Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27451

1 Thursday, 31 August 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.37 p.m.

5 JUDGE ORIE: Good afternoon to everyone. Mr. Registrar, would you

6 please call the case.

7 THE REGISTRAR: Good afternoon to Your Honours. This is case

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

9 JUDGE ORIE: Thank you. There are a few matters which I would

10 like to briefly address. The first one is the following: Mr. Tieger, if

11 you would like to make any observations, express any concerns about the

12 use of Rule 84 bis, then you're invited to do so at the end of -- so not

13 prior to the beginning of Mr. Krajisnik to make a statement, but at the

14 end of your submissions in the context of the closing arguments.

15 MR. TIEGER: We understood that, Your Honour, thank you.

16 MR. JOSSE: Will I briefly be able to introduce that by explaining

17 where we're up to at the relevant time, please, Your Honour?

18 JUDGE ORIE: Yes. Then also at that time. I'd rather not mix up

19 all these things. Procedural debates is one and hearing a statement is

20 another matter.

21 I think that it's then up to the Prosecution to start second round

22 of final argument.

23 Yes.

24 MR. HARMON: Good afternoon, Your Honours. In respect of the

25 answers to the questions put to the Prosecution by the Chamber, Mr. Gaynor

Page 27452

1 will make the submissions on behalf of the Office of the Prosecutor.

2 JUDGE ORIE: Yes, Mr. Gaynor.

3 MR. GAYNOR: Good afternoon, Your Honours.

4 The first question Your Honours asked was, assuming that we, the

5 Office of the Prosecutor, have proved what we say we've proved, why

6 wouldn't conviction in this case, based on a combination of instigation

7 and aiding and abetting, be the correct result?

8 There are two issues in Your Honours' question, and I will address

9 both briefly.

10 The first issue is whether, on any one count, the Chamber can

11 enter a finding of instigating and aiding and abetting in respect of the

12 same acts. The jurisprudence on this point is not yet settled. I refer

13 Your Honours to the separate opinions of Judge Schomburg and Shahabuddeen

14 attached to the Kamuhanda appeal judgement of 19 September 2005. Judge

15 Schomburg suggests that a conviction naming two or more forms of liability

16 under Article 7.1 of the Statute on the same count in respect of the same

17 acts may be impermissibly cumulative.

18 Judge Shahabuddeen, with whom Judge Weinberg de Roca agreed,

19 opined that such convictions are not impermissibly cumulative. The

20 judgement itself does not contain a substantive discussion of this issue.

21 The second issue is whether in this case a combination of

22 instigation and aiding and abetting would be the correct result. In our

23 submission, neither mode of liability, whether taken separately or

24 together in respect of any particular count, fully encompasses the

25 criminal conduct and intent of the accused in this case. I will deal with

Page 27453

1 each mode of liability separately.

2 I will deal first with aiding and abetting. Tribunal

3 jurisprudence recognises that aiding and abetting is usually considered to

4 incur a lesser degree of individual criminal responsibility than

5 participation in a joint criminal enterprise. I refer to the Vasiljevic

6 appeal judgement, paragraph 102, and the Milutinovic decision of the

7 Appeals Chamber of the 21st of May, 2003, at paragraph 20.

8 An aider and abettor carries out acts that assist, encourage, or

9 lends moral support to the perpetration of a crime, and this support has a

10 substantial effect upon the perpetration of the crime. The requisite

11 mental element is knowledge that the acts performed by the aider and

12 abettor assist the commission of the crime.

13 In this case, Mr. Krajisnik did much more than merely assisting,

14 encouraging or lending moral support to others. A group of persons,

15 including Mr. Krajisnik, acting jointly, designed and orchestrated the

16 implementation of a massive criminal campaign to achieve the purpose of

17 physically removing Muslims and Croats from the targeted territory by any

18 means necessary, including the crimes charged in the indictment. The size

19 of the campaign meant that it could not be carried out by any one person,

20 and necessarily required the contributions of many. The characterisation

21 of the accused's guilt must reflect this reality. Krajisnik was not

22 acting alone, and he was such a central participant that it would be

23 inappropriate to characterise the crimes committed as someone else's

24 crimes which he aided or abetted. As the Appeals Chamber in Tadic said,

25 common purpose liability is "not only dictated by the object and purpose

Page 27454

1 of the Statute but is also warranted by the very nature of many

2 international crimes which are committed most commonly in wartime

3 situations. Most of the time these crimes do not result from the criminal

4 propensity of single individuals but constitute manifestations of

5 collective criminality: The crimes are often carried out by groups of

6 individuals acting in pursuance of a common criminal design."

7 That's the Tadic appeal judgement, at paragraph 191.

8 I will now address instigating. To instigate is to prompt another

9 person to commit an act or omission with the awareness of the substantial

10 likelihood that a crime will be committed in the execution of that

11 instigation. In our submission, the evidence is sufficient to support a

12 conviction for instigation in each count in this case. I simply add that

13 there is a suggestion in the Gacumbitsi appeal judgement of the 7th of

14 July, 2006, at paragraph 61, based on the facts in that case but possibly

15 of more general application, that instigating may carry a lower degree of

16 seriousness as a mode of liability than committing. We submit that, while

17 instigating is more reflective of the accused's responsibility than aiding

18 and abetting, instigating may still not be fully reflective of the depth

19 and breadth of the accused's criminal participation in the crimes alleged.

20 In respect of question 2, I addressed questions 2(A) and 2(B) in

21 my submissions to you on Tuesday. In question 2(C) you asked whether, if

22 the accused had effective control over persons or groups that committed

23 crimes, why do you not ask the Chamber to declare the accused responsible

24 under Article 7.3 of the Statute in relation to those crimes; or if

25 Article 7.1 is insisted upon, for ordering the commission of the crimes?

Page 27455

1 I will deal with Article 7.3 first.

2 First, as a matter of clarification, allegations under 7.3 in the

3 indictment have not been withdrawn and remain in place. The evidence in

4 this case supports a conviction for superior responsibility for each

5 count. There are a number of reasons why we did not emphasise 7.3

6 liability in our brief.

7 As Your Honours are no doubt aware, the Chamber cannot enter

8 convictions under 7.1 and 7.3 for the same conduct in respect of any

9 particular count, as this would be impermissibly cumulative. I refer to

10 the Blaskic appeal judgement, paragraph 92.

11 Where the legal requirements of both 7.1 and 7.3 forms of

12 responsibility are met, a conviction should be entered on the basis of

13 Article 7.1 only, and the Chamber should consider the accused's superior

14 position as an aggravating factor in sentencing. I refer to the Kvocka

15 appeal judgement, paragraph 104, and the Blaskic appeal judgement,

16 paragraph 91.

17 There are three specific reasons why we do not focus on Article

18 7.3 liability in our brief.

19 First, as we have argued, the accused and Karadzic were at the

20 apex of the Bosnian Serb campaign to remove non-Serbs from target

21 territories, and actively participated in the preparation for and

22 implementation of that campaign. It would be an inaccurate

23 characterisation of criminal liability to enter a conviction for the

24 co-architect of a massive campaign of great brutality for merely failing

25 to prevent or punish crimes which he intended, and it would be an

Page 27456

1 understatement of the depth and breadth of Mr. Krajisnik's participation

2 in the crimes alleged.

3 Second, in our submission, it would be against elementary

4 considerations of justice and the spirit of the Statute, which seeks to

5 hold accountable those most responsible for massive crimes, to convict a

6 mere foot soldier or policeman who committed murder in pursuit of the

7 criminal campaign of the Bosnian Serb leadership under Article 7.1, yet to

8 convict one of the masterminds of that campaign under Article 7.3.

9 Third, the indictment in this case does not allege that the

10 accused had superior responsibility over all forces who committed crimes

11 in pursuit of the aim to forcibly remove non-Serbs from target areas of

12 Bosnia. Those crimes are encompassed by JCE liability but would not fall

13 within a 7.3 conviction. A 7.3 conviction would therefore, in our

14 submission, fail to reflect the responsibility of the accused for crimes

15 committed in pursuit of the objective of ethnic separation by forces with

16 whom he worked in concert but over which he did not have effective

17 control.

18 For these three reasons, we submit that a 7.3 conviction on any

19 one count, while supported by the evidence, would not properly reflect the

20 degree of the accused's participation in the crimes alleged.

21 In question 2(C), Your Honours also asked why we did not ask the

22 Chamber to declare the accused responsible for ordering the commission of

23 crimes. We maintain the allegations in the indictment that the accused is

24 liable for ordering the crimes. The evidence supports a conviction for

25 ordering in respect of each count in the indictment.

Page 27457

1 As a general proposition, ordering would be an appropriate mode of

2 liability on which to enter a conviction on this case. We note, however,

3 that we did not allege that the accused was in a position of authority in

4 respect of some forces, in particular JNA personnel committing crimes in

5 pursuit of the objective of forcible ethnic separation prior to the

6 establishment of the VRS on the 12th of May, 1992. The relationship

7 between the JNA and the Bosnian Serb leadership prior to the establishment

8 of the VRS was one of cooperation rather than ordering. The Court may,

9 therefore, in the exercise of its discretion, conclude that the accused is

10 not liable for ordering the JNA and instead acted in cooperation with the

11 JNA to implement the objective of the criminal plan. This form of

12 liability would be very accurately reflected in a JCE conviction.

13 Now, in question 2(D), you said, alternatively, if our use of

14 terms suggestive of effective control in our final trial brief meant to

15 allege that the accused -- that while the accused himself might not have

16 had effective control over certain or any persons or groups committing

17 alleged crimes, other people in the same JCE of which the accused was a

18 member had effective control over those groups and persons.

19 It is correct that persons in the same JCE as Krajisnik had

20 effective control over certain groups. By way of example, Kukanjac had

21 effective control over JNA soldiers in the 2nd Military District. The

22 correct mode of liability to reflect the accused's responsibility for

23 crimes committed by forces over which another JCE member had effective

24 control is, we submit, joint criminal enterprise. If the Chamber were to

25 find the accused to be a member of a JCE consisting of a core group, he

Page 27458

1 would be liable for the acts of subordinates of other JCE members when

2 carried out pursuant to the JCE.

3 Question 3, I won't read out the entire question. Your Honours

4 identify a number of references in the brief where we describe, for

5 example, Plavsic and Koljevic as marginalised or relatively marginal, with

6 Djeric and a government who were weak, totally subservient, and you ask

7 whether we are implying that some members of the alleged JCE were merely

8 peripheral or powerless, having made much lesser contributions, whereas

9 others were core members who bear responsibility for all the crimes

10 committed. Is it, in other words, you asked, your position that

11 membership of a JCE does not necessarily make each member responsible, or

12 equally responsible, for all the crimes committed pursuit to the JCE? You

13 asked for authorities in support of our submissions.

14 Now, in respect of question 3(A), our answer is that each member

15 of the JCE who shared the intent to pursue the common purpose of the JCE

16 and made a contribution to it, is criminally liable for the crimes

17 committed in furtherance of the common purpose. As I mentioned in my

18 earlier submissions, there is no specific legal requirement that an

19 accused make a substantial contribution to a JCE. Support for that is the

20 Kvocka appeal judgement at paragraph 96. It might be paragraph 97,

21 actually.

22 Now, it is our position that certain JCE participants made greater

23 contributions than others. This fact was publicly acknowledged by the

24 Prosecution in the factual basis in the Plavsic case, which was accepted

25 by the Trial Chamber in that case. The use in our final brief of terms

Page 27459

1 such as "marginalised" and "subservient" and "sidelined" are to be

2 understood stood in the sense that certain individuals were marginalised

3 or sidelined in respect of the inner core of the Bosnian Serb leadership.

4 Some of the participants who made lesser contributions to the JCE, such as

5 Djeric or Subotic, still made significant contributions to the JCE. The

6 extent of participation of an accused in a JCE is a factor which may be

7 taken into account in determining sentence.

8 Now, our authorities are three: First of all, the Stakic appeal

9 judgement at paragraph 380, where the Appeals Chamber, having found that

10 Stakic was a participant in a JCE, went on to find that his role in the

11 commission of the crimes underlying the common purpose was by no means

12 criminal -- was by no means minimal. Correction.

13 In the Kvocka appeal judgement, the Appeals Chamber examined the

14 individual participation of a number of accused who were involved in the

15 JCE to run the Omarska camp in order to determine sentence.

16 In the Babic appeals judgement, at paragraph 40, the Chamber

17 recognised that a Chamber may, in its discretion, assess the participation

18 of the accused in a JCE relative to the participation of others when

19 determining sentence.

20 Your Honours' question 4 concerned JCE 2. You pointed out that

21 JCE 2 was not dealt with at the 98 bis stage in this case. You asked us

22 to explain why would it be wrong of the Chamber to hold that, even if this

23 had been a live option prior to that point, it is no longer an allegation

24 that may fairly be considered.

25 The Trial Chamber may, in its discretion, decide to apply or not

Page 27460

1 to apply JCE 2. The JCE in the indictment in this case was pleaded in

2 accordance with the jurisprudence which applies to the pleading of joint

3 criminal enterprise liability. Further, the facts from which the mens rea

4 for JCE 2 participation may be inferred were pleaded in the indictment.

5 It is clear from the indictment that it is alleged that Mr. Krajisnik had

6 knowledge of a criminal system designed to remove Muslims and Croats from

7 the indictment municipalities and also intent to further that system. We

8 acknowledge, however, that JCE 2 was not dealt with at the 98 bis stage

9 and it is a matter of discretion as to whether the Trial Chamber wishes to

10 apply JCE 2 liability. It would not be wrong not to apply it.

11 Question 5, Your Honours asked us to identified which is the first

12 in time charged crime committed pursuant to the alleged JCE, including the

13 accused. You asked: Who were the members of the JCE at this point?

14 The first charged crime committed pursuant to the JCE is scheduled

15 incident 1.1 in schedule A, which is the killing of at least 48 Bosnian

16 Muslim and/or Bosnian Croat men, women and children in the town of

17 Bijeljina on the 1st or 2nd of April. It's actually -- in the indictment,

18 it's 1-2 April, 1992.

19 Now, while I'm on the subject of the Bijeljina, I wish to make one

20 correction to the Prosecution's final brief. I refer Your Honours to

21 paragraph 246 of our brief.

22 Now, at the end of the paragraph which is at the first bullet

23 point, you see a reference to President Micic. I would like to invite

24 Your Honours to strike that and insert the word "Novakovic."

25 Now, as Mr. Stewart pointed out yesterday, the reference to Micic

Page 27461

1 at paragraph 246 of our brief, which Mr. Harmon referred to at page 27301

2 of his submissions, of the transcript of this case, was a mistake. It was

3 Novakovic who spoke to Mr. Krajisnik, according to the accused's own

4 evidence at transcript page 24298. The incident, this telephone call, is

5 also referred to at paragraph 333 of our brief, which correctly refers to

6 Novakovic.

7 I also wish to note a somewhat more substantive point.

8 Mr. Stewart stated yesterday in the course of referring to paragraph 246

9 of our brief, that, "Mr. Krajisnik didn't talk to Mauzer." That, in our

10 submission, is not correct. I refer Your Honours to the transcript of the

11 evidence of Mr. Krajisnik, page 24298, referred to at footnote 631 of our

12 brief. I will simply read out the relevant lines of that page, which are

13 lines 9 to 15, to clarify the record.

14 JUDGE ORIE: Mr. Gaynor, would you have the day as well? Because

15 for me it's difficult to -- in my LiveNote I find dates --

16 MR. STEWART: It's the 18th of May, Your Honour.

17 JUDGE ORIE: The 18th of May. Thank you.

18 MR. GAYNOR: Thank you, Mr. Stewart.

19 I will read the relevant passage, Your Honours.

20 "I was in the offices or cabinet of the Assembly of

21 Bosnia-Herzegovina, and this man's name was Mr. Novakovic, and I asked him

22 what was going on. And he said: I can't tell you over the phone, and

23 somebody snatched the receiver away from him, and I heard the voice of a

24 man who says: "While you're sitting down over there, we're doing your

25 work for you. And who was that? That was Mr. Mauzer."

Page 27462

1 Now, I'm going to move on from that point, Your Honours.

2 Your Honours asked who were the JCE members at the time of the

3 first charged crimes. As pleaded in our indictment, the objective of the

4 joint criminal enterprise was the permanent removal by force or other

5 means of Bosnian Muslim, Bosnian Croat, or other non-Serb inhabitants from

6 large areas of Bosnia and Herzegovina through the commission of crimes

7 punishable under the Statute of the Tribunal. It was a vast criminal

8 enterprise, and, like any vast criminal enterprise, its membership was not

9 static. The members of the JCE participated in different ways, in

10 different geographical areas, with the shared intent to secure the

11 objective of forcibly removing non-Serbs from the targeted territory

12 across great parts of Bosnia and Herzegovina.

13 At the end of March 1992, and at the time of the first crimes

14 charged in the indictment, the joint criminal enterprise already included

15 a great number of individuals, including Krajisnik, Karadzic, Koljevic,

16 Plavsic, Arkan, Milosevic, Mauzer, Mico Stanisic, Mandic, Brdjanin, and

17 Kukanjac. It also included those Serb Crisis Staffs which had been

18 established, members of the RS MUP, the Serb TO, and paramilitary groups

19 and JNA personnel. Your Honours may ask why Mladic is not in that list.

20 Mladic and other VRS staff became part of the joint criminal enterprise on

21 the 12th of May, 1992, on the establishment of the VRS.

22 I move now to question 6, which is the specific question about

23 Glogova. You asked: Was the alleged attack on Glogova an action of the

24 alleged joint criminal enterprise, including the accused? If so, explain

25 why, taking into account that neither Karadzic nor Mladic seem to have

Page 27463

1 known about it until after the fact, and Djeric seems to have been

2 displeased with it.

3 The attack was an action of the JCE, including the accused.

4 Bratunac municipality was a municipality with a Muslim majority

5 population, and it was contiguous with Serbia. As such, it was vital to

6 the realisation of Strategic Objective number 3. The nature of the acts

7 committed during the attack on Glogova, which was consistent and

8 contemporaneous with attacks elsewhere in the targeted territory, the

9 forces participating in the attack, the high-level approvals obtained in

10 advance of the attack, the disarmament operation which preceded the

11 attack, and the absence of any effort to hold to account those responsible

12 for the attack are some elements which confirm the view that the attack on

13 Glogova was carried out in pursuit of the campaign to eliminate non-Serbs

14 from the targeted territories.

15 Your Honours have asked a specific question, so I would like to

16 point to specific elements of what I've just outlined.

17 In particular, the evidence shows that the attack on Glogova was

18 intended as part of the plan to create Serbian territory in the Bratunac

19 municipality by forcibly removing its Muslim population. Attacks on and

20 the ethnic cleansing of the Muslim settlements of Suha and Voljevica

21 followed.

22 The features of the attack on Glogova - disarming the village,

23 attacking it, razing the houses and mosque, ethnically cleansing its

24 population, separating the men, beating and killing them, and then

25 forcibly removing them from the municipality - mirrored the pattern of

Page 27464

1 attacks on Muslim settlements that had occurred previously in

2 municipalities that were contiguous with Serbia or otherwise were

3 territories vital for the realisation of Strategic Objective number 3. I

4 refer specifically to the municipalities of Bijeljina, Foca, Zvornik,

5 Visegrad, and Vlasenica. Elsewhere in Bosnia, the same pattern of attacks

6 had occurred in the municipalities of Sanski Most, Bosanska Krupa, Brcko,

7 Prijedor and Doboj.

8 The plan to attack Glogova was undertaken with the understanding

9 that it had the approval of the top leadership of the Republika Srpska and

10 Serbia.

11 The operational planning for the attack on Glogova was prepared by

12 the JNA.

13 The decision to attack at Glogova, burn part of the village and

14 forcibly remove its population, as well as ethnically cleanse other Muslim

15 settlements, was formally taken by the Bratunac Crisis Staff at a meeting

16 attended by representatives of the JNA, Serbian state security, the

17 commander of the TO, and the chief of police. The attack on the village

18 was a coordinated, joint operation. The attacking forces consisted of

19 members of the JNA, the TO, the police and "volunteers" from Serbia.

20 The volunteers who participated in the attack had been escorted

21 from Serbia to Bosnia by Goran Zekic, who was a member of the Bosnian Serb

22 Assembly and the SDS main board; Miodrag Jokic, who was vice-president of

23 the Srebrenica SDS; Miroslav Deronjic, who was the Crisis Staff president

24 in Bratunac, and the Serbian police. According to Zekic, the volunteers

25 and the JNA operated pursuant to an agreement between the leadership of

Page 27465

1 Serbia and the leadership of Republika Srpska.

2 The attack on Glogova resulted in the deaths of 65 Muslims, the

3 burning of a significant part of the village, the forcible expulsion of

4 its entire Muslim population, the detention of the men, and the

5 destruction of its sole mosque. Similar attacks, as I pointed out

6 earlier, followed immediately on other Muslim settlements.

7 Muslim men from those settlements, and Glogova, were detained in

8 detention facilities where, as mentioned, they were beaten, killed, and

9 forcibly removed from the municipality.

10 After the attack Deronjic was summoned to Pale where he and other

11 presidents of Bosnian Serb Crisis Staff reported to Mladic, Karadzic, and

12 Ostojic on the military situation in the field. Maps of Bosnia depicting

13 the ethnic composition of municipalities were behind them, with Serb

14 territories marked in blue and Muslim territories in green. Deronjic

15 described in detail the ethnic cleansing that had occurred and was

16 continuing in Bratunac. Following Deronjic's presentation, Ostojic

17 remarked, "Now the municipality of Bratunac can be painted blue."

18 There is no evidence that Deronjic did not know -- correction:

19 There is no evidence that Karadzic did not know about the events in

20 Bratunac prior to this meeting.

21 At the time of the briefing, Mladic had not yet been appointed the

22 head of the Main Staff and was receiving a briefing on the military events

23 in the field. Two days later, at the 16th session, he was formally

24 appointed head of the VRS Main Staff.

25 The evidence does not disclose the reason why Djeric expressed

Page 27466

1 displeasure about the attack on Glogova. The evidence does show that when

2 Muslims, who had been ethnically cleansed from Bratunac, arrived in Pale

3 days later, Djeric was aware of their arrival and provided material

4 assistance to efforts that resulted in their removal from Bosnian Serb

5 territory.

6 Deronjic was never criticised by Karadzic, Mladic, or Ostojic for

7 the actions he described in his oral report.

8 Deronjic was never prosecuted or punished for the attacks on

9 Glogova by the Bosnian Serb authorities. Rather, he later was appointed

10 to the SDS main board and became a vice-president of the SDS.

11 In summary, the evidence establishes that the attack on Glogova

12 was a classic example of an operation of the JCE that fully achieved its

13 objectives.

14 I move now to question number 7. Your Honours quoted two

15 paragraphs from our brief, paragraph 225, and Your Honours quoted a

16 section which reads "especially in April and May, some Crisis Staffs," and

17 you asked: Is it the OTP's theory that only some Crisis Staffs were part

18 of the alleged JCE?

19 Our answer is that all Serb Crisis Staffs were part of the JCE.

20 Paragraph 225 of our brief refers to Crisis Staffs issuing orders to

21 military units and having close contact with the VRS, such as personal

22 contact with Mladic. That's at paragraph 230. Those paragraphs are not

23 tantamount to a position that some Crisis Staffs were outside the JCE, but

24 rather, discusses the relationship between the military and some

25 individual Crisis Staffs.

Page 27467

1 The Hanson report. The Hanson report addresses the issue of

2 military authority of Crisis Staffs with great care. Some Crisis Staffs,

3 especially in April and in May, before the establishment of the VRS, did

4 command local armed units. In other areas, the Crisis Staffs did not

5 command local -- did not command armed units because the JNA was present

6 or the local TO had a robust command structure already in place. The

7 overall pattern, however, is that all Crisis Staffs, at a minimum,

8 supported and coordinated with the Serb armed forces in their

9 municipalities, providing resources and recruits which facilitated the

10 operation of those armed units. All Crisis Staffs acted in support of the

11 operation to achieve the objective of the JCE, because they were

12 established and maintained by the Bosnian Serb leadership through Variant

13 A and B and the Djeric order of 26th April, 1992, precisely in order to

14 seize and maintain power at the municipal level on the claimed territory.

15 Even those Crisis Staffs that may have had little role in commanding local

16 armed forces participated in the persecutory campaign by overseeing the

17 forcible removal of non-Serbs and ordering discriminatory measures against

18 non-Serbs.

19 Question 8 is a relatively long question, but for the record I

20 think I should read it out. Your question was: "What kinds of evidence

21 distinguish Crisis Staffs (and more generally perpetrators of crimes) who

22 were acting as part of the alleged JCE, from those who were not part of

23 the JCE but who were engaged in copycat, or parallel, or independent

24 activities, war crimes per se (relating to fighting a civil war as opposed

25 to pursuant to the alleged JCE objective), or common thuggery arising from

Page 27468

1 the collapse of law and order?

2 First, the evidence does not reveal that there was a collapse of

3 law and order but that the collapse of law and order was partial and

4 discriminatory.

5 Second, the evidence supports the conclusion that all Crisis

6 Staffs were acting as part of the JCE. There is no reliable evidence that

7 there were copycat or independent Crisis Staffs.

8 In respect of what kinds of evidence determine whether a

9 particular Crisis Staff was acting as part of the JCE, we submit that the

10 Court should consider the following non-exhaustive list of factors: How

11 the Crisis Staff was created and who created it; the general composition

12 of the Crisis Staff, including whether it contained individuals holding

13 positions of authority, such as SJB chiefs, TO heads, VRS personnel, or

14 SDS representatives; the relationship of the Crisis Staff members to

15 members who were in the JCE; expressions of intent by Crisis Staff members

16 consistent with the common purpose; evidence of communication from JCE

17 members to the Crisis Staff; evidence of other actions by the Crisis Staff

18 consistent with the objectives of the JCE, including crimes against

19 Muslims and Croats and their property; evidence of acceptance of

20 instructions to the Crisis Staff from JCE members; the pattern of the

21 establishment of Crisis Staffs by the Bosnian Serb leadership.

22 Many of these evidential inquiries may also apply to perpetrators

23 generally, and a non-exhaustive list would also include the following:

24 Whether the perpetrator was a member of, or associated with, any organised

25 bodies connected to the JCE; whether the crimes committed were consistent

Page 27469

1 with the pattern of similar crimes by JCE members against similar kinds of

2 victims; whether the perpetrator acted at the same time as members of the

3 JCE, or as persons who were tools or instruments of the JCE; whether the

4 perpetrator's act advanced the objective of the JCE; whether the

5 perpetrator's act was ratified implicitly or explicitly by members of the

6 JCE; whether the perpetrator acted in cooperation or conjunction with

7 members of the JCE at any relevant time; whether any meaningful effort was

8 made to punish the act by any member of the JCE in a position to do so;

9 whether similar acts were punished by JCE members in a position to do so;

10 whether members of the JCE or those who were tools of the JCE continued to

11 affiliate with the perpetrators after the act; finally - and this is a

12 non-exhaustive list - whether the acts were performed in the context of a

13 systematic attack, including one of relatively low intensity over a long

14 period.

15 In examining the evidence concerning crimes generally, we submit

16 that Your Honours will find that, insofar as any of the criminal incidents

17 proven went beyond what was intended by the accused, we submit that the

18 Chamber should find that, first, it was foreseeable that such crimes might

19 be perpetrated by one or other members of the group; and, second, the

20 accused willingly took that risk, that is, he was aware that such crime

21 was a possible consequence of the execution of the enterprise, and with

22 that awareness, the accused decided to participate in the enterprise.

23 The foreseeability of those crimes has to be assessed in the light

24 of a number of factors. I'll name just four categories.

25 First, evidence that there was a systematic arming of the Serb

Page 27470

1 population and a deliberate campaign to disarm Muslims and Croats.

2 Second, evidence that the Bosnian Serb leadership created and

3 encouraged a culture of impunity in respect of crimes against non-Serbs

4 committed by MUP, VRS, and paramilitary forces, while continuing to

5 enforce the law against Serbs committing crimes, even some relatively

6 minor crimes, against fellow Serbs.

7 Third, evidence that Bosnian Serb leadership was conducting

8 systematic persecutions through the crimes in the indictment.

9 Fourth, evidence that the Bosnian Serb leadership promoted and

10 implemented a propaganda campaign. The leadership instilled in the Serb

11 population of Bosnia-Herzegovina ethnic hatred and fear of annihilation at

12 the hands of Muslims and Croats. Concepts of brotherhood, unity and

13 interethnic tolerance were deliberately debased and discredited. Muslims

14 and Croats were vilified and dehumanised.

15 In this environment of a systematic campaign, whipped-up ethnic

16 hatred, an armed Serb population, a disarmed non-Serb population, and a

17 deliberately created culture of impunity in respect of crimes against

18 non-Serbs, such opportunistic crimes against non-Serbs in the indictment

19 municipalities as did happen were reasonably foreseeable, and the accused

20 was aware that such crimes were a possible consequence of the execution of

21 the joint criminal enterprise.

22 Question 9 is Your Honours' final question. Mr. Tieger answered

23 that on Tuesday, and I now propose to hand over to Mr. Tieger.

24 JUDGE ORIE: Yes, Mr. Tieger. I was informed that most likely the

25 Prosecution would stay within the hour announced, and that means that you

Page 27471

1 have only little to add to that, because you're close to the hour. Yes.

2 Please proceed.

3 MR. TIEGER: I believe that --

4 JUDGE ORIE: Let me add to that, that using less words doesn't

5 mean that you're saying anything less important. Please proceed.

6 MR. TIEGER: Then I'm sure what I have to say is extremely

7 important, Your Honour.

8 Just a few remarks about the proposed statement. As the Court,

9 I'm sure, is aware the concept of the last word is rather foreign to

10 practitioners from the common law system and quite familiar to those in

11 the civil law system. In our hybrid system here, its incorporation via 84

12 bis must be understood, in our submission, in light of the requirement

13 under Rule 85 that testimony be taken under oath and subject to

14 cross-examination. It is not intended, in our submission, to be a

15 circumvention of cross-examination or another bite at the apple. And to

16 the extent it is so, it should be accorded no weight.

17 I note, for example, that the accused in Limaj, after testifying,

18 sought to make such a statement and was denied for that reason. Here, the

19 accused has testified to what may, indeed, be an unprecedented degree,

20 certainly over a long period of time.

21 Nevertheless, Your Honour, in this case, the Chamber may well wish

22 to hear from Mr. Krajisnik, and we have advised the Defence accordingly

23 that we do not seek to prevent the Court from doing so, with the exception

24 of three small references that we brought to their attention. And that's

25 our position, subject to the comments I've just offered the Court.

Page 27472

1 Thank you.

2 JUDGE ORIE: Thank you, Mr. Tieger.

3 Before we continue, I would have one question, Mr. Gaynor, on a

4 matter you said. I'll just try to find out whether I understood you well.

5 When you were referring to this paragraph -- let me just find it. I think

6 it was -- yes, 246. You said it's true that Mr. Krajisnik did not speak

7 to Mr. Micic but to Mr. Novakovic, and you said he also talked to Mauzer,

8 and then you referred to -- you read a portion of page 23298.

9 MR. GAYNOR: Your Honour, I think the page I read from was 24298.

10 JUDGE ORIE: I think I said that. That's the page I've got in

11 front of me. You read it to us. If I would tell in my own words what

12 happens there, it's that Mr. Krajisnik is in a telephone conversation with

13 Mr. Novakovic; that someone then grabs the telephone, utters a few words;

14 and that afterwards, that person, identified by Mr. Krajisnik as

15 Mr. Mauzer, interrupted the telephone conversation, put down the receiver

16 so that ends the telephone conversation.

17 In your view, talking to is not having a conversation with someone

18 but is just to hear the words of someone who interferes in a telephone

19 conversation you have with someone else. Is that how I have to understand

20 it?

21 If I really start a close reading, then if you would defend this

22 position, I think that your line in 246 should have been, that same day

23 Krajisnik called to the Bijeljina Crisis Staff and Mr. Mauzer talked to

24 him, because I do not see any words in response to what Mr. Mauzer said

25 here. Or am I wrong? Because you use this -- you said, he talked to

Page 27473

1 Mauzer because that's what Mr. Krajisnik said. What Mr. Krajisnik said

2 doesn't give me the impression that there was a conversation. And usually

3 if I say I talked to this and this person, I'm usually referring to having

4 a conversation with someone and not just hearing words uttered by someone

5 or yelling at a distance to someone. I'm just trying to understand

6 whether there's more to understand or whether this is what you wanted to

7 tell us.

8 MR. GAYNOR: Thanks for the opportunity to clarify it, Your

9 Honour. That is correct. According to that page of the transcript, it is

10 clear that Mr. Mauzer spoke to Mr. Krajisnik, and there is no evidence

11 that Mr. Krajisnik replied in any way. So I take your point, Your Honour.

12 Thanks for pointing that out.

13 JUDGE ORIE: Yes, thank you. Then I think we'll move on.

14 Mr. Stewart and Mr. Josse, would you prefer to start now or have a

15 break first? We might get a bit in trouble if we do not start now. But

16 it also depends on how much time you think you'd use for final argument,

17 second round.

18 MR. STEWART: Well, Your Honours, we shan't exceed the time that

19 the Court had in mind, and I doubt whether we should come that close to

20 it. But, Your Honour, we would appreciate a break now.

21 JUDGE ORIE: Yes. Let me just see. If we have a break now, we

22 will resume at 4. Yes, I think it's manageable. So we do not have

23 problems, then, with tapes and forced other breaks.

24 We'll then have a break now for 25 minutes. We will resume at

25 4.00.

Page 27474

1 --- Recess taken at 3.34 p.m.

2 --- On resuming at 4.02 p.m.

3 JUDGE ORIE: Mr. Stewart, the floor is yours.

4 MR. STEWART: Thank you, Your Honour.

5 Your Honour, one of the reasons for asking for the break then was

6 that I wanted to take the opportunity of discussing with my co-counsel,

7 Mr. Josse, his reaction to the way in which matters have proceeded over

8 the last two or three days and this afternoon, because I find it always

9 valuable to see whether and to what extent Mr. Josse and I are ad idem on

10 such matters. We often find we are. We certainly do, for what its worth,

11 on this occasion.

12 Your Honour, what has happened is extremely unsatisfactory. The

13 Prosecution, having had their application to more than double the word

14 length of their final brief from 60.000 to 125.000 words, having had that

15 application refused - it was opposed, it was completely refused, there was

16 no extension - we then had the allocation of basically one day to the

17 Prosecution, one day to the Defence. The Prosecution in a very brisk and

18 efficient manner, in one sense, then managed to rattle through 101 pages,

19 or something like that, of transcript so that they were able to add as

20 much as possible by way of written transcript to the 60.000, or nearly

21 60.000 words in their final brief.

22 Well, all right. So far so legitimately tactical in the

23 circumstances. No major protest about that. It's clear that we don't

24 really like it, but, all right, we've lived with that.

25 But what they didn't do, as they rattled through like a --

Page 27475

1 sometimes like a very slickly presented American news programme, with

2 yielding the floor to each other and so on, very efficient and slick, but

3 what they didn't do then was get round, except in relation to one or two

4 questions, get round to dealing with a list of not always easy, not always

5 straightforward, questions which had been supplied by the Trial Chamber

6 last week, at the end of last week. Didn't get round to it.

7 Yesterday evening, we were given the clearest indication that the

8 Prosecution expected to come comfortably within the one-hour allocation.

9 Of course by that time we realised that if they were going to deal with

10 these questions at all, it would have to be today because they hadn't

11 dealt with them. So that was clear. They have in fact taken nearly the

12 full hour, and nearly all of the time that was taken has been taken by

13 Mr. Gaynor dealing with those outstanding questions, and dealing with them

14 both by going to the point of the question, though occasionally not, in

15 fact, going to the point of the question, but also by using today to give

16 the Court, on the transcript, part 3 of their final brief. Part 1, the

17 59.000 and something words, whatever it was; part 2, the 101 pages of

18 transcript; and part 3, what we got this afternoon.

19 Your Honour, in the course of this case, because of the procedures

20 that are adopted, on many occasions, matters which in the culture with

21 which we on the Defence side as counsel are mainly familiar, but we have

22 to live with the culture we have here, lots and lots of things have had to

23 be dealt with by filing paper, putting in motions, et cetera, et cetera,

24 where we would have felt far more comfortable, and we humbly suggest it

25 might have been a lot more efficient, if there'd just been a quick

Page 27476

1 exchange in court, with everybody making clear what their points of view

2 were, following up with difficulties and it could have all been done and

3 dusted.

4 And then, by contrast, we get this situation where complicated

5 questions are dealt with in this way, and instead of something which,

6 within the proper procedures of this court, does really lend itself to

7 full written submissions, with proper notice and the proper opportunity to

8 consider them and the proper opportunity to deal with them, it's all done

9 orally on the hoof, on the last day, and here we are.

10 Your Honour, that's our protest. It has had the effect - a number

11 of factors have contributed to that - it has had the effect that, leaving

12 aside what Mr. Tieger said about the last word going to Mr. Krajisnik,

13 which we suggest is more than fair, more than apt in the way that's

14 contemplated, it's had an effect that on a very significant part of the

15 case, effectively the Prosecution have had the last word.

16 Your Honour, we hope and trust it won't matter in the end, but

17 Your Honours now have the -- we've described it as daunting and it remains

18 daunting. Your Honours have the daunting task of sifting the mountains of

19 material, and Your Honours have the daunting task also of applying to that

20 material the often complex, sometimes abstruse, but always significant

21 jurisprudence of this Tribunal.

22 Having said that, Your Honour, we on the Defence side are going to

23 do what we understood what we were here to do today, and we are going to

24 reply. And we're going to do it within that sort of time and we're going

25 to give Your Honours our brief comments on the points that have been made

Page 27477

1 which we understood was the nature of the exercise today, and then when

2 we've done that, with one or two short codas, we will sit down.

3 JUDGE ORIE: Yes. Mr. Stewart, may I ask you one thing? It is

4 because you're using the same word "daunting" again. This morning I saw

5 myself, together with one of my colleagues, trying to find out exactly

6 what it means in our dictionary. Could you describe it in such a way,

7 what you actually -- because we found a couple of meanings which -- all of

8 them, we thought, is that really what Mr. Stewart had in mind? So, as

9 non-native speakers, we'd like not to miss one word.

10 MR. STEWART: I suppose the answer is that it is exactly what I

11 have in mind because I feel I know what the word means. But Your Honour's

12 question nevertheless is perfectly fair. It's going to be an imperfect

13 definition, then.

14 What I have in mind anyway, Your Honour, is that it is -- it's a

15 challenging, perhaps verging on the frightening - but I'm not suggesting

16 Your Honours will be frightened, of course - but it is a challenging,

17 could be to some people frightening task. It is a difficult, heavy task.

18 If you're facing a very steep cliff on a mountain and you're going to have

19 to climb it - perhaps it's Mr. Harmon that's going to have to climb it -

20 it would be daunting. It might not be daunting to Mr. Harmon, I don't

21 know, but it would be daunting.

22 JUDGE ORIE: That's how I understood it, and that's what we do not

23 find in the Oxford dictionary.

24 MR. STEWART: Okay. I didn't look there for it, of course, Your

25 Honour.

Page 27478

1 JUDGE ORIE: I'm sorry for interrupting you but since we spent

2 some time on it this morning --

3 MR. STEWART: My curiosity is going to be to see what the French

4 word is later that comes through as the translation of "daunting." It

5 will be interesting to know.

6 JUDGE ORIE: Please proceed.

7 MR. STEWART: Your Honours, what I'm going to do then is, exactly

8 the way I've said, first of all just comment very briefly on the ten

9 points, I think it was, that Mr. Gaynor went through in his submissions.

10 Mr. Gaynor is going to be the focus of our attention this afternoon.

11 The first of the ten issues he raised - and this was at page 56 of

12 Tuesday's LiveNote transcript - I apologise, I don't know whether we've

13 had the proper numbered version. I'm working from the LiveNote one here.

14 At page 56, was 98(H)(ii). We really don't quarrel with the broad

15 propositions as set out in Mr. Gaynor's submissions, and a lot of it does

16 boil down, of course, to judicial common sense. But we -- again we give

17 one particular illustration of the sort of problems that arise in this

18 case. And it's not the only one; it is an illustration.

19 At page 55 of the same transcript on Tuesday, Mr. Harmon said:

20 "Finally, Your Honours, if you look at Defence Exhibit 211, it's a

21 document from the Pale Executive Committee dated the 7th of July that is

22 addressed personally to Biljana Plavsic and informs Mrs. Plavsic that

23 Muslims started moving out forcefully and willfully at their own private

24 -- it must be initiative -- and discretion --" and it goes on, and then

25 Mr. Harmon's contention there was: "Mrs. Plavsic surely would have shared

Page 27479

1 that information with Mr. Krajisnik."

2 Well, that's what he invites as the conclusion. It's that

3 document, 211, which has not been dealt with -- it's obviously been

4 produced, but it's not been referred to in the case, except at the point

5 when Mr. Krajisnik, in the course of his evidence, that document was

6 presented. Even then he did not have the opportunity to expand upon those

7 documents. And Mrs. Plavsic was not asked about that document at all when

8 she gave evidence.

9 That is, in a way, extraordinary, but it highlights where we are

10 in relation to unput points and unput material. The conclusion just being

11 that if something hasn't been put, hasn't been considered, then of course

12 Your Honours must be extraordinarily cautious before drawing any adverse

13 conclusion, any adverse inference at all towards Mr. Krajisnik.

14 Otherwise, Your Honours, we've made quite full submissions on most

15 of these points in our final brief. We don't add anything there.

16 Mr. Gaynor did, under this point, at page 60 - this is page 60,

17 line 15 - say, "In respect of assessing credibility, the Chamber had ample

18 opportunity to observe the accused and to draw its own conclusions about

19 the accused's credibility during the 40 days of his evidence. For these

20 reasons, all the concerns underlying Rule 90(H)(ii) were addressed."

21 That's a different point. Opportunity to assess credibility is a

22 different point. It's part, of course, of the overall assessment of

23 evidence. But this point under Rule 90 goes to the opportunity of dealing

24 with such material and what inferences are then fair to draw.

25 The third point Mr. Gaynor dealt with at page 61, line 6, the next

Page 27480

1 point, I'm quoting him, is that "joint criminal enterprise liability can

2 apply to a massive criminal campaign." That's his point. "The Defence

3 appears to argue at paragraphs 107 and 130 to 134 of its brief that JCE

4 liability cannot apply in a large-scale case. This issue has already been

5 considered and dismissed."

6 We don't say that, Your Honour. That's an extreme position we

7 don't adopt. We do say that it's, in many ways, not apt to apply. We've

8 covered this in our brief. The key point is that JCE is a mode of

9 liability for committing particular crimes, and that nexus is the key, the

10 nexus between the defendant and the crimes. And as long as that key point

11 is focused on, then -- as long as that key point is focused on, then what

12 we say in the Defence brief is correct and does not go as far as is

13 suggested.

14 The -- I had, I think, in going through, I'd inadvertently skipped

15 over -- that was in fact the third point. I did inadvertently skip over

16 the second point, which is at the foot of page 60, line 23. His second

17 point, in fact, was the mens rea, the planning, ordering and instigating

18 as set out in the Defence brief was incorrect, and he referred to the

19 submissions in paragraphs 92 to 96 of the Defence brief, and suggested

20 that because we had not specifically acknowledged and recognised what was

21 said in the Kordic appeal judgement at 25 to 32 -- paragraphs 25 to 32, we

22 had misstated the law.

23 Your Honours, we simply observe that, on a proper reading of what

24 we say in the Defence brief, there is no inconsistency. Your Honours will

25 see very clearly what the proper legal test is to apply.

Page 27481

1 The fourth point, at the bottom of page 61, 61, line 20, the

2 application of JCE 3 liability has been sufficiently covered in the

3 Defence brief.

4 The fifth point, at the foot of page 62, that's line 24, JCE does

5 not require an agreement between the accused and those physically carrying

6 out the crimes, we have also really quite fully covered in the Defence

7 brief.

8 The sixth point is first referred to at page 65, but in fact then

9 there's an interjection and it really starts at page 66. The sixth point

10 is that the JCE liability does not require that the accused make a

11 substantial contribution. Mr. Gaynor referred to the Defence brief,

12 stating at paragraph 143 that for JCE liability to attach, the accused

13 must have carried out acts that substantially assisted or significantly

14 affected the furtherance of the goals of the enterprise, and draws

15 attention to the fact that we did not refer there specifically to the

16 Kvocka appeal judgement and to paragraph 97.

17 Your Honours, it's necessary to read the whole of paragraph 97. I

18 don't mean now. But it's of course necessary to read the whole judgement

19 of the Appeals Chamber in Kvocka so far as it's applicable. But in

20 particular, the whole of paragraph 97 needs careful reading. And we

21 suggest that whatever the nuances of Kvocka, in the case where the Court

22 was not satisfied that the accused's acts had either substantially

23 assisted or significantly affected the furtherance of the goals of the

24 enterprise, it would be necessary to be extremely cautious before entering

25 into imposing criminal liability on the basis of the nuances of what we

Page 27482

1 find in Kvocka.

2 Paragraph 7, we do not wish to add anything -- I'm sorry, point 7.

3 It's at page 66, line 13. The next point, Mr. Gaynor says, is also short.

4 The Defence brief at paragraphs 152 to 154 makes submissions concerning

5 aiding and abetting.

6 We have nothing to add there to that, except to say that this is

7 an area where a reading of the indictment wouldn't necessarily have

8 enabled anybody to see very clearly what was being said on these

9 particular points. And, no doubt, that was a difficulty facing the

10 draftsman of the indictment at the time as well.

11 On paragraph -- point 8, rather, which is at page 66, line 20,

12 there's a submission in relation -- there's a reference to the Defence

13 final brief at paragraphs 260, 266 to 270; a conviction for genocide under

14 Article 7.3. In the Defence submission, the Prosecution must establish

15 that the accused possess the requisite dolus specialis. The only support

16 for this view is Stakic Rule 98 bis as the Defence brief appears to accept

17 that there's a considerable quantity of jurisprudence against the Defence.

18 Your Honours, again, that point is clearly seen, or the

19 elaboration of that point is clearly seen from the briefs. We add nothing

20 to what we have said in our written brief.

21 The next point, point 9, page 67, line 11, Mr. Gaynor: "The next

22 point concerns the expanded Presidency." Line 14 Mr. Gaynor says: " I

23 simply wish to add that as a matter of law it is not in fact necessary to

24 prove that the accused held any de jure authority to secure a conviction

25 under Article 7.3."

Page 27483

1 Your Honour, we don't say it is. That's not our submission. Our

2 submission doesn't go that far.

3 Mr. Gaynor continues: "A finding of de jure authority does

4 establish a rebuttable presumption of effective control, but the

5 controlling test for liability to attach is whether the accused in fact

6 held effective control."

7 But, Your Honours, we do persist, and it's in our final brief and

8 it's covered, we do say, there was not de jure authority. All that means

9 is the Court must then establish the correct jurisprudence, so it must

10 apply the correct jurisprudence in relation to de facto authority,

11 depending, of course, on the findings on the evidence. And Your Honours

12 have our submissions that, on the facts and the evidence, that that is not

13 established anyway. But we -- our submission on the de jure authority is

14 not correctly represented in that passage of the Prosecution's

15 submissions.

16 And then on the tenth point, at page 67, line 23, in relation to

17 intent to commit crimes in each indictment municipality, we have nothing

18 to add. And, again, we stand on what we set out in our written final

19 brief.

20 Your Honour, then turning to the answers to the questions given

21 today, question 1 -- and I'm just going to give the numbers, Your Honour,

22 I'm not going to read out all the questions again. It's on the Trial

23 Chamber's list. We have nothing to add. None of this means we agree with

24 the Prosecution, Your Honour. That's obviously not the point.

25 Question 2, we agree -- of course where we specifically say we

Page 27484

1 agree, we do. We agree with what was said about the impermissible -- or

2 impermissibly cumulative nature of 7.1 and 7.3 convictions. Not

3 surprisingly, we do go along with that. Otherwise, we have nothing to add

4 on that point.

5 We have nothing to add on question 3 to our submissions already

6 made.

7 So far as question 4, JCE 2, is concerned, Your Honours have our

8 submission that it does not aptly fit this case. But you also have our

9 submissions, both in the final brief and yesterday, on the

10 inter-relationship of JCE 1 and JCE 2.

11 Question 5, the Mauzer point. Well, Your Honours dealt with that.

12 It's really unnecessary for me to add anything there.

13 So far as 6 is concerned, we don't easily see how that question

14 has been fully answered by the Prosecution in any case. But we do make

15 one particular comment there. Mr. Gaynor said, "There was no evidence

16 that Karadzic did not know about the events in Bratunac prior to this

17 meeting." That rather odd way of expressing the matter does just lead us

18 possibly to one final reminder to everybody as to where the burden of

19 proof in this case lies.

20 Paragraph -- question 7, the answer on Crisis Staffs did, at least

21 to some extent and very belatedly, clarify the Prosecution case. And that

22 and 8, particularly question 8, the answer there was, well, it was a

23 classic final brief question, really. This is probably the clearest

24 example of what should have been in the final brief, or at the very least

25 in the first round of oral submissions. But perhaps, in the end, none of

Page 27485

1 it is terribly surprising and it's all part of the evaluation exercise,

2 that daunting exercise, facing the Trial Chamber.

3 And question 9 was at least answered on Tuesday.

4 Your Honour, those are our submissions today. I'm going to end on

5 a positive note, because I've finished the submissions.

6 I would just like to add very briefly, because I did associate the

7 Defence with some compliments and thanks issued by the Prosecution, I

8 would like to take the opportunity of thanking my own team. I hope that

9 Your Honours feel that that's appropriate, because some of them have been

10 with me a long time. In fact, Mr. Jonovic has been with me a very long

11 time. Sometimes he's full-time and sometimes he's part-time. But when

12 he's full-time, he's really full-time, like all the members of the team.

13 Mr. Rasiah is a recent member of the team, but full-time is a

14 severe understatement as to his contribution to the case recently.

15 And of course Mr. Josse is both the recipient of my enormous

16 thanks for his part in the case. He came into the case in a way that

17 required him not so much to just jump into the deep end, but then to swim

18 under water for quite a long time before he was reasonably expected to

19 surface. But he surfaced very quickly, and he's both the recipient of the

20 thanks, and I also know that he's associated with me in giving the thanks

21 to the rest of the team. And my thanks extend to all past and present

22 members of the team. Their contributions can be very clearly seen on the

23 record, the long record, of this case. In whatever hemisphere they

24 currently find themselves in, the thanks extend to all of them. They are

25 heartfelt. I have had enormous support. It seems that occasionally some

Page 27486

1 of them have even enjoyed working on the team, which is always heartening

2 to see.

3 Mr. Krajisnik is going to have the last word, of course. I would

4 just like to say in relation to Mr. Krajisnik, and perhaps if I may be

5 permitted, slightly through Your Honours to Mr. Krajisnik: All clients

6 and counsel have their ups and downs in a long case. I would just like to

7 say that no counsel could have a more courteous and industrious client

8 than Mr. Krajisnik, and I do wish to acknowledge that.

9 JUDGE ORIE: Thank you, Mr. Stewart.

10 I'd suggest that we now put a few questions, only a few questions,

11 to the parties on some points, sometimes even minor points. But we'll

12 then have a break, and then before the break I'll read and explain the

13 Rule 84 bis to Mr. Krajisnik, which I think is appropriate under these

14 circumstances, and then Mr. Krajisnik will have an opportunity make his

15 statement after the break. And that would then conclude this trial.

16 Perhaps a few -- one question for you, Mr. Stewart. The

17 Prosecution has argued that Rule 90(H)(ii), confronting a witness or

18 putting to a witness what your case is - would not apply and they have

19 given some authorities for that position - would not apply if an accused

20 testifies, if I understood you well, Mr. Gaynor. I haven't heard any

21 position taken on this matter by the Defence. Would you agree with

22 Mr. Gaynor, which of course leaves totally apart how Rule 90(H)(ii) was

23 applied view of other witnesses, or do you disagree with him on the

24 matter?

25 MR. STEWART: Your Honour, we completely disagree. We say it's

Page 27487

1 simply wrong. That it just applies and there isn't such an exception.

2 JUDGE ORIE: Yes. And the material he -- I have not reviewed it

3 yet, so therefore I was wondering whether you had an opportunity. He

4 cited a few cases, I think a Canadian case and Australian case. Do they

5 support or --

6 MR. STEWART: Your Honour, the underlying principle is, after all,

7 one of fairness. It may be that, in particular circumstances, the

8 defendant or party himself - because some of those citations are civil

9 cases - has been fully alerted to points in a way that other witnesses

10 might not. But that's all it comes to, really. It's still -- the concept

11 is a fair opportunity to deal with points and a fair exploration of

12 evidential points so that one isn't left with material which is untested.

13 If something -- it becomes one-sided, then. If something is put forward

14 and then there hasn't been a fair opportunity given for it to be tested,

15 explained, answered, that's essentially what the principle is. It's an

16 illustration, if you like, or it's a subcategory of the essential fairness

17 of the whole process; that there must be a fair opportunity to answer,

18 there must be a fair opportunity to deal with points.

19 JUDGE ORIE: Yes. There might be several elements in the Rule

20 where I, perhaps, was more thinking about -- let me just have a look.

21 Yes. I thought that part of the Rule was that a witness should

22 not be uninformed that his testimony contradicts the Prosecution case so

23 -- because if he would not be informed, he might not understand what kind

24 of explanation would be needed. And I think part of your argument was,

25 Mr. Gaynor, that if an accused testifies in his own case and has been

Page 27488

1 present from the beginning in that case, has followed all the opening

2 statements, has seen all the decisions, that under those circumstances,

3 that the need to give this information to a witness is certainly less

4 pressing than for a witness who comes into the case and may not have seen

5 one single aspect of it and is totally unaware where the friction between

6 his testimony and the case of the Prosecution, the case of that party,

7 would be.

8 I'm just putting it to you what I thought was the argument and how

9 I understood that.

10 MR. STEWART: Your Honours, as far as it goes, that's correct. As

11 far as it goes. I think I acknowledged a few minutes ago that there may

12 very well be, as a starting point, a difference between the position of

13 the defendant -- not -- he is, in a sense, just a witness in the case, but

14 for the sort of reasons Your Honour's just summarised. Of course the

15 defendant will know and should know, in the progress of the case, what is

16 against him. But the difficulty about applying that distinction to the

17 present case is that that -- that difference is clearer and satisfactorily

18 deals with the situation in a relatively simple case.

19 Where you have a case of this complexity and this range of

20 material, of course Mr. Krajisnik, and of course the Defence team, have

21 known long before he came to give evidence or long -- well, pretty early,

22 as all witnesses came to give evidence, what the case was against him in

23 its essentials. But as soon as you get one layer below, into all the

24 evidential matters that might be explored, you can't know then. You can't

25 anticipate what all those points are. So if a point -- it comes back to

Page 27489

1 the point, if something is then going to be relied upon -- we gave a tiny

2 example, a tiny but telling example earlier this afternoon. That's what

3 makes it so important to put the points.

4 JUDGE ORIE: That certainly clarifies your position.

5 Mr. Gaynor, I asked you earlier today a question on -- well, more

6 or less asking what your understanding is of the words "talking to," which

7 for me suggest a conversation. I'm afraid that I'm addressing the wrong

8 person. I heard during the -- and I read in the final brief on the issue

9 of knowledge of Mr. Krajisnik that -- let me just find it. It reads in

10 paragraph 397, it says: "Mirko Krajisnik informed Krajisnik about the

11 Ahatovici massacre," and then the reference is made to P292 and P239.

12 When I read the transcript of that telephone conversation, I hear

13 Mirko Krajisnik saying that the bus was attacked by Muslims and that they,

14 perhaps mistakenly, thought that all those in the bus were Serbs. Now, if

15 I read that text - I mean, you can say he gave false information or you

16 could say the information was right - but to bluntly state "Mirko

17 Krajisnik informed Krajisnik about the Ahatovici massacre," yes, at close

18 reading of course it's correct, because Mirko Krajisnik, in that telephone

19 conversation, informed about the massacre. But of course it is in the

20 context of the knowledge of Mr. Krajisnik about reports and information,

21 not about what Muslims had done but about what Serbs had done.

22 I was a bit surprised by this way of using the material, and I'd

23 like to give you an opportunity to explain what made you translate --

24 apart from being cut on the number of pages, what made you present it in

25 this way and whether you would not agree that the Chamber would be --

Page 27490

1 could better look at the details by another presentation?

2 MR. TIEGER: Well, Your Honour, first of all, the mere fact that

3 the Court brings this matter to our attention in this manner is sufficient

4 indication to us that, as the Court said, there might be a preferable way

5 of doing it. The reality of what's communicated here is, as the Court

6 indicated, the Prosecution pointing the Court to the fact that

7 Mr. Krajisnik was advised about the event. I do regret for -- that it

8 wasn't clarified. I'm not going to make the excuse of space limitations,

9 but that plays a role in all of this. We pointed the Court to the

10 specific intercept, so obviously there was no intent to mislead in that

11 respect. I would have welcomed the opportunity, for example, to point out

12 the factors that make that telephone conversation significant, including

13 the location of where it happened, the proximity of the location to both

14 where Mr. Krajisnik lived and where Mr. Mirko Krajisnik lived, the general

15 knowledge surrounding events at that time, the forces arrayed at that

16 time. I don't want to --

17 JUDGE ORIE: That's --

18 MR. TIEGER: You're right, Your Honour, I don't want to add to the

19 brief now.

20 JUDGE ORIE: That's exactly what was on Mr. Stewart's mind. But

21 you would say if you had an opportunity to give more details, then you

22 would have given a bit more reasons why it was relevant.

23 MR. TIEGER: Only two things can happen in this case: Either,

24 based on all the evidence in the case, the Court will make that

25 connection, or the Court will look at it and say, Well, that's not

Page 27491

1 sufficient support for the proposition. But surely there's no attempt to

2 mislead by pointing the Court directly to that intercept.

3 JUDGE ORIE: Yes. Yes, in your final brief, I read in paragraph

4 215: "Bosnian Serb Crisis Staffs were originally formed secret SDS party

5 organs in accordance with Variant A and B."

6 We have a few Crisis Staffs that were established before the 19th

7 of December, 1992, and where it is -- where one could expect that if

8 Crisis Staffs were formed considerably later than December 1992, that the

9 Prosecution would say, Well, they were late, or they were delayed in doing

10 what they had to do. But what about the Crisis Staffs that were formed

11 before the 19th of December? Of course, you could say it's in accordance

12 with. Would they have the same kind of tasks? How do you explain that

13 they were formed in these earlier stages? What's, then, the causal

14 relationship between the instructions and those Crisis Staffs?

15 MR. TIEGER: Well, Your Honour, first of all, I wish I could call

16 to mind the particular Crisis Staffs to which the Court is referring. I

17 do have one in particular in mind, but only vaguely.

18 JUDGE ORIE: I don't have the names here, but I remember one very

19 early and then another one, I think, in mid-October or something like

20 that. I couldn't give you at this moment the -- I just have -- I think I

21 have two in my mind. But yes.

22 MR. TIEGER: Well, I think what's most important to bear in mind

23 with respect to those is their continuing connection to the Bosnian Serb

24 leadership. And if you follow the activities of those bodies, and

25 although I can't point the Court to - apparently the Court can't either -

Page 27492

1 to the specific ones, my clear recollection is that those Crisis Staffs

2 did not operate on a path outside of that undertaken by the many, many,

3 many Crisis Staffs established in response to Variant A and B, but in much

4 the same way, and were established -- I don't want to focus on their

5 establishment so much because I can't at the moment recall either the

6 particular dates or the particular trigger.

7 What I do know is that they, and especially after December 1991,

8 acted in a manner consistent with all the other Crisis Staffs that were

9 formed pursuant to Variant A and B and for the same purpose and under the

10 direction of the Bosnian Serb leadership.

11 Now, whether or not they were stocking horses or -- I do recall

12 one, for example, that was formed in the wake of, to the best of my

13 recollection, the state of emergency that Dr. Karadzic declared on October

14 18th. There was clearly a sense of events moving forward, as we know,

15 after the October 14th and 15th joint Assembly session. So we had the

16 October 15th political council meeting. Immediately thereafter, the

17 October 18th Deputies' Club, the October 18th state of emergency by

18 Dr. Karadzic, and a considerable amount of attention. You'll see many

19 intercepts where Dr. Karadzic is talking about the steps he's going to

20 take. And my recollection is at least one of those, if you'll pardon the

21 term, "premature Crisis Staffs" was formed at that time, very much in

22 response to the situation and in light of the understanding that the

23 Bosnian Serb leadership intended to move things forward so that municipal

24 authorities could be established.

25 So our position would be they were established for essentially the

Page 27493

1 same purpose and followed the same path and were equally beholden,

2 certainly after December 1991 and well prior to that, to the same

3 authorities.

4 JUDGE ORIE: Yes. Perhaps later I'll find the names of the two

5 and the dates of the early establishment.

6 There's one other matter, but that's really a very tiny,

7 unimportant matter. If I look at your footnote 360, that's P65, tab 94,

8 pages 40 to 43, it is supposed to contain what Mr. Cizmovic stated on the

9 28th of February, 1992. I don't -- it's not necessary that you respond

10 immediately, but since it's the last day in court, I would have otherwise

11 asked you to find that out. I do not see Mr. Cizmovic speaking on those

12 pages, if I'm right. Perhaps there will be a second --

13 MR. TIEGER: Of course we'll check that, Your Honour.


15 MR. TIEGER: My recollection is that that was the subject of some

16 discussion during the course of Mr. Krajisnik's cross-examination. So if

17 it's not, we'll get back to you as soon as possible, of course. But that

18 might be another way in which to check the particular reference.

19 JUDGE ORIE: Yes. Another matter, and I first now address the

20 Defence, although the question will not be for the Defence. The Defence

21 has raised the issue of whether aiding and abetting a JCE would be at all

22 possible, and then you continue, the Defence says it is charged in the

23 indictment. We have serious doubts whether that is possible at all. But

24 if it's possible, then this and this and this would be required. Could

25 you comment on to what extent, apart from whether you could aid and abet

Page 27494

1 to a JCE or, I mean the JCE being not a crime always. I was taught that

2 you have to -- aiding and abetting is aiding and abetting to a crime and

3 not to some -- perhaps, Mr. Gaynor, you could perhaps clarify the issue.

4 It's been specifically raised by the Defence.

5 MR. GAYNOR: Thank you, Your Honour. I think in my submissions on

6 Tuesday, I referred Your Honour to a specific finding, and that is the

7 Kvocka appeal judgement at paragraph 91, which held that it is indeed

8 inaccurate to refer to aiding and abetting a joint criminal enterprise.

9 So that form of liability, it appears, has been recognised as non- -- not

10 fully --

11 JUDGE ORIE: But it still appears in the indictment, doesn't it?

12 MR. GAYNOR: Correct.

13 JUDGE ORIE: So you say we adopt a non-existing -- and Defence has

14 the opportunity to say, well, yes -- so we can ignore that?

15 MR. GAYNOR: I know the Defence has made submissions for what are

16 the elements of that form of liability. But given that the Appeals

17 Chamber considers that it's not a safe route to proceed, our submission is

18 that Your Honours should not proceed down that route. And the Defence

19 submissions --

20 JUDGE ORIE: I'm trying to -- aiding and abetting to a crime that

21 was committed by the JCE. Is that a possibility? Just start --

22 MR. GAYNOR: Yes, aiding and abetting a participant in the JCE

23 appears to be fully accepted. That's also what the Kvocka appeals

24 judgement, I think, says. But joint criminal enterprise itself is a form

25 of liability. Aiding and abetting are a form of liability. When two

Page 27495

1 forms of liability are mixed together, the picture becomes unclear. I

2 think that's the point that the Appeals Chamber was making. To say that

3 there's certainly a possibility to aid and abet a participant or a number

4 of participants or a category of participants who are JCE members.

5 JUDGE ORIE: Do you agree that mixing up two forms of liability

6 would always be confusing or would you adopt that as a general rule?

7 MR. GAYNOR: I'll just consult for a moment.

8 [Prosecution counsel confer]

9 JUDGE ORIE: Let me try to -- perhaps -- if I instigate someone to

10 commit an offence, Well, you could do this, and I instigate and encourage

11 him very much to do it, and then at the very moment when he's about to

12 commit the offence, I'll help him, giving him a tool or whatever, that

13 would be instigating and aiding and abetting, perhaps.

14 MR. GAYNOR: Yes. I agree that it's a very factual-based

15 analysis, that on a very simple crime, that a crime can consist of

16 instigating partly and aiding and abetting partly and committing. And I

17 think there's a good example in the Gacumbitsi appeals judgement where the

18 accused was present at a massacre site, he ordered that a massacre take

19 place, he participated in separating Tutsi from other people, and he

20 encouraged those present to begin the killing process. So in that

21 situation, different forms of liability in respect to the various stages

22 do seem to reflect correctly his criminal responsibility.

23 So as a general proposition, I think, Your Honours, the law does

24 seem to recognise that Your Honours can find -- in analysing the criminal

25 responsibility, you can make findings under different heads of Article

Page 27496

1 7.1. However, mixing forms of criminal responsibility under 7.1 with

2 joint criminal enterprise does not appear to meet with strong approval in

3 the case law so far.

4 JUDGE ORIE: Yes. Mr. Stewart asked specific attention to

5 paragraph 97 of the Kvocka case, a substantial contribution where, in that

6 paragraph, even without reading it as a whole, it's stated that it depends

7 on the circumstance and it might well be that sometimes it is -- there is

8 a need to establish that there was a substantive contribution.

9 Any comment on -- because you put it very briefly and say, That's

10 not required. But at the same time, in paragraph 97, of course, we find

11 that it may well be required under certain circumstances. So therefore

12 the question is whether we are facing such circumstances in this case.

13 It's not an answer to the problem to say, in general terms, because the

14 Appeals Chamber says it depends very much on where you are in whether such

15 a substantial contribution should be established.

16 Now, apart from the general rule that it is not always necessary,

17 is this a case where it should be established?

18 MR. GAYNOR: No, Your Honours, our position is that the accused in

19 this case made a very substantial contribution to the joint criminal

20 enterprise. So the matter is really a technical one in this case.

21 I think what the Appeals Chamber was saying at that paragraph was

22 that, as a matter of law, it is not necessary to establish that the

23 accused made a substantial contribution to the JCE; however, as a matter

24 of assessing evidence, it is easier to find that the accused participated

25 in the JCE if he made a substantial contribution.

Page 27497

1 As we've made submissions, the participation of this accused in

2 this JCE was very substantial.

3 JUDGE ORIE: Yes. Let me see. Yes, Mr. Tieger, perhaps to assist

4 you, Bosanski Petrovac, 24th of October, 1991 -- by the way, I misspoke

5 earlier when I referred to the 19th of December, 1992. I meant, of

6 course, 1991.

7 MR. TIEGER: Of course, Your Honour.

8 JUDGE ORIE: So that's Bosanski Petrovac. Well, you dealt with

9 matters that happened in October 1991.

10 MR. TIEGER: I think the same may be true about Bratunac.


12 MR. TIEGER: I think that was established in response to the 18

13 October state of emergency, and then disbanded and then reformed upon the

14 dissemination of Variant A and B.

15 JUDGE ORIE: Yes. Yes, Bratunac was also another one. Yes,

16 that's -- I had two on my mind. I think these are the only two that are

17 relevant.

18 MR. TIEGER: Your Honour, if I might offer one quick additional

19 clarification of an issue we addressed before, the Ahatovici prisoners.

20 Again, I'm only trying to focus on any concern that the reference was

21 misleading. One of the factors was that it was addressed in

22 Mr. Krajisnik's examination, and my recollection is that he acknowledged

23 knowing that it was Muslim prisoners who were killed. I think he also

24 explained how he was told, as in the intercept -- I think he was shown

25 that particular intercept, in fact, and I believe that's at - let's see if

Page 27498

1 I have the page number, Your Honour-

2 JUDGE ORIE: What you're saying now -- we'll have a look at it --

3 MR. TIEGER: Sure.

4 JUDGE ORIE: -- is that there may be more support for what we find

5 on this item in your final brief, more than what at this moment you have

6 in the footnote.

7 MR. TIEGER: Correct. And it's slightly beyond that. Enough so

8 that the reference was a snapshot of that and we thought would be

9 understood in light of it actually being raised in court.

10 JUDGE ORIE: Yes. Then let me see. Yes, I think ...

11 [Trial Chamber confers]

12 JUDGE ORIE: The Chamber has no further questions for the parties.

13 Mr. Krajisnik --

14 MR. JOSSE: Could I briefly introduce this, if I may.


16 MR. JOSSE: Because I think I should point this out on behalf of

17 Mr. Krajisnik. The statement that he prepared some time ago, as I

18 mentioned yesterday, was translated. I gave that to my learned friends

19 for the Prosecution yesterday. They considered it; they made some

20 remarks. I've discussed those with Mr. Krajisnik.

21 He has made a few additional remarks pursuant to the submissions

22 that the Prosecution made two days ago, and so the Prosecution are not

23 aware of everything that Mr. Krajisnik is going to say and I have informed

24 them of that fact this morning, after my visit to the Detention Unit.

25 In addition to that, trying to smooth the matter as best we can,

Page 27499

1 we have provided to all three translation booths the B/C/S original and

2 the English translation of what Mr. Krajisnik is going to read. But as I

3 have already stated, there are a few corrections that he's going to make

4 that don't appear necessarily on those documents.

5 And secondly, he's going to extemporise, to a limited extent, at

6 one juncture in the address that he wishes to make to the Chamber.

7 I emphasise, Your Honour, that I explained that to Mr. Tieger this

8 morning after I had returned from the Detention Unit.

9 Finally this: Simply for information, Mr. Tieger stated that

10 Limaj was prevented from making an 84 bis statement because he had

11 testified. I'm informed by someone who's been following these proceedings

12 that though that is true, the reason Limaj was unable to make that

13 statement was because he had made an opening statement pursuant to Rule 84

14 bis. I mention that for information only.

15 JUDGE ORIE: Yes. Thank you for that information.

16 Mr. Josse, I take it that you're aware of what are sensitive

17 issues for the Prosecution as far -- the portions that are added, did you

18 identify anything you'd consider to be of such a sensitive character?

19 MR. JOSSE: No, and -- I did not. Could I also emphasise that my

20 learned friends were most cooperative and reasonable about the matter.

21 Some of the passages I was frankly a bit concerned about they had, so to

22 speak, sanctioned in any event. Nonetheless, Mr. Krajisnik and I,

23 jointly, have edited a reasonable amount of his original effort, partly in

24 view of the time that the Chamber is going to allow him.

25 Your Honour, the 84 bis statement will take Mr. Krajisnik at least

Page 27500

1 three-quarters of an hour, perhaps nearer an hour. I am bound to submit

2 on his behalf that it does appear the Chamber has the time, and to hurry

3 him at the end of over 300 days of hearing would be most unfortunate, we'd

4 submit.


6 [Trial Chamber confers]

7 JUDGE ORIE: The Chamber agrees to proceed as suggested,

8 Mr. Josse.

9 We'll give an opportunity to you, Mr. Krajisnik, to make your

10 statement after the break. However, before the break, although it may

11 well be that you have discussed it already with counsel, I'd like to point

12 out that Rule 84 bis says, and although it's usually not -- it was not

13 adopted as introducing the last word, but that's the way we use it, but

14 it's still a statement under Rule 84 bis. That means that we allow you to

15 make a statement. That statement is still under control of the Trial

16 Chamber, although we hope that the way in which it was prepared allows us

17 to not intervene at any moment and just to listen to you rather than to

18 interfere with your statement. It is an unsworn statement, which means

19 that you don't take an oath for that. In many systems, an accused never

20 takes an oath, and in those systems that is not considered to be an

21 invitation not to tell the truth. But you'll not make any solemn

22 declaration, and oath, of course, is not the right word in this Tribunal.

23 You'll not be examined about it. No one will be in a position to put any

24 questions to you about it. We'll just listen to you.

25 At the same time, the Chamber, as the Rule says, shall decide on

Page 27501

1 the probative value, if any, of the statement. That means that you should

2 be fully aware that if you say something, that we could, during our

3 deliberations, accept what you said and use that in whatever direction;

4 against you, in favour of you. We'll have to consider what probative

5 value it has.

6 And when we're talking about probative value, you should be aware

7 that it's not only that you admit something or that you say that something

8 happened in December, but also if you say something which is very much

9 consistent with the evidence we received, we might understand that as --

10 well, we see that you're consistent in your approach of the case. But

11 it's also possible that if you come up with something, an explanation or

12 something else, which would be difficult to understand in view of the

13 evidence we have, we might also draw negative inferences out of that.

14 It's your statement, and we'll decide on the probative value. It

15 might well be that we say it has no probative value at all. But you

16 should be fully aware of that.

17 I already now announced that after the break, when you've made

18 your statement, that that concludes the trial in this case. I'm not going

19 to thank everybody. That doesn't mean that this Chamber doesn't share the

20 feelings that were expressed already in respect to people in this

21 courtroom, outside the courtroom, but I'm not going -- Mr. Krajisnik, your

22 statement will be the last matter we'll hear. We'll then, after having

23 heard your statement, we'll start our deliberations on the judgement, and

24 the next thing you'll hear from us is then the judgement.

25 So, therefore, if there's any matter which the parties would like

Page 27502

1 to deal with before the end of this trial, then please raise it now. It's

2 like in a marriage: If there's any objection, bring it now or be silent

3 forever, isn't it?

4 MR. TIEGER: Thank you, Your Honour. In the expectation that this

5 is the last time I'll rise in this case, I just wanted to respond quickly

6 to the Court's inquiry about the, I think, footnote 360.

7 JUDGE ORIE: 360.

8 MR. TIEGER: Yes. The reference to pages 40 to 43 were a

9 reference to an older translation that was -- and the proper reference

10 should be 29 to 31, as I understand it.

11 JUDGE ORIE: Thank you for this information.

12 So if there's nothing else, then we'll now have a break. We'll

13 resume at 25 minutes to 6.00.

14 --- Recess taken at 5.12 p.m.

15 --- On resuming at 5.44 p.m.

16 JUDGE ORIE: Mr. Krajisnik, the Chamber gives you the opportunity

17 to make a statement. Please proceed.

18 THE ACCUSED: [Interpretation] Your Honours, first of all, I should

19 like to thank you for having it made possible for me to address you with

20 my closing remarks, this being my last attempt at proving the truth. I am

21 satisfied that I have done everything within my power, participating in

22 the presentation of evidence, in assisting my Defence team, and in the

23 preparation of documents, and I would have, indeed, regretted the fact had

24 this last attempt been denied to me. Thank you, Your Honours, and I thank

25 everybody for making it possible for me to make these closing remarks.

Page 27503

1 As I was preparing my closing remarks to address this Trial

2 Chamber, I was in a dilemma. I asked myself, What should I say as I

3 summarise a job that my Defence has been doing over the last six and a

4 half years? Not only was it a challenge for me because I undertook a task

5 that I had never faced before but also because I was doing it in a matter

6 which involved myself. In fact, I even had the feeling that I would have

7 performed a similar task more successfully if I had been doing it on

8 someone else's behalf. Also, I was additionally burdened by the fact that

9 I had to deal with a portion of my own life and that I had to unplug my

10 emotions lest I be accused of failing to maintain the required level of

11 objectivity.

12 Such were my thoughts before I composed this text and before I

13 could say to myself unequivocally that I was a hundred per cent certain

14 that the difficult decision to read from prepared remarks was the correct

15 one. That is why I was perhaps at a certain point leaning towards not

16 writing anything but speaking extemporaneously and saying what I felt and

17 believed would be appropriate to articulate in these closing remarks. I

18 nevertheless rejected the idea of addressing the Chamber extemporaneously,

19 without the benefit of a written text.

20 I decided to compose a final statement, not only because I wished

21 in that way to express my respect for the Chamber and for everyone else

22 who has been following these proceedings over the last two-and-a-half-year

23 period but also for the sake of history, which is something I regard very

24 highly.

25 Therefore, for the sake of history and for my own fate as well,

Page 27504

1 right at the outset, I wish to say the following to Your Honours: I

2 address you as a man who believes in God and Divine justice. I believe in

3 truth and its ultimate triumph. I believe in justice and truth because,

4 were I to believe that injustice and untruth could prevail in the end, the

5 world would lose its meaning for me. But I want the world and the people

6 who share those values to survive, and I take this view because I consider

7 that the truth can bother only those whose consciences are unclear and

8 who've committed a crime or an injustice against someone else, and I am

9 not to be found in that category of men.

10 Having spent time in prison -- having spent, sorry, over six and a

11 half years in prison in The Hague, as I have pointed out, on more than one

12 occasion I have attempted to take stock of everything that I had done.

13 And I invariably reached the same conclusion; that throughout my life I

14 had acted consistently. I never consciously aligned with those who acted

15 unjustly and inhumanely. If something resembling that ever did occur, it

16 was without my knowledge or approval. I assure you that I would champion

17 the truth, even if I had to pay a dear price for it and regardless of how

18 dear the cost of that to me. I say this because it is my sincere belief

19 because there is no statute of limitations for a crime. I do not mean

20 that in the legal sense of the statute of limitations. I say that as a

21 man who believes in God's statutes, according to which a crime might

22 conceivably evade terrestrial justice but not God's, and his ultimate

23 punishment which is generally much stricter and longer lasting than that

24 of any earthly tribunal.

25 If I were guilty but a Court acquitted me, I would be afraid that

Page 27505

1 the punishment that should have been meted out to me would devolve upon my

2 children.

3 For all those reasons, Your Honours, although I fully appreciate

4 that the key to my fate is in your hands, I will not, my respect for you

5 notwithstanding, plead with you for mercy but will exhort you to rather

6 decide according to the dictate of your conscience and with due regard

7 only for the evidence that had been put before.

8 I say this fully aware of the danger that it poses, because my

9 Defence team did not put before this Chamber even a minimum quota of

10 arguments to demonstrate my innocence and to convey my version of the

11 truth, although all that was available to the Defence team from the very

12 start of these proceedings. May I remind you: That is the consequence of

13 the anomalies that have been plaguing my defence throughout these

14 proceedings, something to which I had drawn attention repeatedly.

15 Notwithstanding that, I address you with an appeal that you bring

16 your judgement based on the evidence that has been heard, because my truth

17 - as you have yourself reminded me on various occasions - was heard by a

18 panel of experienced professional Judges and not by a jury, although I

19 have nothing against a jury in principle. I believe that you have heard

20 and seen sufficient evidence during the trial to enable you to come to a

21 decision based on truth and justice.

22 I say this because I am persuaded of it also by the position

23 you've taken in the final stages of the trial when you decided that you

24 did not need any additional witnesses or evidence from us. I gained the

25 impression that you had already made your decision, or that you had

Page 27506

1 reached a firm view. And I even go as for as to assume that final

2 statements may be required more as a procedural formality than as an

3 additional argument on behalf of the Defence.

4 When I say that I am convinced that you have already reached your

5 decision, I want to be frank and sincere to the very end: I'm convinced

6 that your decision is a just one, and that you have arrived at the view

7 that the indictment against me is entirely baseless.

8 Prior to expounding the reasons why I claim that I am not guilty,

9 I should like briefly to touch upon the final -- the closing arguments of

10 the Prosecutor. Actually, I have written an entire reply to the

11 Prosecutor's claims and submissions, but due to the briefness of time, I'm

12 just going to enumerate a couple of these reasons. I've divided them into

13 two groups; one is of a general and the other group are those of a

14 specific nature.

15 First of all, I should like to say that as I was listening to the

16 closing arguments of the Prosecutor, I have to say that I was really -- I

17 really was stressed out. I really was experiencing the kind of stress

18 that I had experienced when I was arrested and brought here in my pyjamas.

19 Unfortunately, I had many stresses in my life - when I lost my wife,

20 when I lost my father, and on other occasions - but even though I was

21 aware of the contents of the indictment, this is something I would not

22 want no person in the world to experience.

23 Therefore, Your Honours, with full esteem for the OTP and the

24 Trial Chamber, I'm sure that you will bring your decision on the basis of

25 the truth and not on the basis of assumptions, because it is true, as the

Page 27507

1 OTP says, that terrible crimes have happened in Bosnia-Herzegovina.

2 But I'm saying this also on account of something else. Please

3 bear with me. I'm very reluctant to say this: The Serbian people have a

4 negative -- harbour a negative attitude towards the Tribunal at The Hague

5 because they consider it to be putting only Serbs on trial. And I have

6 put in so much effort to prove that this Tribunal is in fact the only

7 venue where I can indeed prove my innocence. Having been charged so

8 heavily under its indictment, this is where I have my opportunity to prove

9 that the Speaker of the Assembly, the president of the Assembly, could not

10 have commanded the army and have been in a position to command those

11 people. So this is something which I appreciate, this opportunity.

12 I should like to remind you, Your Honours, had I been guilty in

13 the eyes of the Muslims and the Croats, they wouldn't have wanted me to

14 be the first man in the Presidency, in the Assembly of Bosnia-Herzegovina.

15 I don't want to go through the entire Dayton Accords procedure. They

16 could have said that they didn't want me to be a member of the Presidency,

17 of the Presidency in 1996.

18 So had it been my intention, in other words, to destroy the Croats

19 and the Muslims - I'm talking about just the Croats now - would our

20 politicians have allowed that to happen? Would they have let the Muslims

21 and Croats cross over to our territory, even bearing arms, through our

22 territory to their own territory? Would we have allowed their treatment

23 in our hospitals? We wanted good relations with the Muslims. We did

24 everything in order for that to indeed materialise. We wanted to have

25 good relations, because without the agreement of all the three peoples in

Page 27508

1 Bosnia, nothing can function there.

2 They said Mr. Krajisnik was able for that position, he is clever,

3 and they spoke in commendable terms about me. If I were clever,

4 gentlemen, I would not be here, I would not be facing this Tribunal. If I

5 were clever, I would have learned how to avoid having to come here. I

6 cannot understand, I fail to comprehend, after this entire trial, what is

7 it that Momcilo Krajisnik could have done? I fail to comprehend this

8 legal logic.

9 And finally, we had 250 statements by different witnesses. We

10 also had expert witnesses taking the stand, and you saw how many witnesses

11 we were able to call and bring. Of course, a much better picture would

12 have been painted if a larger number of people with credibility could have

13 been called to either corroborate or disprove some of the claims made

14 here.

15 I have been accused of wanting devastation in Bosnia-Herzegovina

16 by force. First of all, I should like to remind you that we had the

17 Cutileiro plan first and foremost, and that on the basis of it we made our

18 entities. It was a voluntary exercise. It was in place by March. By the

19 22nd of April, I went to see Alija Izetbegovic, the late Alija

20 Izetbegovic, to the Assembly, so that we could reach an agreement.

21 After that, on the 22nd of April, if you remember, Karadzic made

22 this platform which we adopted at this sort of consultative meeting, and

23 it said specifically negotiations, negotiations until we have a solution.

24 On the 12th of May, we proposed to the European Community to

25 conduct negotiations and never to stop those negotiations. Even if there

Page 27509

1 is war, we should negotiate until a solution is achieved. Prior to the

2 war, did we not have a session of the Assembly of Republika Srpska when

3 Karadzic was asked what were our plans? We said we had no plans. If it

4 should come to war, you will see what our plans are. Peace is what we

5 uphold as our greatest value, and we are championing and fighting for

6 peace. To a question by deputies, what are we to do? He said, when you

7 go to your homes, create your Crisis Staffs. I just want to underline

8 that we did not want to solve things by military might. But once war does

9 arrive, you have no option but to actually accommodate your needs to that

10 exigency because people are fighting.

11 I should like to remind you that prior to the 12th of May we were

12 in Geneva negotiating with the other two national communities in order to

13 reach a solution. After that, we went to Grac to talk to the Croats to

14 see what was disputable, what was controversial, also with the desire to

15 arrive at a political solution.

16 I was also accused that I said that the Muslims wanted an Islamic

17 state. If you look at my statement, I said some of the representatives of

18 the Muslim negotiating team called for an Islamic state. And as proof of

19 that, I said that in Muhamed Filipovic's book, at page 57 and 58, it's

20 clearly seen that Mr. Kouacevic [phoen], a professor, made an analysis, a

21 study, and he justifies in it how an Islamic state -- the first one in the

22 Balkans after the Ottoman Empire could be created. I just mention what

23 some people were -- [B/C/S on English channel] -- Izetbegovic's team who

24 were in favour of the creation of such an Islamic state. So this was

25 probably a slip of the tongue that was referred to.

Page 27510

1 Thank you. I apologise.

2 It was horribly a slip of a tongue. It was said Glogova. Glogova

3 allegedly happened at the instructions of the republic authorities, as

4 represented by Goran Zekic. Please look at Deronjic's testimony. He said

5 when Goran Zekic got killed, that same evening he started the Glogova

6 action in retaliation. Maybe it was a slip of the tongue, but Goran Zekic

7 could never have done anything about that.

8 I'm also accused of having had the power to have some people

9 released from prison. You gave two examples; Mr. Stanic from Ilijas and

10 Mr. Karahmetovic where it was actually Mr. Mandic who arranged his

11 release. Please, Mr. Stanic was a friend of mine from before. And I

12 called the chief and asked him, Could you please let my Croat friend -- I

13 called Trifko Radic. I called Mandic equally about the other man,

14 Karahmetovic. I told him Karahmetovic is someone I used to play football

15 with when I was a child. Those were a couple of cases, but there were

16 many more in my life. In fact, I helped whenever I could help. Whenever

17 I could ask for a favour on anybody's behalf, I did. About that girl that

18 you remember, I have a girl of my own; of course I did it. I would have

19 done, and I did, everything whenever I was able to. I'm sure you would

20 have done the same if it were your colleague.

21 It is claimed here that Muslims left Pale and that they were

22 forced to leave. But, please, let me remind you Mrs. Plavsic was a

23 commissioner at Pale precisely when it was happening, and when you asked

24 her here, she said she didn't know a thing for the duration of that entire

25 period when that was going on. I know it's hard to prove things here, but

Page 27511

1 you should have asked her.

2 Another charge that's leveled against me is that on the 11th of

3 August, in Banja Luka, there was a proposal to include in the agenda the

4 issue of prisoners, and allegedly I didn't allow it. Please, Your Honour,

5 look at just one page in that transcript of that session. You will see

6 that what I actually said is, We have another session tomorrow. Let the

7 government prepare the background material and then we'll include it in

8 the agenda. The government didn't prepare the background material, and

9 without the background material, we were not able to discuss such an

10 important matter. And the government failed to do that because ten days

11 later they had a planned meeting in Banja Luka for which they had to make

12 a report.

13 The Prosecution also says that I knew about the arming of people.

14 It was a long time ago. Let me just tell you, remind you in fact, that my

15 own place, my birthplace, Zabrdze, did not have any weapons. And if I

16 were to arm anybody, I would have armed them first to enable them to

17 defend themselves. That's what a witness explained here, how they

18 actually got the weapons. Dusan Kozic, and the distribution of weapons.

19 I didn't find the words to explain it at the time. I didn't have

20 time, in fact, to explain it. Please find that report. It doesn't have a

21 stamp, it doesn't have an indicated addressee, it doesn't follow the

22 procedural format. Please don't look at the English. In the way it was

23 written in Serbian, it could never have been sent to anyone except as a

24 working draft. I keep thinking about it, to this day, and I know now that

25 I could never have received that report.

Page 27512

1 Just another word about Davidovic. Davidovic said that he had

2 seen a document to the effect that I ordered the ethnic cleansing of

3 Bijeljina. I gave you two documents, and please look at them. He said he

4 had given that document to Jerkovic. The document that I did indeed give

5 speaks about when Jerkovic started to deal with changes. That was in

6 '92. And I received another document whereby he was authorised by an MP,

7 Milan Tesic, who was a commissioner for the government. Quite simply, I

8 didn't find my way around at that moment.

9 Another thing that was stated here was that Krajisnik was able to

10 find out from Mrs. Plavsic, from Karadzic, from Koljevic, from Djeric, and

11 then they say he was able to walk around Bosnia and Herzegovina and to get

12 his own information. It's difficult for me to say this: From April until

13 the end of August, I had a wife who was ill and three children I had to

14 care for. I had my full-time job in the Assembly, and I was conducting

15 negotiations at Pale. After the 3rd of August, I had three children to

16 take care of on my own, and I couldn't simply go travelling around

17 Bosnia-Herzegovina.

18 Mrs. Plavsic says that I was able to see about the crimes myself.

19 Nobody, nobody ever reported any crimes to me. They would have never done

20 that. They would have come to me to brag about something or maybe ask me

21 for a favour. If somebody had accused me of doing that, in fact of not

22 travelling relative to a period two years later, then there would be some

23 sense in it.

24 Now, as for the extended Presidency, I will tell you literally in

25 bullet points what was stated here, just to remind you.

Page 27513

1 On the 25th of July, 1992, if you remember, when we set out to the

2 London conference, there was this statement made by Karadzic that he was

3 being accompanied by member of the Presidency Koljevic and Speaker of the

4 Assembly Krajisnik. That same day there was another War Presidency

5 meeting, and that's when the members of the Presidency took their oaths.

6 Not before that. You have the record of that meeting. It's all written

7 there. All those sessions and all those records, I'm not sure I saw them

8 all at the time. Maybe I did, maybe I didn't.

9 But Mrs. Plavsic said she hadn't seen a single one. All of those

10 meetings were said to be held in the state of immediate danger of war.

11 None of them was called a meeting held in a state of war.

12 We had a witness here who spoke about those records. If you look

13 at his testimony, you will understand why things were organised that way.

14 Bogdan Subotic, Dragan Kapetan, Rajko Kasagic are among the witnesses who

15 denied the existence of the extended Presidency. You have also Gojko

16 Djogo. His evidence was not admitted. Milan Trbojevic is another one.

17 And let me remind you, he said we considered that the extended Presidency

18 was the three-member Presidency, and that Karadzic was on it. You will

19 see that if you look at his testimony.

20 Slobodanka Hrvancanin denied the existence of that Presidency as

21 well. Momcilo Micic did too.

22 There was no state of war at the time, and the record of that

23 Presidency session of the 30th of November says exactly that the extended

24 Presidency cannot be introduced, whereas in the Prosecution's version,

25 somehow by mistake, it says "cannot be maintained." In fact, it should

Page 27514

1 read "it cannot be introduced because of the state of war."

2 If I had been that important as they claimed after the

3 constitutional changes, I would have become president of the republic.

4 Instead, I remained president of the Assembly and there were another two

5 people included in the Presidency instead of me.

6 Let me remind you of the constitutional law envisaging the

7 establishment of the extended Presidency in a state of war. You have seen

8 that, on the 30th of May, the government adopted that, gave it to Karadzic

9 for his signature, and it was not discussed at the Presidency session on

10 the 30th of May. There was just that decision about municipal

11 Presidencies. It was scheduled for promulgation on the 1st of July, and

12 the date of that decision is the 2nd of July.

13 I looked at that decision made by the Muslim authorities. They

14 made an official decision which reads: "Hereby we establish the extended

15 Presidency in a state of war," et cetera, et cetera. On our side, that

16 decision was never actually adopted and promulgated. Only on the

17 municipal level was it done. There was only the decision about

18 commissions adopted, not the decision on the extended Presidency.

19 You have seen a relevant letter, that session of the Presidency of

20 the 26th of October, 1992. At that session, on the record of that

21 session, it says: "Momcilo Krajisnik, member," whereas the letter I wrote

22 on that day to the Main Staff reads: "Momcilo Krajisnik, President of the

23 Assembly," and signed by Momcilo Krajisnik with a stamp of the Assembly.

24 If I had been member of that Presidency, I would have signed myself as

25 such at least to the letter -- in the letter to the Main Staff.

Page 27515

1 Another reference is made to the 1st of September, 1992. If you

2 look at it, there are two sessions on the 1st of September. One of them

3 includes a point of the agenda: "Find offices for the Assembly and the

4 Presidency." Those were two separate bodies. There were several

5 conclusions that state the government needs to consult with the president

6 of the Assembly and with the Presidency. And in every record, every

7 transcript, you will see that everybody understood clearly that those were

8 two different bodies. Yes, we did -- we were based in one and the same

9 building, but then we moved to different places.

10 There is not a single order, decision, not a single paper that I

11 signed as a member of the Presidency, and I think it is -- it has not been

12 proved and it has not been substantiated in any way. At the end of the

13 day I would have been aware of being a member of the Presidency and I

14 would have been proud of it. Why not? It's a much higher post than

15 president of the Assembly.

16 Now, if you ask me on what I base this stand of mine that I'm not

17 guilty, let me remind you why I believe that all parts of the indictment

18 have proven to be baseless.

19 First of all, although that in and of itself cannot be regarded as

20 a criminal activity, it was demonstrated that I was not a leading member

21 of the SDS. I base this assertion on the fact that, although I was an SDS

22 member and also a member of the main board and of the personnel commission

23 during the period covered by the indictment, that is not sufficient to

24 make the finding that the person was a leading member of a political

25 party, in particular because it is now clear that the main board of the

Page 27516

1 Serbian Democratic Party, during the second half of 1991 up until April of

2 1992, when the armed conflicts broke out, was convened at most three

3 times. During 1992 there was not a single meeting, nor was the SDS even

4 functioning as a political party.

5 Also, the personnel commission of the SDS did not hold a single

6 session, nor did it make a single personnel decision. The personnel

7 policy was the province of the executive board of the SDS, of which I was

8 not a member and not a single session of which I attended.

9 Several witnesses confirmed that the party and state functions

10 were separate within the SDS. As an obvious example of that, the fact was

11 adduced that Dr. Karadzic, as president of the party, did not stand for

12 member of the BiH Presidency in the 1990 elections, whereas Alija

13 Izetbegovic and Kljuic and Pejanovic and Krsmanovic, they were all

14 candidates for the BH Presidency. So he was not a candidate for the --

15 for a member of the Presidency in the 1990 elections, as well as the fact

16 that ministerial nominees for cabinet and other positions in BH were not

17 party people. Just to remind you, with the exception of two Serb

18 ministers who were SDS members, the rest of them were not members of

19 parties but they were in authority; they were in power. There was a

20 division between party and state functions, in other words.

21 I was appointed member of the main board of the SDS in mid 1991,

22 but that did not mean that I had become a party functionary. I was

23 appointed in response to the party's political needs because of the renown

24 in which I was held as president of the BiH National Assembly and not with

25 a view to my being elected to a party position which would make an

Page 27517

1 important and influential SDS member.

2 Secondly, I was not a member of any executive body wherein I also

3 include membership in the Presidency of the Republic of Serbia.

4 Now I'm going to skip over this paragraph and continue with the

5 next one.

6 It is correct that I did attend those meetings, which were called

7 Presidency meetings, just as members of the Presidency and cabinet members

8 attended sessions of the National Assembly. But it was quite clear that

9 they were attending them as guests, with a right to participate in the

10 debate but without a right to any decision-making.

11 Now, that is how I attended these consultative meetings. And the

12 fact that an expanded Presidency, pursuant to the June 2nd, 1992,

13 constitutional law was not formed was confirmed by three -- by key

14 witnesses. These meetings were held involving leading political figures

15 of the Republika Srpska, most often including numerous attendees, but

16 those were consultative meetings, not meetings of a body.

17 I say that those were not meetings of the body, although, since

18 those meetings were attended by Presidency members, the three of them,

19 such meetings would also be dubbed Presidency meetings. But although such

20 meetings may have been held in conditions of an immediate threat of war,

21 they cannot be related to the extended Presidency provided for by the

22 constitutional law implementing the constitution of June 2nd, 1992, which

23 dealt with the formation of an expanded Presidency.

24 The fact which was established beyond doubt is that I never issued

25 a single order or made a decision purporting to act as a member of an

Page 27518

1 expanded Presidency, while Presidency members, as is only normal, were

2 doing that.

3 If the contrary were the case, at least one single document would

4 have surfaced indicating that I did have the authority to punish

5 perpetrators, to order an investigation, or to take any other measures to

6 prevent the commission of criminal acts.

7 It was determined beyond doubt that I was neither authorised to

8 punish anyone nor did I have command over the army and the police, which

9 was confirmed by all the witnesses unreservedly. And it is Mr. Subotic

10 Bogdan, Mladen Kapetina, who were the minister of defence. It is these

11 testimonies which are very important.

12 Also, I did not have any information about the work of the

13 government and its ministries, namely, I was not present at any government

14 session after it was constituted on the 12th of May, 1992, and it was also

15 determined that I did not have the right to influence the decisions of

16 municipal organs. If you remember Mr. Tupajic's testimony, when you asked

17 him, Could Krajisnik replace you? he answered, It was only the Municipal

18 Assembly that had appointed me that could have replaced me.

19 All this means that it cannot be concluded that I failed to take

20 all measures to punish crimes or prevent them from being committed.

21 And I can add to this: That on account of the poor functioning of

22 telephone and other communication links during most of the time period

23 covered by the indictment, I was not, nor was it possible for me to be,

24 informed about conditions in the field of any crimes that may have been

25 committed. They say -- you say I could have been informed by the

Page 27519

1 deputies, but, gentlemen, we had the Banja Luka session of the Assembly on

2 the 12th of May. It was only on the 25th of July that we had the second

3 session of the Assembly, and we only spent a day there and then departed

4 for the London conference.

5 The 1st session, then, was on the 11th of August when we could

6 again take up the issue, but we already had given the government

7 instructions -- the government had already been given instructions to

8 investigate crimes on the territory of Republika Srpska. So it is quite

9 obvious in which period of time I could have had an opportunity to have

10 any dealings with any deputies.

11 Expanding on the above, I can also add that each and every meeting

12 which I attended, and where the slightest doubt was expressed that

13 somewhere crimes may have been committed, concrete steps were taken to

14 check the facts and to punish possible perpetrators.

15 Third, the six strategic goals and the instruction and organising

16 organs of the Serbian people in Bosnia and Herzegovina under exceptional

17 circumstances, also known as the A and B Variants, it was demonstrated

18 that these were not plans whatsoever, at least this is what our think, for

19 a power takeover in regions that Serbs consider to be their national and

20 ethnic territory. Beyond any doubt it was demonstrated that the six

21 strategic goals were not adopted at the meeting -- at the session of the

22 National Assembly of the Serbian people of Bosnia-Herzegovina on May 12th,

23 1992. Only as part of a memorandum, as a piece of information. So it was

24 not a decision in the Assembly decision sense of the word. Otherwise, the

25 A Variant document was not implemented anywhere in Republika Srpska. Not

Page 27520

1 in a single place.

2 If you remember, in some of the municipalities which were referred

3 to by the OTP, it was circulated, it was distributed, but it was not

4 carried out consistently in practice.

5 The six strategic goals were a political platform, and I know

6 that. I participated in the preparations for the negotiations, and we

7 knew what it was that we wanted to achieve with the negotiations and what

8 we wanted to achieve with the international community. And we never were

9 planning war or preparing for war. It is not true, therefore, that we had

10 war objectives.

11 This might have been distributed if found in the field. It might

12 have been distributed by someone, but I really wasn't aware of that. It

13 wasn't certainly the Assembly. Whether it was the party, I have no way of

14 knowing. But we had no influence on that whatsoever, nor on the putting

15 into practice of their conclusions.

16 I have stated here why the six strategic goals were a political

17 objective. I emphasised by mistake that Karadzic said at the time, at

18 this 12th of May session, it was actually I myself who had said it, on

19 page 37. The ERN number is 02149476, and I said, precisely talking about

20 the corridors: "In our negotiations being conducted with the Croat

21 national community, we stated that we would rearrange territories." Here?

22 We never referred to the corridor. And you may see that if anyone has

23 read it."

24 This quote, which I referenced to the appropriate page of the

25 minutes reflects clearly our intention to achieve the strategic goals by

Page 27521

1 political means. Specifically, in relation to this second goal, we were

2 seeking an agreement with the Croat national community, which was a

3 majority population in this part of Bosnia-Herzegovina. We had certain

4 territories there; they had certain territories there. So by exchanging

5 territories, we would also include the territory around Kupres. And on

6 account of that, we held the Grac meeting.

7 All attempts at showing that we wanted to achieve our strategic

8 objective by wars have been clearly proven to be wrong.

9 At that same session, we also adopt an appeal to the European

10 Community that we urge a continuation of the conference until a political

11 solution was found, and to prevent the possible continuation of an armed

12 conflict.

13 Let me remind you, gentlemen, this was on the 12th of May. On the

14 13th of May, there was a telephone conversation between Mr. Mladic and

15 Unkovic. Mr. Mladic says we have to respect the truce which was agreed.

16 On the same date, Madam Plavsic was talking to Mico Stanisic and telling

17 him the bombing has to stop because we have to abide by the armistice, by

18 the truce.

19 I apologise. Thank you.

20 On the 13th of May, we were, let me add, in Banja Luka, at a

21 celebration of the MUP day. On the 14th of May - you have it in Mr.

22 Zimmerman's book - Mr. Koljevic and Mr. Karadzic were at a meeting with

23 him and I was in Belgrade. And when I was told here, You were aware of

24 the bombing of Sarajevo, of the shelling of Sarajevo on the 14th of May,

25 no, I wasn't aware. I wasn't there. I was at Pale.

Page 27522

1 I should like to say why these strategic goals were a political

2 platform. On the 12th of May, when we were proposing the negotiations

3 pending a solution, not a single strategic objective had been actually

4 achieved. If we had waged war for that, we would have said, Let us wait

5 for a couple of months and then we will continue with the negotiations.

6 But at that point we said quite clearly we cease all activities at this

7 point; we want negotiations.

8 There was a very strongly adduced thesis here that I was a

9 powerful man. If we analyse some of the evidence placed before this

10 Chamber, we may conclude that this allegation of the Prosecutor was not

11 confirmed. In the majority of these instances, this is a question of

12 misinterpreting some of my personality traits, which is far removed from

13 the sort of power which could have had, as its consequence, the commission

14 of crimes.

15 Furthermore, the imputation to me of personal power is contrary to

16 logic because, for that to be the case, at least one of two conditions

17 would have to -- would have had to be met: Either I must have been

18 invested with legal authority from which such power is derived, or I had

19 usurped the power which was not properly and legally mine.

20 All pertinent legislation clearly demonstrates that I could not

21 have had the requisite legal authority and consequently I lacked the

22 decision-making power. So what remains, then, is only the possibility

23 that I had usurped someone else's authorities. In that event I should

24 have confirmed that in my de facto conduct. And the fact that this never

25 occurred, not in a single instance, was demonstrated by the evidence

Page 27523

1 presented in this trial.

2 My renown and popularity, which some people have called that - and

3 I'm sure they exaggerate it - is something which I acquired as an official

4 of Bosnia and Herzegovina, discharging the duty of president of the

5 National Assembly and not as a functionary of the Republika Srpska. This

6 shows that this is -- what is the issue here is my political prestige

7 built up as a result of my work in the first multi-party Assembly, and

8 that prestige, rooted in the political situation in Bosnia-Herzegovina, in

9 a Bosnia-Herzegovina where we had to deal with the fateful question for

10 the destiny of the people in Bosnia -- of the Serbian people in

11 Bosnia-Herzegovina, was only later augmented in my capacity as president

12 of the RS Assembly.

13 I know, and I'm quite sure that God certainly knows that neither

14 was I not vested with power as part of the public function that I

15 performed nor did I expropriate that power from someone else, thus abusing

16 my position within the political leadership of the Republika Srpska.

17 To demonstrate to you that the thesis of my alleged power is

18 completely unfounded, I will remind the Chamber of the evidence of some of

19 the witnesses who testified on this topic.

20 Initially, while under direct examination, following the deductive

21 method, they attempted to portray my power, they were hard put to

22 exemplify their allegation for the period covered by indictment about my

23 alleged power. It appears tragicomical, but in fact this category of

24 witnesses in fact have described my position in the most graphic way. But

25 what they were describing was not my power but rather something

Page 27524

1 fundamentally different, so far removed from power that it is difficult to

2 comprehend the reason for their confusion.

3 May I remind you, Your Honours, one set of witnesses said that I

4 was known as a man who is faithful to his commitments, who keeps his word,

5 and one, if he were to give a promise, would keep it. For all those

6 reasons I was quite powerful in their eyes. Then others explained, trying

7 to make sense of my power, by stressing the fact that I worked a lot and

8 diligently, performing a variety of tasks, and that I was seeing a great

9 many of people soliciting favours from me. They would comment that they

10 considered me powerful because people would not be coming to me with their

11 concerns unless I had the power to attend to them. So they drew the

12 conclusion that if someone responds to such solicitation, he can be

13 presumed to have the power to do so. And therefore they drew the

14 conclusion also that I was powerful, although, as they themselves stated,

15 they had no knowledge of the substance of my conversations with those

16 parties or what the nature of the expectations from me might have been.

17 They did not, in fact, know that the way in which I lent

18 assistance to those parties was by channeling them to officials who were

19 in a position to help them, and by giving them advice on how to resolve

20 their problems. I may have interceded on their behalf by soliciting

21 assistance from those who did, in fact, have the power to be of real help.

22 So there was this woman with her flat and a problem, and I really

23 could not turn her down. This was referred to by a protected witness.

24 That was one of such cases.

25 The third set of witnesses pointed out what they felt was the most

Page 27525

1 important source of my power, and they revealed to the Chamber that I was

2 powerful because I was performing successfully my duty as president of the

3 National Assembly, thus gaining the support of a broad section of the

4 public; not just of Serbia but also of other ethnicities.

5 Actually, this group of witnesses would add to the above the fact

6 that I took part in the negotiating process with the two other ethnic

7 communities aimed at a political solution to the BiH crisis which helped

8 me to achieve enormous prominence and popularity which they in turn

9 converted into de facto power. They pointed to my participation in the

10 conference on Bosnia and Herzegovina as my most important function, one

11 that, according to them, did not properly belong to me but from which I

12 derived the bulk of my power.

13 However, in saying that, they had turned things on their head and

14 spoke quite inaccurately. They had forgotten or they deliberately glossed

15 over the fact that the Serbian BH deputies, in the founding session of the

16 Serb Assembly, on October 24, 1991, designated me, together with another

17 five candidates - with Mr. Karadzic, Mr. Koljevic, Mrs. Plavsic, Mr. Buha

18 and Mr. Maksimovic - to represent the Serbian national community, ethnic

19 community, in the negotiations with the Muslims and the Croats and their

20 ethnic communities.

21 They also failed to mention that it was precisely in response to

22 their insistence "to have the delegation revitalised" that I proposed to

23 the Assembly on at least two occasions - March 11, 1992, and July 25th,

24 1992 - to select someone else for the negotiations instead of me, and I

25 suggested indirectly that some of them be appointed to the negotiating

Page 27526

1 team, something that the deputies rejected. They glossed over the fact

2 that the deputies did not wish to change the composition of the delegation

3 precisely because they understood the point about "revitalising" the

4 negotiating team as a reflection of the unsound personal ambitions of

5 those who were making it and of their desire to take on a task surpassing

6 their abilities.

7 Had I not been indicted, I never would have discovered that

8 someone could have regarded me as powerful because of my participation on

9 a team which was working on issues of critical significance for the

10 Serbian people.

11 I therefore must now view that accusation as the result of the

12 immaturity of certain individuals and of their personal jealousy, and not

13 as proof of my power. This conviction of mine has been corroborated by

14 some of the highest level political figures of the Republika Srpska who

15 have given evidence before this Court. I believe the Chamber has reached

16 that same conclusion after having listened to their testimony.

17 Related to the above charges is the entirely baseless and

18 untruthful testimony of witnesses Biljana Plavsic, invited by the Chamber,

19 and Milorad Davidovic, on behalf of the Prosecution, concerning my alleged

20 participation in criminal activities during the BiH conflict.

21 Mrs. Plavsic in particular shockingly testified about arms dealings with

22 the Muslim side in which I supposedly took part, and her allegation that

23 she reported to the RS Assembly concerning this issue.

24 Mrs. Plavsic levelled some grave charges against me, stating that

25 in response to her question: "Must we sell weapons to the Muslim side?"

Page 27527

1 She heard, in my presence, Mr. Karadzic's response that it was necessary.

2 Further, she stated that my home in Zabrdze served as a weapons arsenal

3 for that commerce, although it is precisely on the dividing line. It was

4 close to the front line. The house, which was later devastated, where my

5 father was killed, which was later targeted by my own neighbours.

6 In response to that statement, it was my intention to put to her

7 several questions which would have made it manifest that she was not

8 speaking the truth. As I was denied the opportunity to cross-examine her

9 on these matters, and since I was certain that neither this or any similar

10 issue was ever on the Assembly's agenda, I decided to further review my

11 recollections. I was puzzled by the following question: Was she

12 deliberately misstating things in order to harm me, or has she, under the

13 weight of her age, allowed malice to influence her perception of the

14 facts? Unfortunately, the upshot of this little investigation of mine was

15 the conclusion that her misstatement, rather than being a misperception of

16 the facts, was more likely a deliberate attempt to drag my name through

17 the mud. Unfortunately, it turns out that on this point Mrs. Plavsic has

18 deliberately given false evidence.

19 Many witnesses ascribed my close relationship with Radovan

20 Karadzic as one of the sources of my power. This claim is made precisely

21 by those who were nominated by Mr. Karadzic for high posts in the state

22 and in the SDS. Mrs. Plavsic is a prime example, although there were many

23 other witnesses to that.

24 Mr. Djeric and Mrs. Plavsic were nominated by Mr. Karadzic to the

25 highest posts, initially in Bosnia-Herzegovina and later in Republika

Page 27528

1 Srpska. Mr. Karadzic nominated Mrs. Plavsic, not me, as member of the BH

2 Presidency on behalf of the SDS, while Mr. Djeric was nominated first as

3 minister of the BH cabinet and later first Prime Minister of the

4 government of the Serbian people of Bosnia and Herzegovina.

5 When the two of them, as well as others, were being nominated in

6 1990 to high positions in the Bosnian government, I was bypassed. I was

7 not nominated to any high post although I knew Mr. Radovan Karadzic.

8 In contrast to them, I was nominated by the municipal committee of

9 the SDS for Novi Grad as the reserve candidate for deputy on the regional

10 Sarajevo ticket, which included candidates for more than 10

11 municipalities.

12 Mr. Karadzic's representatives placed my name sixth, that is to

13 say last on the ticket, and I was elected deputy only after a recount of

14 the vote.

15 When I eventually passed as the candidate, I was not nominated to

16 be president of the Assembly. It was Mr. Trbojevic instead. And when he

17 was rejected, not because he was not good enough but because the problem

18 of regional quotas was a problem to the other MPs, I was appointed to that

19 position.

20 Your Honours, let me remind you when the constitution was changed

21 in December 1991. If I was that important, why wasn't I nominated to be

22 president of the republic? Why Mrs. Plavsic?

23 Let me remind you the time after the war, after the Dayton Accord,

24 when Karadzic abdicated from his post. He did not give it to me, neither

25 as president of the state or as president of the party. Mr. Buha was

Page 27529

1 elected president of the party and Mrs. Plavsic, head of state. At the

2 time of the elections, nobody wanted to be member of the Presidency. Mrs.

3 Plavsic became head of state; Mr. Buha, president of the party; and I, at

4 the time, since they wanted me very much to become a member of the

5 Presidency, I did. I agreed to membership in the Presidency of

6 Bosnia-Herzegovina.

7 Since I see that time is pressing, I won't be able to read all of

8 this.

9 The Prosecution charged that the Serb side established parallel

10 institutions with a view to destroying Bosnia and Herzegovina. Let me

11 remind you of one session of the Assembly. In fact, I want to say that we

12 only made reactive moves in reaction to the conduct of the Muslim side.

13 The late Izetbegovic, in January 1991, came out then with his

14 platform and reneged on his agreement for Bosnia to remain a part of

15 Yugoslavia. They opted for independence.

16 In April, the Serb side raised the issue of regionalisation as a

17 political response, and regionalisation was a completely legal,

18 constitutional option, as it used to be before the war. When even that

19 failed, before the war, we issued that recommendation to suspend

20 regionalisation, because it was already gaining a political dimension.

21 Instead, we wanted to talk about the declaration.

22 When those debates failed, negotiations started on the historical

23 agreement between Muslims and Croats; Serbs, Muslims and Croats, in fact.

24 However, the Muslims withdrew their approval later from that agreement.

25 In September, Izetbegovic himself proposed a certain conclusion to

Page 27530

1 the Assembly, and that was accepted; that nobody should impose any

2 solutions upon anyone else; that instead we would negotiate, forever if it

3 takes forever; that anything is better than waging war.

4 And after that, in October, the Muslims again came up with a new

5 document, the memorandum, to replace the declaration, with the same goals.

6 On the 25th of January, we had that debate on the referendum. All

7 it took was to make a decision to regionalise Bosnia-Herzegovina, and all

8 of us would then take part in a referendum. The agreement was there. Mr.

9 Cengic, President of the SDA, was there and the president -- the prime

10 minister also. And they both agreed that yes, the government would

11 prepare a regionalisation. We agreed. Only 10 minutes later, Izetbegovic

12 again said their approval and said, No, we're going forward with the

13 referendum. When Mr. Cutileiro came, we were so glad that we had reached

14 an agreement.

15 On the 20th of March already, the Muslim side, just before going

16 to Brussels, the Muslim side comes up and says, We were just gaining

17 time. We don't want a transformation of Bosnia-Herzegovina; we want

18 something else. We will invite the opposition and all the patriotic

19 forces. We want Bosnia to remain as it is.

20 I was not working for a division of Bosnia, ever. I was always

21 committed for Bosnia to remain a part of Yugoslavia, just as the entire

22 Serbian side did. But when that failed, when we didn't get the other side

23 to agree, we agreed to Bosnia-Herzegovina instead. And we said, Okay,

24 let's transform it. Let us achieve some sort of autonomy within Bosnia.

25 Your Honours, when we were proposing various options to the Muslim

Page 27531

1 and Croatian side for Bosnia to be a perfectly autonomous state within

2 Yugoslavia, in a very loose fashion, with only a couple of policies and

3 institutions in common on the federal level, when that failed, we accepted

4 the independence of Bosnia and Herzegovina. That can be seen from the

5 Cutileiro agreement, in all the other agreements, except the Vance-Owen

6 Plan. We had all already agreed on everything.

7 Momcilo Krajisnik, as a legalist, always insisted on the

8 agreements that had been reached. We did not want to have a separate

9 entity within Bosnia-Herzegovina. I loved the federal Yugoslavia,

10 together with Slovenia, Croatia, and all the other republics. However,

11 the system collapsed and we couldn't help it. Then our only choice was to

12 do everything we could to prevent war.

13 As for crimes, they say that I could have known about crimes, but

14 let me assure you that I did not know of a single crime. Whenever some

15 you report became available, the smallest indication -- I showed you that

16 document. When Silajdzic told me back then at the airport that there were

17 some girls captive in Foca, two of them were brought there and I was

18 shocked to see them. One of them was pregnant; she was released

19 immediately. The other one I took with me, to escort her.

20 I would have punished every crime had I known about it. I have

21 children of my own. Why on earth would I support criminals? No normal

22 person in the world could have done that.

23 They told me here that I was not a credible witness because I said

24 I had never heard of Keraterm and Omarska at the time. I did not hear of

25 the things that happened in Keraterm and Omarska. I heard them here for

Page 27532

1 the first time, and I was shocked. It was terrible. I didn't know that

2 such things could happen in our age. And that is the -- but then I didn't

3 know about them, and that is the essence of the problem.

4 Ethnic cleansing. Your Honours, I am not claiming there was no

5 population movement. Of course. Serbs moved too. I know that I gave two

6 statements, and I am one of those people who had to leave their home. I

7 still dream of my home, of my birthplace. I would never wish it upon

8 anyone, to experience what I experienced. And I believe those who went to

9 investigate whether these things happened or not. Now, I believe that the

10 great population movements happened.

11 Destruction of religious buildings. I found a publication of the

12 Serbian Orthodox church, and I tendered it to you, not as an attempt to

13 prove that this didn't happen. But this war was going on, and it's

14 incredible how all these churches and other religious monuments and

15 buildings were destroyed, as if some evil spirit was released from the

16 people, all of them.

17 I know that enough evidence was placed before this Trial Chamber

18 to completely refute the allegations of the Prosecution that I committed

19 crimes or that I failed to prevent -- I failed to take measures to punish

20 war crimes against Muslims and Croats during the war in

21 Bosnia-Herzegovina.

22 I consider that enough proof was tendered that I made every effort

23 to arrive at a just, political solution. It was demonstrated that the

24 Serbian side did not advocate any solution which was outside the

25 parameters of the position -- outside the parameters of the position taken

Page 27533

1 by the international community.

2 Throughout the war, at all times I was committed to an immediate

3 cease-fire and withdrawal of Serbian forces from significant portions of

4 territory, notwithstanding the fact that Serbs were owners of a

5 proportionately greater percentage of BH territory than members of the

6 other two communities.

7 A large number of documents were tendered here that were not

8 admitted into evidence. The claim that I testified untruthfully is

9 completely unjustified. I never told untruths in my whole life, and I

10 never told them here either. On every day of my testimony, I brought

11 evidence to prove the veracity of what I had said the day before.

12 Unfortunately, a lot of that evidence has not been admitted.

13 I believe that the Trial Chamber has sufficient evidence to

14 completely reject the charges of the Prosecution. I hope that that will

15 be so, because any other decision would be contrary to truth and justice.

16 Therefore, in the name of truth and justice, at the moment when the

17 judgement in my case is close to being announced, I call upon any Muslims

18 and Croats, if they have any evidence against me, to forward it to the

19 Trial Chamber to consider it in its deliberations. I am not afraid of any

20 new evidence because, although I am distressed by the realisation that

21 crimes have been committed against innocent people in the course of the

22 dreadful war in Bosnia and Herzegovina, I remain serene because I am in a

23 position to declare, before God and Your Honours, not only that I do not

24 have a guilty conscience but that I am not guilty in relation to the

25 charges pressed against me by the Prosecution. I hope that you will make

Page 27534

1 a judgement in keeping with the truth and the documents.

2 I want to thank you for your kindness to me over the past two and

3 a half years. I hold nothing against the Prosecutors, because they were

4 only doing their job. I have lost many friends, and everybody seems to

5 have written me off. But I am certain that truth will prevail. I know,

6 Your Honours, that you will make a just decision.

7 Thank you.

8 JUDGE ORIE: Thank you, Mr. Krajisnik.

9 This concludes this trial that started on the 3rd of February,

10 2004. On that day I said that the trial might keep us together for two

11 years. It turned out to be now 31 months that we are together in this

12 courtroom.

13 The judgement will be delivered in due course, and the date of the

14 delivery of the judgement will be announced in a scheduling order that the

15 Chamber will issue as soon as it's able to do.

16 We stand adjourned.

17 --- Whereupon the hearing adjourned sine die

18 at 6.59 p.m.