Defence suggestion that it was not quite what the

22 Prosecution was doing. That was where it particularly came up.

23 It's not the slightest impugning of professionalism of the

24 Prosecution to persist with our contention that of course they're not

25 quite doing that. But neither, in the fullest sense, does a trial. There

Page 27379

1 are real dangers in the label "search for the truth" applied to a

2 time-limited adversarial trial. Time-limited is inevitable in this world,

3 but adversarial trial of this nature. It's -- of course the hope and

4 intention is that any trial gets as near to the truth as can be achieved.

5 That's the hope of the Trial Chamber. That's the hope of the -- when I

6 say the international community, I mean the international human community

7 - I mean everybody - that that's, as far as possible, what happens.

8 But it isn't quite like that after all. It is, in the end, a

9 search to see if the Prosecution have proved their allegations on all the

10 evidence. If there is a difference - and sometimes there may be - if

11 there is a difference between that and the fullest finding of the truth,

12 well, we go back to that description of what we're doing. It is a search

13 to see if the Prosecution have proved their allegations on all the

14 evidence. And they have had a lot more help -- or Your Honours have had a

15 lot more help in bringing that nearer to a search for the truth in this

16 case by the fact that Mr. Krajisnik has courageously and persistently from

17 the beginning said that he would, and has in the end, said that he would

18 give and has given evidence himself.

19 What it means by saying that it's a search to see if the

20 Prosecution have proved their allegations on all the evidence is that it

21 is, on the one hand, improper to speculate, to plug gaps in the

22 Prosecution case, and secondly, that it is an essential requirement to

23 allow properly for the evidence being incomplete wherever that casts any

24 doubt. I'm not sure that's brilliantly phrased, that last point, so I'll

25 have another go.

Page 27380

1 Because the exercise is of its nature incomplete, it ties in with

2 the essential nature of the exercise and the fundamental burden of proof.

3 Wherever there is any issue which it hasn't been possible to resolve, it

4 hasn't been possible to explore fully, it hasn't been possible to obtain

5 full evidence or, in some cases, the evidence that one would reasonably

6 wish to see if there were more time and had been more resources, wherever

7 it's not possible to complete the exercise, the gaps can only be plugged

8 where it's absolutely clear how the -- first of all, they can be plugged

9 and, secondly, how they would be plugged. What would fit in there?

10 If what fits in is just something obvious from the real world, and

11 bits of evidence, A, B, C, lead inevitably to a reliable, sure inference

12 that you've got D as well, put them together. No problem. But if you've

13 got A, B, C and we didn't get on to the further questions and there is any

14 possibility that the correct answer would be either D or E or F or G, then

15 in every case of course the most favourable assumption has to be made for

16 the defendant, because that's an obvious and logical corollary of it being

17 impossible to be sure about any of those alternatives.

18 So where questions don't have crystal clear answers - I'm using

19 "crystal clear" as a broad synonym for "beyond reasonable doubt." Sure,

20 beyond reasonable doubt, crystal clear; Your Honours know what the test is

21 ultimately. Wherever questions don't have crystal clear answers, so far

22 as they're material questions, of course they simply have to be treated in

23 the most favourable way to Mr. Krajisnik. That's what the burden and the

24 standard of proof mean. And he remains innocent and he is not guilty

25 unless the charges are made good to a level of sureness on the evidence.

Page 27381

1 Let's look at the important issue of quality of evidence. I'm not

2 going through 120 witnesses, being here until December, going through the

3 transcript, but looking at the important lines on the issue of quality of

4 evidence.

5 We did highlight some categories in the final brief. You've got

6 to have categories; otherwise, we're going to be going through

7 120-something of them. We won't repeat either the categories in detail or

8 the points and submissions in the final brief. But, summarising, we say

9 that careful evaluation, of course of each witness, that goes without

10 saying -- though there are some witnesses whose evidence is not seriously

11 in dispute. That's a different issue. The one immediately springs to

12 mind I can't name anyway because that was a protected witness, but Your

13 Honours will be familiar with some of the witnesses who came and gave

14 evidence of the terrible things that had happened in their locality to

15 their families, and it was truly awful in many cases. And those things

16 happened, in many cases clearly happened. In some cases, perhaps there's

17 some fault of recollection, exaggeration. In many cases that's just

18 entirely human and in many cases it doesn't matter. Your Honours will --

19 I mean the fault of recollection doesn't matter. The events themselves

20 will always matter, of course. Your Honours can evaluate all that.

21 But when we come to the quite significant number of witnesses who

22 -- well, were either fortunate enough not to suffer directly personally,

23 although in many cases their own families had suffered somewhere, but the

24 ones who were coming not to give evidence about the specific crimes but

25 other issues in the case, they do require, as categories, some attention

Page 27382

1 to the elements of the category. But then, obviously, the individual

2 witnesses are and the individual evidence is what really has to be

3 examined.

4 With international witnesses, we don't say that any of the

5 international witnesses started off hostile to Serbs sometime before the

6 -- even the events with which this case is concerned. We don't say that.

7 And we certainly don't say there's any sort of inherent ethnic hostility.

8 That would be absurd. We don't suggest that. But we do say simply that

9 close involvement in events such as these can lead to strong but sometimes

10 wrong views and judgements and clouded recollections of events. And that

11 can be because anybody's involvement, and sometimes especially because

12 they have involvement which is very close to the events which is there on

13 the ground, anybody's involvement then is likely to be necessarily

14 selective. It's localised. They have their own particular

15 responsibilities. They are involved in particular actions. Some of the

16 international witnesses, it was part of their job to see the broad picture

17 and the big picture. But everybody's human and, for example, we have

18 identified -- and I won't repeat it, it's there in our final brief, but we

19 have identified a passage in Mr. Okun's evidence where, for all he's

20 acknowledged - tremendous distinction, no question about that - the answer

21 he gives is just unconvincing. His explanation of a particular well-known

22 pronouncement by Mr. Izetbegovic can't be right.

23 So the Court must proceed on, and only on, the clear facts about

24 Mr. Krajisnik and then only such opinions and judgements as are really

25 solid so that you, Your Honours, can be sure about them. And Your

Page 27383

1 Honours, we hope and trust, will always be wary of facts, because that's a

2 hard enough evaluation to make in many instances, but will be especially

3 wary, we ask, throughout the case and throughout Your Honours' review of

4 the material of opinions and judgements.

5 We do suggest that there are and were witnesses clearly hostile to

6 Mr. Krajisnik, and again we urge Your Honours to evaluate that evidence

7 carefully and have that in mind. Again, we don't put forward the

8 unrealistic proposition that because a witness is hostile, that witness is

9 lying, or because a witness is particularly hostile about Mr. Krajisnik,

10 that what they say about Mr. Krajisnik is false. The Defence case doesn't

11 involve, we hope, such crude propositions. But it does involve the

12 greatest care. And we do suggest that you will find, from time to time in

13 the course of Mr. Kljuic's evidence, for example, a clear hostility to Mr.

14 Krajisnik. Now, the events at that time and Mr. Kljuic's own role, and

15 what happened to Mr. Kljuic will have fuelled some of that. And it's not

16 the issue for Your Honours' judgement as to how much of that hostility is

17 justified, how much of that hostility is unjustified. That's a case

18 within a case within a case. And in the end, some of that is for

19 Mr. Kljuic to resolve perhaps. But it's there and we do say -- we do, I

20 think, in the course of the morning, will come to a particular point in

21 the illustrative material which we've put before Your Honours. And if we

22 don't, then I've not remembered what it is I'm going to be saying in the

23 course of this morning, but I think we get to. So I'll pass on from

24 Mr. Kljuic.

25 The same applies to Mr. Bjelobrk. The interesting thing about

Page 27384

1 Mr. Bjelobrk really is that Mr. Krajisnik -- and he expressed this:

2 Mr. Krajisnik clearly retains some respect, real respect, for

3 Mr. Bjelobrk. He acknowledged that. But that doesn't mean that

4 Mr. Bjelobrk is right. And in the end, it's not -- Your Honours sometimes

5 in this case, and of course perhaps not that infrequently, but sometimes

6 in the case Your Honours will see witnesses that in Your Honours'

7 judgement are simply not telling the truth. Well, we've identified one

8 that we say falls into that category, but there are others. And the

9 Prosecution, of course, identify lots as well. That's obviously a feature

10 of this trial.

11 But lots of witnesses on lots of points are just wrong. Fine line

12 sometimes between untruthful and wrong; sometimes it's not necessary for a

13 court to make a decision on that line. Ultimately it may not matter on a

14 particular point. What matters is whether that piece of evidence is

15 sufficiently safe, sufficiently sure, to be accepted by the Trial Chamber,

16 and sometimes it can be rejected as not sufficiently reliable without

17 actually deciding whether it's deliberately untruthful, it's reckless,

18 it's mistaken, and so on.

19 But they are not the only witnesses where we -- there are degrees

20 of hostility as well, after all. They are not the only witnesses where we

21 see that. And even justified hostility, if it may be, and that's a matter

22 of judgement -- also it's a matter of strong feelings sometimes of the

23 witness himself, that he feels justified about that, and from his

24 perspective and what he knows and what he remembers, there may be a

25 justification. Even if everybody knew everything, there wouldn't be. But

Page 27385

1 nobody knows that. But it's real, justified or unjustified, if there is

2 animosity, hostility, it's to be weighed in the balance. Not in the crude

3 way that I disavowed a few minutes ago, but importantly.

4 And then, well, special category, she's really a special category

5 all on her own: Mrs. Plavsic. She's a special category on her own in

6 lots of ways. But hostility to Mr. Krajisnik, she's certainly in a league

7 of her own, it seems, as far as that's concerned. I'll come back to

8 Mrs. Plavsic.

9 Those are just three witnesses, degrees of hostility there,

10 especially now I've mentioned the last of those.

11 Then there's the category -- not a category named in this way in

12 our final brief, but a different way of looking at it: Witnesses clearly

13 worried about their own position. It largely embraces the convicts and

14 the suspects. Some suspects never became convicts. All convicts

15 presumably were once suspects.

16 The witnesses clearly worried about their own position, for one

17 reason or another, would have included Mr. Mandic, Mr. Djeric,

18 Mr. Trbojevic, Mr. Babic. It doesn't end there, but those are clear

19 examples. For one reason or another; slightly different reasons, perhaps.

20 Mr. Mandic, well, he might have been even more worried now than he

21 was then, if policies and practices and public pronouncements haven't

22 moved on in this Tribunal, because there's Mr. Mandic identified in the

23 latest version of the JCE, hot off the press from the OTP in this case, as

24 one of the core members - or is it members of the core JCE? But if the

25 Prosecution are driven, as actually they absolutely have to be from their

Page 27386

1 grand compendious super JCE, as listed in the original indictment to their

2 contention that we're talking about a hard-core JCE - my phrase, not

3 theirs - it includes Mr. Mandic in their list.

4 Mr. Mandic, from the Defence's recollection, was giving evidence

5 just a matter of days or weeks before the shutters were going to come down

6 or go up on further indictments in this Tribunal. But he had given -- he

7 had been interviewed; he'd said a lot of things in his interview.

8 Mr. Mandic's personality perhaps doesn't lead him to betray obvious signs

9 of anxiety and worry because he seemed to be an ebullient, resilient

10 personality. But on the assumption - and it's a hundred per cent reliable

11 assumption - there was plenty going on in Mr. Mandic's head, he would have

12 been a worried man.

13 Mr. Djeric, well, how much he's been quietly worrying down there

14 in Bosnia over the years in which he's been largely left to himself is a

15 question, but he was the Prime Minister throughout all the key events of

16 1992 -- well, certainly for the key months of 1992. He was, by the

17 Prosecution lights, a member of the expanded Presidency. There is still

18 rather a question whether that really is Mr. Djeric's view despite the

19 snapshot summary of his evidence given yesterday by the Prosecution. But

20 it would be enough to make a person worried, wouldn't it, if Mr. Krajisnik

21 is on trial with a key feature of the case against him being his

22 membership in the expanded Presidency and Mr. Djeric himself, by the same

23 token, would have been just that thing.

24 Mr. Trbojevic. Odd position, Mr. Trbojevic, since apparently once

25 upon a time he was wanting to sit where Mr. Josse is sitting, but a

Page 27387

1 professional lawyer, it wouldn't take much to knock that career off

2 course, would it, given that he was the Deputy Prime Minister at the time.

3 Mr. Babic. I'm just going to mention Mr. Babic, Your Honour. He

4 had his reasons. When he gave evidence, he had his reasons to be worried.

5 New category: Witnesses who it would be naive to suppose would

6 take an acquittal of Mr. Krajisnik lightly as a matter of no concern to

7 them. And I want -- well, I want all my submissions to be clearly

8 understood, and if they're not, well, it could sometimes be because they

9 are not clearly expressed, no doubt. But this one relates to or is a

10 development of what we say in our final brief in relation to such

11 witnesses as Mr. Treanor, Ms. Hanson, Mr. Nielsen, Mr. Wilson, Mr. Brown;

12 all honourable men and lady. I don't want to sound like Marc Antony, but

13 all honourable people. We don't suggest anything different. But

14 particularly in the cases of Mr. Treanor, Ms. Hanson, Mr. Nielsen, they

15 have contributed hundreds of hours of work to a team of which they were

16 members, and it would be ridiculous not broadly to accept and acknowledge

17 that Treanor, Hanson and Nielsen are members of the Prosecution team

18 overall. What do they want out of this case? They want a conviction.

19 And it's not -- I don't mean that Mr. Treanor would come here and make

20 things up because he got some preconceived clear idea that Mr. Krajisnik

21 was guilty. I'm not suggesting it's like when the police stitch somebody

22 up in the police station because they should have got him for the last one

23 and they want to make sure they get him for this one. That sort of thing

24 happens around the world. Less and less, we hope. Nothing like that. Of

25 course nothing like that. But careful evaluation, it's our point, how

Page 27388

1 independent or not independent is an expert. Is an expert working to a

2 thesis? That's really what it comes to.

3 And it's all right up to a point, as long as everybody recognises

4 that that's what they're doing. The problems, if you like, and the

5 dangers and the risks involved in that and the slightly unusual status and

6 position of expert -- Prosecution expert witnesses in this Tribunal

7 compared with what many of us are used to, and I don't know exactly what

8 people are used to in other places, but I rather do suggest that almost

9 everywhere it's something at least different from what we see in this

10 Tribunal, it's just an extra task - big one, tough one - it's just an

11 extra task for Your Honours. It just means that all their evidence has to

12 be scrutinised and evaluated with that in mind; that you need, with

13 respect, then, to be super alert to -- Your Honours would be super alert

14 all the time, but super, super alert, to the risk that there is a thesis

15 that the most scrupulous researcher - Mr. Treanor is a researcher - the

16 most scrupulous researcher has to -- the most scrupulous application of

17 scientific method, people really have to struggle to stop themselves from

18 putting together material to fit their own thesis. And as long as Your

19 Honours are alert always to that aspect of the process, ultimately no harm

20 should or would be done. But that's what's important.

21 And possibly to a lesser degree, but we leave that to Your Honours

22 to evaluate, the same would apply to Mr. Wilson, Mr. Brown. But Treanor,

23 Hanson, Nielsen, that's massive material; footnote upon footnote, appendix

24 upon appendix, and it all has to be viewed in that light, with that extra

25 care.

Page 27389

1 Chambers' witnesses, a slightly different type of category, if I

2 can put it that way, from the way in which we have broken it down in the

3 final brief. But then this is complementary to that brief and not just a

4 plug-in.

5 Chambers' witnesses, one word applies very aptly to the Chambers'

6 witnesses as a group and their evidence as a whole, and that word is

7 "extraordinary."

8 Mrs. Plavsic. I said I would come back to Mrs. Plavsic.

9 Mrs. Plavsic, she's come up before, of course. Excuse me one moment, Your

10 Honour. She's perhaps travelled more often from Sweden to The Hague than

11 she's given evidence in The Hague.

12 But in the Stakic trial, the Trial Chamber noted this, and it's

13 paragraph 550 of the Stakic trial judgement: "Ultimately, the Trial

14 Chamber decided that there was no point in postponing the end of the

15 hearings in the case in order to hear Plavsic, because without

16 anticipating her testimony, it could not reasonably be expected that

17 having pleaded guilty to persecution and not genocide she could or would

18 make any statement that would lead the Trial Chamber to the conclusion

19 that any person mentioned in the indictment had the specific intent."

20 Well, "mentioned in the indictment" -- I haven't double-checked, I

21 expect Mr. Krajisnik is mentioned in the indictment in the Stakic case.

22 But what the Trial Chamber fondly supposed there in paragraph 550 would

23 perhaps require a certain amount of revisiting.

24 But be that as it may, that's not the key point. The point is

25 this: That we -- Mrs. Plavsic is a convicted war criminal by reason of

Page 27390

1 her own plea. That's indisputable. The one thing we can't argue with

2 here is that she is convicted. She pleaded. She signed up to a factual

3 basis for her plea, so that was her saying, Yes, I accept this. And on

4 the basis of what she signed up to, what she specifically agreed, what she

5 specifically accepted, she was convicted of persecution and sent to

6 prison. So she's a convicted war criminal.

7 Mr. Harmon yesterday, page 18 of the LiveNote transcript, line 1

8 or 2, I think: "Beyond the excerpt from her statement just cited -"

9 that's Mrs. Plavsic - "in her statement she directed the Court to sections

10 of her book that she considered relevant to Mr. Krajisnik. In court she

11 testified that, 'I wrote there that the name of the book is very binding,

12 as far as I'm concerned. That's why I call the book "I Testify." And I

13 said it as if I had given an oath that I would speak the truth, only the

14 truth, so help me God. And that's what also kept, like a thread,

15 appearing throughout this book and also the second book.'"

16 Fine words. It's only that perhaps in evaluating Mrs. Plavsic's

17 words and the help that she implores from God and the oath that she would

18 speak the truth, perhaps the fact that she doesn't actually acknowledge in

19 her books what she's pleaded guilty to before this Tribunal might just be

20 tossed into the balance somewhere. You wouldn't let Mrs. Plavsic's hands

21 anywhere near the handle of the sword of justice, would you?

22 And if we -- well, "we" is really Your Honours. If we had wished

23 to embark and actually carry out the exercise of thoroughly exploring

24 Mrs. Plavsic's acknowledged crimes, her acknowledged -- overtly

25 acknowledged hostility to Mr. Krajisnik, her blatant hypocritical untruth,

Page 27391

1 to get to the bottom of all that, we'd have needed rather longer than the

2 little cameo to which Mrs. Plavsic was subjected and in which she

3 participated in this court at the very end of this trial. It's worthless

4 rubbish, Mrs. Plavsic's evidence.

5 Page 75 of yesterday's LiveNote transcript, Mr. Harmon:

6 "Mr. Krajisnik was part of a criminal enterprise." That's line 23 or 24,

7 I think. "Mr. Krajisnik was part of a criminal enterprise. The persons

8 who were close to him and were also engaged in the enterprise and were

9 convicted of crimes related to the enterprise are ideally the persons who

10 are likely to know information and have evidence that's vital to the

11 search for the truth."

12 Well, if I say those are fine words from Mr. Harmon, of course I'm

13 not going to say about Mr. Harmon's fine words the very things I said

14 about Mr. Plavsic's fine words. They are different categories, of course.

15 But in their different way, for very different reasons, of course.

16 Mr. Harmon's fine words don't really bear more than a few seconds scrutiny

17 either.

18 Who were these people related to the enterprise who were ideally

19 the persons who were likely to know information, have evidence that's

20 vital to the search for the truth? Well, they didn't call Mrs. Plavsic.

21 They didn't call Mr. Subotic. They didn't call Mr. Ostojic. They didn't

22 even interview or apparently trouble, Mr. Djeric. We didn't get a sniff

23 of Mr. Buha being called by the Prosecution. They didn't suggest bringing

24 Mr. Maksimovic here. And where was Mr. Stanisic, Mr. Mico Stanisic?

25 Well, maybe not so far away, maybe not so inaccessible.

Page 27392

1 It's just not so, is it? It's not untruthful. We're not talking

2 about a witness being brought from Sweden. We're talking about

3 professional lead counsel putting his case. But it just doesn't work,

4 that proposition. It just demonstrates, and that brief list I've given

5 just demonstrates that this search for the truth can be quite heavily

6 qualified.

7 I've mentioned Mr. Djeric before. It's not surprising that he

8 tries to shuffle everything from the government to the Presidency, because

9 actually he doesn't really -- he doesn't really regard himself as a member

10 of the Presidency, so that when he shuffles things off from the government

11 to the Presidency, he's not actually sitting there in this court saying,

12 I, as the head of the government, actually wasn't responsible for this,

13 this is really the responsibility of the Presidency which, oh, whoops, by

14 the way, I was also a member. He's not doing that. He's actually saying,

15 I was government, but that Presidency over there, they were the ones who

16 knew all this and what was going on, and, well, we were sort in the dark

17 over where we were.

18 Mr. Ostojic. Well, probably nobody is going to make the unsullied

19 truthfulness of Mr. Ostojic the central plank of their case, either

20 Prosecution or Defence, so once again we have an area of happy or unhappy

21 agreement between us there. But, again, you don't normally accept or

22 reject any witness's evidence wholesale, and Mr. Ostojic, he was certainly

23 there, and how.

24 Mr. Deronjic, apart from -- it's a big apart, of course, but apart

25 from the early witnesses who came to tell us about the crimes on the

Page 27393

1 ground in their municipality, Mr. Gasi, the very first witness, but very

2 soon after, Mr. Deronjic was first up as a big witness, if you like. No

3 disrespect to Mr. Gasi, but in the overall scheme of this case. First up

4 as a big witness. Quite big pressure to get Mr. Deronjic on and done and

5 dusted in this case before he was, well, seriously dealt with in his own

6 case. He committed an appalling crime. We know that. He committed an

7 appalling crime. He can't complain -- maybe he did complain about the

8 sentence he got for that. He torched a village and murdered 60 people,

9 something like that. He says he went to Pale the next day. If it wasn't

10 the next day -- I think I remember it was the next day, but anyway it was

11 extremely soon after, he says. And he told a meeting what had happened in

12 Bratunac, which Glogova is included.

13 Well, I'm not going to pick and pore over Mr. Deronjic's evidence

14 here this morning because, well, Your Honours can do that in the quietness

15 of your own chambers and see how unsatisfactory Mr. Deronjic's evidence is

16 if you simply look at it on its own -- well, on its own in the context

17 without looking at what other witnesses have said about it.

18 Was Mr. Deronjic telling the truth in court? Big question. Was

19 Mr. Deronjic telling the truth -- well, if Mr. Deronjic is basically

20 telling the truth about the meeting that he went to in Pale and the people

21 who were there and what he talked about, if that happened in that way, was

22 he telling the truth at that meeting? Even bigger question. Most

23 unlikely. Most -- most unlikely that he was really telling the truth

24 about everything he had done. At that time and in those circumstances,

25 the notion that however strong the feelings that were riding high, exactly

Page 27394

1 what we know Mr. Deronjic now did was a subject of boasting and bursts of

2 applause, that really is a bit far-fetched. And then what he did actually

3 tell the meeting, if he did. Did he tell them what was then inevitably

4 passed on to Mr. Krajisnik? Does the combination of what Mr. Deronjic

5 says about that meeting and what he had to hide and where he was when he

6 came to give it -- where he was metaphorically when he came to give

7 evidence in this court, does that really lead to any reliable conclusion

8 that Mr. Krajisnik himself knew immediately after those events of criminal

9 actions sufficiently serious to pin criminal liability on him here? Of

10 course it's important to the Prosecution. Naturally they want to -- they

11 want to get in as early in time as they can and get as clearly as they can

12 Mr. Krajisnik's knowledge of such matters. It's just it's pretty thin

13 stuff on which to base that.

14 When -- Mr. Ostojic, of course, was specifically named and, well,

15 graphically and in colour, as it were, in the colour blue by Mr. Deronjic

16 as somebody at that meeting. When the Trial Chamber - I think this must

17 have been Your Honour Judge Orie - was summarising his statement, 3rd of

18 July, this year. But transcript -- we needn't go to it, I'm sure Your

19 Honours can find it, but transcript 26637, a summary by Trial Chamber:

20 "You --" that's Mr. Ostojic. "You did not recall an alleged attack on

21 the village of Glogova on the 9th of May, 1992. You stated that you were

22 not present at an alleged meeting in Pale of SDS Crisis Staffs and

23 municipality presidents around the 10th of May, 1992, and you denied the

24 allegation that you chaired such a meeting with Mr. Karadzic and General

25 Mladic and even expressed doubt that such a meeting even took place. You

Page 27395

1 remembered that you and General Mladic attended a meeting in the beginning

2 of May 1992.".

3 Mr. Harmon cross-examined the following day. It's a short

4 passage, Your Honour, so I haven't distributed bits of the transcript.

5 But Your Honour can find it, certainly, at 26742, on the 4th of July,

6 2006. For various practical reasons, the cross-examination proceeded

7 initially on this point rather less smoothly than we're accustomed to when

8 Mr. Harmon is examining a witness. There were hitches in the course of

9 this. But at page 26743, there had been a slip of the tongue about where

10 the meeting had taken place.

11 Line 23, Your Honour Judge Orie: "Mr. Ostojic, Mr. Harmon made a

12 mistake when he said you did attend the meeting in Glogova -" that had

13 just been a slip of the tongue - "on the 10th of May and that you used the

14 map, et cetera. You said: 'No, I did not attend the meeting on the 10th

15 of May in Glogova' because you were in Pale. Did you attend that meeting

16 in Pale of which --" and then the witness answered: "No, no. On the 10th

17 of May I was in the Pale in the government, and I was drafting the law on

18 the Ministry of Information for the following session of the government

19 which was to take place on the 12th of May in Banja Luka. And already on

20 the 11th of May I was on my way to Banja Luka."

21 Your Honour Judge Orie: "Yes. Thank you, Mr. Ostojic. We'll

22 have a break."

23 JUDGE ORIE: The last words, I--

24 MR. STEWART: As I said it, Your Honour, I felt -- history repeats

25 itself, Your Honour.

Page 27396

1 JUDGE ORIE: I thought you were going to say --

2 MR. STEWART: I thought you were going to say we'll have a break.

3 JUDGE ORIE: I just wanted to draw your attention to the relevance

4 of those words at that time.

5 MR. STEWART: If Your Honour felt like repeating those words right

6 now, that would be a suitable point.

7 JUDGE ORIE: If that's a suitable point, I will repeat them. And

8 if you would like to finish with a few sentences, I would give you an

9 opportunity to do so.

10 MR. STEWART: Well, Your Honour, actually, I hadn't got to -- I

11 hadn't really got to a mini break there, so ...

12 JUDGE ORIE: Then we'll have a break, and I'll try to follow as

13 good as I can the same procedure as yesterday. That means the first break

14 will be 25 minutes. We'll resume at five minutes past 11.00 sharp.

15 --- Recess taken at 10.37 a.m.

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

17 JUDGE ORIE: Mr. Stewart, please proceed.

18 MR. STEWART: Thank you, Your Honour.

19 In the -- just following on from the matter that I was looking at

20 just before the break, Mr. Deronjic's evidence about his report of events

21 in Bratunac, at the transcript on the 4th of July, 26743, there's a

22 citation in Mr. Harmon's question and it's just a convenient place for the

23 citation of what was said by Mr. Krajisnik, or something said by

24 Mr. Krajisnik at the Banja Luka Assembly session, the 16th Assembly on the

25 12th of May, 1992. The whole quote is: "That is why --" Page 49 of the

Page 27397

1 English version of that document, the record of the Assembly session.

2 "Mr. Krajisnik: That is why it would be good, my dear gentlemen,

3 to take care to leave enough space for division. I shall be a bit

4 immodest. Do not hold it against me. We once placed the option on our

5 agenda of making a map, and should anyone offer us 80 per cent of the

6 territory we would not be able to work out a partition. Even if there

7 were -- even if we were deciding on how to do a partition because it is

8 very difficult, we are everywhere. That is why I propose that we also

9 adopt a conclusion, that a group is to be established, a working-group,

10 and a commission which would say: Here, this is the map. I like

11 Mr. Ostojic's maps most, and everything on them is blue."

12 And it appears -- the quote ends there. It appears from what

13 Mr. Harmon, I think it was, was saying yesterday that it's that reference

14 to blue which is supposed to establish some clear link between what had

15 happened in Bratunac, Glogova on the 9th of May, and the information that

16 had come to Mr. Krajisnik's ears.

17 Your Honours, I am not going to pore through those bits of

18 evidence and bits of documents step by step here this morning, but just to

19 identify them and I would submit to Your Honours that that is the

20 flimsiest and most tenuous basis on which to -- on which it should be

21 suggested that such a key conclusion should be reached on the evidence.

22 That specific point leads on to a slightly wider but quite serious

23 point in the evaluation of the evidence and the whole case, particularly

24 Mr. Krajisnik's evidence as well as everything else.

25 The Prosecution, in their case, frequently used somebody else's

Page 27398

1 remarks and then link them to Mr. Krajisnik - or link him to them, if you

2 like - in the crudest way. They do it particularly with numerous remarks

3 of Mr. Karadzic, and a few of those, just a few of those - and I do

4 emphasise "few", Your Honours - we're going to explore fairly quickly,

5 briskly, at some point this morning. But more generally, it applies to

6 such people as - and I think I'd be correct in just recalling these names

7 just as illustrations: Mr. Kupresanin, Mr. Vjestica -- there are quite a

8 lot of names appearing, deputies appearing in the records of the Assembly

9 sessions. People coming out with sometimes slightly extreme -- well,

10 slightly extreme views.

11 In some cases, and I'm not saying I have absolute recollection of

12 the individual or the session or the page, but Your Honours will have the

13 point, Mr. Krajisnik will pay the deputy in question a compliment. Some

14 such item came up quite recently. Mr. Krajisnik says he's a wonderful

15 man. And the same person who is a wonderful man has just made some quite

16 extreme statement in the Assembly.

17 It appears that it's being continually suggested that in some way

18 Mr. Krajisnik is then endorsing what's been said. That is a very

19 dangerous route to go down, in our submission. On the one hand, of course

20 you don't simply ignore what other people have said. What's said at a

21 meeting when you're there, and so on, again, we're not making such an

22 unrealistic submission to say that, as a starting point, you can't look at

23 that material. Obviously you can, in principle, look at what was said by

24 other people at meetings at which someone was present, and you can look at

25 their reactions and so on. That's clear. That's just common sense.

Page 27399

1 But it's -- it requires to be done with caution, and great

2 caution, when one just remembers where Mr. Krajisnik did fit in in the

3 Serb Republic, the Republika Srpska, and what his primary function was.

4 He was the president of the Assembly. And when we're looking at these

5 sometimes really quite lengthy records - well, they're lengthy records

6 because they were lengthy sessions of the Assembly sessions - one always

7 must remember that Mr. Krajisnik was at those Assembly sessions as the

8 chairman. The president of the Assembly is the most usual and

9 conventional translation that we have of Mr. Krajisnik's role. And as far

10 as I remember, it's pretty much the apt literal translation of what it is

11 in the Serbian. I mean, how should I know? But I seem to remember that.

12 We sometimes have used the word "Speaker" because that's certainly

13 at least more conventional and understandable for us from the United

14 Kingdom and some other places where that would be an apt translation. But

15 we shouldn't forget that that role of Speaker won't be quite the same as

16 in the United Kingdom, as it happens, but that role of Speaker is very

17 important.

18 This Assembly - and I'm talking about the Serb Assembly - true of

19 the Bosnia-Herzegovina one in different ways, but the Serb Assembly, and

20 Republika Srpska Assembly as it became, contained a very wide range of

21 views. Surprise, surprise: Parliaments do. And even when they are

22 comparatively monolithic parliaments as this one was, it was a special

23 sort of parliament as compared with many others, and it was a Serb

24 parliament of course, but it still contained within itself a huge range of

25 views, some of them admittedly extreme. And Mr. Krajisnik says that.

Page 27400

1 Mr. Krajisnik, in wartime in 1992, apart from anything else, had

2 the primary responsibility of keeping that show on the road. That

3 colloquial phrase does really aptly describe that important

4 responsibility. You needed to keep the Assembly intact at that time. You

5 needed to contain whatever differences of view there were. You needed to

6 prevent such fissures as you might see just cracking the whole thing

7 asunder. You needed to, if not accommodate the more extreme views in a

8 practical sense, you clearly needed not to alienate them.

9 When they had the meeting in Banja Luka on the 12th of May, they

10 were in the middle of a war. The deputies were not sitting somewhere

11 quietly, sedately, as you often sit, far from the conflict zone, civilians

12 sitting around debating what their soldiers should do. They were in the

13 fighting themselves. They were coming into the Assembly from -- not every

14 single one of them. Of course they varied. They varied in age; they

15 varied where they came from, and so on. But a good number of them,

16 carrying it to an extreme, might have been at the front the day before,

17 might have gone back to the front that night. That was the flavor of what

18 was going on. They're not the subject -- if you like, they're not crimes,

19 if they were crimes at all, that are the subject of this trial. But some

20 of these people were having members of their own family killed. Some of

21 them were later killed themselves, of course.

22 This wouldn't have been easy. You had to -- if you were going to

23 be the Speaker, and if you were going to keep this show on the road, and

24 if you were going to succeed in the selling operation, again, if you

25 like. Another colloquial phrase but an apt description, an apt short

Page 27401

1 summary of what Mr. Krajisnik has described to this Court, that the peace

2 negotiations were continuing. They faltered, of course, naturally at

3 time. Such things, again, usually do from time to time. They were

4 faltering. But we certainly urge upon Your Honours the view and the

5 conclusion that throughout this period Mr. Krajisnik and colleagues, but

6 Mr. Krajisnik certainly, was genuine, sincere, active and energetic in his

7 pursuit of the peaceful solution.

8 So if somebody was going to start strongly criticising somebody's

9 expression of view, some deputy's point of view, any sensible speaker

10 would leave it to other people on the floor to do that largely. From time

11 to time we do see Mr. Krajisnik reprimanding somebody or correcting them.

12 Certainly he's more inclined to correct somebody than to reprimand them.

13 But reprimand, occasional correction, he does, of course, express his own

14 points of view. But to attach significance to a compliment paid to

15 somebody who has just expressed a particular view so as to attach

16 Mr. Krajisnik to that view is simply going too far.

17 Of course, Your Honours must and can look at what Mr. Krajisnik

18 himself said. Of course Your Honours must and can look at Mr. Krajisnik's

19 actions and inactions. That's what this case is all about. But be very

20 careful not to link and associate Mr. Krajisnik in loose ways where it is

21 not crystal clear that he endorsed that point of view, that he subscribed

22 to it, that he supported that particular intervention, that that was his

23 line, that was his policy, and that was his view.

24 And some of the things that are said - and they're there and Your

25 Honours will see them in all this material - some of the things that were

Page 27402

1 said, and quite a lot of the things that were said by quite a lot of the

2 deputies, are manifestly inconsistent with Mr. Krajisnik's approach at the

3 time, what is on record as having said and done at the time, and certainly

4 irreconcilable on any footing, irreconcilable with what Your Honours have

5 seen in this Court if they are supposed to represent Mr. Krajisnik's own

6 views and actions.

7 We say that Mr. Krajisnik was trying to find a peaceful way out,

8 and we do say not only that you can't be sure that he wasn't, but actually

9 you can be sure that he was. And so far as the complicated and, in some

10 ways, difficult exercise of retrospectively evaluating all the Cutileiro

11 discussions and plans and proposal is concerned, with maps that require

12 extraordinary detailed care to set clearly alongside one another to try to

13 put oneself back into 1992 and see clearly what was going on, we have, for

14 example, Mr. Cutileiro's own letter to The Economist, which is D256, I'm

15 helpfully reminded by Mr. Josse. We do see Mr. Krajisnik's genuine

16 devotion to the peace cause. And why wouldn't he? We're going to see

17 Mr. Krajisnik knew that -- why wouldn't he know? He knew if there was a

18 war, a lot of people would be killed. There's not the slightest

19 indication that Mr. Krajisnik wanted anybody to be killed because they

20 were what they were or because they were who they were. And he knew and

21 recognised throughout that people would be killed on all sides, as indeed

22 they were. It's not a tu quoque defence. We don't run that because

23 that's not a defence. That's one good reason. But there were a lot of

24 people killed, and Mr. Krajisnik would have known that on all sides there

25 were. His commitment to peace was genuine and energetic.

Page 27403

1 And with reference to what we say about the extreme views and the

2 extreme language of some of Mr. Krajisnik's colleagues - and I mean

3 colleagues in the broadest sense now; the colleagues in the Assembly as

4 well as his colleagues who were actually based in Pale at the relevant

5 time - on many occasions particular individuals do use language which is

6 very different from Mr. Krajisnik's. And Your Honours may feel able to

7 come to the confident conclusion that it was language of which

8 Mr. Krajisnik clearly would personally have disapproved. And we see that

9 on -- as far as I recall, it's the only one. If it's not the only --

10 absolutely the only one, that's just a recollection -- that's just a fault

11 in my own recollection of the evidence. But the point is essentially not

12 changed. So far as the one occasion is concerned when, by my

13 recollection, Mr. Krajisnik was driven to a rather shameful use of

14 language about Muslims, as he himself accepts that he did, something had

15 happened which directly affected his own locality, and he was angry and

16 distressed. As a matter of fact, then he presented it as a reason, part

17 of the explanation, rather than an excuse. If one compares that with the

18 others he was dealing with -- now, some of them were clearly given to that

19 sort of language and those attitudes. We don't shrink from that. But

20 some of them were facing extreme situations in their own locality beyond

21 that particular incident that Mr. Krajisnik mentioned, which was part of

22 the background to his rather uncharacteristic lapse into offensive

23 language.

24 The Prosecution case, going back to the essentials of the case,

25 the extreme version of the plan, and we see that right there still at the

Page 27404

1 beginning of the Prosecution -- almost at the very beginning of the

2 Prosecution final brief. Page 8, paragraph 2, under the heading "Joint

3 Criminal Enterprise." "The other participants in the JCE included other

4 leading members of the Bosnian Serb leadership, primarily Plavsic and

5 Koljevic, members of the government -" and if I say et cetera, et cetera,

6 et cetera, it's because it's there in writing. It reflects what's been

7 there in the indictment since the beginning. It's going through the

8 motions here now because it's clear that the Prosecution haven't come

9 anywhere near supporting that.

10 And then so they're driven -- paragraph 3 of the final brief:

11 "Should the Trial Chamber find that the members of the JCE consisted only

12 of a core group, such as -" which at this stage of the case we suggest is

13 slightly less specifically helpful than one might expect from the

14 Prosecution, and then they name, one, two, three, four, five, six, seven,

15 people, including Mr. Mandic - "liability still attaches to Krajisnik,"

16 and so on.

17 We're going to address that one question with two parts. We're

18 going to address the question that Your Honours specifically addressed to

19 the Defence. We'll do that in the course of today's submissions fairly

20 briefly, but we will address it.

21 But we do say that it's clear that the extreme version is not

22 sustainable. They have effectively climbed down themselves to a core JCE

23 because they haven't come anywhere near proving the great plan and the

24 great JCE.

25 Your Honours, I'm going to come to that Trial Chamber question in

Page 27405

1 due course, but I'm not going to do it right now. What I'm going to do

2 now is look at the section, and it may be helpful to Your Honours,

3 therefore, to have that section at hand, the section of the Trial Chamber

4 brief -- Trial Chamber brief; I don't know what sort of slip of the tongue

5 that is, Your Honour; I apologise. The Prosecution final brief, at page

6 171, paragraph 547, under the heading "Genocide," and I'm particularly

7 going to address, again, not even the whole of this section, because to go

8 point by point just through this section, we'd be here to the middle of

9 next week probably. So what I'm going to do is look at a particular

10 section and particular points. But for this purpose, Your Honours, I'm

11 going to work from a clip of papers ...

12 Thank you. I'm just wanting to make sure that everybody that

13 needs it has got it. Your Honours, I believe and hope that the

14 interpreters' booth has this clip of papers. I believe and hope that the

15 Prosecution has. And I believe and hope that all three of Your Honours

16 have as well.

17 JUDGE ORIE: I think everyone has it.

18 MR. STEWART: Good. Excellent.

19 Your Honours, what I'm going to do is look at, and these are by

20 way of illustration, a number of points in this section of the Prosecution

21 brief; cross-refer, briskly I hope, to relevant short passages of

22 transcript, intercepts, other items, as the case may be, to make - of

23 course that's the intention - to make our point and move on.

24 The first is page -- sorry, paragraph 555 of the -- I can start in

25 each case with the reference in the OTP final brief and then work from

Page 27406

1 that. So 555 at page 173.

2 We have -- and it's all under the heading here of -- it's all

3 under the big heading "Genocide" and under the "Statements made by

4 Krajisnik and other BSL - Bosnian Serb leadership - leaders from which

5 genocidal intent can be inferred."

6 And then at 555 we get: "As early as 4th September 1991, Karadzic

7 and Krajisnik stated what would happen should Izetbegovic and his

8 supporters persist with their intention to secede from the SFRY. The

9 quote cited below demonstrates that Karadzic and Krajisnik were working

10 together on putting forward their shared point, namely the annihilation of

11 Muslims."

12 And then we get footnoted a passage from an intercept of a

13 conversation between Mr. Krajisnik and Mr. Karadzic, 4th of September,

14 1991.

15 "Krajisnik: Yes, so that, oh, let them all just ... go to ... we

16 must be sure we put our point across today.

17 "Karadzic: We'll make our point, you see, that's where it leads,

18 where your policies lead!!!

19 "Krajisnik: Exactly."

20 "Karadzic: Man, you will disappear. Many of us will also

21 disappear, but you will be annihilated!"

22 The context of that, that passage is taken out and highlighted

23 here in the Prosecution brief: "Man, you will disappear" is clearly, and

24 we don't dispute this, this is Karadzic rehearsing him or them, and it

25 depends how one interprets it, talking to the Muslims: "You, the Muslims,

Page 27407

1 man, you will disappear."

2 The context, as can be seen from the transcript, and it is the

3 first item in this clip, it begins on the first page, and there's been an

4 attack on the village of Kravica. About four lines from the bottom of the

5 first page: "All Muslims --" well, I'll start a little bit earlier, about

6 five lines up.

7 "Karadzic: That suits me. Did you know that shots were fired up

8 in ...?

9 "Krajisnik: I heard, two dead, aren't there?

10 "Karadzic: Three. I think the third one's dead, and two are

11 seriously injured.

12 "Krajisnik: All Muslims?

13 "Karadzic: All Muslims, but they attacked the Serbian village of

14 Kravica.

15 "Krajisnik: I'm not sure if that's true, you know what I said

16 this morning? Please!

17 "Karadzic: Yes?

18 "Krajisnik: Cengic called me.

19 "Really?" says Karadzic.

20 "Krajisnik: He said: Shall we go there, my people have invited

21 me. I said, do go, but let Simovic go too. And he says, I'd like to go,

22 together with Simovic, you know. If he goes alone, he'll annoy the Serbs

23 and then we'll have problems.

24 "Karadzic: No, no, he can't, he must go, but he mustn't go

25 anywhere alone!

Page 27408

1 "Krajisnik: No, I also told Vito -" that was Simovic - "to make

2 sure he goes there, to put in an appearance before the people, they're our

3 people, you know they become agitated. They want an army, they want all

4 sorts of things, you know?"

5 Commenting there, Your Honour. Mr. Krajisnik is in his, quite

6 familiar, we suggest, calming down frame here. That's what he has in

7 mind.

8 Then Karadzic continues: "Yes. The army has set off from

9 Tuzla ...

10 "Krajisnik: Yes, so let them all just ... go too ... we must make

11 sure we put our point across today!

12 "We'll make our point --"

13 And that's where the citation picks up in the brief, and I've read

14 that bit. And then the citation in the brief finishes with that line

15 "many of us will also disappear, but you will be annihilated," and that's

16 where the OTP brief stops.

17 The intercept itself continues immediately with Krajisnik: "No.

18 We should say that we will all disappear, both sides, you know.

19 "Karadzic: True.

20 "Krajisnik: We should deliberately say this.

21 "Karadzic: Exactly.

22 "Krajisnik: That's what should be done.

23 "Karadzic: Yes.

24 "Krajisnik: We should soften ..., toughen up, no..."

25 That's not an easy sentence to interpret in the circumstances.

Page 27409

1 That was my comment there here in court, that last bit. And then:

2 "Karadzic: Yes, I quizzed Simo a bit about Zarko."

3 Now, of course the Prosecution, much to their chagrin, were

4 restricted to a mere 60.000 words in their final brief, so no doubt wanted

5 to save unnecessary lines where one could. The point is only this: That

6 the -- when one looks at even that limited section of that transcript that

7 I put before the Court this morning, that the picture is different. It's

8 immediately different. The extract at 555 is out of context. It cuts off

9 immediately before Mr. Krajisnik's remark, which casts a completely

10 different light. It is far-fetched to say that it shows Karadzic and

11 Krajisnik sharing the point, or probably it is intended to say sharing the

12 point of view, putting forward their shared point, namely, the

13 annihilation of Muslims. That just is not what it's saying.

14 Mr. Kljuic was asked about this intercept. I should say, Your

15 Honour, the B/C/S version is there for those in court, including, of

16 course, Mr. Krajisnik. He got one, yes, okay.

17 Mr. Kljuic was asked about this at page 6256 on the 28th of

18 September, and that is number 2. This is -- immediately follows the B/C/S

19 of the intercept. And it's Mr. Harmon, middle of page 6256, line 12:

20 "Okay. This - I'm going to read you two passages, Mr. Kljuic."

21 And so he reads passages that we had seen and have read just now. And

22 then we go on to 6259, line 5: "That's the end of the passage I'd like

23 to ..." This is Mr. Harmon speaking.

24 "First question: Can you very, very briefly tell us what

25 happened, to your knowledge, in the village of Kravica, and then I want to

Page 27410

1 turn my attention to the second passage."

2 Answer from Kljuic: "This refers to an incident in which the

3 Muslims had three dead and two seriously wounded, and the accusation made

4 was that they had in fact attacked that Serb village. In all similar

5 situations, the Serbs asked the Yugoslav People's Army to step in as being

6 a guarantor of peace and security for them. But when the army actually

7 did turn up, then they would have absolute power.

8 "Now, why Karadzic and Krajisnik didn't want Cengic to go, then he

9 was the vice-president of the SDA at the time, was because any mixed

10 commission could arrive at truthful information, could uncover the truth,

11 and then could deduce who was to blame for that particular incident. And

12 finally, yesterday we heard Karadzic's threats in parliament, in the BiH

13 parliament, made two months later. He never hid those threats, never

14 masked his threats, when he said that unless such-and-such a thing were to

15 happen, somebody would disappear. In this dialogue, this conversation, we

16 can see all the difference that exists between Krajisnik and Karadzic.

17 Krajisnik, as the wiser of the two, says it would have a better effect if

18 we say all were to disappear, we will all disappear, as he says. But

19 Karadzic had his own way of public speaking. He considered that he would

20 raise his authority, lend more importance to himself, if he were to be the

21 one to forecast the fate of individual ethnic groups in

22 Bosnia-Herzegovina."

23 It's quite interesting to start with that Mr. Harmon's question,

24 which he hasn't really quite got to, he wants to turn his attention to the

25 first question: "Can you very briefly tell us what happened in the

Page 27411

1 village of Kravica," and Mr. Kljuic doesn't waste the opportunity to go

2 off on a spree of dealing with four points. First of all, he -- well, at

3 least four points. He answers the question very, very briefly, in terms,

4 as can be seen anyway from the intercept. He gives an explanation of why

5 they didn't want Cengic to go, and we say, Well, how could Kljuic know

6 that? And it doesn't fit the intercept. He goes on gratuitously to bring

7 up Karadzic's statements in parliament. He refers to differences that

8 exist between Krajisnik and Karadzic.

9 Now, we say there's a difference of approach, but Kljuic doesn't

10 hesitate to put a slightly more negative slant to the difference between

11 Krajisnik and Karadzic and present it as some sort of negative and cunning

12 spin of the matter, and then he has a little go at Karadzic at the end of

13 the answer as well, about him wanting to raise his authority, lending more

14 importance if he were to be the one to forecast it. He was, after all --

15 he was the leader. That is very clear.

16 So it's this: A, one needs to look incredibly carefully at this

17 sort of stuff; and, B, it does cast a little further light on what we said

18 earlier about Mr. Kljuic, and that is his approach and that is a thread

19 that appears through Mr. Kljuic's evidence.

20 So, Your Honour, that's that point. The next one is paragraph

21 556. I'm not going through every paragraph. The fact that I'm doing two

22 in succession shouldn't worry Your Honours here. But 556 is the next one.

23 On the 12th of October, 1991, Karadzic said that the Muslims would

24 disappear from the face of the earth in a conflict if the BiH government

25 decided to secede. And that is on the third page of the transcript. Your

Page 27412

1 Honours have that as the next item in the clip. So it's page 3, fourth

2 line down -- sorry, beg your pardon, very top. The line before the

3 passage cited in the OTP brief.

4 "Karadzic: Well, he's crazy. They're totally crazy --"

5 THE INTERPRETER: Mr. Stewart, please, when you're reading, adjust

6 your pace. Thank you very much.

7 MR. STEWART: Okay. I note -- that's my first reprimand from the

8 interpreters this morning. Maybe it won't be the last one. I'm just

9 reminding the interpreters, if I may respectfully, you've got the B/C/S -

10 should have - you've got the B/C/S version of this intercept as the next

11 item in the clip, which may help.

12 So at the top of page 3 of the English:

13 "Well, he's crazy. They're, they're totally crazy, you know.

14 They ..." and this is where the citation starts:

15 "Djogo: Where ... what's he thinking, to start a war in Sarajevo?

16 Is he crazy?

17 "Karadzic: He's, I think that they, exactly, they should be

18 thrashed if they start a war, they will ... they'll disappear ...

19 "Djogo: There'll be rivers of blood, but ...

20 "Karadzic: They will disappear, that people will disappear from

21 the face of the earth if they start now."

22 Which is where the quote in the brief stops. The intercept

23 carries on:

24 "Our offer was their only chance. Even that was too much, what we

25 offered them. But ...

Page 27413

1 "Djogo: You offered them what I never would.

2 "Karadzic: Yes. They were offered more than Serbs should have

3 ever offered, but still they didn't take it, and now the only thing left

4 for us is, we can tell them: Whoever wants to leave Yugoslavia, let them

5 formulate their wish. Let ..."

6 And so on. I don't wish to chop this off myself at some

7 unsuitable point, but it's got to be somewhere, otherwise we'll just get

8 carried on to the very end of the intercept.

9 Again, a different picture. It's not -- Your Honours, I don't say

10 -- because after all, I wasn't there, a fly on the wall, observing the

11 process -- I don't say that some deliberate decision was made in the

12 construction of the brief to chop it off there, I just do say that it

13 should -- the reading and the examination and the assessment of this

14 intercept cannot be chopped off there. So one needs always -- and it's a

15 very -- Your Honours, we don't shrink from this: It's a very daunting

16 task for Your Honours because it is sometimes extremely difficult to be

17 confident that there isn't material tucked away somewhere in -- this one

18 is quite a long intercept. Some are shorter but this is quite a long one.

19 It is very difficult to be confident there isn't something tucked away

20 that would cast light. I don't want to be accused of being tendentiously

21 selective beyond the proper limits of what Defence counsel can be, because

22 I'm saying please look at the whole thing. We're not suggesting that you

23 shouldn't. But that's extremely important. There's often stuff that

24 would cast light. But that, we say, is very clear.

25 I'm then going on to 559 in the brief. The theme of annihilation

Page 27414

1 of the Muslims set out in Karadzic's phone conversation of 12th and 13th

2 October, 1991, found expression in his critically important speech at the

3 BiH Assembly on the 14th of October, 1991, in which Karadzic expressed a

4 prediction that the BiH leadership would lead the Muslims to possible

5 extinction. "Possible extinction if they chose to take BiH down the same

6 road to independence as Slovenia and Croatia." And that particular

7 passage can be seen -- it's all over the place in the evidence, but it's

8 seen, for example, at the transcript of the 30th of May, 2006, at page

9 24969. It's in the middle of that page. Mr. Krajisnik's -- line 8, it's

10 Mr. Tieger, he's cross-examining Mr. Krajisnik.

11 "Mr. Krajisnik, I'd like to turn back in time now to 1991, and in

12 particular to your testimony about Dr. Karadzic's speech at the Bosnian

13 Assembly on the 14th and 15th, I guess the late evening of the 14th or the

14 early morning hours of the 15th -" October 1991, that is - "in which he

15 said: 'This is the road that you want Bosnia and Herzegovina to take, the

16 same highway of hell and suffering that Slovenia and Croatia went through.

17 Don't think you won't take Bosnia and Herzegovina to hell and Muslim

18 people in possible extinction because Muslim people will not be able to

19 defend itself if it comes to war here.'

20 "Now, Mr. Stewart read that out to you during the course of your

21 examination, and you explained Dr. Karadzic's comments as simply being a

22 repetition of what Mr. Filipovic had said earlier, and as I understood it

23 that was your explanation of the benign aspect of Dr. Karadzic's


25 And then Mr. Krajisnik said he had explained in his evidence in

Page 27415

1 chief what Mr. Karadzic had stated, what the papers wrote about it, why he

2 gave that statement, and so on.

3 Your Honours, what we have as material which is directly relevant

4 to this matter is, first of all, of course, Mr. Karadzic's speech to the

5 Assembly on the 14th of October, 1991, a passage from which is there in

6 that bit of the transcript.

7 We have Mr. Filipovic's speech to which Mr. Krajisnik was

8 referring, and that is at Exhibit -- Your Honours, I don't have to go to

9 each one of these items, because Your Honours have the reference and it's

10 simply a waste of time for us to pore over everything, as long as I'm

11 alerting Your Honours to the matter and giving Your Honours the reference.

12 That's P1187, Mr. Filipovic's speech.

13 But what is worth looking at then is the intercept between Mr. --

14 the conversation Mr. Krajisnik, Mr. Karadzic, and Mr. Koljevic are

15 involved, which is a little ways on in this clip. It's about -- well,

16 it's in the last quarter of this clip, so we're getting there. It's got a

17 number 8 on it. It comes after this chunk of transcript we've just been

18 looking at, and then several pages of extract from Assembly meeting, and

19 then there's another bit of transcript, and then we come -- I hope Your

20 Honours have that -- we come to the transcript of the intercept

21 conversation held on the 16th of October, 1991, between Krajisnik,

22 Karadzic, and Koljevic.

23 And then at the foot of page 2 -- well, page 2 of 4 of the

24 English, about ten lines down, Nikola Koljevic takes the receiver from

25 Momo - that's from Mr. Krajisnik - and continues the conversation with

Page 27416

1 Radovan. So from that point onwards it's Krajisnik -- sorry, it's

2 Karadzic and Koljevic.

3 And then we get -- halfway down the page would be a good place to

4 pick it up. Koljevic -- N is Koljevic:

5 "N: ... the second thing is that Alija spoke on the television

6 last night ...

7 "Karadzic: Yes?

8 "Koljevic: ... and you did not watch it, right?

9 "Karadzic: No, I did not!"

10 JUDGE ORIE: Mr. Stewart, you're reading.

11 MR. STEWART: I'm going a bit fast, am I, Your Honour? Yes, thank

12 you.

13 "No, I did not!

14 "Koljevic: Here is what he presented and he trivialises, 'I do

15 not understand the Serbs, why they did not accept such a normal thing.'

16 "Karadzic: He can read about it in Oslobodenje ... about the

17 proclamation of sovereignty and all that.

18 "Koljevic: That's not the answer, the answer was done

19 unprofessionally, so only one side was asked and the other one not. This

20 morning Ilija and I ..." That must be "Alija and I ..."

21 "Karadzic: It wasn't unfair! It was criminal!

22 "Koljevic: Well ... criminal, but I want to tell you that you had

23 to be on the news this evening, and that Ilija told me that I should call

24 Kapor and that your explanation has to be ... why that was unacceptable

25 for us ... you know that by heart. If you could, there is another reason.

Page 27417

1 "Karadzic: I should record it because we're going this evening.

2 Will you travel this evening?"

3 And then there are several lines about scheduling and exactly what

4 time it's all going to take place.

5 And then over the page, three or four lines:

6 "Well, I can arrive in the morning at 0700 hours at the

7 conference, it's all the same for me, we're losing ourselves in details.

8 "Karadzic: Fine, fine, fine.

9 "Koljevic: Please, there's also another reason for which you

10 would have to ... you would have to mention that you, there were questions

11 last night regarding that sentence ...

12 "Karadzic: I will quote Filipovic!

13 "Koljevic: Quote him, well, nothing else. I quoted him.

14 "Karadzic: Yes, yes.

15 "Koljevic: Because, anyway, that was stated before me.

16 "Karadzic: Yes!

17 "Koljevic: Could you please record it today from the television,

18 could you do that in the afternoon?

19 "Karadzic: Well, at the conference ... brother, immediately after

20 the press conference.

21 "Koljevic: Should I tell them at the press conference they should

22 stay on ... to arrange things like that."

23 Now, Your Honours, I'm pausing there. On its own, in isolation,

24 that's pretty cryptic, to say the least. But put together with the

25 explanations given in the evidence, and then particularly D184, which is

Page 27418

1 the next item in this clip, D184, it's a typewritten transcript of --

2 English version, but the newspaper cutting itself in B/C/S, though very

3 difficult to actually physically read, is there as the next item in the

4 clip. The key point is that at a news conference -- on the last page, we

5 get Dr. Karadzic, and the introduction to the quote there is -- well, I'd

6 better start a bit earlier:

7 "Democracy is about --" It's Mr. Karadzic, who, of course, Your

8 Honours can read the whole thing, we won't spend time on that this

9 morning, but the penultimate, or ante-penultimate paragraph: "'Democracy

10 is about procedure. There is no democracy without procedure,' said Dr.

11 Karadzic. Also breached were numerous enactments and codes of

12 coexistence, the president of BH SDS told the press conference. This

13 violation affected mostly the right of the Serbian people to sovereignty,

14 and ruined months of talks --"

15 THE INTERPRETER: Mr. Stewart, please, thank you.

16 MR. STEWART: "-- between the SDA and the SDS. All this was done

17 in an obstructionist and communist manner, accompanied by preposterous

18 interpretation of speeches. As an outstanding example of this, a

19 statement about the plight of the Muslim people was attributed to

20 Karadzic. 'I was only quoting Mr. Muhamed Filipovic, who said the

21 following from this very same rostrum: "If we fail to reach an agreement

22 and choose a different path (the carving up of Bosnia by violent means),

23 it will be the beginning of the end of the Muslim people."' Karadzic

24 added that this need not only be the beginning of the end of this people

25 just in the physical sense, but also in the sense of the Muslim ethnicity.

Page 27419

1 Karadzic went on to say: 'With the best of intentions, I only repeated

2 what Mr. Filipovic had said.' Dr. Karadzic asked all the parties to

3 declare the session unlawful."

4 And obviously he's talking about that parliamentary session on the

5 14th and the 15th.

6 Again, without grinding through all the transcripts, Mr. Josse put

7 that intercept to Mr. Krajisnik, our own witness, of course, at 23308 to 9

8 on the 2nd of May this year. We say that on scrutiny of this material,

9 which I'm not suggesting we do further in committee of the whole house, as

10 it were, this morning, that on scrutiny of all that material,

11 Mr. Krajisnik's explanation given in his evidence there is clearly

12 correct. It's backed up by the newspaper report. The Koljevic intercept,

13 as I'll call it, and the press report make it plain that Mr. Karadzic's

14 public remarks were influenced by what Mr. Filipovic said. Whether or not

15 Mr. Filipovic's remarks on examination, on analysis if analysis is

16 appropriate, were correctly understood by Mr. Karadzic or not, that's not

17 here the point. The point is that Mr. Krajisnik's account is correct,

18 it's true. The transcript references, I've given Your Honours 23308 to 9.

19 I think we looked at 24969, but anyway 24969 to 76 and 24994 to 25004.

20 Mr. Krajisnik was clearly not happy with Mr. Karadzic's language,

21 not for the first time, not for the last time. And this wasn't just a

22 matter of presentation, as Mr. Kljuic would have it. It's clear that

23 Mr. Krajisnik was genuinely not happy.

24 May I at this point -- I've got one more item under this heading

25 to go to specifically by way of illustration and then we move on, but

Page 27420

1 perhaps just a reminder. Now, normally in statutes and other documents,

2 we don't pay much attention to headings as an aid to construction but nor

3 are we in fact construing the Prosecution final brief. But it's all under

4 heading "Statements made by Krajisnik and other BSL leaders from which

5 genocidal intent can be inferred." Well, that's one way of describing it,

6 but that section starts at paragraph 553, and it isn't actually until 570

7 that we get a single statement from Mr. Krajisnik himself, apart from his

8 contribution to the conversations reflected in the intercepts.

9 I'm going to come to something Mr. Krajisnik said in his evidence,

10 but 570 is -- we get an interview in early 1993. So 555 -- and there is

11 an important point here: 553 to 570, statements made by Krajisnik and

12 other BSL leaders, but 553 to 569 are statements made by other people with

13 whom -- in the way that we described earlier this morning Mr. Krajisnik is

14 being linked with them. Now, there's a link because he was involved in

15 the conversations. But the link needs to be very carefully scrutinised.

16 It's only at 570 that we get something specifically from Krajisnik

17 himself, and that was in early 1993. And he's talking then about past

18 events and -- well, we suggest that to attribute anything very sinister to

19 what he said at that time in those circumstances in those words is really

20 taking things much too far.

21 What is, as our last illustration under this section, what is

22 nevertheless worth looking at right now is paragraphs 568 and 569 of the

23 Prosecution brief. Well, in fact, the intro to that is 567:

24 "Shortly afterwards --" so that's shortly after the 17th Assembly

25 -- "Mladic confirmed the intention to use artillery and infantry in

Page 27421

1 operations in Bosnia against the enemy and the intention to kill captives.

2 'I will put the infantry forward 400 metres in front of the tank to

3 protect the tanks, to protect the artillery. With artillery I will clear

4 the path for the soldiers. What do I care? I do not have to go down

5 volunteer street. I shell him until I have driven him crazy. Once we

6 have driven him crazy, he will either flee of his own accord or he does

7 not even have to run away. Once we have approached, we will capture him.

8 And let us not play the game of taking prisoners.'"

9 Well, one can imagine that forming part of the cross-examination

10 of Mr. Mladic, if such an event should ever occur.

11 But going on to 569: "Mladic's reference to the enemy in his

12 speeches must be understood in the context of the general opinion that

13 prevailed, confirmed by Krajisnik, that the entire Muslim and Croat

14 population, regardless of age, sex, and so on, was to be considered --"

15 sorry -- "was considered to be part of the enemy army. A great quantity

16 of evidence, including that in appendices A to C -" to this Prosecution

17 brief, that is - "confirms that Bosnian Serb forces engaged in targeted

18 attacks on civilian populations and deliberately killed large numbers of

19 non-combatants regardless of age and sex."

20 Now, the second sentence there is a summary of what is -- the

21 Prosecution put forward in appendices A to C. But the first sentence was

22 -- includes that "Mr. Krajisnik confirmed the general opinion that the

23 entire Muslim and Croat population, regardless of age, sex, and so on, was

24 considered to be part of the enemy army."

25 Now, what Mr. Krajisnik said in his evidence at page 24439, on the

Page 27422

1 22nd of May, 2006, was this: Question from -- did I say

2 cross-examination? I'm not sure. No, I said in his evidence because the

3 question was from me.

4 Line 6: "What was -- what was your understanding at the time,

5 Mr. Krajisnik, about in what circumstances civilian population might or

6 could become prisoners in the course of war of this nature?"

7 Answer: "The general opinion that prevailed was this, that the

8 entire population and all the people, all the -- were actually the army,

9 all ethnic groups with the army. It was a civil war. You had the front,

10 but it wasn't a classical form of combat."

11 Your Honour, this is the transcript reference given in the

12 Prosecution brief. I should make that clear. So that's Mr. Krajisnik. I

13 interject, stating the general opinion that prevailed.

14 But he goes on: "It didn't -- everybody was in some sort of

15 conflict with everybody else, regardless of age, sex, and so on."

16 So the phrase "regardless of age, sex, and so on" is then lifted

17 from that bit of Mr. Krajisnik's evidence into the Prosecution brief there

18 in quotes. "That was the general situation. There were very few

19 instances where you could refer to a group as purely civilian, but I never

20 thought that somebody ought to be taken prisoner or put into prison

21 because -- if they weren't guilty of anything. It was only the

22 conflicting parties or the warring parties that could be taken prisoner as

23 members of the opposite side and if they were soldiers or part of the

24 armed forces, although it was difficult to distinguish between civilians

25 and soldiers, because even people over the age of 60, or 70-year-olds

Page 27423

1 [sic] or however old they were, stood guard in front of their houses or in

2 the trenches. But if you take a group of civilians, women and children,

3 they could not be soldiers, therefore, and by the same token ought not to

4 have been in prison."

5 So once again, it's very different, which is not so much just a

6 chopping off here at 569 of a quote, but it's -- these illustrations, and

7 they are selective and selected illustrations here, they're not -- we do

8 assert that if Your Honours look through all these points, you will find

9 that, in making this selection, we have not -- we've not picked the top

10 three or the top four. We've not picked the ones where the problem is the

11 most serious and if you look at the others you'll find there's no point.

12 It's a mixture, of course. Nor do we suggest that every point in the

13 Prosecution brief or the evidence should be brushed aside. But, Your

14 Honours, those are illustrations and they demonstrate the extreme need for

15 the most detailed scrutiny of the complete context of all such items.

16 JUDGE ORIE: Mr. Stewart, following your suggestion to be very

17 precise on these matters, in your quote, you say, "because even people

18 over the age of --" let me just find it. You said something about the age

19 of 60 or 70, and it was -- in my version of the transcript on the

20 LiveNote, it said or 17-year-olds or however old they were." I don't know

21 whether I'm working from an uncorrected --

22 MR. STEWART: Your Honour, I think it's almost certain that the

23 culprit is me for going too fast, and that when that gets corrected it

24 will be found to accurately reflect what was in the original transcript.

25 JUDGE ORIE: Yes. You see we are taking the context and the quote

Page 27424

1 very precisely.

2 MR. STEWART: Yes, but I dare say Your Honours will work from the

3 actual material rather than the transcript of today.


5 MR. STEWART: In due course. Thank you for that anyway, Your

6 Honour.

7 I'm going to now do a similar exercise in relation to, again, a

8 discrete -- well, discrete topic as presented. It relates to Crisis

9 Staffs, and the chunk, if I can use that word, of the Prosecution final

10 brief. This relates to -- begins at paragraph 212, at page 74, and it

11 goes on and on to page 91, paragraph 281. So it's paragraphs 212 to 281.

12 With apologies; I think the material is only now finding its way to the

13 interpreters' booth, but it does include the B/C/S. We've adopted the

14 same procedure. There's a clip of material.

15 Probably, Your Honours, because -- well, I hope you're getting

16 familiar with the technique that we're adopting here -- probably I can

17 take it more quickly, give references, and not dwell maybe so much on the

18 actual content. Your Honours have the material and will need to be going

19 away to look at it in quieter circumstances anyway.

20 But I'm going to follow the same technique of going paragraph by

21 paragraph, but not every one, of course, and in this case go straight on

22 to paragraphs together 226 and 227.

23 So what we have is the army report, and Your Honours are familiar

24 with the army report now. 226: "As the army report made clear, the basis

25 of the VRS established on 19th of May, 1992, was precisely those units

Page 27425

1 formed earlier by the SDS and commanded by Crisis Staffs."

2 And then, Your Honour, I won't take time to read the quote there

3 in 226, but the last sentence is "self-organised units with their

4 commanding staffs and headquarters were incorporated into the army of

5 Republika Srpska."

6 Then 227: "A similar account comes from Vlasenica Infantry

7 Brigade -" quote from P1059 - "On the 20th of April, 1992, forces of the

8 Yugoslav army had already formed units commanded by the SDS Crisis Staff

9 liberated Vlasenica. The SDS Crisis Staff continued to command

10 detachments on the ground until 28th of June, 1992, when all units entered

11 the formation of the 1st Bircanska Brigade." And that is P1059, and

12 that's the first item in the clip. 19th December, 1994, to the Drina

13 Corps command.

14 Now, bearing in mind 1994 was the date of that, then the next item

15 in the clip is a passage from the transcript. This is 20677, where the

16 matter was put to -- and that particular document, what's now P1059, was

17 put to Mr. Savkic by Mr. Margetts for the Prosecution. He says at line

18 16: "Mr. Savkic, this is a report setting out the history of the 1st

19 Vlasenica Light Infantry Brigade sent by Commander Kosoric" and then he

20 quotes it and summarises it. At line 23: "It's correct, isn't it, that

21 the takeover was performed by the JNA together with the unit that was

22 coordinated by the SDS Crisis Staff."

23 Answer: "This is absolutely not correct. It's not true. This

24 heading --" well, it stops there, the page stops there.

25 Then at -- we go on to a different passage of the evidence, then.

Page 27426

1 The next page in the clip, 6th of June, 2006, so this is a real

2 fast-forward to page 25247 of the transcript, where we have Mr. Harmon

3 cross-examining Mr. Krajisnik. And at line 13: "Let's turn to another

4 document, Mr. Krajisnik. If we could turn to the document that is found

5 at tab 105." That was one of the OTP tab numbers. "It has an exhibit

6 number, Your Honours; P1059," so it's the same document. And then he also

7 summarises it and reads a particular passage.

8 "Now, Mr. Krajisnik, the same question to you: Prior to the 1st

9 of May, 1992, before you went back to Lisbon, and also prior to the 16th

10 -- to the 12th of May, 1992, the 16th Assembly session, were you aware

11 that --" Excuse me, Your Honours.

12 JUDGE ORIE: In the transcript, we read that it was Mr. Savkic

13 that was examined by Mr. Margetts, referring to page 20677. I'm just

14 trying to find whether close to those pages -- the page you mention is not

15 given to us, but of course we could find it, but at least the portions

16 given and therefore, I take it, relevant for your argument, Mr. Stewart,

17 relates to Mr. Blagic, not Mr. Savkic. But I can't check the very page

18 you mention because --

19 MR. STEWART: I'm sorry, Your Honours, I think we may have a page

20 missing from the -- 20677, Your Honour, that was certainly Mr. Savkic.

21 JUDGE ORIE: Yes, it could be. I can check that. All the other

22 pages --

23 MR. STEWART: No, I'm assuring Your Honour it was. I apologise to

24 you for not having the page. But 30th of January, 2006, at 20677, it was

25 absolutely definitely Mr. Tomislav Savkic, and he was being cross-examined

Page 27427

1 by Mr. Margetts. In fact, I mean, Your Honours can look at that

2 transcript in due course, but the simple point there is that on that page

3 Mr. Savkic is simply unequivocally denying that it's correct. He says -

4 and that is his evidence - he says that is just not correct.

5 And then the bit I read at page 25247, in the evidence of

6 Mr. Krajisnik, where I finished "were you aware that --" at 25247, it

7 continues: "Were you aware that the JNA --" over to page 25248: "...

8 that the JNA in conjunction with Bosnian Serb forces had liberated the

9 town of Vlasenica?"

10 Mr. Krajisnik's answer is: "To be very clear, as far as all of

11 your questions are concerned, possibly I did know that these areas were

12 liberated. I never knew what forces were used to do that. And this being

13 in concert between the JNA, local units, I didn't know that. So if there

14 are some documents, I would be happy to comment on them. The JNA was

15 there, I'm not excluding that, that it was in Bosnia-Herzegovina. It

16 consisted of people from that area as well. Perhaps there were some

17 people from Serbia too, but I don't know, I don't know when I heard of

18 Vlasenica. I don't know." And then Mr. Harmon goes on to something else.

19 Your Honours may recall, the admissibility of P1059 was originally

20 disputed and -- but it was admitted on the footing that the OTP correctly

21 then argued in relation to that matter that Mr. Savkic had disputed the

22 content but not the document. He didn't say that the document wasn't what

23 it purported to be, which presumably he didn't have any knowledge, but he

24 only -- he just disputed the content.

25 Your Honour, the document was put to Mr. Krajisnik, it's something

Page 27428

1 we draw attention to, because it may seem rather a detailed point, but it

2 was put to Mr. Krajisnik on the unspoken implicit basis that it was

3 genuine and true. But so far as its truth was concerned, there had

4 already been a witness with specific knowledge of that locality who had

5 absolutely said that it was not.

6 But, Your Honour, here, having given Your Honours those

7 references, I would simply invite Your Honours to note paragraphs 25 to 33

8 of the Defence final brief, because we're not in the business of

9 repetition this morning of stuff that we've set out in our brief in

10 writing. So that's it. It's paragraphs 25 to 33.

11 I therefore would like to move on to paragraph 234 in the

12 Prosecution final brief.

13 JUDGE ORIE: We're moving forward, Mr. Stewart. I'm looking at

14 the clock, whether this or another moment would be a suitable one to have

15 a break. We'll have a break of another 20 minutes, which means that

16 altogether you've still got 55 minutes.

17 MR. STEWART: How long may I have until the break now, Your

18 Honour?

19 JUDGE ORIE: Well, anything between 5 and 10 minutes.

20 MR. STEWART: Perhaps if I may, I'll deal with one more point in

21 those minutes.

22 JUDGE ORIE: Please do.

23 MR. STEWART: Thank you. 234, paragraph 234, "Other Crisis Staffs

24 took actions which served to persecute non-Serbs or grant them

25 second-class status in the municipalities," and then the footnote 594

Page 27429

1 cites, well, three documents, but the first one, 528, paragraph 61 of --

2 that's Ms. Hanson's report, so that reference to 528, paragraph 61, note

3 122, that's -- sorry, note 120, that's a reference to Ms. Hanson's report,

4 and then it's footnote 120 in her report. But the two items are -- relate

5 to Novo Sarajevo, P529, tab 158, and Pale, document 529, tab 311.

6 Now, where we, first of all -- we can look at the Novo Sarajevo

7 document, which Your Honours will find just after -- well, Your Honours

8 have those transcript pages. It's a few pages on. It's got the number

9 00898392. Do Your Honours see that? It's a familiar ERN number, I

10 suppose it must be. Do Your Honours see that? 00898392. And I see Judge

11 Hanoteau nodding. Okay. A report on activities. "In the Serbian

12 Municipality of Novo Sarajevo, the following activities have been

13 performed: 1. A Crisis Staff has been set up." And then item 6 is what

14 we're looking at, which is two or three pages on, "Treatment of Muslims

15 and Croats. Citizens of all nationalities assemble frequently especially

16 in Kravica and our public attitude is very correct. We appoint a head of

17 every building who is responsible for the situation in his building and

18 for all the information about the occupants. Secretly the police apply

19 the usual procedure to people who were engaged in military activities

20 against us. We informed the Muslims that they would be safe if they were

21 militarily neutral to us, and so far the situation has been good. We

22 visited the nunnery in Gornji Kovacici and discussed cooperation, loyalty,

23 and the nuns' safety with them." That's just to complete that section

24 there. There isn't an issue, as far as I'm aware, about the nunnery. But

25 those two paragraphs.

Page 27430

1 Your Honour, the Defence is not going to launch speculation this

2 morning about secretly, and the usual procedures, and so on. The point is

3 this: That it is quite clear in this document that it is referring only

4 to how to deal with people who were engaged in military activities against

5 the Serbs, and to use it. Because, after all, it's used by Ms. Hanson in

6 her report, without her, of course, having any further knowledge of the

7 underlying facts. She is simply putting forward this document. And this

8 document is put forward in support of the proposition that Crisis Staffs

9 took actions to persecute non-Serbs or grant them second-class status in

10 the municipality. But this is talking about - Muslims and Croats - it's

11 talking about how to deal with people engaged in military activities. It

12 says in terms that Muslims "have been informed that they would be safe if

13 they were militarily neutral, and so far the situation has been good."

14 Now, if someone wanted to put forward evidence that that wasn't

15 so, it's not what happened, that it's all a sham in some way, that's an

16 entirely different matter. But it's not Ms. Hanson who could do that.

17 She simply cites it. And it does not support what she says.

18 And the second item, the Pale document, which is then the next one

19 in the clip. After -- it's several pages on because we first see the

20 B/C/S version of that Novo Sarajevo document. The second one, 7th of May,

21 1992, order: "During the session of the Crisis Staff of the Pale

22 municipality held on 7th May, 1992, the following order was adopted: The

23 post office Pale is hereby ordered to disconnect the following telephone

24 lines -" 15 names. They're all Muslim names. We wouldn't dispute that

25 for one second. 15 names. "You are requested to choose 10 most

Page 27431

1 convenient numbers and to connect them to the building of the Serb

2 television," and so on. Now, 15 telephone lines are ordered to be cut off

3 here. They are all Muslim names. It is a small number of selected names.

4 It's not -- they're all Muslims, of course. There was a conflict that had

5 started in Bosnia at this time. This is not some blanket discrimination

6 against Muslims. It is not possible to infer from this document,

7 certainly not possible without evidence going beyond this document, it is

8 not possible to infer that it is anything other than a directed action

9 towards a small number of people in relation to whom there was some good

10 reason. Because there were, after all, a lot more than 15 Muslims in Pale

11 at that time.

12 So again, this is flimsy -- not just flimsy, it's actually

13 non-existent support, really. We say these are ramped up allegations to

14 support a thesis. This is not persecution, on these documents. It takes

15 a lot more context before anybody could suggest anybody was being treated

16 with second-class status. If any issue like this about the overall

17 circumstances, then it's certainly nowhere near clear enough and sure

18 enough to apply and interpret against Mr. Krajisnik.

19 So this point - and we do say this point and this sort of point -

20 is multiplied dozens and dozens of times through Ms. Hanson's report and

21 also, in a similar way, we also say in Mr. Treanor's report.

22 Your Honour, that would be a convenient point now within the time

23 frame that you've indicated.

24 JUDGE ORIE: Yes. We'll have a break and resume at 1.00.

25 --- Recess taken at 12.36 p.m.

Page 27432

1 --- On resuming at 1.01 p.m.

2 JUDGE ORIE: Mr. Stewart, please proceed.

3 MR. STEWART: Thank you, Your Honour.

4 Your Honour, the next paragraph, paragraph 236, but, Your Honour,

5 I'm going to take these now really rather briskly. 236 relates to Crisis

6 Staffs -- sorry, 236 of the Prosecution final brief: "Crisis Staffs

7 applied common criteria to regulate the removal of non-Serbs."

8 We submit, Your Honour, that this is a -- the government minutes

9 of the 4th of July, 1992, are a document to be referred to, but I am not

10 going to go to them now, Your Honour, because we really don't have time to

11 do that this morning.

12 Mr. Lakic's evidence is quoted in a footnote to this paragraph.

13 We say it is misquoted or misread. And the transcript reference there is

14 21617 to 8, but I'm not inviting Your Honours to go to it now. We say

15 that Mr. Margetts introduced Sanski Most into the question - it had come

16 up at 21615 - so in the brief it's: "The criteria considered were similar

17 to those set out in the Sanski Most Crisis Staff decision. Mr. Lakic's

18 evidence clearly states that the government had not decided on the

19 permanent solution to the problem of abandoned homes and apartments and

20 all they had in place at that time was a tentative arrangement."

21 But, Your Honours, I'm just giving you the references there

22 because it's a slightly complicated point which would take a while to

23 follow up in detail.

24 So far as paragraph 244 -- that's the next one, 244 of the

25 Prosecution brief -- is concerned: "Crisis Staffs operated as part of the

Page 27433

1 state system of which Krajisnik was one of the two most senior members,"

2 and that's taken from Ms. Hanson's report. And it goes on to -- yes, it's

3 the footnotes to Ms. Hanson's report, footnote 65. Again, these are

4 cross-references at this point, because it has in fact been explored a bit

5 in the course of the oral evidence. Footnote 65 in Ms. Hanson's report

6 mentions three instances: Bijeljina, Ilijas and Zivinice, and, Your

7 Honour, we have covered these in some detail in the Defence final brief,

8 particularly paragraph 397, where we do say that basically this support --

9 this supposed support for that proposition is, for all practical purposes,

10 demolished. We make that claim.

11 On Bijeljina, we have reminded Your Honours that Ms. Plavsic went

12 there on behalf of the Bosnia-Herzegovina Presidency, and she said herself

13 she didn't claim she'd reported back in any way to Mr. Krajisnik.

14 On Ilijas, we would add transcript references T9773 to 4, which I

15 think we did note in our final brief, and then we would also add T10100 to

16 10104. That's all from the evidence of Ms. Hanson.

17 Paragraph 246 in the Prosecution brief: "Examples of Crisis

18 Staffs reporting their municipal takeovers to the Bosnian Serb

19 leadership," and then the first bullet point there, the last sentence:

20 "That same day Krajisnik called the Bijeljina Crisis Staff and talked to

21 Mauzer and President Micic."

22 Your Honours, the evidence doesn't support that at all. It's

23 dealt with in Mr. Krajisnik's evidence at 24298, which is in the clip.

24 That was on the 18th of May, 2006. Mr. Krajisnik didn't talk to Mauzer

25 and didn't even mention Micic. We're not quite sure where Micic comes

Page 27434

1 from at all. That may simply be a mistake. But certainly it's just

2 wrong, what's there in the final brief.

3 Paragraph 260, Dr. Beli, 23rd Assembly session: "Dr. Beli said in

4 accordance with the instructions --" and then there's a quote. We say --

5 first of all, I'm reminded, Your Honours, that wherever it appears, Mr.

6 Vojinovic and Dr. Beli are the same person. Beli is a nickname of some

7 sort. So they're the same person, if one sees that. We say the quote is

8 distorted, taken out of context. I'm not making any allegation of

9 dastardly behaviour. It's -- as presented it presents a distorted

10 picture. The whole quote reads: "Following the instructions of the Serb

11 Assembly, War Presidencies has been formed in Brcko -" and it goes on:

12 "Tell me what to do. We have the mayor, no Assembly, no council, no

13 Presidency." We say it's taken out of context, it stands, so that the

14 "Tell me what to do" seems to be directly related to potential orders of

15 the War Presidency, whereas in fact he's confused as to something else and

16 is seeking advice.

17 Then paragraph 264 says: "Evidence confirms Krajisnik's direct

18 contact with Crisis Staffs and municipal leaders as Tintor, Vogosca Crisis

19 Staff president, said to Krajisnik, "Please, it's my duty to inform you

20 what's going on." That's dealt with in Mr. Krajisnik's evidence at

21 T24211, which is on the 17th of May, 2006. And Mr. Krajisnik explains

22 this, and the relationship of kum between Mr. Tintor and Mr. Krajisnik is

23 important there and is the basis of his duty This is the way that this

24 relationship is between Serb men. It involves that concept of a duty.

25 Other nationalities, other people have similar concepts and relationships,

Page 27435

1 but it's strongly inherent in that particular relationship between Serbs.

2 And importantly here, what we have, therefore, is an example of

3 Ms. Hanson, a researcher reviewing the documents, knowing the charges,

4 putting forward her position against actual evidence explaining what

5 really the bare bones of such a document -- beyond the bare bones of the

6 document what's really happening, what's really the explanation. Because

7 you just can't glean from the bare words of such a conversation. I don't

8 immediately have the reference, Your Honour, but there may be an intercept

9 actually setting out that conversation. I say "maybe" because I'm a

10 little bit guarded. I'm so sorry, I beg your pardon, it's in the clip.

11 It wasn't my imagination for once. It's in the clip. It's the very last

12 document. It's P529, and then something illegible; tab 401 or maybe 406.

13 That probably signifies I should move on to another topic when I stop

14 being able even to read the notes that the document references. Your

15 Honours have the point and we trust clearly enough then.

16 Your Honour, then something completely different. Your Honours,

17 very briefly, we do now wish to address the question, it's a two-part

18 question which Your Honours forwarded to the Defence along with the

19 questions to the Prosecution, in relation to the Krnojelac judgement on

20 appeal. Your Honour, our submissions on this can be briefly stated.

21 The statement of the Appeals Chamber in Krnojelac is not

22 inconsistent with the position adopted in our Defence brief or with the

23 Trial Chamber decision in Brdjanin. The Appeals Chamber statement in

24 Krnojelac is making a valid point about the nature of proof required for

25 participation in a systemic joint criminal enterprise, JCE 2. JCE 1 and

Page 27436

1 JCE 2 are, as established and clear from the Tribunal's jurisprudence, are

2 not distinct forms of liability with different legal tests. They come

3 down -- and 2 is described as a variant 1. They come down to the same

4 essential elements. Both require proof that the accused intended the

5 commission of the crimes with which he's charged. That's, in a sense,

6 elementary and built into those concepts. But the distinction is -- well,

7 it's superficial or it's a subtle distinction. The two numbered JCEs

8 generally regarded as applying to different situations but fundamentally

9 come down to the same thing.

10 The cases -- of the cases examined by the Appeals Chamber in

11 Tadic, which is really right back at the early stages of this process, a

12 number of them sat well together as a group because they concerned the

13 alleged liability of those accused of working in camps particularly, and

14 then going back to the cases arising out of the Second World War, Daschau,

15 Belsen and a citation of those authorities. That really explains why the

16 Tadic Appeals Chamber - and that's paragraph 203 of that judgement -

17 described JCE 2 as really a variant of JCE 1. All the categories of JCE

18 require a strict definition of common purpose. We see that confirmed.

19 It's elementary, in a way, but confirmed in Krnojelac, paragraph 116.

20 The Brdjanin Trial Chamber in relation to JCE 1 held that it was

21 necessary to prove the existence of an agreement between the accused and

22 the relevant physical perpetrators. In Judge Bonomy's separate opinion -

23 not dissenting but separate - in another case recently here proved

24 Brdjanin, stating the need at Ojdanic, Milutinovic, I beg your pardon,

25 Milutinovic case. He stated the need to ensure that the link between the

Page 27437

1 accused and the physical perpetrators was not "too attenuated." That the

2 requirement of an agreement with the physical perpetrator, as it's put in

3 Brdjanin, or a close link, close but not too attenuated link with the

4 physical perpetrator, as per Judge Bonomy's separate opinion, each ensure

5 that the accused, before he can be convicted, was aware of the essential

6 elements of the crimes with which he's charged and knows that his

7 participation in the plan will further the commission of those crimes.

8 The key point, we submit, in relation to JCE 2, where there's a

9 system in existence, is that the accused's knowledge of the nature of the

10 system and his intent to further the system essentially fulfills the same

11 role as agreement in what I call the basic JCE, or JCE 1. The words

12 "system" or "systemic" they refer to existence of a plan or organised

13 structure or method. "Plan" is as good as any, or "system" is as good as

14 any for achieving a certain result, so that it's inherent in the notion of

15 a system or a systemic JCE that you have a degree of organised and

16 repeated commission of a certain crime. When I say "a certain crime," I

17 don't mean a specific incident, a specific beating or a specific rape, but

18 a certain defined crime.

19 So it's against that key point that Krnojelac should be

20 considered. The key passage, the intent of the -- from paragraph 96 of

21 that case: "The intent of the participants other than the principal

22 offenders presupposes personal knowledge of the system of ill-treatment

23 and the intent to further the concerted system of ill-treatment. Using

24 these criteria -" and the really key passage is this - "it is less

25 important to prove that there was a more or less formal agreement between

Page 27438

1 all the participants than to prove their involvement in the system."

2 That supports -- that's consistent with the proposition that I put

3 forward a few moments ago, that essentially the involvement in the system

4 is the equivalent or achieves the same purpose as the agreement in

5 relation to a basic JCE 1.

6 So those are -- those encapsulate our submissions and those are

7 the key references. So the answer to Your Honours -- well, the answer to

8 number A, why would the Chamber be wrong not to follow the reasoning in

9 Brdjanin in light of the Krnojelac statement, or, to rephrase, why would

10 the Chamber be wrong to reject the reasoning in Brdjanin, is because they

11 are not inconsistent. And Kvocka, cited in Your Honours' question,

12 doesn't add anything, because it really is saying the same things and

13 endorsing same principles as are outlined in the Krnojelac and, we say

14 consistently with that case, the Brdjanin judgements, and in Judge

15 Bonomy's separate opinion, for that matter.

16 Since we are on this topic, we do say this, first of all, that

17 systematic JCE, or JCE 2, isn't appropriate in this case, but we say that

18 in light of the fact we note that so far the Prosecution -- well, one of

19 the number of questions posed to the Prosecution by the Trial Chamber, and

20 in particular here question number 4, the option of JCE 2 was not dealt

21 with in 98 bis stage of the proceedings, explain why it would be wrong for

22 the Chamber to hold that even if it had been a live option prior to that

23 point it's no longer an allegation that may fairly be considered. That's

24 a number of questions not yet been answered. So we assume -- well,

25 perhaps it's a rash assumption. We don't know. They've just not been

Page 27439

1 answered yet. So we won't say any more except that we suggest, with

2 respect, that if the Prosecution are going to deal with question 4 at some

3 point, that that might include dealing with paragraph 117 of the Krnojelac

4 appeals judgement.

5 So that's -- well, we were lucky in the sense that we only had one

6 question as opposed to nine. We were unlucky in the sense that the case

7 mentioned is one I find impossible to pronounce, and tried about hundred

8 times, but you win some, you lose some.

9 Your Honours, very briefly, I asked for the army report to be

10 available, and I'm not referring to it only because I asked for it be

11 available, but the army report, the analysis of combat readiness of the

12 activities of the army of Republika Srpska of 1992, which is dated April,

13 1993, has been referred to quite extensively in the Prosecution final

14 brief. There are 15 or so - doesn't matter the exact number - 15 or so

15 references, perhaps slightly more, but only a total of nine pages are

16 referred to in all those references.

17 Now, I don't heavily criticise that because a lot of the report

18 contains very technical military stuff and I don't suppose that it would

19 be of any great assistance. I do acknowledge that. But what we do say

20 about this particular document is that it should be treated again with a

21 certain amount of wariness. It's got, and this is -- this needs a real

22 reading of it, which I'm not going to do now, it's got features of a

23 little bit of public relations about it. It's got features of a document

24 that has gone through the equivalent of the public relations arm of an

25 army. The passages which are cited in the Prosecution brief, if taken on

Page 27440

1 their own, present a picture of a far more stream-lined, efficient,

2 organised war in 1992 than can possibly have been the case. And there are

3 some quite heavy indications of that in the document itself, if one looks

4 at other passages, and just extremely briefly.

5 At page 9, there's a passage beginning halfway down: "The morale

6 of the fighters units and army of Republika Srpska as a whole was

7 adversely affected by the following problems ... " And then the second --

8 well, first: "The inefficiency of various segments of governments at all

9 levels." And examples of areas are given.

10 "Occasional uses of parapolitical activities, sometimes even an

11 overt struggle for power, and an incorrect attitude in the past of

12 individual local organs of government towards the war offices and

13 commands." We suggest there's rather a lot buried in that sentence

14 somewhere.

15 "Ineffective prevention of theft and looting," and so on. And

16 then under the bullet points: "Control and command were particularly

17 affected by the lack of an active officers corps at company and battalion

18 levels, serious reservations concerning a number of --"

19 THE INTERPRETER: You're reading, thank you very much, but if you

20 would slow down.

21 MR. STEWART: Thank you.

22 And then page 10, middle of the page: "The overall preparedness

23 of our soldiers suffers," and so on.

24 Page 13: "Infantry units." The Prosecution footnote 569 cites

25 the first four lines: "The infantry units through which self-organisation

Page 27441

1 grew on a massive scale out of the Territorial Defence and other units

2 were used only at the beginning of the war according to the decisions of

3 Crisis Staffs and similar authoritative bodies." What does that mean,

4 "similar authoritative bodies?"

5 "Among the infantry units there were also units which represented

6 various political structures which were sometimes in opposition to the

7 overall objectives of our war. Some of them developed into paramilitary

8 formations. These units mainly executed missions in the territories of

9 their own municipalities or even in smaller areas. Initially the units

10 elected their own commanders. The targets of actions were chosen

11 collectively and individuals or groups sometimes abandoned the set goals."


13 Well, Your Honours, we know they did. There's been evidence of

14 that. So Your Honours would need to read all of that.

15 And then similarly, the next paragraph, the first five lines are

16 cited in the Prosecution brief. The last five lines: "The self-organised

17 units with their commanding staffs and headquarters were incorporated into

18 the army of Republika Srpska, but later serious problems occurred when it

19 became necessary to use them outside their territories which affected the

20 overall combat operations of brigades and larger units and even of the

21 army of Republika Srpska as a whole." And so on.

22 And Your Honours, no doubt, will study the whole report because

23 the overall report presents a different picture from what one would glean

24 from selected quotations.

25 And when one matches some of the slightly guarded cryptic remarks

Page 27442

1 which are made against some pretty detailed evidence of what happened and

2 what didn't happen and how chaotic the situation was at times, it needs a

3 bit of interpretation, this document.

4 Your Honours, Mr. Krajisnik is here. Mr. Karadzic isn't;

5 Mr. Mladic isn't. Mrs. Plavsic is no longer here. He is -- whatever else

6 his position in the Bosnian Serb leadership, he is the senior Bosnian Serb

7 available to put on trial here, and he is on trial. We've referred to his

8 position as Assembly president, negotiator. Your Honours need to consider

9 his other suggested positions and roles -- well, he had actual positions

10 and roles, we're not disputing that, but the evidence and contentions and

11 allegations to what those involved, extremely carefully. The fact that I

12 have not mentioned the expanded Presidency this morning shouldn't cause

13 Mr. Krajisnik concern and shouldn't be thought to minimise the time and

14 energy and importance to the Prosecution case of allegations in that area.

15 But we have dealt with them in some detail in the final brief, and Your

16 Honours have loads of evidence and material on that matter. We maintain

17 our position in relation to de jure as we set it out in the final brief.

18 Your Honours, the Prosecution briefly addressed the matter of

19 sentencing yesterday in a very simple way by indicating what they proposed

20 be the sentence if Mr. Krajisnik were convicted on, as we understood it,

21 all or any of the counts.

22 To some extent, Your Honour, under a degree of protest, like other

23 Defence cases, we find the notion of submissions on sentencing before the

24 judgement not a particularly happy one, as it is. But if the Prosecution

25 were right in everything they alleged in this indictment, then there's not

Page 27443

1 much we could add or subtract from the considerations that the Court

2 should take into account in assessing the sentence. And with no

3 endorsement whatever of what the Prosecution say, there's simply not a lot

4 to say.

5 Mr. Krajisnik is a 61-year-old man. Your decision, if he were

6 convicted, would, in effect, be whether to impose a sentence which

7 effectively was likely to wipe out the rest of his life, which is what we

8 hear and sense is what the Prosecution want. Mr. Krajisnik's sentence

9 must ignore who else is here or not here, and he must only be convicted,

10 if he is convicted, for what he's done or not done, but more importantly

11 then, he must only be sentenced -- more importantly, I beg your pardon.

12 If he were convicted, then, again, he can only be sentenced for what he

13 has done or not done in the circumstances in which he did them, having

14 regard to his individual responsibility and the limits of that individual

15 responsibility.

16 Your Honours have had opportunity to assess Mr. Krajisnik,

17 Mr. Krajisnik's attitudes. They are heavily relevant to the question of

18 whether the Prosecution have made out their case at all. They are also

19 relevant to sentence. But, Your Honour, it's -- we -- our contention is

20 that Mr. Krajisnik is not guilty, so it doesn't arise. The hypothetical

21 submissions are not easy for any Defence.

22 This Court has the heavy responsibility of rigorously following

23 the only correct sequence: The indictment, that's effectively in the

24 hands of the Prosecution in the first place, trial, evidence, judgement,

25 and then if it arises, sentence. We know, and it would be unrealistic,

Page 27444

1 that in many quarters outside this court, that that simple sequence

2 doesn't really apply in people's minds in any serious sense. There are

3 other tribunals, there are other people on trial at the moment in the

4 world, where, for whom as far as people outside courtrooms are concerned,

5 judgement comes first; sentence is pretty clear; trial and evidence

6 follow. We're not suggesting, Your Honours, to distort the sequence in

7 that way. That's not our submission.

8 We developed a particular theme in our Defence opening statement.

9 One of the difficult aspects of having a Court of experienced professional

10 Judges - and there are pluses and minuses - is that you are held much more

11 clearly responsible than anonymous members of a jury who, in most cases,

12 unless they volunteer the opposite, in most cases have the privilege, at

13 least if they want, of retiring almost immediately into respectable

14 obscurity and anonymity, having made their collective decision.

15 When, as the Defence submit, should now happen, you acquit

16 Mr. Krajisnik of all these charges, you will face a storm of protest

17 within and outside this building. You don't have to walk very far from

18 this courtroom to find men and women who arrogantly think that they know

19 the answers to the very questions which this Court has had to spend two

20 and a half years examining, considering, has still to deliberate upon, and

21 has to decide. It's fairly normal, and public often do think they know

22 the answer. They think they know the answer in advance, they think they

23 know the answer afterwards, and they think they know better. And many of

24 us are members of the public when we -- on other days, in other

25 situations. But the big difference, of course, is that apart from those

Page 27445

1 directly involved in this trial, not one of those who protest is likely to

2 have read 1 per cent of the evidence, and those who might have decided

3 this case to their own complete satisfaction before the trial even started

4 won't have read any of it because it didn't exist at the time, or at least

5 it didn't exist as evidence in this case.

6 When Mr. Krajisnik is acquitted, the internet will be cluttered

7 with purple prose and ill-informed comment. Well, fine -- or not fine,

8 but Your Honours will have performed your task admirably. You will be

9 temporary villains in the eyes of many. That's inevitable for cases

10 arising out of this terrible conflict. You will -- without putting it too

11 hyperbolically, you will be heroes of justice and heroes of history in the

12 longer run. No question about that.

13 Mr. Tieger's words at the close of yesterday reflected consciously

14 or unconsciously the words of a great English poet, John Donne: "Every

15 man's death diminishes me because I am involved in mankind." In the

16 particular meditation immediately following the very well-known phrase,

17 "No man is an island," followed by, "And therefore never send to know for

18 whom the bell tolls. It tolls for thee."

19 Like all -- when I say great poetry, that was a meditation. It

20 expresses a universal truth. And without attempting or presuming to put

21 it poetically, because I know my place and it's here as Mr. Krajisnik's

22 lawyer, every injustice diminishes us all. We insist on individual human

23 justice. That's why the international criminal courts will no longer

24 tolerate such barriers as sovereign immunity when a man or a woman is

25 personally and individually responsible for heinous crimes.

Page 27446

1 The other side of that coin, or perhaps it's to be put into one of

2 the scales in the hands of justice, is that if we add to all the lives

3 lost and all the undoubted tragedy of Bosnia, Yugoslavia, beyond it, the

4 world beyond that, the conviction of one man without the clear evidence to

5 satisfy the only three people who can have read and weighed all that

6 evidence and to satisfy Your Honours, Judge Orie, Judge Canivell, Judge

7 Hanoteau, beyond any reasonable doubt so that you are sure that

8 Mr. Krajisnik is guilty, if we add that injustice, then we are all lost.

9 JUDGE ORIE: Thank you, Mr. Stewart.

10 Mr. Josse.

11 MR. JOSSE: Your Honour, can I deal with something completely

12 different? That's tomorrow and Mr. Krajisnik's statement, because I --

13 JUDGE ORIE: Yes, I was just about to ask whether there were any

14 matters we would have to deal with at this moment, preparing for

15 tomorrow. I would have found it on my list as well.

16 MR. JOSSE: I'm sorry to have interrupted.

17 JUDGE ORIE: No, no, no.

18 MR. JOSSE: I've spent a little time with Mr. Krajisnik.

19 Summarising the situation, he prepared over the recess an address that he

20 wishes to make tomorrow. It's approximately 15 pages long in his own

21 language. It has been fully translated. My concern is that it would take

22 him more than 30 minutes to read. What I'm going to respectfully -- he

23 would like the document tendered to the Court. What I'm going to

24 respectfully suggest is this: That I provide a copy, both in the original

25 and translation, to the Prosecution this afternoon. They, during the

Page 27447

1 course of the afternoon, can decide whether there are any parts of it they

2 object to. If there are any parts they object to, I can discuss that in

3 the morning with Mr. Krajisnik, because I'm going to go and see him prior

4 to his delivering of this Rule 84 bis statement, and then perhaps the

5 actual document can be tendered to the Chamber and Mr. Krajisnik, A, will

6 be able to read it very quickly and, B, he might also be able to edit it

7 and summarise it in some appropriate way.

8 JUDGE ORIE: The suggestion made by Mr. Josse; any comment?

9 MR. TIEGER: Your Honour, based on the information provided by

10 counsel thus far, it appears to us that what is being proposed is very

11 likely to fall outside the normal ambit of 84 bis, but perhaps we can

12 begin by looking at what is proposed and take it from there in the manner

13 suggested by counsel. But I begin with that initial cautionary

14 reflection.


16 MR. JOSSE: I should have added this: I suspect there are a few

17 parts, not many, which the Prosecution will object to. That's one of the

18 reasons why I wanted to go through this process.

19 JUDGE ORIE: Yes. Let's first wait and see whether any agreement

20 can be reached between the parties on the matter, and then of course one

21 of the issues you also raised is the issue of time. I do agree with you

22 that usually 15 pages cannot be read in 30 minutes. I would say

23 especially since it has to be translated. And while you say he can read

24 it very quickly, of course, French translation -- if there's an English

25 and a B/C/S version, then of course that would allow for perhaps

Page 27448

1 proceeding in a more speedy way, but the French translation has to be --

2 MR. JOSSE: That's right. And also, clearly Mr. Krajisnik wants

3 to read it in a dignified way. Some of the points that it makes are

4 heartfelt and require emphasis, frankly. So perhaps that wasn't one of my

5 best ideas.

6 [Trial Chamber confers]

7 JUDGE ORIE: The Chamber will consider the matter. And of course

8 we -- the 30 minutes is not, as such, a problem for us, if it would be 35

9 or 40. But to add another day, that would be problematic for the Chamber.

10 So therefore much depends also on how the remainder of the time is used.

11 We have set a schedule of 1 hour for the Prosecution, 1 hour for

12 the Defence, and then any remaining questions from the Judges. Of course

13 we'll further have to discuss what questions we have and how much time

14 that would take. So therefore the parties are invited to seek an

15 agreement on the content of whether it would be within or beyond 84 bis,

16 and to inform the Chamber about whether such an agreement does exist.

17 And my question at this moment would be for you, how much time

18 would the Prosecution think it would need for rebuttal? Would it use its

19 full hour?

20 MR. TIEGER: Your Honour, with the simple caveat that we do want

21 to meet and discuss, it appears to us that we will not consume the full

22 hour.

23 JUDGE ORIE: Similar question to the Prosecution -- to the

24 Defence.

25 MR. JOSSE: Same answer, Your Honour.

Page 27449

1 JUDGE ORIE: That might create some time for -- some additional

2 time, perhaps, for Mr. Krajisnik. But, of course, what we would -- what

3 we should try to avoid is that tomorrow we get a big battle on what is

4 appropriate and what is not appropriate for such a statement as we allow

5 Mr. Krajisnik to make. So, therefore, not only for purposes of whether a

6 summary could be used and whether it could be submitted to the Chamber in

7 writing, but also to see whether we can avoid a battle tomorrow, which

8 means that we want to hear, we very much want to hear what Mr. Krajisnik

9 would like to tell us. That's also the reason why we gave, very much in

10 the continental tradition, an opportunity for Mr. Krajisnik to speak. At

11 the same time, I think guidance by counsel might be very important to see

12 what would still fit within -- would appropriately fit if such an

13 opportunity were given, because it would also disturb our attention to

14 what Mr. Krajisnik wants to tell us if we would have lots of

15 interruptions, saying, This is inadmissible, this is inappropriate.

16 So therefore not only for purposes of time, but also for other

17 reasons, the Chamber welcomes that you'll exchange your views on the

18 already-prepared statement by Mr. Krajisnik.

19 MR. JOSSE: That's very helpful, if I might say.

20 JUDGE ORIE: Yes. Then one last question, Mr. Tieger, Mr.

21 Harmon. I don't know, you said you would not -- perhaps not use the whole

22 of the hour. I know that Defence had less questions than the Prosecution

23 had. I think to say that you specifically dealt with all the questions

24 might be a euphemism.

25 MR. TIEGER: Yes, Your Honour. Two things: We will certainly

Page 27450

1 review the questions again to ensure that any aspects or any questions

2 that were omitted in the presentation yesterday are covered tomorrow, and,

3 more importantly, I included that in my response to the Court's question

4 about the amount of the time we'd consume. So it's still our position

5 that we would need less than the hour.

6 JUDGE ORIE: Thank you for this information. We'll then adjourn

7 and tomorrow we'll sit in the afternoon, quarter past 2.00, same

8 courtroom.

9 --- Whereupon the hearing adjourned at 1.49 p.m.,

10 to be reconvened on Thursday, the 31st day of

11 August, 2006, at 2.15 p.m.