Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Wednesday, 14 May 2003

 2                          [Appeal Proceedings]

 3                          [Open Session]

 4                          --- Upon commencing at 9.03 a.m.

 5            JUDGE JORDA: [Interpretation] Please be seated.  Madam Registrar,

 6    have the accused brought in, please.

 7                          [The respondent entered court]

 8            JUDGE JORDA: [Interpretation] Madam Registrar, would you please

 9    call the case which is on the Appeals Chamber's agenda of the

10    International Tribunal today.  Thank you.

11            THE REGISTRAR:  Good morning, Your Honours.  This is the case

12    number IT-97-25-A, the Prosecutor versus Milorad Krnojelac.

13            JUDGE JORDA: [Interpretation] Thank you very much.  I want to make

14    sure that the interpreters are here and that they can hear me.  Yes, they

15    do.  The accused is in the courtroom.

16            First of all I would like to ask for the appearances of the

17    parties.  Turning first to the Prosecution.

18            MR. STAKER:  May it please Your Honour, may it please the Chamber,

19    my name is Christopher Staker.  I appear today on behalf of the

20    Prosecution with my colleagues Mr. Anthony Carmona, Miss Norul Rashid, and

21    Miss Helen Brady.  Our case manager today is Ms. Nicola Bonfield.

22            JUDGE JORDA: [Interpretation] Thank you very much.  Let me turn to

23    the Defence.  Could we have the appearances, please.

24            MR. BAKRAC: [Interpretation] Good morning, Your Honours.  I'm

25    Mihajlo Bakrac, and my colleague Miroslav Vasic is with me to represent

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 1    the accused Krnojelac.

 2            JUDGE JORDA: [Interpretation] Thank you very much.  We can then

 3    proceed.

 4            First of all, on behalf of my colleagues, I would like to make an

 5    introductory remark for this hearing which will explain how first of all

 6    we're going to do this morning and what our organisation will be for the

 7    hearing.  There seems to be no room here.  All right.

 8            The Appeals Chamber is holdings its appeals hearing today in the

 9    case the Prosecutor versus Milorad Krnojelac.  On the 12th of April 2002,

10    Milorad Krnojelac appealed against the judgement of Trial Chamber II of

11    this Tribunal on the 15th of March, 2002.  The Trial Chamber, let me

12    remind you, found Mr. Krnojelac guilty first of all pursuant to Article

13    7(1) of the Statute because of his individual responsibility as an aider

14    and abettor of the following crimes:  Charge 1 of the indictment,

15    persecutions, crime against humanity, because of imprisonment and inhumane

16    acts related to living conditions.  Count 15 of the indictment, cruel

17    treatment, a violation of the laws or customs of war because of the living

18    conditions.

19            In addition, pursuant to Article 7(3) of the Statute, the accused

20    was also found guilty as a superior officer of the following crimes:

21    Ground 1 -- charge -- Count 1 of the indictment, persecutions, a crime

22    against humanity, cruel treatment; Count 5 of the indictment, inhumane

23    acts, a crime against humanity because of cruel treatment; and Count 7 of

24    the indictment, cruel treatment, a violations of the laws or customs of

25    war because of cruel treatment.

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 1            Let me remind you that the Trial Chamber sentenced Milorad

 2    Krnojelac to a single sentence of 7 and a half years.  On the 15th of

 3    April, 2002, the Prosecutor also appealed against that judgement.

 4            Before hearing the parties's arguments, the Appeals Chamber will

 5    recall the list of grounds of appeal which were presented by both Mr.

 6    Krnojelac and by the Prosecutor.

 7            As regards the appeal by Mr. Krnojelac, the Appeals Chamber has

 8    brought the -- regrouped the grounds of appeal in the following way.  I

 9    call your attention to that.

10            First ground:  The Trial Chamber allegedly committed errors of

11    fact in evaluating its position of prison warden which was the post that

12    Milorad Krnojelac occupied.  Let me slow down a little bit.  I think I'm

13    speaking too fast for the interpreters.

14            And this ground has several sections.  The first is that the Trial

15    Chamber committed an error by asserting that the functions or the powers

16    of the prison warden had barely changed after the outbreak of the armed

17    conflict.

18            Second ground - this is still the first ground of appeal - the

19    Trial Chamber allegedly committed an error by asserting that Krnojelac

20    freely had accepted the position of prison warden.

21            Third ground:  The Trial Chamber allegedly committed an error by

22    asserting that Krnojelac had authority over the entire staff and detainees

23    of the KP Dom.

24            Fourth:  The Trial Chamber did not properly evaluate the

25    statements of witnesses that were not Serbs.  Those are statements of the

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 1    Prosecution.

 2            That is the first ground of appeal of Mr. Krnojelac.

 3            Second ground of appeal is that the Trial Chamber allegedly

 4    committed an error of law by asserting that Krnojelac had become an aider

 5    and abettor in persecution because of imprisonment and living conditions.

 6            Third ground of appeal:  The Trial Chamber allegedly committed an

 7    error of fact by concluding that Krnojelac had made himself guilty -- an

 8    aider and abettor in cruel treatment because of the living conditions.

 9            Fourth ground of appeal:  The Trial Chamber allegedly committed an

10    error of fact by stating that Krnojelac had as a superior was -- had

11    responsibility for the persecutions which had been caused by cruel

12    treatment.

13            The fifth ground is that the Appeals Chamber -- the Trial Chamber

14    allegedly committed an error of fact by stating that Krnojelac as a

15    superior was responsible for the inhumane acts and cruel treatment under

16    torture.

17            As regards of the Prosecution's appeal, the Prosecution put

18    forward seven.  The first -- that is, the Chamber put them into seven

19    groups.  The first is that the Trial Chamber allegedly committed an error

20    of law in its definition of responsibility stemming from participation in

21    a joint criminal enterprise and in the application of that definition to

22    the facts of the case.

23            Second ground of appeal:  The Trial Chamber allegedly committed an

24    error of law by requiring that the indictment take note of a broadened

25    form of the joint criminal enterprise.

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 1            Third ground:  The Trial Chamber allegedly committed an error of

 2    fact by concluding that Krnojelac did not know and did not have reason to

 3    know that his subordinates were torturing detainees and by considering

 4    therefore that could not be held responsible under Article 7(3) of the

 5    Statute.

 6            Fourth ground of appeal:  The Trial Chamber allegedly committed an

 7    error of fact by concluding under Article 7(3) of the Statute that the

 8    information which Krnojelac had were not sufficient to warn his

 9    subordinates that they -- or warn him that his subordinates were

10    implicated in the murder of detainees at the KP Dom.

11            Fifth ground of appeal:  The Trial Chamber allegedly committed an

12    error of fact by concluding that the cruel treatment which represented

13    inhumane treatment and cruel treatment was not inflicted for

14    discriminatory reasons and that therefore Krnojelac could not be held

15    responsible for persecutions as a superior.

16            I think I'm speaking too fast.  I apologise.

17            Sixth ground of appeal:  The Trial Chamber allegedly erred in

18    acquitting Krnojelac of persecution under forced labour.

19            Seventh ground of appeal:  The Trial Chamber allegedly committed

20    an error by acquitting Krnojelac of the charge of persecution under

21    deportation.  For that seventh ground, the Prosecutor put forward several

22    arguments.  First, was that there was an error of law by stating that the

23    movement over national borders was an element which is constituent -- a

24    constituent element of expulsion.  Second, the Trial Chamber which will be

25    an error of fact because it judged that 35 Muslim detainees transferred

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 1    toward Montenegro left of their own will.  Third, an error of fact.  The

 2    Trial Chamber found that the transfer of the 35 Muslim detainees toward

 3    Montenegro was not inspired by discriminatory reasons.  Fourth, an error

 4    was made by -- an error was made by stating that Krnojelac was not guilty

 5    of persecution, deportation for the transfer of some of the detainees

 6    towards other places in Bosnia.  Fifth, the Trial Chamber committed an

 7    error by judging that Krnojelac was not responsible under Article 7(1) of

 8    the Statute for expulsion and expulsions which are constituent of

 9    persecution.

10            These are the grounds as we put -- the Appeals Chamber has put

11    them together.  The Chamber also recalls that the two appellants have

12    appealed against the sentence.

13            I would now ask the parties to pay attention, because before we

14    hear your arguments about the alleged errors, the Appeals Chamber

15    considers that some precision should be made about the criterion

16    applicable to the review of the observations of the Trial Chamber.

17            As the Appeals Chamber has pointed out on many occasions, the

18    appeal is not the occasion for the parties to replead their case.  This is

19    not a de novo trial.  On appeal the parties must limit their arguments to

20    the questions which fall within the framework of Article 25 of our

21    Statute.  In general, the Appeals Chamber does not hear any arguments but

22    those founded on errors of law which have been claimed which would

23    invalidate the judgement.  As regards -- or on errors of fact which would

24    have caused a miscarriage of justice.  Only exceptionally, when a party

25    might raise a question of general interest for the case law of the

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 1    Tribunal.  That would be the only case.  Only in that case does the Trial

 2    Chamber considered that it would be proper to make an exception to the

 3    rule.

 4            In this case, the very great majority of the grounds raised by the

 5    appellants deal with alleged errors of fact.  I would ask you to pay

 6    attention to this now, because this is going to -- this is going to form

 7    the basis and the ground -- limits of our discussions.

 8            The Appeals Chamber recalls that in this -- that in this case we

 9    recall the appellant, according to well-established -- I apologise to the

10    interpreters for going very fast.  I always look at the watch and we have

11    two days, so I tend to speak fast.  Let me speak more slowly.

12            In this case, the great majority of the grounds raised by the

13    appellants have to do with errors of fact that have been claimed.  The

14    Appeals Chamber recalls that in this case the charge -- the responsibility

15    of the -- for the appellant is, according to well-established case law the

16    following:  For the Appeals Chamber to invalidate an observation of the

17    Trial Chamber, an applicant must demonstrate that it had committed an

18    error of fact and that there was a failure in justice as result.

19    Consequently, the applicant must give double proof that there was an error

20    of fact and there was a miscarriage of justice that resulted from that.

21    The error is demonstrated when the appellant shows that no Judge or court

22    of reasonable fact could have reached the decision which is being

23    challenged.  The appellant must also prove that the error of fact weighed

24    heavily on the decision of the Trial Chamber and that there -- was

25    therefore a miscarriage of justice.

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 1            The proof that was -- must be brought by the applicant also

 2    involves precision in respect of the Trial Chamber's conclusions which are

 3    being contested.  For this hearing, I will ask the parties to be very

 4    precise and to be rigorous in their development relating to the grounds of

 5    appeal and to make an effective use of the book of authorities.  These

 6    positions now should give you the framework for our discussions.  If

 7    necessary, we will recall this to you.

 8            Let me give you -- explain the organisation of our work as follows

 9    from a Scheduling Order for this hearing.  We agree that the Prosecutor

10    will begin with the presentation of its arguments and will have one hour

11    and 30 minutes.  We were to start at 9.00, so we will start at 9.15 and we

12    will deduct the missing time and take a break then.  And then the

13    Prosecutor will continue for another hour.  So that means the Prosecutor

14    will have two and a half hours.  And we will adjust the schedule to the

15    little delay that we have right now.

16            We will take a break of -- two-hour break around lunch-time and

17    then we will give the floor to the Defence.  The Defence will have two

18    hours as well, which will be broken by a 30-minute pause.  And finally,

19    the Prosecutor will finish the work by giving her reply for 30 minutes.

20            Tomorrow, that is the 15th of May, we will also begin at 9.00, and

21    the Defence will present its arguments for two hours with a 30-minute

22    break.  We will also have a two-hour break for lunch and then the

23    Prosecutor will have two hours also with a break of 30 minutes, but I will

24    explain this again as the time moves along, and finally, we'll have the

25    Defence reply.  And we will complete our work.

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 1            Without anything further ado, if there are no particular comments

 2    to be made, I give the floor to the Prosecutor, the Office of the

 3    Prosecutor, that is.

 4            MR. STAKER:  Thank you, Your Honour.  The Prosecution has provided

 5    to the Chamber an order of appearance.  I believe the members of the Bench

 6    would have it.  As it indicates, I propose now to deal with the first and

 7    second of the Prosecution's grounds of appeal to which Your Honour, the

 8    Presiding Judge, has referred.  Following that, my colleague Ms. Brady

 9    will deal with grounds 3 and 5.  Ms. Norul Rashid will then present the

10    submissions on grounds 7 and 6, and finally Mr. Carmona will present the

11    Prosecution's arguments on grounds 4 and 8, ground 8 being the appeal

12    against sentence.

13            With the Chamber's permission then, without more ado, I will

14    proceed to the Prosecution's first ground of appeal which is that the

15    Trial Chamber erred in law in its determination of the elements of common

16    purpose or joint criminal enterprise.

17            This ground of appeal relates specifically to two of the

18    respondent's convictions in which he was found to be individually

19    criminally liable under Article 7(1) of the Statute, in respect of

20    imprisonment and in respect of living conditions in the camp.  However, he

21    was convicted as an aider and abettor only.  The Prosecution submission is

22    that he was liable for committing these crimes as a participant in a joint

23    criminal enterprise, and the Prosecution seeks to have the verdict amended

24    accordingly.  It also seeks an increase in sentence to reflect the

25    increased responsibility of the respondent in that respect.

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 1            To summarise very briefly, there are two principal errors which

 2    the Prosecution contends were made in the Trial Chamber's judgement in

 3    this respect.  In the Tadic appeal judgement, the Appeals Chamber said

 4    that there were three elements of the actus reus for liability under joint

 5    criminal enterprise.  The Prosecution's submission is that on the findings

 6    of the Trial Chamber, the first and third of these elements were

 7    satisfied.  The Prosecution submits that the Trial Chamber fell into error

 8    in its definition and application of the second of those elements.

 9            Secondly, the Tadic appeals judgement, at paragraph 228, set out

10    the mens rea for liability as a participant in a joint criminal enterprise

11    and the Prosecution submits that the Trial Chamber erred in defining and

12    applying the mens rea.

13            For convenience, I propose to deal first with the conviction in

14    respect of imprisonment.  I will revert subsequently in respect to the

15    living conditions in the camp.  In respect of the unlawful imprisonment,

16    the respondent was convicted as an aider and abettor on count 1 for

17    persecution as a crime against humanity under Article 5(H) of the Statute.

18    He was also found liable as an aider and abettor under count 11, which was

19    imprisonment as a crime against humanity under Article 5(E).  He was not

20    convicted on count 11 because it was held that that would have been

21    impermissibly cumulative, but nonetheless, the Trial Chamber's findings on

22    count 11 are important as they form the basis of the findings in respect

23    of count 1.

24            The Trial Chamber's factual findings are set out in paragraphs 116

25    to 124 of the trial judgement.  The Trial Chamber found at paragraph 124

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 1    that non-Serb civilian men were detained at the KP Dom because they were

 2    Muslim.  At paragraph 118, it was held that they were imprisoned

 3    indiscriminately.  At paragraphs 122, it was said that they were detained

 4    arbitrarily and with no legal basis under national or international law.

 5    The Trial Chamber's findings in these paragraphs are summarised in

 6    paragraph 438 of the trial judgement in which it said that during the

 7    period relevant to this indictment, non-Serbs were illegally imprisoned at

 8    the KP Dom, and this imprisonment was effected primarily or solely with

 9    the intent to discriminate against them because of their religious

10    affiliations.

11            The Trial Chamber further found at paragraph 50 that the detention

12    of non-Serbs in the KP Dom and the acts or omissions which took place

13    therein were clearly related to the widespread and systematic attack

14    against the non-Serb civilian population in the Foca municipality.

15            It's submitted that it's clear from these findings that the Trial

16    Chamber accepted the Prosecution's contention that the imprisonment of

17    non-Serb civilian men resulted from a joint criminal enterprise.  This is

18    clear from paragraph 127 of the Trial Chamber where the Trial Chamber

19    refers to "the joint criminal enterprise to illegally imprison the

20    non-Serb detainees."  Subsequently in the same paragraph, there's a

21    reference to "that joint criminal enterprise."  There is a subsequent

22    additional reference to "the joint criminal enterprise," and the Trial

23    Chamber also refers in that paragraph to the respondent being aware of his

24    contribution to the maintenance of "that unlawful system" by the principal

25    offenders.  It's submitted that there is no doubt that the Trial Chamber

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 1    was satisfied of the existence of a joint criminal enterprise.

 2            And although the Trial Chamber doesn't expressly spell out how it

 3    concluded that there was such a joint criminal enterprise, it's clear that

 4    this stemmed in part from the widespread and systematic nature of the

 5    detentions.  In footnote 353, the Trial Chamber refers to the "systematic

 6    and collective nature" of the detention of the Muslim male population.

 7    And in paragraph 41, it says that the "illegal arrest and imprisonment of

 8    non-Serb males was carried out on a massive scale and in a systematic

 9    way."  It's evident that such a systematic campaign of detention could not

10    be the result of the actions of a single person or of the actions of

11    various individuals acting independently; it could only be the result of

12    organised conduct, in other words, of a joint enterprise.

13            Now, not only did the Trial Chamber find that there was a joint

14    criminal enterprise, but it found that the respondent knew of it.  At

15    paragraph 62, it made the finding that the accused did in fact know that

16    the Muslim civilian population were systematically targeted and abused in

17    many ways, that he knew that prison camps for the detention of Muslims

18    were set up in other municipalities of the area, and that he knew that the

19    mistreatment which occurred at the KP Dom was part of the attack upon the

20    non-Serb population of Foca town and municipality.

21            At paragraph 127, it also found that the respondent knew that his

22    acts and omissions were contributing to the maintenance of that unlawful

23    system by the principal offenders.

24            Now, before addressing his liability under the law of joint

25    criminal enterprise, it's necessary to recall that in the Tadic appeal

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 1    judgement, the Appeals Chamber found that there are three categories of

 2    joint criminal enterprise liability, and it's submitted that this

 3    threefold categorisation is now a part of the Trial Chamber's

 4    jurisprudence.  I'd refer additionally to the Kayishema and Ruzindana

 5    appeal judgement at paragraph 193, and the Kordic and Cerkez judgement at

 6    paragraphs 397 and 398.

 7            Now, the third of these categories can be left aside for the

 8    purposes of this ground of appeal, although it does arise again in the

 9    Prosecution's second ground of appeal.  In relation to the first two

10    categories of joint criminal enterprise liability, there appears to be

11    some suggestion in paragraph 78 of the trial judgement that there may in

12    fact be no real difference between those categories, and this conflation

13    of the first two categories into a single category is dealt with in

14    paragraphs 215 to 221 of the Prosecution appeal brief.  But it's submitted

15    that the distinction between the two categories is this:  The first

16    category of joint criminal enterprise cases is where the joint criminal

17    enterprise exists to commit a specific criminal act.

18            And to give a hypothetical example, if one supposes that four

19    accused set out with the purpose of killing a specific individual and each

20    of them has the intent that the victim be killed and each plays a role in

21    that killing, then each will be equally liable for having committed that

22    murder within the meaning of Article 7(1) of the Tribunal's Statute, even

23    though the mens rea -- even though the actus reus of that killing may have

24    been performed by only one of the four.

25            The second category of joint criminal enterprise cases, in our

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 1    submission, was described -- although described by the Appeals Chamber as

 2    the concentration camp cases, is not confined necessarily to concentration

 3    camps.  The concentration camp cases may have been a reference to the kind

 4    of post-World War II cases that were identified as falling within that

 5    category, but the Prosecution submits that the real essence of this

 6    category is that, unlike the first which contemplates the commission of a

 7    specific crime, in this second category the joint criminal enterprise is

 8    an ongoing system over a period of time which continues and which

 9    contemplates the commission of various undefined crimes in the course of

10    that system.  A concentration camp may be an example of such a system but

11    not necessarily the only one.

12            As I said, the legal elements for this form of liability are set

13    out in paragraph 227 of the Tadic appeal judgement and paragraph 2.3 of

14    the Prosecution appeal brief.  The first requirement is a plurality of

15    persons who need not be organised in a military, political, or

16    administrative structure, and that requirement is clearly satisfied in the

17    circumstances of this case.

18            Now, the second requirement -- and here, as I say, is the first

19    error, we submit, in the Trial judgement.  The second requirement, as

20    articulated in the Tadic appeal judgement is the existence of a common

21    plan, design, or purpose which amounts to or involves the commission of a

22    crime provided for in the Statute.  And the Appeals Chamber goes on to say

23    there is no necessity for this plan, design, or purpose to have been

24    previously arranged or formulated, and proceeds to give some further

25    explanation.

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 1            Now, in relation to this requirement, the Trial Chamber said at

 2    paragraph 80 that a joint criminal enterprise exists where there is an

 3    understanding or arrangement amounting to an agreement between two or more

 4    persons that they will commit a crime.  And then in paragraphs 170, 315,

 5    346, and 487, the Trial Chamber looks to whether there was evidence of an

 6    agreement between the respondent and other guards and military authorities

 7    for the commission of certain crimes in the KP Dom.  Paragraph 487 is

 8    particularly significant because it looks for an agreement to commit

 9    persecution and the conviction in respect of unlawful detention was a

10    conviction for persecution.

11            In our submission, this requirement of an agreement is not part of

12    this element of joint criminal enterprise liability.  It will be seen that

13    in the wording from the Tadic appeal judgement, the word "agreement" is

14    not used.  The Trial Chamber, in footnote 235 of the trial judgement,

15    refers to two decisions in support of this requirement of an agreement,

16    but it's noteworthy that none of the passages there cited in fact use the

17    word "agreement" either.

18            In the Prosecution's submission, in cases of systemic joint

19    criminal enterprises, it's quite likely that many of the participants in

20    the enterprise will not know of the identities of other participants.

21    Indeed, they may not even be aware as new people come on board and join

22    the criminal enterprise; they may not be aware as people leave.

23            What in our submission is the crucial requirement is the existence

24    of a common plan, design, or purpose which may be a system.  If an accused

25    knows of the existence of a system and knows that the system involves the

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 1    commission of crimes, the accused by knowingly becoming a part of that

 2    system and contributing significantly to it, with the purpose or intent of

 3    furthering that system, in our submission this second requirement of joint

 4    criminal enterprise liability is satisfied.  And in our submission, the

 5    rationale for that might be explained by analogy with the mob violence

 6    cases.

 7            In cases of mob violence, it may be a group of people set out and,

 8    for instance, beat a victim to death but it may not be known exactly who

 9    struck blows in the course of that incident or indeed who struck the fatal

10    blow, and yet if each had the common intent of beating the victim to

11    death, each will be equally liable for having committed the murder.

12            In the case of a system, a systemic joint criminal enterprise, in

13    our submission it's not necessary to identify who the planner or who the

14    instigator of this plan was.  If it was possible to identify that, that

15    person might be charged for planning or inciting, but if it's clear that a

16    system exists, and if it is clear that a person is part of that system

17    contributing significantly to it with the intent of furthering that

18    system, in our submission there is a common purpose and that the accused

19    in that case has the intent of furthering that purpose.  And the second

20    requirement of joint criminal enterprise liability will be met.

21            To move then to the third requirement of the actus reus of joint

22    criminal enterprise liability, this was defined by the Appeals Chamber in

23    the Tadic appeal judgement of participation of the accused in common

24    design involving the perpetration of one of the crimes provided for in the

25    Statute.  And it goes on to note that "the accused's participation need

Page 56

 1    not itself require the commission of any specific crime but may take the

 2    form of assistance in or contribution to the execution of the common plan

 3    or purpose."  And in our submission, there is a clear finding by the Trial

 4    Chamber in paragraph 127 that the respondent knew that his acts and

 5    omissions were contributing to that unlawful purpose by the principal

 6    offenders.

 7            The other requirement then is the mens rea requirement for this

 8    form of liability.  And at paragraph 228 of the Tadic appeal judgement,

 9    the Appeals Chamber said that the mens rea in the second category of joint

10    criminal enterprise liability is personal knowledge of the system of ill

11    treatment whether by express testimony or as a matter of reasonable

12    inference from the accused's position of authority as well as intent to

13    further this common concerted system of ill treatment.

14            The Prosecution accepts that the distinction between an aider and

15    abettor and a participant in a joint criminal enterprise is that an aider

16    and abettor need not share the intent of the criminal enterprise.  And the

17    question then in this case is:  Did the respondent share the intent of the

18    joint criminal enterprise?

19            Now, I refer again to the express findings of the Trial Chamber.

20    In particular, paragraph 62, that the accused knew of the attack upon the

21    non-Serb civilian population of Foca and surrounding areas.  Paragraph

22    124, that he knew that they were imprisoned because they were Muslim.  And

23    at paragraph 127, that the accused knew that the imprisonment of the

24    non-Serb detainees was unlawful and that he knew that his acts and

25    omission were contributing to the maintenance of that unlawful system by

Page 57

 1    the principal offenders.

 2            Now, why did the Trial Chamber find that the mens rea requirement

 3    had not been satisfied?  It addresses this also in paragraph 127 of the

 4    trial judgement.  It says:  "The Trial Chamber is not satisfied that the

 5    only reasonable inference which can be drawn from these facts is that the

 6    accused shared the intent of that joint criminal enterprise.  In

 7    particular, the Trial Chamber does not consider that the Prosecution has

 8    excluded the reasonable possibility that the accused was merely carrying

 9    out the orders given to him by those who appointed him to the position of

10    warden at the KP Dom without sharing their criminal intent."

11            Now, the possibility that the respondent may have merely been

12    carrying out orders, in our submission, must be entirely irrelevant given

13    that Article 7(4) of the Tribunal's Statute expressly provides that

14    superior orders is no defence, even if it may be relevant for --

15            THE INTERPRETER:  Could the counsel slow down, please.

16            MR. STAKER:  So the question comes down to simply whether the

17    respondent shared the intent.  And the Prosecution submits that there is a

18    well-established distinction in criminal law between intent and motive.

19    One imagines, for instance, an accused who participates on several

20    occasions in the commission of armed bank robberies together with other

21    perpetrators and whose role is to stand there silently holding a gun at

22    the bank staff while others demand money and collect it.  If he were to

23    say that he did not share the intent of the bank robbery merely because

24    his reason for participating was he wanted his friends not to ostracise

25    him from their group or that he was concerned that he would be unemployed

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 1    if he didn't become a member of this group, clearly his motive for doing

 2    this is irrelevant.  In circumstances like that, it is clear that he

 3    shares the intent of the criminal enterprise to commit armed bank robbery.

 4            Support for this proposition might be found, for instance, by

 5    reference to Article 30 of the Statute of the International Criminal

 6    Court.  Article 30, paragraph 2 says that "for the purposes of this

 7    Article, a person has intent where in relation to conduct, the person

 8    means to engage in that conduct."  Clearly the case here.  In relation to

 9    a consequence, that the person means to cause that consequence or is aware

10    that it will occur in the ordinary course of events.

11            In this respect, we submit that it's important to underscore that

12    direct evidence of a state of mind is usually difficult to obtain, and the

13    mens rea in any circumstances is normally inferred from surrounding

14    circumstances.  And authorities for that proposition would be the Celebici

15    Trial Chamber judgement at paragraphs 437 and 439.

16            An example where this occurred in a joint criminal enterprise case

17    of the first category would be the Furundzija appeal judgement at

18    paragraph 120 where it was said that, "where the act of one accused

19    contributes to the purpose of the other and both acted simultaneously in

20    the same place and within full view of the other over a prolonged period

21    of time, the argument that there was no common purpose is plainly

22    unsustainable."

23            In the case of a joint criminal enterprise of the second category,

24    an example that can be cited is the Kvocka Trial Chamber where at

25    paragraph 271 it is said that, "the shared intent may and often will be

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 1    inferred knowledge of the plan and participation in its advancement."

 2            At paragraph 278, it's said that, "an intent so as to rise to the

 3    level of co-perpetration may also be inferred from knowledge of the crimes

 4    being perpetrated and continued participation which enables the camp's

 5    functioning."

 6            At paragraph 249, it's said that, "an aider or abettor of a joint

 7    criminal enterprise whose acts originally assist, or otherwise facilitate

 8    the criminal endeavour, may become so involved in its operations that he

 9    may graduate to the status of a co-perpetrator."

10            At paragraph 284, it's said that, "this may occur if the

11    participation lasts for an extensive period or if the accused becomes more

12    directly involved in the functioning of the enterprise."

13            At paragraphs 290 to 292, the Kvocka Trial Chamber suggested that

14    the level of superiority in the hierarchy may be relevant to determining

15    whether the accused was a principal or an aider and abettor.

16            And other pertinent observations on the significance of a

17    contribution can be found in that Trial Chamber at paragraphs 306, 311,

18    and 312.

19            In other words, we submit that where a person over a protracted

20    period of time intentionally performs acts which contribute substantially

21    to the joint criminal enterprise and knows of the joint criminal

22    enterprise and knows that the acts are contributing substantially to it,

23    then regardless of motive, in our submission, that would constitute intent

24    for the purposes of the criminal law.

25            Now, what were the facts of this case?  The Trial Chamber found at

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 1    paragraph 96 that the respondent was the warden of the KP Dom from 18th of

 2    April, 1992, until at least the end of July, 1993.  That's 15 months.

 3            It found, at paragraph 107, that the accused exercised supervisory

 4    responsibility over all subordinate personnel and detainees at the prison.

 5    It found, most pertinently we submit, at paragraph 100 that he voluntarily

 6    accepted this position.  It found at paragraph 102 that he had the power

 7    to instigate and take disciplinary measures.  At paragraph 103, that he

 8    had responsibility for ensuring that detainees did not escape.  Again at

 9    paragraph 103, that the respondent exercised final control over the work

10    of the detainees.  At paragraph 126, that he held the most senior position

11    within the KP Dom and that he did allow civilians to be detained there

12    knowing that their detention was unlawful.  And at paragraph 171, that he

13    contributed in a substantial way to the continued maintenance of the

14    conditions in the camp by giving encouragement to the principal offenders.

15            In our submission on those findings of fact, the only reasonable

16    conclusion is that the accused, in accordance with the definition of

17    intent under international criminal law, shared the intent of the joint

18    criminal enterprise.

19            The Prosecution submits that if the reasoning of the Trial Chamber

20    in this case were correct, it would mean that every official in a

21    persecutory regime, one could cite, for instance, Nazi Germany, who

22    contributed significantly to the atrocities committed by that regime but

23    did not directly commit any crime could under contemporary international

24    law escape liability as a principal and be only an aider and abettor by

25    saying, "I was simply doing my job."  The result would be that the

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 1    low-level perpetrators who physically commit the crimes would be found

 2    liable as perpetrators and the senior, more superior people would be mere

 3    aiders and abettors, and we submit that cannot be the case.

 4            With the Chamber's permission, I turn then to the second aspect of

 5    this ground of appeal which relates to the conviction in respect of the

 6    living conditions in the camp.  The accused was convicted in respect of

 7    the living conditions again on count 1, persecution as a crime against

 8    humanity, also count 15, for cruel treatment in respect of the living

 9    conditions.

10            In relation to these counts, the Trial Chamber expressly rejected,

11    at paragraphs 170 and also paragraph 490, the Prosecution's case that the

12    respondent was responsible for these crimes as a participant in a joint

13    criminal enterprise.  As I have mentioned, at paragraph 170 it's said that

14    there would have to be an agreement between the respondent and guards in

15    the camp and military authorities to commit these inhumane conditions.

16    For the reasons I've already submitted, an agreement is not necessary.

17    The question is:  Was the --  The question is:  Did the joint criminal

18    enterprise, which I've already said the Trial Chamber found did exist in

19    relation to the unlawful imprisonment, did that joint criminal enterprise

20    extend also to the imposition of inhumane living conditions on detainees

21    in the camp?

22            Now, I put the question in this way for a reason.  It's because

23    the Trial Chamber took the approach of looking for a separate joint

24    criminal enterprise in relation to each of the different kinds of crimes

25    committed.

Page 62

 1            At paragraph 315, the Trial Chamber looked for an agreement for a

 2    joint criminal enterprise to commit beatings.  At paragraph 346, the Trial

 3    Chamber looked for an agreement for a joint criminal enterprise to commit

 4    murder.  At paragraph 427, it looked at whether there was any joint

 5    criminal enterprise that may have existed to enslave the non-Serb

 6    detainees.

 7            Now, this approach of the Trial Chamber of slicing a joint

 8    criminal enterprise into a number of separate joint criminal enterprises

 9    is dealt with in paragraphs 222 to 230 of the Prosecution appeal brief.

10    But Prosecution submits that this is a wholly artificial and unrealistic

11    analysis.  All of the crimes occurred in the same place, at the same time,

12    against the same victim group in the same detention facility of which the

13    respondent was the warden.  The Trial Chamber found that the unlawful

14    imprisonment was effected by a joint criminal enterprise.  From there, the

15    question is whether the enterprise extended to inhumane living conditions;

16    and in the Prosecution's submission, that is the only reasonable

17    conclusion.

18            At paragraph 134, the Trial Chamber found that there was a

19    deliberate policy of isolating detainees in the KP Dom.  At paragraph 135,

20    it found that non-Serb detainees were deliberately housed in cramped

21    conditions.  At paragraph 138, it said that it was satisfied that the

22    suffering of the non-Serb detainees during 1992 was the result of a

23    deliberate policy on the part of those in charge of the KP Dom.  At

24    paragraph 139, it said that there was a deliberate policy to feed the

25    non-Serb detainees barely enough for their survival.  At paragraph 140, it

Page 63

 1    said that there was a deliberate policy of withholding available medical

 2    supplies for non-Serb detainees.

 3            In our submission, such deliberate policies again cannot be the

 4    result of acts of individuals acting alone or of numbers of different

 5    individuals each acting individually.  They can only be the result of a

 6    joint enterprise; and given the unity of time, place, victim group, the

 7    only reasonable conclusion was that it was part of the same joint criminal

 8    enterprise as the unlawful imprisonment.

 9            Now, that deals with the two counts to which this ground of appeal

10    relates, and although unnecessary to decide for the purposes of this

11    ground of appeal, on the facts as found, in our submission, other crimes

12    committed in the camp were clearly also part of the same joint criminal

13    enterprise.

14            In relation to the beatings, at paragraph 248 the Trial Chamber

15    found that they took place on a frequent and systematic basis.  At

16    paragraph 311 it referred to the widespread nature of the beatings.  At

17    paragraph 273 it described a consistent pattern of conduct in relation to

18    the beatings in the camp, and this pattern is referred to again at

19    paragraphs 264 and 275.

20            The same reasoning, we submit, would apply to the killings.  The

21    Trial Chamber found that the killings followed a pattern, which is

22    described in paragraphs 333 to paragraphs 335.  Again, such a systemic

23    pattern cannot be the result of acts of individuals; it can only be the

24    result of a joint criminal enterprise.

25            Similarly, the forced labour.  There is no dispute in this case

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 1    that there was an organised labour programme at the KP Dom, and for the

 2    reasons that will be given by my colleague Ms. Rashid, we submit that in

 3    the circumstances of the KP Dom, no valid consent could be given by the

 4    detainees to undertake the labour, therefore there was a systematic

 5    campaign of forced labour.

 6            In relation to the deportations, we refer to paragraph 49 of the

 7    trial judgement where the Trial Chamber found that the expulsion --

 8            THE INTERPRETER:  Could the counsel please slow down.

 9            MR. STAKER:  My apologies to the translators.

10            Paragraph 49 of the trial judgement.  The Trial Chamber found that

11    the expulsion, exchange, or deportation of non-Serbs, including detainees

12    at the KP Dom, was the final stage of the Serb attack upon the non-Serb

13    civilian population in Foca municipality.  And towards the end of the

14    paragraph it said:  "In late 1994, the last remaining Muslim detainees at

15    the KP Dom were exchanged, marking the end of the attack upon those

16    civilians and the achievement of a Serbian region ethnically cleansed of

17    Muslims.  By the end of the war in 1995, Foca had become an almost purely

18    Serb town."

19            The deportations, in our submission, can only be regarded as the

20    result of a joint criminal enterprise, and again, given the unity in time,

21    place, and victim group, the only reasonable inference is that it was part

22    of the same joint criminal enterprise as the unlawful detention, living

23    conditions, and other crimes that were committed.

24            Unless I can assist the Chamber further, those are the

25    Prosecution's submissions in relation to the first ground of appeal.  With

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 1    the Chamber's permission, I would then move to the second ground of

 2    appeal.

 3            The Prosecution's second ground of appeal relates to the finding

 4    in paragraphs 84 to 86 of the trial judgement that the accused could not

 5    be held liable for the extended form of joint criminal enterprise

 6    liability unless the extended form of this liability was pleaded in the

 7    indictment.

 8            The background to this ground of appeal is that at trial, the

 9    Prosecution submitted a second amended indictment pleading a common

10    purpose case, following which the respondent filed a preliminary motion

11    under Rule 72, complaining that the indictment was insufficiently precise

12    in relation to certain details.

13            In a decision on this Defence preliminary motion dated 11th of

14    May, 2000, the Trial Chamber denied this preliminary motion, but in its

15    decision, it referred in paragraph 11 to the three categories of joint

16    criminal enterprise cases identified in the Tadic appeal judgement,

17    following which it added, and I quote:  "As the indictment is silent on

18    the subject, it is unnecessary for present purposes to consider the last

19    of those categories."

20            Now, the Prosecution trial team didn't understand this to mean

21    that it was required to amend the indictment if it intended to rely on

22    that third category.  And in fact in its pre-trial brief, dated the 16th

23    of October 2000, the Prosecution referred in footnote 23 to that

24    interlocutory decision and said that the Trial Chamber had recognised the

25    relevance of at least the first two categories of joint criminal

Page 66

 1    enterprise liability and stated that the Prosecution asserted that all

 2    three categories applied.

 3            And then paragraphs 57 to 63 of that pre-trial brief dealt with

 4    the third category.  The Prosecution's argument, just to explain, was that

 5    the accused had allowed outsiders to enter into the KP Dom and that it was

 6    a natural and foreseeable consequence of allowing them in that beatings

 7    and other acts of mistreatment would be the consequence.

 8            The same contention was raised again in the Prosecutor's final

 9    trial brief, dated 13th of July, 2001, in which it also relied on this

10    third category.  Nevertheless, in the trial judgement, the Trial Chamber

11    held, at paragraph 86, that in the exercise of its discretion in light of

12    its own express interpretation that only a basic form of joint criminal

13    enterprise had been pleaded, the Prosecution would not be allowed to rely

14    upon the extended form.

15            The Prosecution submits that there was an error in so holding.  I

16    point out that as the Prosecution does not rely on this third category in

17    this appeal, it is not necessary to decide strictly, but the Prosecution

18    raises it as a ground of general importance to the case law of the

19    Tribunal.

20            The reasons are set out in the appeal brief of the Prosecution,

21    and I have very little to add.  Our basic proposition is that the right of

22    an accused under Article 18(4) of the Statute -- sorry, under Article

23    21(4)(a) is "to be informed promptly and in detail in a language he

24    understands of the nature and cause of the charge against him," and this

25    right is given effect by Article 18(4) of the Statute and Rule 47(c) of

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 1    the Rules of Procedure and Evidence which require the indictment to

 2    contain a precise statement of facts and the crime or crimes with which

 3    the accused is charged.  And the crimes, in our submission, mean the

 4    substantive crimes under Article 2 to 5 of the Statute, not modes of

 5    liability under Article 7(1).

 6            For that proposition, we rely on the Celebici appeal judgement at

 7    paragraph 351.  In that case, the indictment had charged the accused with

 8    participating in certain crimes.  The accused argued that as he had not

 9    been expressly charged with aiding and abetting, he could not be convicted

10    of aiding and abetting.  And the Appeals Chamber said, at paragraph 351,

11    that the word "participation" here is broad enough to encompass all forms

12    of responsibility which are included within Article 7(1) and that although

13    greater specificity in drafting indictments is desirable, failing to

14    identify expressly the exact mode of participation is not necessarily

15    fatal.  And it also pointed out that no complaint had been made prior to

16    trial about this, that the accused -- no complaint that did he not know

17    the case that he had to meet and that it was too late to raise the

18    complaint at that point.

19            I would make three points arising out of this decision.  First,

20    it's clear that an indictment is not necessarily defective merely because

21    it pleads Article 7(1) in general terms without specifying any mode of

22    liability.  And joint criminal enterprise, in our submission, is clearly a

23    mode of liability under Article 7(1) and would be included in any such

24    formulation.  And for the same reason, if an indictment expressly alleges

25    joint criminal enterprise liability, in the absence of some indication to

Page 68

 1    the contrary, it must be taken to include all three categories.

 2            Secondly, the question is not whether the mode of liability is

 3    pleaded but whether the accused is given sufficient notice of the case he

 4    has to meet.

 5            And thirdly, this decision of the Appeals Chamber, in our

 6    submission, stands for the proposition that any objections have to be

 7    raised at the appropriate time.  The Appeals Chamber in the Celebici

 8    appeals judgement applied the waiver rule that an objection could cannot

 9    be raised for the first time on an appeal, but in our submission, that is

10    an application of the broader principle that any objection has to be

11    raised at the appropriate time.  Objections to defects in the form of the

12    indictment are to be raised at the pre-trial stage.  In our submission, if

13    an indictment clearly includes in a general formulation a particular mode

14    of liability, the accused knows what's included.  It would be too late to

15    raise an objection, for instance, in the final trial brief.

16            Just to conclude with a practical example, the example of a case

17    where the third category of joint criminal enterprise liability has been

18    applied was in the Tadic case.  If one looks at the way the indictment in

19    the Tadic case was pleaded, paragraph 12 of that indictment said that on

20    about the 14th of June, 1992, armed Serbs including Dusko Tadic entered

21    the area of Jaskici, that armed Serbs killed a certain number of victims

22    as a result of which Dusko Tadic committed murder.  It's submitted that on

23    that wording, it's perfectly clear that the Prosecution case must either

24    be that the accused personally committed the killings or that the armed

25    group referred to had the joint common purpose of committing the killings

Page 69

 1    or that the armed group referred to had a joint other criminal purpose but

 2    that the killings were the natural and foreseeable consequence of that.

 3            In our submission, it may not be known until all the evidence is

 4    in precisely what the position was and that the Defence would not be

 5    materially assisted simply by mechanically pleading all forms of liability

 6    under Article 7(1).  An indictment is not required to plead evidence.

 7    It's not required to plead the law.  It's required to plead the facts, and

 8    the facts put the Defence on sufficient notice of what the case is that

 9    needs to be met.  In our submission, the indictment is valid and all

10    charges within it must be considered by the Trial Chamber.

11            In this case, in our submission, there was no complaint made by

12    the Defence at the appropriate time despite the fact that this form of

13    liability was relied on expressly in the Prosecution pre-trial brief.

14    There has been no showing that the Defence was prejudiced by this.  And in

15    our submission, as a matter of law, the Trial Chamber was in error in

16    refusing to consider this form of liability.

17            And unless I can be of further assistance, they are the

18    submissions on the Prosecution's second ground of appeal.

19            With the Appeals Chamber's leave, I would invite you to call upon

20    my colleague Ms. Brady to continue the Prosecution's submissions.

21            MS. BRADY:  Good morning, Mr. President, and Your Honours.  This

22    morning, I'll be addressing two grounds of the Prosecution appeal, the

23    third ground of appeal on torture and the fifth ground of appeal which is

24    persecution based on beatings.

25            Your Honours, both grounds of appeal relate to the beatings that

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 1    happened in KP Dom, and more specifically to Krnojelac's criminal

 2    liability under Article 7(3) for 50 or so beatings which were established

 3    by the Trial Chamber as occurring in the KP Dom at the relevant time

 4    during his term, Krnojelac's term as warden and which reached a level of

 5    seriousness or gravity so as to amount to cruel treatment and inhumane

 6    acts.

 7            Before I turn to each ground separately, I would like to point out

 8    that there is a significant difference in the two areas, in the timing of

 9    when these errors occurred.  The error on torture occurred at the 7(3)

10    stage of the court's analysis.  Even though 14 of the beatings which were

11    established met all the legal requirements, all the legal elements for the

12    crime of torture, the Trial Chamber limited Krnojelac's superior

13    responsibility for these beatings to cruel treatment and inhumane acts

14    only.  And as I'll show you, as we've already set out our submissions in

15    the brief and as I plan to take you through some of the salient points in

16    our brief, this was through a fundamentally flawed application of the

17    Celebici had-reason-to-know test for mens rea for 7(3) liability.

18            On the other hand, the error regarding persecution based on

19    beatings was at an earlier stage of analysis and one could call it at the

20    stage of crime base analysis.  Though more than 50 -- 50 to 60 beatings

21    were established on the evidence, the Trial Chamber found only two, only

22    two of these beatings were persecution, and these on political grounds.

23    For all of the other beatings which were established and there is a

24    sizable number of beatings that that relates to, the Trial Chamber, and

25    this is -- was wrongly, in our view, was not satisfied that they were

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 1    persecutory and we say -- our submission is that this was due to a wholly

 2    erroneous evaluation of the evidence, and in particular, its complete

 3    failure to consider and make proper inferences from the systematically

 4    discriminatory environment of the KP Dom in which all the beatings

 5    occurred.

 6            Turning first to the third ground of appeal on torture.  In our

 7    submission, the proper adjudication of Krnojelac's liability under 7(3)

 8    for these 14 -- I'll call them torture beatings, should be just as that,

 9    as torture.  He should be convicted under counts 2 and 4 for torture and

10    not under counts 5 and 7 for cruel treatment and inhumane acts.  And we

11    also submit that this increase in the gravity -- in the crime base -- in

12    the crimes for which he should bear responsibility should be reflected

13    accordingly in his sentence.

14            How exactly did the Trial Chamber err?  It was by finding that

15    even though Krnojelac knew - and let's remember we're talking about

16    actually knew - that widespread beatings were going on in KP Dom.  This

17    did not give him reason to know that some beatings may have been conducted

18    for a prohibited purpose of torture.

19            And, Your Honours, I take you to the findings of the Trial Chamber

20    in its judgement relating to how he had actual knowledge of the beatings,

21    and there in paragraphs 309 to 311 and, as well, paragraph 316.

22            In the circumstances of this detention centre, how could a Trial

23    Chamber conclude that he was not placed on notice of the risk of torture?

24    And we must remember that we're not speaking about -- we're not -- the

25    torture we speak of is not some wholly different form of conduct.  In

Page 72

 1    reality, what we're talking about is a deliberate and aggravated form of

 2    the beatings.  Some of those beatings met that criteria of being

 3    deliberate and aggravated and, hence, torture.

 4            Our proposition is a very simple one.  Applying Celebici to the

 5    facts of this case can lead to only one reasonable conclusion, and that is

 6    that by actually knowing of the beatings going on within KP Dom, he was on

 7    notice of the risk that at least some of them may have resulted in

 8    torture.  His knowledge of the beatings in this KP Dom environment was

 9    enough to alert him to the need for additional information or to conduct

10    an investigation to ascertain whether torture by beatings was being

11    committed by his subordinates.

12            This fits squarely within the Celebici test, and we know from that

13    case which has been endorsed by -- the test has been endorsed by this

14    Chamber in the Celebici Appeals Chamber judgement as well as more recently

15    in the case of Bagilishema.  We know that the information which puts a

16    superior on notice doesn't need to point conclusively to the existence of

17    crimes, only to the need for some further action.  And it doesn't -- nor

18    does it need to point to specific crimes.  And we know this.  This is best

19    summarised by the Appeals Chamber itself in Celebici at paragraph 238 when

20    it said:  "A showing that a superior had some general information in his

21    possession which would put him on notice of possible unlawful acts by his

22    subordinates would be sufficient to prove that he had reason to know.

23    This information does not need to provide specific information about

24    unlawful acts committed or about to be committed."

25            And this is what leads the Appeals Chamber to give the example in

Page 73

 1    Celebici of the commander who knows his soldiers are of a violent

 2    disposition or have been drinking before a mission, he can be said to have

 3    reason to know that his subordinates may commit crimes and will be

 4    responsible for those crimes on that basis.

 5            Nor does the superior need to be in actual possession of the

 6    information about the crimes committed by the subordinates.  It's

 7    sufficient if he was provided with the relevant information.  Even if the

 8    information was made available to him.  If the information is objectively

 9    alarming, his duty to inquire or to investigate, thereby, is triggered.

10    And as I said before, this has been endorsed by the Appeals Chamber in

11    Celebici and in Bagilishema, and in particular in Bagilishema, it was --

12    the Chamber there has held that this test applies equally to military and

13    civilian superiors.

14            Our submission is that when a person is the warden of such a

15    prison as this for 15 months, who has an office right in the centre of the

16    complex, who is told by at least one detainee, the witness RJ, that the

17    detainees could hear the sounds of beatings, who personally saw one

18    detainee, the detainee Ekrem Zekovic, being beaten as punishment for an

19    attempted escape, and who had every opportunity to observe the physical

20    manifestations of the widespread and brutal beatings which the Trial

21    Chamber itself said must have been obvious to everyone, and when all of

22    this -- when all of this is considered against the fact that he knew the

23    discriminatory nature of the imprisonment and of the discriminatory nature

24    of the inhumane living conditions for the detainees, and indeed he knew

25    that the interrogations in the camp were pervasive, that interrogators

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 1    were coming in and out, interrogations could be said to have been a daily

 2    feature or at least a very frequent feature of life in the KP Dom, with

 3    all these facts, the only reasonable conclusion must be that he was placed

 4    on notice of the risk of torture.

 5            I don't need to remind Your Honours that the cornerstone of

 6    superior responsibility is in failing to do anything in the face of

 7    adequate information.  And again, to quote from the Celebici Appeals

 8    Chamber:  "The point is not that knowledge may be presumed if a person

 9    fails in his duty to obtain the relevant information of a crime but that

10    it may be presumed if he had the means to obtain the knowledge but

11    deliberately refrained from doing so."  And that's the exact situation

12    that we have here.

13            This is -- the analysis that we say should be applied -- should

14    have been applied by the Trial Chamber is the very one which was used to

15    find Mucic himself liable under Article 7(3) for six tortures -- for many

16    crimes in Celebici, but including six tortures in the Celebici camp.

17            The Trial Chamber found that since Mucic knew or had reason to

18    know of -- that violations of international humanitarian law were going

19    on, this was sufficient inquiry notice making him liable for all the

20    crimes in the camp, including torture.  And this was upheld in the Appeals

21    Chamber.

22            I also would invite Your Honours to look at the application of

23    7(3), the test on reason to know under 7(3).  When the Trial Chamber, the

24    Krnojelac Trial Chamber applies this test in relation to persecutory

25    beatings -- you will recall the two persecutory beatings were actually

Page 75

 1    established as happening in the camp, and when they came to apply the

 2    reason-to-know test to find him responsible for these persecutory beatings

 3    in relation to two detainees, it correctly applied the test in the way we

 4    say they should have for the torture beatings.  And I would invite Your

 5    Honours to look in particular at paragraphs 493 and 497 to 498 of the

 6    judgement.

 7            In particular, the Trial Chamber held in 493 that the Prosecution

 8    must prove that the accused had information in his possession sufficient

 9    to put him on notice as to the commission of the underlying offence and

10    its commission on discriminatory grounds.  But see how they apply the

11    test, and that's in 497 to 498.  Had the accused, they say - the Trial

12    Chamber says - had the accused acted upon information within his

13    possession with respect to beatings, any investigation would have made

14    clear to him the discriminatory nature -- the discriminatory intent of the

15    principal offender.

16            Your Honours, I would also invite you to look at the treatment of

17    two detainees in particular.  We've fully set out our arguments on this in

18    our appeal brief at paragraphs 436 to 438 in relation to the detainee

19    Dzemo Balic in paragraph 5.15 of the indictment and then what happened to

20    him in the isolation cell immediately following, which was the incident

21    before.

22            Just to very briefly summarise to show you this inconsistent and

23    wrong application of 7(3), Dzemo Balic was taken out of the canteen line

24    and then severely beaten by two KP Dom guards in the administration

25    building.  At the time that the beating occurred, one of the guards made a

Page 76

 1    comment to the effect of, "Oh, you're the one who promised Alija eight

 2    kilogrammes of Serbian eyes."  And he was severely beaten at this time,

 3    and then later he was put into the isolation cell for about 20 days and

 4    further questioned, and the questions were basically concerning his SDA --

 5    his activities as a member or alleged member of the SDA and where weapons

 6    were and drawing up lists and the like.

 7            Well, in relation to the first part of what happened, the initial

 8    beating, there the Trial Chamber found, well, yes, it is persecution and

 9    made him responsible under 7(3).  But what happened to him later, which

10    was literally just a continuum really of his first beating, what happened

11    to him later was classified as torture.  And for this particular aspect of

12    his beating, he did not bear 7(3) responsibility for that.

13            So I think that one example does draw out an inconsistent approach

14    by the Trial Chamber and also a wrong application of 7(3) when it comes to

15    torture.  And I won't go into it now, but there's another very compelling

16    example in relation to the witness FWS-03 and his two other co-victims,

17    Dedovic and Sabanovic, in paragraph 5.23.

18            In sum, Your Honours, our submission is that Krnojelac should not

19    be entitled to evade the full scope of liability by doing nothing in the

20    face of information which was clearly sufficient to place him on notice of

21    the risk of torture.  And indeed, to make such a finding runs completely

22    counter to the very heart, indeed the very raison d'etre of superior

23    responsibility.

24            Those, Your Honours, are my submissions on torture.  If I can be

25    of assistance on that ground.  Otherwise, I can turn immediately to the

Page 77

 1    fifth ground, which is persecution based on beatings.

 2            JUDGE SHAHABUDDEEN:  Ms. Brady, should I understand your

 3    presentation this way: That you're saying the accused knew of the beatings

 4    and he knew that interrogations were going on and, therefore, these things

 5    were sufficient to put him on notice of a risk that the beatings were for

 6    the purpose of eliciting the information required by the interrogations?

 7    Is that the way you state your case?

 8            MS. BRADY:  Indeed, Your Honour.  Yes.

 9            JUDGE SHAHABUDDEEN:  Thank you.

10            JUDGE SCHOMBURG:  May I, in addition, ask why in this case do you

11    refer to 7(3) responsibility only in line with that what we heard

12    beforehand by your colleague?  Couldn't it be also the case, based on the

13    case law, that there would be a 7(1) responsibility as co-perpetrator,

14    knowing about that what was going on, but participating but not

15    intervening.  So committing in the sense of omitting because allegedly, I

16    take it that it would be your case, that he had the duty to intervene and,

17    therefore, the question once again, why not 7(1) responsibility?

18            MS. BRADY:  Yes, Your Honour.  Indeed we would say that he could

19    equally have been responsible on a 7(1) theory for these crimes, and we

20    would use the same analysis as used by the Trial Chamber seen most clearly

21    in paragraph 316 of the judgement where they actually made the finding in

22    relation to just beatings per se, beatings as cruel treatment or inhumane

23    acts that the Trial Chamber is satisfied that the accused knew of the

24    beatings and by failing to take any appropriate measures which he as the

25    warden as obliged to adopt, he encouraged these acts at least in respect

Page 78

 1    of his subordinates, and on that basis they were satisfied that his

 2    liability for, in this case, aiding and abetting the beatings pursuant to

 3    7(1) was established.  That would equally be applicable here.

 4            However, we also accept that the Trial Chamber has room to

 5    manoeuvre, as it were, discretion as to finding the appropriate

 6    classification to describe best a person's criminal responsibility, and

 7    here the Trial Chamber decided that on this particular facts of the

 8    beatings being done by the guards and the guards in conjunction with the

 9    outsiders coming in, that the more appropriate basis of his liability is

10    to think about it under 7(3), and for that reason we confined our appeal

11    ground basically to that finding of the Trial Chamber's judgement.  But

12    there's definitely equally no other -- he could just as equally be

13    convicted under a 7(3) mode of liability.  You're quite right.

14            Thank you, Your Honours.  If there is no further questions on that

15    ground, I'll proceed to my next ground, which is the fifth ground of

16    appeal, persecution based on beatings.

17            It's our submission that it was wholly unreasonable of the Trial

18    Chamber to find that out of the multitude of beatings in the KP Dom, over

19    50 to 60 beatings which were established on the evidence, that only two of

20    these amounted to persecution.  And in our submission, the Trial Chamber

21    failed to draw the only rational and reasonable inference available from

22    the evidence as to the discriminatory nature or grounds of these beatings,

23    and it was simply wrong of the Trial Chamber to not consider the evidence

24    proving the overwhelmingly discriminatory prison setup.  This was a prison

25    set up systematically discriminatory environment which pervaded every

Page 79

 1    aspect of the detainees' lives, from the initial imprisonment, why they

 2    were there, through to their inhumane conditions, how they had to live,

 3    down to the rules imposed upon them, very strict rules governing their

 4    lives in the KP Dom.

 5            In effect, Your Honours, what the Trial Chamber did was to divorce

 6    the evidence on beatings from the surrounding evidence of the

 7    discriminatory system in which they took place and then to sort of

 8    artificially, after compartmentalising the evidence on the beating,

 9    analyse each one in turn.

10            Just to make it very clear, the error I'm speaking about actually

11    effects all the beatings in the KP Dom, but for this, for the purposes of

12    this appeal, we've restricted the impact of the error to those beatings

13    which rose to cruel treatment, inhumane acts, and the conduct is not

14    already covered in our torture ground.  And this leaves a sizable number

15    of beatings, almost 40 beatings, to be included in the persecution count

16    under Article 7(3).

17            We're talking here about the Trial Chamber's error in failing to

18    find that the actual assailants, the actual beaters, acted with the

19    requisite discriminatory innocent.  And, Your Honours, this is a very or

20    most curious finding.

21            The Trial Chamber made extensive findings on the deliberately

22    discriminatory nature of the imprisonment.  They were there because they

23    were Muslims or non-Serbs.  And the deliberately discriminatory nature of

24    the inhumane conditions under which they were detained.  Take a look at

25    paragraphs 438, 440, 443 of the judgement for those findings.

Page 80

 1            Indeed, for every aspect of what the detainees had to endure while

 2    they were in KP Dom, the lack of food, the lack of heat, the lack of

 3    adequate clothing, lack of access to medicine, the rules, well, here the

 4    Trial Chamber was prepared to accept that they were carried out with the

 5    intent to discriminate on religious or political grounds and they were

 6    persecutory, but not the beatings.  And for these, what the Trial Chamber

 7    has done is to positively reject evidence of the discriminatory context in

 8    which the beatings occurred as evidence from which inferences can be made

 9    as to the discriminatory nature of the beatings, and we see this most

10    clearly in paragraphs 436 and 437, and footnote 1345.

11            So having taken this rejection of the context, this more or less

12    boxed in the Trial Chamber and forced it into a virtual corner.  It had to

13    then look at all the evidence on the beatings and specifically look for

14    evidence that the beater at the time of beating sort of verbally expressed

15    or did something overt to express his intentions.  And if they didn't find

16    that evidence, then there was no discriminatory grounds established.

17            Your Honours, we can well understand the Trial Chamber placing

18    some limits on inferring the discriminatory nature of an attack simply

19    because it's happening in the process of a wider discriminatory attack.

20    But it's an entirely different matter when the beatings themselves are so

21    very proximate to the discriminatory context of the criminal enterprise.

22    I'd like to think of the KP Dom being almost like a confined

23    discriminatory bubble in which all this activity is going on.  We're not

24    talking about drawing inferences from what's going on in Foca, the wider

25    attack, the discriminatory of what's going on in the wider town and

Page 81

 1    municipality.  We're talking about drawing natural inferences from the

 2    very place, the very system in which these were a fundamental, integral

 3    feature of this systematically discriminatory place.

 4            In this context, it was utterly unreasonable to separate the acts

 5    of beatings from their context.  The beatings were as much a part of the

 6    system of discriminatory treatment at KP Dom as the shocking living

 7    conditions such as no -- the lack of food and the lack of heat and the

 8    cramped cells.  They're integral.  So how can all aspects of their

 9    terrible living conditions be discriminatory but not the beatings which,

10    after all, is just another way, another form of breaking down the

11    detainees' mind and body?

12            We, in this respect, would follow the approach in the Kvocka

13    judgement, the Tadic Trial Chamber has taken this approach.  Jelisic Trial

14    Chamber took this approach in -- for genocide.  Even the Trial Chamber in

15    Kordic.

16            Absent evidence to the contrary, in an environment like KP Dom's,

17    which is overwhelmingly, persistently, systematically discriminatory, an

18    evidentiary presumption must arise that for acts committed in furtherance

19    of that system, such as the beatings, these were also carried out with an

20    intend to perpetuate that discrimination.

21            Of course, we recognise there is a possibility that there may be

22    another reason, another reason which completely overrides the

23    discriminatory reason for a particular beating.  In that case, then the

24    Prosecution would have to obviously discount that to the relevant

25    burden -- to the relevant standard, and the Prosecution always bears the

Page 82

 1    burden of proof in this respect.

 2            We would submit that this approach of drawing the only rational

 3    and natural inferences from the close, very close environment in which

 4    they took place is far safer than relying on express statements of

 5    intention merely because a beater happened to verbalise his intention and

 6    the victim remembered it as well.  So what are we saying, that well, if a

 7    beater is silent or if the beater beats the victim to such a pulp that the

 8    victim doesn't remember anything being said because he lost all

 9    consciousness during most of it, then, what, that is not going to

10    be -- well, we're not going to have evidence of persecution in that sort

11    of situation if we're always looking for --

12            THE INTERPRETER:  Could the counsel slow down, please.

13            MS. BRADY:  -- discriminatory intent.  Again, I, in the interests

14    of time, will refer you to the examples in the brief relating to

15    Dzemo Balic and Witness 3, FWS-3, to show you that this kind of approach

16    is really, with respect, absurd.

17            What's the only reasonable conclusion?  That all beatings in

18    KP Dom were carried out on discriminatory grounds, even those which were

19    done for a confession or to get a confession or for punishment.

20            In this case, in the case of -- if there was another intention

21    there like punishment, then the beater is acting more or less with a

22    mixture of intentions, and I think it would be disingenuous not to

23    recognise the most obvious one, that is discrimination on religious or

24    political grounds even if the information -- even if the evidence also

25    shows he intended to get information or to intimidate or even if there was

Page 83

 1    a personal reason mixed up in that mind.

 2            As we know, the discriminatory intent need only be a significant

 3    one and not the sole or dominant one.

 4            Your Honours, I have one very brief final submission I would like

 5    to make on this ground, and that just -- that concerns the requirement in

 6    the actus reus, the Trial Chamber's interposition of a legal requirement

 7    that in order to show that discrimination in fact has occurred, the victim

 8    must objectively belong to the racial, religious, or political group being

 9    persecuted.  So the Trial Chamber's group regarding discriminatory -- the

10    Trial Chamber's test on discriminatory consequences wouldn't include, for

11    example, sympathisers of the group or people who were actually mistaken as

12    being members and turned out not, to objectively bear those criteria.

13            It is not strictly necessary for this appeal to specifically

14    address this issue since here all the victims of the beatings are

15    objectively members of the targeted group, i.e., non-Serbs and

16    specifically in relation to beatings they're all Muslim.  So that extra --

17    even if that test exists, the extra element is met here on these facts.

18    But we do reject this extra legal element in the definition of

19    persecution, this requirement in the actus reus, and we follow -- we adopt

20    the judgement in Kvocka on this issue at paragraph 195, and Tuta, Stela at

21    paragraphs 636, and Blaskic and Tadic Trial Chambers.  The question of

22    whether discrimination in fact has occurred must be looked at from the

23    point of view of the perpetrator.  That is, victims are discriminated in

24    fact when targeted for who are what they are perceived to be by the

25    perpetrator.  And in our view, this is the only view which accords with

Page 84

 1    the social value protected by the crime of persecution which is aimed at

 2    protecting certain groups and their members from harm.

 3            Your Honours, this concludes my submissions, and if I can be of

 4    further assistance.

 5            Your Honour, if there are no questions, I would like to introduce

 6    the -- my next speaker, Ms. Norul Rashid, who will speak to you on two

 7    grounds of appeal, grounds 6 and 7, on deportation and forced transfer.

 8            JUDGE JORDA: [Interpretation] In order to make up some of the time

 9    we -- we are missing, I suggest that we go until 10.50.  That will give

10    about an hour and a half to the Prosecution to express -- to put forward

11    its arguments.  So we will go on for about another 15 minutes.

12            MS. RASHID:  May it please the Court.  Your Honour, I will use up

13    the next 15 minutes allocated to me to submit, to make submissions on the

14    seventh ground of appeal.  I will start with that first and then I'll move

15    on to the sixth ground of appeal.

16            Your Honour, the respondent was charged under --

17            JUDGE JORDA: [Interpretation] Excuse me.  Not 15 minutes, no, no.

18    But we'll take a break in 15 minutes.  But of course the Prosecutor still

19    has time after the break, another hour.  So you can organise yourself

20    accordingly.  But we'll take our break ten of.  All right.  Thank you.

21            MS. RASHID:  Your Honour.  He was charged and acquitted of

22    deportation and expulsion of Muslim and other non-Serb civilians detained

23    in the KP Dom facility, to Montenegro and other places which are unknown.

24    And this has been charged as persecution under count 1 of the indictment.

25            Your Honours, in this ground of appeal, it is our contention that

Page 85

 1    the Trial Chamber erred in its findings on deportation and expulsion as

 2    persecution.  We have raised in our appeal brief five specific errors of

 3    law and fact, and that has been -- and they have been comprehensively

 4    addressed.

 5            For purposes of this hearing and in view of the time allocated, I

 6    propose to address the first limb of this ground of appeal.

 7            Your Honour, we submit that the Trial Chamber erred in law in

 8    holding that the acts of forcible displacement charged as persecution

 9    require proof that the victims were forcibly displaced across a national

10    border and that deportation is to be distinguished from forcible transfer

11    which may take place within national boundaries.

12            The Trial Chamber was in fact satisfied that the majority of the

13    incidents alleged by the Prosecution in Annex 4 of the indictment do

14    constitute deportation and expulsion did take place.  These incidents may

15    be divided into categories; transfer of detainees to other prison camps,

16    so-called exchanges, and so-called work duty outside the KP Dom which some

17    of the detainees were performing.

18            It is the Prosecution's principal submission that deportation

19    under Article 5 of the Statute and the act of expulsion include not only

20    unlawful displacements across a national boundary but also unlawful

21    displacements within a state's national boundaries.

22            The provisions of international law, Your Honour, regulating

23    international armed conflicts should not limit the prohibition against

24    deportations as a crime against humanity under Article 5 to cross-border

25    transfers.  In this context, deportation should be viewed as an umbrella

Page 86

 1    term encompassing acts of forcible displacement whether internal or cross

 2    a border.

 3            There are just three points I wish to highlight for Your Honours'

 4    consideration.  First, we submit that the key in attempting to define the

 5    scope and content of deportation as a crime against humanity lies in

 6    identifying the interests or the harm that it seeks to protect.  The

 7    primary harm protected by the prohibition of deportation in contemporary

 8    international law must be the unjustified interference with the right of

 9    individuals to remain in their homes and in their communities.

10            Undoubtedly, the immediate consequences of unlawful displacement

11    usually constitute violations of basic human rights.  In the context of

12    human rights law, displacement threatens the life, the liberty, and the

13    security of the displaced, rights which are guaranteed, for instance, in

14    Article 3 of the Universal Declaration, Article 6 of the International

15    Covenant on Civil and Political Rights.  Freedom of movement is inherently

16    breached when displacement occurs not only because the displaced are

17    invariably restricted - for instance, some of them may end up in detention

18    camps - but also because they cannot exercise their right to return to

19    their home country or principal area.

20            The Trial Chamber in Krstic, at paragraph 523 of the judgement,

21    for --

22            THE INTERPRETER:  Could the speaker speak a little more slowly,

23    please.

24            MS. RASHID:  My apologies to the translators, Your Honour.  I'll

25    slow down.

Page 87

 1            -- for instance, noted that any forced displacement is by

 2    definition a traumatic experience which involves abandoning one's home,

 3    losing property, and being displaced under duress to another location.

 4            If we go back in time, it must be recalled, for instance, that

 5    during the First World War, the German deportation and population transfer

 6    were for very specific purposes.  They were for purposes of subjecting the

 7    people to extermination, slavery, and forced labour in accordance with the

 8    final solution, regardless of whether the Nuremberg accused were indicted

 9    for deportation for purposes of forced labour, a war crime, or deportation

10    simpliciter, crimes against humanity.

11            In the context of the former Yugoslavia, it is pertinent to

12    recall, Your Honour, very briefly the final report of the commission of

13    experts, page 33 which define ethnic cleansing in these terms.  Considered

14    in the context of the conflict in the former Yugoslavia means rendering an

15    area ethnically homogenous by using force or intimidation to remove

16    persons of given groups from the area, carried out by various means which

17    include forcible removal, displacement, and deportation of civilian

18    population.

19            Ahmici, April 1993.  The Kupreskic Trial Chamber found, at

20    paragraph 760 to 762 of the trial judgement that the attack on Ahmici as

21    part of an overall campaign in the Lasva River Valley was intended to

22    bring about ethnic cleansing through a systematic and widespread attack.

23    The reason for the forced expulsion, according to the Trial Chamber, was

24    the achievement of territorial homogeneity by the Croats.  The aim of the

25    attack was the forced expulsion of the Muslim population from the area, as

Page 88

 1    from the entire Lasva River valley.

 2            Srebrenica, July 1995.  The Krstic Trial Chamber found that the

 3    transfer of civilians from Srebrenica enclave was carried out in

 4    furtherance of a well-organised policy whose purpose was to expel --

 5            THE INTERPRETER:  Will the counsel please slow down her reading.

 6            MS. RASHID:  -- whose purpose was to expel the Bosnian Muslim

 7    population from the enclave.  According to the Trial Chamber, evacuation

 8    itself was the goal.  Krstic was found guilty of forcible transfer under

 9    Article 5.

10            Foca 1992 to 1995.  In this case, the cleansing of Foca was

11    achieved through various means.  The end result was one; the forced

12    removal of an ethnic group and eviction from their ordinary places of

13    residence.  In this context, the Trial Chamber found at paragraph 49 of

14    the judgement which has been alluded to by my colleague Mr. Staker, that

15    in late 1994, the last remaining Muslim detainees at KP Dom were

16    exchanged, marking the achievement of a Serbian region ethnically cleansed

17    of Muslims.  By the end of 1994, Foca was almost purely a Serb town.

18            The Trial Chamber has essentially accepted that the exchanges that

19    occurred at KP Dom were in fact part of the ethnic cleansing policy

20    practised in Foca between 1992 to 1995.

21            Your Honour, what this demonstrates is simply this:  The focus of

22    deportation as a crime against humanity is, A, the very act of removal and

23    the consequences on the victims; and B, the goal that the perpetrator

24    seeks to achieve by the acts of removal.  The final destination of the

25    victims in this situation is inconsequential.

Page 89

 1            The second point that I wish to make is that there is

 2    compelling -- compelling evidence by way of opinion juris that deportation

 3    and forcible transfer are synonymous.  They're synonymous terms.  There

 4    have been very little attempts, Your Honours, in international instruments

 5    to fully delineate the distinctions between the term deportation and other

 6    crimes described as forcible transfer and unlawful transfer.

 7            The Appeals Chamber must seize this opportunity to try and resolve

 8    this issue, because even at the trial level, the position is still

 9    unclear.

10            The Prosecutor submits that the ICC Statute, the Rome Statute is a

11    significant turning point rejecting a restricted reading of the crime of

12    deportation.  I refer Your Honours to Article 7(1), to (d), which defines

13    the term deportation or forcible transfer conjunctively defined as:  "The

14    forced displacement of the persons concerned, by expulsion or other

15    coercive acts from the area in which they are lawfully present without

16    grounds permitted under international law."  And the footnote pertaining

17    to this provision provides that, "deported or forcibly transferred is

18    interchangeable with forcibly displaced."  Eighty-nine states have

19    ratified the statute.  Australia, Canada, Malta, Estonia, New Zealand,

20    South Africa, UK have all enacted legislation substantially adopting the

21    definition of deportation as set out in Article 7.

22            The conflict in East Timor, Your Honours, section 5.1(d),

23    regulation 2015 lists deportation or forcible transfer of population as

24    crimes against humanity.  The text from the regulation is a direct

25    adoption of the ICC Statute.

Page 90

 1            There is a judgement that I wish to refer Your Honour to from the

 2    East Timor War Crimes Tribunal, and I have included that in the

 3    supplemental book of authorities, Your Honour.  In this case, four of the

 4    11 accused were charged with deportation or forcible transportation of

 5    population to places within East Timor and across to West Timor.  No

 6    distinction was drawn between the civilians who ended up in East Timor and

 7    those who ended up in West Timor.  No distinction was made between the

 8    terms deportation and forcible transfer.  In their judgement, the panel

 9    knows that there was a lack of definition of the requisite elements for

10    the crime of deportation or forcible transfer, but accepted that the

11    rules, the rules of the then-draft ICC Statute, which it noted was

12    substantially grounded on the Additional Protocol II to the Geneva

13    Convention.

14            There is also another case which I have included in the

15    supplemental book of authorities, which is the case of Andrija Artukovic,

16    a District Court in Zagreb case.  The defendant was convicted among other

17    crimes for the arrest and deportation of a victim to a concentration camp

18    in Danica within -- this camp was within the territory of the former

19    Yugoslavia.

20            We submit, Your Honour, that the Blaskic Trial Chamber correctly

21    relied on the ICC Statute at paragraph 418 of the judgement whereby it

22    adopted and accepted the definition set out in Article 7(2)(d).

23            The third point that I wish to make is that there is simply no

24    justification to retain the additional element which the Trial Chamber

25    said exist for the crime of deportation.  There is no justification to be

Page 91

 1    found either in customary or contemporary international law for

 2    deportation to be read this way.  There are, in fact, sound policy

 3    justifications permitting a broader reading of deportation as a crime

 4    against humanity under Article 5(d).

 5            Both forcible transfers and deportations are still crimes against

 6    humanity under Article 5.  There is no hierarchy in terms of the gravity

 7    of all these crimes both internal and cross-border transfers are

 8    proscribed under customary international law.  For example, Article 17 of

 9    the Additional Protocol II, it covers both internal and external

10    transfers.

11            There is, therefore, no suggestion that deportation is more grave

12    requiring an additional element or -- of border crossing.

13            The Rome Statute also -- the Rome Statute's definition accords

14    with the realities of contemporary armed conflicts where it might be

15    difficult at any given point in time to specify the exact borders of a

16    country in conflict.  The situation in East and West Timor is an example.

17    Contemporary conflicts, Your Honour, we've moved away from the Nuremberg

18    situations where there was thousands of transfers from Germany to other

19    places, and we have moved towards civil or internal conflicts.

20            The Trial Chamber, therefore, was essential -- was wrong to have

21    essentially concluded that deportation means a definite and direct act of

22    removal, putting people on buses and requiring the Prosecution to trace

23    the journey of these victims to the border of the state and requiring the

24    Prosecution to prove that each and every detainee was dispatched nowhere

25    else but across the border.

Page 92

 1            Forced displacement can also be practiced in a more indirect, less

 2    organised manner.  This type of displacement can occur in a region where

 3    armed conflict is ongoing or where systematic human rights violations are

 4    being committed.  It is sometimes factored, as the Trial Chamber has

 5    knowledge in this case, under the pretext of an exchange.  It is

 6    irrelevant under which factual veil a person is being displaced.  Criminal

 7    liability attaches once removal is effected no matter which matters are

 8    being used to achieve the goal.  The final destination of the victims in

 9    this case, be it a mass grave at the Gorazde front line in

10    Bosnia-Herzegovina for at least two of the detainees, the 20 men

11    supposedly taken for exchange and simply disappeared, the 35 men who were

12    eventually --

13            THE INTERPRETER:  Will the counsel slow down, please.

14            MS. RASHID:  -- Montenegro, Your Honour.  The final destination

15    cannot be an element of the crime.  For all these detainees, they could

16    never return to their lawful places of residence.  For all these

17    detainees, they were effectively and, in fact, deported from Foca.

18            Your Honour, determining the accused's responsibility under

19    Article 7(1) as an aider and abettor or co-perpetrator, it must be shown

20    that the accused was aware that the perpetrators forcibly removed the

21    detainees.  The facts or circumstances established the lawfulness or the

22    presence of the persons deported and he must have been aware that they

23    were carried out on discriminatory grounds.  I can do no better than refer

24    the Court to the facts and the evidence set out in the appeal brief

25    the -- to show that the accused did in fact know that the Muslim detainees

Page 93

 1    at KP Dom were being exchanged as part of an elaborate exchange programme.

 2    He was aware of that fact.

 3            He knew that during the 15 months as KP Dom warden, under his

 4    direct supervision these detainees were being allegedly exchanged.  He was

 5    perfectly aware of the fate of these detainees, and I have outlined the

 6    submissions in my appeal brief, Your Honour.

 7            That concludes the submissions on the seventh ground of appeal.

 8            JUDGE JORDA: [Interpretation] Very well.  Thank you very much.  I

 9    think that you should then speak about the sixth ground of appeal, and I

10    suggest that we take a break and that we resume at 11.30.  The court

11    stands adjourned.

12                          --- Recess taken at 10.55 a.m.

13                          --- On resuming at 11.32 a.m.

14            JUDGE JORDA: [Interpretation] We will now resume the hearing.

15    Have the accused brought in, please.

16            Before we move to further argument of the Prosecution, I think

17    that Judge Schomburg would like to intervene.

18            JUDGE SCHOMBURG:  Thank you very much, Mr. President.

19            Not to be misunderstood, especially not by the Defence, with the

20    question of deportation opposed to forcible transfer, we are entering a

21    new terrain, and the jurisprudence no doubt is not settled and, therefore,

22    we have to decide on this and therefore, the question is at the same time

23    directed to the Defence.

24            I must admit that I'm satisfied and appreciate that in this case

25    the Prosecution did not plead forcible transfer as another inhumane act.

Page 94

 1    We have to take this into account.  It is mentioned in the judgement, in

 2    the Trial Chamber's judgement, that this was not pleaded and, therefore,

 3    there is an obstacle to include this.

 4            Why do I appreciate this?  Because I believe the notion of other

 5    inhumane act is to a certain extent conflicting with the principle nullem

 6    crimen sine lege, especially here.  We don't have a precise enough

 7    description of the crime and of the offence.

 8            Therefore, I think the right way is in fact to put the question

 9    whether or not we have an act of deportation before us.

10            Your fundamental first observation is the following; that you say

11    all forcible displacements would amount to deportation.  In your own

12    description, I can follow your line of arguments in as far as you state

13    that in the alternative - and this is paragraph 817 of your arguments -

14    that deportation, the appropriate interpretation of the word "deportation"

15    would be were expelled by a belligerent party from the territory held by

16    that party regardless of whether the boundary concerned is internationally

17    recognised or not.

18            I think it would be only consequent under Article 5 to come closer

19    with -- to this solution because we should be aware that the jurisprudence

20    in its entirety has changed, and we have a case before us where we discuss

21    internal, an internal armed conflict, and therefore, the question before

22    us is -- in fact wouldn't be appropriate to consequently state that when a

23    person is brought from an area of sovereignty or power to another area of

24    power, that this could be and should be called deportation.

25            You made reference to the English notion of deportation.  I think

Page 95

 1    here we don't have a language problem because deportation/deportation, we

 2    have the same notion in all our languages.  And the Latin root of this

 3    word, in my mind, is from one part to the other, in the meaning of you are

 4    in a safe harbour and you are not allowed to stay in this safe harbour.

 5    But then my question would be:  What is, in your mind, opposed to

 6    deportation, expulsion?  Isn't it the same?  Just forcing a person to

 7    leave the area of power.

 8            My question, in addition, would be:  If we would endorse your

 9    first line of arguments, what would be the limitation?  Would it be enough

10    to bring a person from one house to the next house?  Would this be already

11    deportation?  What about these internal forcible transfers in one area of

12    power or sovereignty?  Could this really amount to deportation or wouldn't

13    this be in fact forcible transfer?  And we should be aware that forcible

14    -- aware forcible transfer is, as I said, in my opinion not covered by

15    other inhumane acts.  And in addition, we have in our Statute some rules

16    on forcible transfer in other cases.  Therefore, one could arguably state

17    that this forcible transfer within the area of power does not amount to

18    deportation.

19            That is the first question, the first part of the question.  The

20    second is:  What about the voluntary aspect of the deportation related to

21    those persons brought to Montenegro?

22            Here I think we have an additional problem.  It is your submission

23    that in this case the exchange amounts to deportation, but my question is:

24    Isn't it a fundamental principle of rule when you allege a person to have

25    committed a crime that there must be an alternative that is not

Page 96

 1    punishable, and wouldn't this be the case if you would say that they

 2    shouldn't have done this exchange, but what would be the alternative, to

 3    keep these persons imprisoned?  Wouldn't it be the argument then by the

 4    Prosecution to state they committed continuously this crime of deprivation

 5    of liberty for political and ethnic reasons?

 6            I would appreciate if you could give some comments on these two --

 7    on this twofold question.  Thank you.

 8            MS. RASHID:  Thank you, Your Honour.  Your Honour, with regard to

 9    your first question regarding expulsion and deportation, we have charged

10    under Count 1 deportation and expulsion as opposed to recent cases where

11    we have charged it as deportation and forcible transfer.  There is a

12    difference in the charging practices on the part of the Prosecution.

13            The argument that we made with regard to expulsion is that it is a

14    generic term.  It is not a technical term.  It's not to be found anywhere

15    in the Statute or international instruments.  It's not a specific crime.

16    It has been used by the Prosecution and by the Prosecution in the

17    Kupreskic indictment.  We have secured a conviction for that particular

18    act, expulsion as a persecutory act.  It has been used to describe a

19    persecutory conduct whereby it denotes an attempt or act of forcibly

20    removing the victims from one place.  That is the basic layman's meaning

21    of expulsion, but seen in the context of persecution, it is merely used to

22    define the process by which a person has been removed from an area which

23    is by force or coercive acts, so it is not really a crime as such.

24            It is quite distinct from deportation.  Deportation has been given

25    a legal definition by this Tribunal as well as by reference to the ICC

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 1    Statute, but the end result and the content of these two acts, we're

 2    basically describing the same conduct here.

 3            The terms -- the terms -- the terms used are different, the words

 4    used are different; it's a matter of labelling.  And it is, at the end of

 5    the day, a language trap because we are talking about the same conduct;

 6    external and internal transfers.  And there is nothing in customary

 7    international law or contemporary international law that has drawn any

 8    significant distinction between all these terms:  "Unlawful transfer,"

 9    "forcible displacement," "forcible transfer," "expulsion," and we are now

10    submitting "deportation."  It is just a matter of labelling.

11            With regard to the second part of Your Honour's question, forcible

12    transfer, whether it is possible to effect forcible transfer from one area

13    to another area occupied by -- by the opposing forces, our submission is

14    that yes, it is an alternative argument to our first, main principal

15    argument on deportation.

16            If at all, under Article 5 which describes -- which is a crime

17    against humanity and applies to an armed conflict which may not be

18    characterised as international or internal, if we take the view that you

19    need a specific border crossing that is across another country, you can

20    never charge an individual for deportation as crimes against humanity

21    under Article 5(d).  This cannot be the situation contemplated either in

22    the Nuremberg Charter or under the Statute.  Both -- all forms of

23    transfers are prohibited under customary international law.

24            The scaled down borders that we have advanced, that we have

25    proposed reflects the reality of what is going on in the internal

Page 98

 1    conflicts around the world today.  The former Yugoslavia, for instance,

 2    where the entire conflict was about territorial disputes.  The conflict in

 3    East Timor, for instance.  So, yes, that scaled-down version of a border

 4    we have proposed and which we say is still legal under customary

 5    international law because the basis for that assertion is that all forms

 6    of transfers are prohibited under international law.  We do not think that

 7    this offends the principle of nullem crimen sine lege.

 8            Forcible transfer, I do agree with Your Honour it is not listed

 9    anywhere in the Statute.  It is listed in Article 4, forcible transfer of

10    children as a genocidal act, yes, that's true.

11            The Trial Chambers have, however, at least in two Trial Chambers,

12    Krstic and the recent Tuta and Stela judgements, have decided that

13    forcible transfer could constitute a crime against humanity either under

14    persecution or inhumane treatment, 5(i).  And I do understand -- of course

15    I do realise that in Stakic the Trial Chamber has expressed reservations

16    on that issue.

17            But forcible transfer is not really an issue for purposes of this

18    appeal.  The definition or -- as to whether forcible transfer on its own

19    could constitute an inhumane treatment is not really an issue on this

20    appeal, which is why we have not really addressed these substantively in

21    our appeal.  But if we do have to take a position, then I would adopt the

22    position we took in the Stakic closing brief, the Prosecution final

23    closing brief.  We have addressed Your Honour's concerns extensively in

24    the brief.

25            Your Honour, with regard to the voluntary aspect of deportation,

Page 99

 1    Your Honour has asked whether there is an alternative to the conduct that

 2    we have ascribed to the accused as a crime, a conduct which is not

 3    punishable.  It's an interesting question.  It's a difficult question.

 4            Exchanges usually happen in internal conflicts, in conflicts.

 5    They're not really crimes.  They have not been listed as crimes either

 6    under Geneva law or in the Additional Protocols, they're certainly not

 7    listed as a crime under the Statute.  But on the facts of this case, and I

 8    say this is a factual issue, the Trial Chamber has found that these

 9    so-called exchanges, and they refer to them as so-called exchanges because

10    the Trial Chamber accepted that they were bogus, that these were not

11    really exchanges.

12            If you look at the evidence we have outlined in the brief, some of

13    the guards told the detainees, "Don't go.  Don't volunteer to be

14    exchanged," because they knew that these exchanges were in fact an attempt

15    to deport or remove the individuals from KP Dom, and that is part of

16    the -- and that is one of the means whereby detainees were actually

17    removed from KP Dom.

18            The alternative on the facts of this case is simply not viable.

19    Most of the men disappeared.  Two of them were found dead in a mass grave.

20    Some of them were actually deported across the border, but on the facts of

21    this case, it's very clear from the judgement that the Court accepted that

22    they weren't really exchanged.

23            Is exchange a viable option?  Yes, if it's genuine and if it

24    ensures the safety of the detainees.  And why do we say the accused is

25    liable for these crimes is because he did not take any measures to ensure

Page 100

 1    that the detainees were in fact lawfully or legally exchanged.  We have

 2    set out in the submission that he knew that there were problems with these

 3    exchanges.  There were problems transporting the detainees.

 4            I hope I have answered your second question, Your Honour.

 5            MR. STAKER:  Your Honour, with your leave, I would just add a

 6    further point in response to your question, the one in relation to whether

 7    there must be a viable alternative in order for conduct to be held

 8    criminal.  We would also submit that it's a general proposition that if a

 9    person deprives themselves from any alternative by committing a crime,

10    they cannot rely on their own crime as a defence to a subsequent crime

11    which deprived them of that alternative.

12            If the criminal act consists in unlawfully detaining civilians,

13    you cannot plead that crime as a defence to their transfer by saying that

14    what choice did we have?  Having unlawfully confined them, what else could

15    we do with them?  But in any case there was a simple answer:  It would

16    have been to release them to return to their homes in Foca.  Again it's

17    not a defence.  It's not a defence to that to say yes, but we were

18    conducting a persecutory campaign in Foca and therefore it wasn't safe for

19    them to return to their homes.  Because the submission I made earlier was

20    that there was a single joint criminal enterprise, and you cannot plead as

21    a defence to one part of the enterprise some other part of the same

22    criminal enterprise.

23            On the question of whether prisoner exchanges can ever be lawful,

24    in our submission, that question doesn't arise in this case, and it may be

25    undesirable for it to be addressed for the reason that the Trial Chamber

Page 101

 1    made the findings in paragraph 49 of the trial judgement that the

 2    expulsion, exchange, or deportation of non-Serbs was the final stage of

 3    the Serb attack upon the non-Serb civilian population in Foca

 4    municipality.

 5            I referred to this paragraph earlier in my own submissions.  At

 6    the end of that paragraph it says:  "Late in 1994, the last remaining

 7    Muslim detainees at the KP Dom were exchanged."  The word "exchange" is

 8    used.  "Marking the end of the attack upon those civilians and the

 9    achievement of a Serbian region, ethnically cleansed of Muslims."

10            In our submission, the question whether an exchange could ever be

11    lawful does not arise.  This exchange was part of the joint criminal

12    enterprise, and in our submission, that would answer the question about

13    viable alternatives.  Thank you.

14            MS. RASHID:  Your Honour.

15            JUDGE SHAHABUDDEEN:  Ms. Rashid, I was interested in my colleague

16    Judge Schomburg's question to you as to the limits of your thesis.  He

17    asked if there was an expulsion of a family from one house to another

18    house, would that be deportation?

19            Now, that has led me to think of this, and I say to you that I may

20    well have been at fault in overlooking something in your writings which

21    bore upon this question, but your reference to Article 5(d) of the Statute

22    refreshes my thinking on the subject, and what I want to put to you is

23    this:  Are you inviting the Bench to draw in implications from the chapeau

24    of Article 5?  We all know that an armed conflict is not necessary under

25    customary international law for the constitution of a crime against

Page 102

 1    humanity, but it has been put in here by the Security Council.

 2            Now, what are the implications of that?  Should we say that the

 3    chapeau of Article 5 necessarily implies that all the legal ingredients of

 4    a crime of deportation can be realised in the course of an internal armed

 5    conflict, that all the legal ingredients of an act of deportation can

 6    occur in the course of an internal armed conflict?

 7            If that is true, does it have a bearing on the question as to

 8    whether the deportation being instanced there necessary states a

 9    cross-border, international border transfer or does it imply that the

10    deportation can well incur purely internally, because the statute

11    says -- speaks of crimes when committed in armed conflict, whether

12    international or internal.  Can you help me on that?

13            MS. RASHID:  I most certainly can.  Sorry, Your Honour.  I most

14    certainly can help you on that.

15            That is the thrust of our argument.  Article -- deportation is

16    listed as a crime against humanity.  The requirements of a -- of

17    deportation as a crime against humanity with regard to the chapeau, yes,

18    you do need an armed conflict, but you do not need to characterise the

19    armed conflict.  All you need to show is the widespread or systematic

20    attack against a civilian population.

21            Of course it is beyond -- without doubt that crimes against

22    humanity can occur in internal -- applies to internal armed conflict as

23    well as external armed conflict.  And that has been the thrust of our

24    argument, Your Honour, that according to the statute, crimes against

25    humanity must be committed in armed conflict, but the nature is completely

Page 103

 1    immaterial.

 2            The provisions of international law regulating international armed

 3    conflict should not limit the prohibitions against deportations as crimes

 4    against humanity to cross-border transfers.  It should not because of the

 5    nature and the way we have interpreted Article 5 as applying to internal

 6    armed conflict, which is why we submitted in the appeal brief that

 7    deportation should carry this umbrella term and should cover internal and

 8    external and cross-border transfers as well.  So yes, I completely agree

 9    with Your Honour.

10            JUDGE SHAHABUDDEEN:  Ms. Rashid, it remains for me to apologise

11    very deeply to you in case I overlooked something in your appeal brief

12    which said what I was proposing to you, that the chapeau of Article 5

13    necessarily implies that all legal ingredients of an act of deportation

14    may occur internally.

15            MS. RASHID:  If Your Honour is referring to paragraph 8.7 of our

16    appeal brief, then that is the thrust of our argument, Your Honour, is the

17    characterisation of the armed conflict issue.

18            Your Honour --

19            JUDGE JORDA: [Interpretation] I have a clarification that I'd like

20    to ask for.

21            MS. RASHID:  Yes, Your Honour.

22            JUDGE JORDA: [Interpretation] Excuse me.  I'm wondering whether

23    you do make a distinction between expulsion and deportation.  Do you make

24    a distinction in terms of criminal law?

25            MS. RASHID:  No.  The way deportation and expulsion has been

Page 104

 1    charged as a singular conduct, it describes the same conduct.  Deportation

 2    includes external transfers.  Expulsion basically describes the same

 3    conduct.  I have submitted earlier, Your Honour, that expulsion is to

 4    describe a process by which a person has been removed.  It has been

 5    categorised as a persecutory act.  Persecution is not defined in terms of

 6    the conduct constituting persecution, so expulsion becomes a crime --

 7    becomes a persecutory crime if it fulfils all the requirements of

 8    persecution.  And that is how we have charged it in this case.

 9            Is there a difference in terms of substance and content and scope?

10    No, Your Honour.  No, Your Honour.

11            JUDGE JORDA: [Interpretation] Let me finish my comment, please.

12    You should be careful about one thing.  I'm sure that you're paying close

13    attention to your case, but I think that expulsion that is similar to

14    deportation is when we're talking about there is an armed conflict.  But

15    let me remind you - and Judge Schomburg already said this - that

16    deportation has to do with international law or international -- national

17    or international law, it's always a crime, whether linguistically that is

18    used in French or in English.  Deportation means that one deports

19    prisoners, but they are -- these give rise to crimes, whereas expulsion

20    can be an act of sovereignty.  I could tell you that every day governments

21    expel certain categories of population that, for instance, do not satisfy

22    the legal conditions for entering a territory.  You do know that.  One can

23    expel but one expels because that is sovereignty just as one could expel

24    oneself because one is trying to prevent people from coming in, whereas

25    deportation is completely different.

Page 105

 1            I can understand that you make no distinction between the two

 2    terms, but if you don't, then you're including expulsion and saying that

 3    it is the same as deportation because, as in this case, for instance, we

 4    would then be allegedly dealing with a joint criminal enterprise which is

 5    part of an international armed conflict.  So then I do understand that the

 6    distinction would be much less clear.

 7            I just wanted to make this clarification.

 8            Judge Schomburg, I believe, wished to ask another question.

 9            JUDGE SCHOMBURG:  No, it would be just a follow-up question to

10    this.  If one, for instance, would endorse your alternative as outlined in

11    paragraph 817 and accept that this would be a valid interpretation of the

12    phrase and the notion of deportation, what would be opposed to this, the

13    added criminal behaviour not yet included in deportation, but you need to

14    make reference in addition to expulsion.  I think what -- yes.

15            MS. RASHID:  With regard to expulsion, and I just wish to clarify

16    this in light of the President's comments, expulsion has not been listed

17    as a crime.  It's not -- there are no elements to the term "expulsion."

18    That much is clear.  We have charged to describe a conduct which we say

19    amounts to a persecutory act.  It is not a technical term that we are

20    using in the sense that the President has outlined.  Yes, I do agree with

21    Your Honour, of course, that expulsion carries all these various other

22    meanings, but charged in the context of persecution and described in the

23    indictment as a persecutory act, that becomes a crime of persecution.

24            There is no added element as such.  The Court can look at

25    expulsion in isolation from deportation which I agree holds a more

Page 106

 1    technical meaning.  Yes, of course.  But we have emphasised in the appeal

 2    brief that expulsion is actually a generic term and is merely used to

 3    describe a specific conduct.  There are no elements to the crime of

 4    expulsion, for instance.  You look for elements.  You look at the elements

 5    of persecution to see whether that act actually amounts to a crime of

 6    persecution.  Your Honour, I hope I have clarified that, our position on

 7    that.

 8            JUDGE SCHOMBURG:  Thank you.

 9            MS. RASHID:  Thank you, Your Honour.

10            Your Honour, I will take about ten, maybe ten minutes to go

11    through the ground 6, and I will keep it brief.

12            Your Honours, in this ground of appeal, the Prosecution submits

13    that the Trial Chamber erred in concluding that there was insufficient

14    evidence to conclude that the labour of at least eight of the detainees

15    that we have listed in the appeal brief was involuntary or that it

16    constituted forced labour under the law.

17            As a result, the Trial Chamber committed, we claim, a series of

18    errors resulting in the acquittal of the accused for the crime of forced

19    labour charged as a persecutory act under Article 5(H).

20            Your Honour, in our appeal brief, we have asked you to consider

21    our two related arguments.  The first argument relates to the erroneous

22    application of the law of consent to the facts of the case.  The second

23    argument which we have raised relates to the status of unlawfully

24    detained, protected persons and whether Article 5.1 of the Additional

25    Protocol II applies to these individuals.

Page 107

 1            I would request that you view the second argument from the

 2    perspective of determining a consent, and I propose to address the first

 3    argument first as I intend to develop it further.

 4            The Trial Chamber at paragraph 360 of the judgement relied -- held

 5    that civilians deprived of their liberty in the context of a

 6    non-international armed conflict can nevertheless be made to work under

 7    certain circumstances.  The sole reference is -- in support is Article 5.1

 8    of Additional Protocol II.  The Prosecution invites the Appeals Chamber to

 9    consider as a matter of legal significance whether paragraph 5(e) of

10    Additional Protocol II is applicable to the very different circumstances

11    of persons unlawfully detained as part of a persecutory campaign on the

12    basis of their religion or politics.

13            It is the Prosecution's contention, after having reviewed the

14    Geneva law and Additional Protocol II, that it does not.  Persons

15    unlawfully deprived of their liberty cannot be compelled to work.

16            The Trial Chamber, Your Honour, although correctly viewed the

17    provision from the perspective of consent nonetheless required evidence,

18    for instance, of the nature of work and the conditions of work and

19    rejected much of the evidence due to absence of such evidence.  We did not

20    appeal this issue specifically because we did not rely on it at trial but

21    we seek your guidance on this issue:  Do provisions in the Geneva

22    Conventions and Protocols compelling protected persons to work apply to

23    unlawfully detained protected persons?

24            Your Honour, very briefly, and I have more or less outlined the

25    submissions in my appeal brief, the Prosecution submits that neither the

Page 108

 1    provisions in the four Geneva Conventions nor those in Additional Protocol

 2    II specifically address the permissibility or otherwise of compelling

 3    unlawfully detained civilians to perform any kind of work.

 4            There are basically two points that I wish to outline with respect

 5    to Article 5.1.  Article 5.1 refers to persons whose liberty has been

 6    restricted which we submit refers to permissible forms of detention made

 7    lawful under international law.

 8            The second element to Article 5.1(e) talk about the benefits of

 9    working conditions and safeguards accorded to these individuals made to

10    perform labour.  In this regard, I would request that Your Honour look at

11    Article 95 of Geneva Convention IV; Article 40, 41 of Geneva Convention

12    IV; Articles 79, 41 to 43, 68 and 78 of the Geneva Convention IV, which

13    all make references to detainees, internees and persons placed under

14    assigned residences, lawfully detained individuals who can be compelled to

15    work under certain circumstances if certain conditions are fulfilled.

16            I would also refer Your Honour to the commentary to Additional

17    Protocol II, which basically states that the term "deprived of their

18    liberty for reasons related to the armed conflict" covers persons penally

19    prosecuted and those deprived of their liberty for security reasons.

20    Similar reasons as to why persons may be detained, the circumstances under

21    which persons may be detained under Geneva law.

22            Your Honour, the general rule is that a civilian cannot be

23    arbitrarily deprived of his liberty.  That would be tantamount to unlawful

24    confinement or imprisonment.  Considering the limited circumstances under

25    which a civilian may be detained due to reasons of the armed conflict, it

Page 109

 1    follows that it is only in exceptional circumstances that a civilian may

 2    be compelled to work if certain conditions are fulfilled.

 3            We submit that the exceptional circumstances do not arise if the

 4    general rule is breached, as it was in this case, and I refer Your Honour

 5    to paragraph 122 of the judgement.

 6            I would also ask that Your Honour look at the rationale for

 7    compelling protected persons to work.  I make reference to Article 8 of

 8    the 1966 International Covenant of Civil and Political Rights which list

 9    the form of permissible forced labour.  I would also make reference to the

10    commentary on Article 5 which talks about the reasons why work -- why a

11    person deprived of his liberty may be compelled to work under certain

12    circumstances.

13            The Tuta and Stela judgement, at paragraph 253, also explored the

14    reasons as to why a prisoner of war should be or can be made to work.  I

15    do not propose to go through, Your Honour, the judgement, but it's

16    instructive.

17            The normal work conditions contemplated under Article 5.1 are not

18    compatible in my submission with camp cases such as this one because it is

19    highly unlikely that these safeguards, the protections accorded to under

20    Geneva law or the Additional Protocols, would and could apply to detainees

21    held under KP Dom circumstances.  Detainees unlawfully arrested,

22    imprisoned, and held in inhumane conditions.

23            If the argument is made on the facts that it was in the interests

24    of the detainees or it benefited them in some way, the facts show

25    otherwise, and these have been outlined in my brief as well.

Page 110

 1            Your Honour, there are no provisions either in Geneva law or in

 2    protocols compelling unlawfully detained protected persons to work.  The

 3    nature of the work performed, for example, those listed in Article 50 of

 4    Geneva Convention III, which is the litmus test in determining whether a

 5    protected individual can be compelled to work.  It is on this premise that

 6    the issue of consent should be viewed in all cases of forced labour.

 7            Your Honour, with regard to the second argument, I would ask that

 8    your -- the Appeals Chamber review the Trial Chamber's application of the

 9    law on consent which we -- which they have correctly set out in paragraph

10    359 of the judgement to the facts.

11            A couple of points I wish to make in relation to the objective and

12    subjective criteria in determining consent.

13            Your Honour, it is our submission that even in the absence of

14    evidence from the detainees on the issue of consent, the Trial Chamber

15    should have examined other objective criteria.  The emphasis is whether

16    detainees had a real choice.  It's distinct and different from the issue

17    of whether the detainees volunteered to work or agreed to work.  In

18    ascertaining real choice, the Trial Chamber should have gone beyond what

19    the detainees said, what they did, and examined the detainees' motivations

20    which in this case -- in this case the motivations are also corroborated

21    by the objective coercive circumstances.

22            What does real choice mean, Your Honour?  Very briefly, it can be

23    summed up by reference to the testimony of one of the witnesses.  This is

24    trial transcript 4860.  He said:  "Well, perhaps you can call it voluntary

25    in a sense, but I would like to define that sense.  If you are locked up

Page 111

 1    in an area out of which you cannot get out at all and if somebody offers

 2    you work, then it's always better for you to get outside and work because

 3    you can expect to get some things like food, cigarettes, even contacts

 4    with Serbs and find out something.  It's better than staying in the room.

 5    So in a way, you can call it voluntary. Although in another sense, it is

 6    quite ridiculous."

 7            The Trial Chamber's conclusion that this constitutes voluntary

 8    labour or that this witness had agreed to work is simply wrong.  Similar

 9    evidence was presented by other detainees, and we have set out in the

10    appeal brief, Your Honour, the Trial Chamber's systematic and erroneous

11    misapplication of the law on consent to the facts.

12            Your Honour, I can do no better than refer the Court to my appeal

13    brief for the rest of the grounds, but I will respectfully submit that the

14    Trial Chamber's conclusion and verdict in acquitting the respondent of

15    forced labour has occasioned a serious miscarriage of justice and it must

16    be reversed.

17            That concludes my submissions, Your Honour.

18            JUDGE JORDA: [Interpretation] Very well.

19            MS. RASHID:  Your Honour, Mr. Carmona will address the Court on

20    the fourth and eighth grounds of appeal, murder and sentence.

21            JUDGE JORDA: [Interpretation] All right.  Mr. Carmona, we'll give

22    you the floor.

23            MR. CARMONA:  Your Honours, I just wish to crave your indulgence

24    in determining exactly how much time we have left, given the fact that we

25    have been through a very testing period in terms of questioning in

Page 112

 1    relation to Ms. Rashid and I have two substantive grounds to deal with.  I

 2    was just wondering in terms of what kind of time frame I have to respond

 3    to these two points.

 4            JUDGE JORDA: [Interpretation] I understand what you're asking.  I

 5    suggest that we suspend the hearing at 1.00.  So you have until 1.00.

 6    That will also include any of the questions my colleagues have and we will

 7    begin with the Defence in the afternoon.  We'll try to catch up a little

 8    bit later on in the afternoon if we can.

 9            Yes.  It's true, we did ask many questions, although of course the

10    questions are part of the discussion in relation to the Prosecution's

11    argument.  All right.  Try to develop your arguments, and if you finish

12    earlier, then we'll see where we're going to go from there.  Please

13    proceed.

14            MR. CARMONA:  I'm much obliged.

15            Your Honours, I will be dealing with the fourth ground of appeal.

16    This is in relation to the murders.

17            The Prosecution's fourth ground of appeal is that the Trial

18    Chamber committed an error of fact by concluding that for the purposes of

19    Article 7(3), the respondent did not have sufficient information to put

20    him on notice that his subordinates were involved in the murder of the

21    detainees listed in Schedule C.  This error caused the Trial Chamber to

22    conclude that the respondent was not liable under Article 7(3) for these

23    murders.

24            I think at the onset I should indicate that there were certain

25    general factual findings made by the Trial Chamber in relation to these

Page 113

 1    murders.  Twenty-six of the 29 names listed in Schedule C were found to

 2    have in fact to have been committed -- the murders were in fact to have

 3    been committed in KP Dom.  The Court expressed its reservations in

 4    relation to the killing of Milo Hodzic, also in relation to Samir or Amir,

 5    depending on how his name was interpreted, Mujezinovic, and also in

 6    relation to Huso Dzamalija who, in fact, it is alleged committed suicide.

 7            It is important, though, that we appreciate what those factual

 8    findings were to the extent that they were totally convinced beyond a

 9    reasonable doubt that 26 of those 29 names, 26 of these individuals, died

10    in KP Dom as a result of the participation of the guards of the KP Dom and

11    that they in fact did so in collaboration with the acts of the members of

12    the military coming from outside the camp.

13            It is important, however, to look at this particular factual

14    finding against what I would conceive to be the role, function, and

15    position of, in fact, the appellant in the camp.  The Trial Chamber's

16    prior findings as to the respondent's position of authority is important,

17    because in fact it does indicate in a very matter of fact way how the

18    chain of information, that would have been made available to the

19    appellant, operated.

20            In paragraphs 96 to 107, they made a firm conclusion -- they came

21    to the firm conclusion that in fact he held the position of warden, that,

22    in fact, the lease agreement did not in any way effect the hierarchical

23    system operating within that prison, and specifically that, in fact, the

24    accused exercised supervisory responsibility over all subordinate

25    personnel and detainees of the KP Dom.

Page 114

 1            They made a reference to FWS-138 who indicated that all in fact

 2    the information mechanism procedures that were in place before, before in

 3    fact the war, and during -- during that moment of crisis that they

 4    essentially remain the same.  That in fact, for example, the commander of

 5    the guards, Mitar Rasevic, still had to report to in fact Krnojelac.  Also

 6    for example that Savo Todovic who in fact was the deputy warden had to

 7    report to, in fact, Krnojelac.

 8            Additionally, that there was a system in place that any kind of

 9    alteration or any type of aberration occurring in the camp was subject to

10    a reporting mechanism to the Ministry of Justice.  So that to all intents

11    of purposes, when we're trying to determine what in fact would represent

12    sufficient information, that sufficient information must be analysed in

13    the context of the already established chain of information on general and

14    particular issues operating within that particular camp.

15            In so doing, the Trial Chamber concluded that the respondent was a

16    de jure superior of the guards and that, in fact, he failed in his duty to

17    take the necessary and reasonable measures to prevent or punish the crimes

18    for the following bases:  They indicated, and this is at paragraph 107,

19    that he failed to investigate the allegations of beatings when he would

20    inevitably have ascertained the identity of those responsible for many of

21    those beatings.  It is trite knowledge in the camp that many of the guards

22    like Matovic, Burilo, all these individuals in fact were part of the KP

23    Dom contingent of guards and they were responsible for a lot of the

24    beatings that were, in fact, taking place.

25            In fact, they also found that the respondent failed to order the

Page 115

 1    guards to stop beating detainees and to take appropriate measures.  They

 2    found he failed to speak to his subordinates about the mistreatment of

 3    detainees.  They said he also failed to punish those guards who could

 4    easily have been identified and he failed to report these abuses to higher

 5    authority.

 6            The respondent -- it is important to note that the respondent's

 7    position as the warden of KP Dom and his failure to punish crime was

 8    reiterated by the Trial Chamber on its discussion of the respondent's

 9    liability for murders committed in KP Dom.

10            In relation to the general findings that the Trial Chamber made

11    with regard to his potential responsibility for the murders, it is

12    important to note that they came to various conclusions.

13            One very pivotal conclusion was that they were satisfied that the

14    respondent had knowledge that the detainees were being beaten and were

15    disappearing from the KP Dom during the evenings of June 1992.  It was not

16    satisfied, however, that those said detainees, in fact, that were being

17    called out in the evenings and were subsequently disappearing were being

18    killed.  In so doing, in fact, they rejected the theory, the 7(1) theory

19    with regard to aiding and abetting even though they appreciated that by

20    his failure in fact to take the appropriate measures, he in fact created

21    an atmosphere, a system whereby in fact these particular crimes could have

22    been committed.

23            But more particularly and relevant to this particular ground of

24    appeal, he rejected the Prosecution's -- the Trial Chamber rejected the

25    Prosecution's theory that the respondent incurred superior responsibility

Page 116

 1    pursuant to Article 7(3) for the deaths that occurred in KP Dom during

 2    June and July of 1992, although this is in the face of the fact that they

 3    recognised that the appellant was quite aware of two deaths in the camp.

 4    He was aware of the death of Halim Konjo and he was also aware of the

 5    death of Huso Dzamalija, yet they found that, notwithstanding that

 6    particular knowledge, it did not represent the sufficiency of knowledge

 7    required.

 8            The Prosecution submits that that conclusion that the respondent

 9    lacked responsibility as a superior under Article 7(3) for the murders

10    committed at KP Dom was an error of fact occasioning a miscarriage of

11    justice within the meaning of Article 25.2 of the Statute.  The

12    Prosecution submits that on the basis of the Trial Chamber's factual

13    findings, no reasonable Trial Chamber could have concluded that he was not

14    criminally responsible under Article 7(3) of the Statute for the murders;

15    that the only conclusion that was reasonably available was that sufficient

16    information was available to the respondent which would have, at a

17    minimum, put him on notice of the risk that murders were being committed

18    by his subordinates.

19            It is important to note that when one looks at the peculiarities

20    of these beatings, the peculiarities of the harsh treatment meted out

21    against these individuals, the only difference between the beatings as

22    found and the murders has to do in terms of what was the inevitable

23    effect.  In one case it was a case of beatings that resulted in

24    incapacitation.  In another, it was a case of certain beatings that

25    resulted in death.  In other words, a level of behaviour, a level of

Page 117

 1    deportment, if I may so describe it, that is of the same genus and of the

 2    same type.  And significantly, one would consider that when one looks at

 3    what in fact is the definition of murder, isn't murder dealing with in

 4    fact acts with intent to cause grievous bodily harm?  Isn't that what

 5    murder is?  So does it mean that because, for example, that final step is

 6    not reached, that you are not put on inquiry, that there is in fact and

 7    indeed a real --

 8            THE INTERPRETER:  Will the counsel slow down, please.

 9            MR. CARMONA:  I do apologise.

10            So that when one considers the respondent's position, one can only

11    conclude, having concluded he was a superior of the KP Dom with authority

12    to prevent and punish, and in light of the fact that the Trial Chamber

13    concluded that he had not taken any measure to prevent or punish the

14    beatings inflicted on the non-Serbs, it is our submission that having so

15    found that he had that requisite knowledge in relation to the beatings, it

16    is our humble submission that in fact in relation to the subsequent

17    killings, that there was in fact that sufficient notice.  At least, at

18    minimum, it ought to have been in fact put him on inquiry notice.

19            Our submission, as my learned colleague Ms. Brady had indicated to

20    a question by the learned colleague, Judge Shahabuddeen, that ours is a

21    case that is based not only on likely-to-know information but more

22    specifically on actual information.

23            When, for example, look -- and I think I may -- it may be

24    pertinent to go into the particular killings at this point in time.  You

25    have a situation arising where Huso Dzamalija is alleged to have committed

Page 118

 1    suicide in his cell as a result of beatings, as a result of depression.

 2    It is alleged that the Trial Chamber had some doubts as to in fact the

 3    real cause of death, whether it was the cause of the beatings or the cause

 4    of depression, yet he dies in prison.

 5            You have a subsequent killing involving in fact Halil Konjo who in

 6    fact RJ speaks to the appellant about at the behest of his brother Halim

 7    Konjo.  And what he says?  He says, Listen, what I want to find out about

 8    in fact Halil Konjo.  He says, Yes, I know he is dead, and he ends it at

 9    that.  When, for example, he's pressed in cross-examination and when

10    testifying, what does he say?  He says basically I was informed by a

11    nurse, Jankovic, that in fact he died from suicide, he died as a result of

12    suicide.  And then Nurse Jankovic, who in fact is, of course, a mere

13    nurse, indicates, well, there was in fact some kind of investigation done

14    into the matter, and he leaves it at that.

15            Here is a situation where you have two deaths of suspicious

16    characteristics.  One a suicide, one in fact a death that obviously in

17    fact is extremely suspicious, and in those circumstances the appellant in

18    fact is not put -- is deemed not to have been put on inquiry.  I think in

19    fact if we, for example, transpose this to a normal situation, in any

20    normal national jurisdiction, a man dies in prison, whether it be suicide

21    or under suspicious circumstances, all hell will break loose.  And we are

22    saying in the circumstances of this particular prison that there was that

23    mechanism, that mechanism for reporting in the system.  So in fact he was

24    quite aware that he was in a position to do the necessary inquiry with

25    regard to these killings.

Page 119

 1            We are saying in fact that in those circumstances, the Trial

 2    Chamber erred because the only reasonable inference based on those two

 3    killings alone against a backdrop of persecutory beatings, against a

 4    backdrop of information, one who in fact time and time again is liaising

 5    with military personnel, liaising with civic authorities, we cannot

 6    compartmentalise this information into hermetically bound sections.  What

 7    we have to do is in fact look at it in its entirety.  Knowledge is never

 8    compartmentalised in a brain like this.  It is a case of looking at the

 9    entire information that is available and coming to the conclusion that

10    there was a sufficiency of information that would have in fact activated

11    and triggered a need for further investigation.

12            And what about what we may call the clear and objective indicators

13    that detainees were being murdered?  According to the Trial Chamber's

14    findings, there were traces of blood in the KP Dom, in the vehicle that

15    was alleged to be transporting meat.  They rejected that particular

16    position.  One -- not to mention in fact the multi-faceted forms of

17    brutality and the results like screams and cries and all that.  Not to

18    mention, for example, the real physical evidence of bullets, bullet holes

19    behind the administration -- administration building.  And all this is

20    taken into consideration, that in fact the appellant's office is right

21    above.  The appellant's office looks into the courtyard.  The appellant's

22    office looks into the courtyard where in fact daily roll is taken.  The

23    appellant in fact is fully aware that beatings are taking place.

24            And this is not a case where, for example, the appellant is in

25    fact a veritable transient in this camp.  He is the camp commander.  And

Page 120

 1    there is no evidence that in fact attempts were made to conceal these

 2    crimes.  There were abundant signs of the type and nature of crimes

 3    committed, and these were clearly visible even to the eye of an uninformed

 4    and neutral observer, let alone a person in authority in the camp.

 5    Because the Trial Chamber did in fact delineate very emphatically the fact

 6    that he was a warden for some 15 months, that in fact he had unfettered

 7    access to the canteen, to the prison yard, to the compound.  All those

 8    places where in fact he could have seen the signs of abuse, an abuse which

 9    in fact would put any individual on inquiry that people may in fact die as

10     -- may die as a result or may have been killed as a result.

11            And all this is in fact -- the unreasonableness of the Trial

12    Chamber's findings made even clearer if the information that was provided

13    to him is viewed together, as I said, with all those visible objective

14    indicators of murders.  If in fact we were to use the standard of

15    Celebici, what more alarming information can there be?

16            Had the respondent followed up that information, he would have

17    certainly obtained further information confirming the commission of

18    murders as I've mentioned before.

19            Now, one may consider, for example, that the respondent's lack of

20    knowledge with regard to the killings may have in fact been lost on the

21    Trial Chamber because of their -- what I might call in fact tacit

22    obsession, if I may so describe it, that in fact he kept his head in the

23    sand.  He buried his head in the sand to avoid the responsibilities of the

24    command which accompanied the position.

25            The Prosecution submits that it is this attitude that was

Page 121

 1    reflected, for instance, in the respondent's replies to questions posed by

 2    RJ, which were described by the Trial Chamber at paragraphs 344 and 345 of

 3    the judgement; basically, don't ask.  What is indicated here is that the

 4    respondent is depicted as a superior through no fault of his own, is

 5    ignorant of the events involving his subordinates, but rather and more

 6    blatantly as a superior who is confronted with abundant indications,

 7    simply does not want to know.

 8            THE INTERPRETER:  The interpreters would be very grateful if

 9    counsel could slow down just a little.  Thank you.

10            MR. CARMONA:  Again I apologise humbly.

11            Apart from that, Your Honours, the particular appellant had the

12    confidence of one particular witness, RJ.  Now, when you look at, for

13    example, how RJ was looked at by the Trial Chamber, obviously they

14    believed his evidence, and they had no doubt about -- about the veracity

15    of his evidence.  What is important, though, is that RJ was a constant --

16    represented a type of constant stream of information with regard to what

17    was going on in the camp.  In fact, it was RJ who indicated that Burilo

18    was in fact one of the more brutal camp guards.  And when asked about

19    Burilo, he told -- he told the Court, he says, "It was common knowledge

20    that Burilo was both violent before the camp and during the camp."

21            Now, the significance of in fact that information lends itself

22    when one considers that it was the very Burilo who was in fact responsible

23    for beating Ekrem Zekovic, the very man in fact who everyone knows in fact

24    was a very violent creature.  And Celebici makes reference to that, that

25    if in fact a superior is aware of individuals with in fact a particular

Page 122

 1    characteristic, that in fact that alone in itself puts him on inquiry

 2    notice.  But what does Krnojelac do?  He does nothing.

 3            When one considers the whole Zekovic escape affair at paragraph

 4    233, one would appreciate that in the presence of the warden, the deputy

 5    warden Savo Todovic spoke of in fact cutting rations, cutting medical

 6    attention, solitary confinement.  There was lots of beatings taking place

 7    as a result of that.  And the Trial Chamber, based on their assessment of

 8    that particular incident, obviously believed that in fact all these things

 9    happened.

10            It is significant that as much as Ekrem Zekovic's offence was not

11    part of the indictment, it is important that in fact we appreciate that

12    they went on to conclude that although in fact they do not take the

13    incident in relation -- into account in relation to counts 2, 4, 5, and 7,

14    the evidence remains in this case" - this is in paragraph 230 - "as

15    material from which inferences may legitimately be drawn by the Trial

16    Chamber in relation to issues arising out of other incidents which are the

17    subject of charges in this indictment."

18            So that while correctly identifying the applicable legal standard,

19    the Trial Chamber appears to have demanded that the respondent possess

20    specific knowledge of the murders in order to establish his criminal

21    liability under 7(3).  It is the humble submission of the Prosecution that

22    this approach is inconsistent with existing jurisprudence on the degree of

23    knowledge required by a superior for liability under Article 7(3).  The

24    superior need only have information of a general nature putting him or her

25    on notice of the risk of crimes committed.  But there is no requirement

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Page 130

 1    that that information must point to any specific crime.

 2            I think when one looks generally at the cumulative effect of all

 3    the information that was in the -- in the body of the appellant, one can

 4    come to but no other conclusion.  And one only reasonable conclusion that

 5    there was more than sufficient information to make him realise, for

 6    example, that in fact there was a need for an inquiry.  And we are saying

 7    in fact that that information was not only in fact the likely-to-know

 8    standard but also actual information.

 9            Another thing in passing which I should mention before I end on

10    this particular ground is that at paragraph 308, the Court held this:

11    "The accused denied that he ever saw or heard about beatings of non-Serb

12    detainees at the KP Dom.  The Trial Chamber is satisfied, however, that

13    the accused knew that Muslim detainees were being beaten and that they

14    were otherwise being generally mistreated in the manner described under

15    paragraph 5.4 through 5.29 of the indictment."

16            And when one looks at the general treatment meted out to the

17    detainees in the indictment that the Court found to be valid, you hear of

18    beatings with gun butts, you hear of people becoming unconscious.  RJ even

19    went on to tell them about in fact a sad case of a retarded prisoner who

20    was walking up some stairs, who came out of line and was brutally beaten

21    by the guards and sent to solitary confinement.  That man could have died

22    but there was no inquiry.  That was sufficient notice.

23            So it is our position on this particular ground that there was

24    more than sufficient information available to the Trial Chamber not based

25    on what, in fact, new information I am putting forward but based on

Page 131

 1    information, factual information, that they agreed existed and that would

 2    have left to one irretrievable conclusion that more than sufficient

 3    information.  Information that was actual and information that would have

 4    put him on notice, on inquiry notice also.

 5            Without more, this is my submission on this particular ground.  I

 6    will now --

 7            JUDGE JORDA: [Interpretation] Judge Schomburg.

 8            JUDGE SCHOMBURG:  Sorry.  To a certain extent a repetition of a

 9    previous question related to torture.  Admittedly, I can't understand, I

10    can't see the consistency in the arguments of the Prosecution in toto.  On

11    the one hand, we heard the remarkable introductory submissions by

12    Mr. Staker related to the joint criminal enterprise.  In addition to this,

13    we had some further guidance on the definition of what is the -- what

14    about the notion of commit in 7(1) based inter alia on the definition

15    given by Professor Roxin.

16            So this would lead into the direction of commit -- of committing.

17            In your own submission related to murders or killings under 5(9),

18    you stated that it was the Prosecution's theory that it was, under 7(1), a

19    case for aiding and abetting the murder of detainees in the KP Dom.  Now

20    we listen that you're -- in your opinion, it's a 7(3) case, to prevent and

21    punish.  Isn't there an inconsistency in the line of arguments?

22            MR. CARMONA:  Again, there is -- yes.

23            MR. STAKER:  If I could take that question, Your Honour.  It's a

24    simple case that in relation to various other crimes there were charges

25    under both Article 7(1), and Article 7(3).  In relation to the killings in

Page 132

 1    this instance, there were charges under both Article 7(1) and Article

 2    7(3), but the appeal was brought only in relation to Article 7(3).  That's

 3    not to say that an appeal might not have been brought in relation to

 4    Article 7(1).  Our submission would be that the Prosecution by not

 5    appealing something does not mean that it might not have been appealed.

 6    It was the two convictions on the basis of aiding and abetting that

 7    raised, very directly, the question of what is the difference between

 8    aiding and abetting and participation in a joint criminal enterprise.  And

 9    it was because those convictions so directly raised that question that

10    they formed the subject of that ground of appeal.

11            I would submit that by not appealing Article 7(1) in relation to

12    other crimes, that is not inconsistent with the Prosecution's theory,

13    because the Prosecution is not saying that they could not have been

14    Article 7(1).  It's simply the case that the Prosecution hasn't included

15    those in its appeal.

16            JUDGE SCHOMBURG:  Thank you.

17            MR. CARMONA:  Yes.  In view of the indulgence given to me with

18    regard to time, I will try to be -- sorry.

19            I will try to be as short as I can on the eighth ground of appeal

20    which is in fact the ground of sentence.

21            I should begin and indicate, for example, that to a large

22    extent --

23            JUDGE JORDA: [Interpretation] As quickly as you can, but you must

24    finish by 1.00.  There is no choice.  There is no other choice.  You have

25    to finish by 1.00.  All right?

Page 133

 1            MR. CARMONA:  Your Honour, yes.

 2            JUDGE JORDA: [Interpretation] Thank you very much.

 3            MR. CARMONA:  Yes.  Much obliged.

 4            The eighth ground of appeal is one that deals with sentence.  The

 5    Trial Chamber sentenced the respondent to a single sentence of

 6    imprisonment for 7.5 years.  Our particular ground is that the Trial

 7    Chamber erred in imposing a sentence which did not reflect the gravity of

 8    the offences and the degree of the respondent's culpability and that it

 9    further erred in taking certain factors into account in sentencing.

10            No one doubts, for example, that the Trial Chamber has in fact a

11    wide discretionary power in the area of sentencing, but as Goran Jelisic

12    said in paragraph 96, "A sentence should not be capricious or excessive."

13    In fact, it is the submission of the Prosecution that an overindulgent

14    recourse to mitigating factors or non-consideration or devaluation of

15    aggravating circumstances may well create such a situation resulting in an

16    obviously unduly lenient sentence.

17            I am simply putting forward a question to the learned -- to Your

18    Honours.  Basically, as a general-type test to determine, for example, the

19    legitimacy or in fact the reasonableness, rather, of the sentence that was

20    given.  And the question I would ask is simply this:  Would right-thinking

21    members of the public with full knowledge of the relevant facts and

22    circumstances learning of this sentence consider that something has gone

23    wrong with the administration of justice?  Because it is our contention

24    that the sentence imposed must reflect the inherent gravity of the

25    criminal conduct of the accused, and determining the gravity of the crime

Page 134

 1    it requires a consideration of the particular circumstances of the case as

 2    well as the form and degree of the participation of the accused in the

 3    crime.

 4            In this regard, the Prosecution has indicated that it finds

 5    certain errors with regard to how sentences -- the sentence was assessed

 6    and evaluated by the Trial Chamber.  We are submitting that the

 7    first -- that there were essentially four errors.  The first error is to

 8    be found in paragraphs 514 to 516 which spoke about countervailing factors

 9    that mitigated or tempered the aggravating factor of his superior

10    responsibility.

11            The Trial Chamber referred to his conformist personality and as

12    much as in fact they indicated that it would not have been -- it wouldn't

13    have in fact been treated as a mitigating factor, they said, for example,

14    however, that it would cause them to place less weight than it otherwise

15    would on aggravating factors.

16            It is the submission of the Prosecution that this ultimately had

17    the effect of leading to the imposition of a lower sentence that would

18    have been imposed had it not have been taken into account.

19            The Prosecution submits it is not within the proper exercise of

20    the Trial Chamber's discretion to give weight to these factors in the

21    particular circumstances of this case.  The respondent voluntarily

22    accepted his position, fully aware of, in fact, what his responsibilities

23    were.  He was told that they were prisoners, for example.  They were there

24    because they were Muslims.

25            The Trial Chamber rejected claims that work orders given to him

Page 135

 1    could have been refused, because in fact we have evidence that there were,

 2    in fact, two previous individuals who were offered the particular position

 3    in the form of -- in the form of Veselin -- Veselin Cancar and another

 4    individual and they refused and there was no subsequent admonishment or

 5    warning or punishment for the individuals refusing the particular

 6    portfolio.

 7            In any event, if the case is that human frailties and personal

 8    weaknesses could be a factor that might be given some weight in

 9    sentencing, it is our submission that this cannot be the case when it

10    comes to commanders who have the ultimate responsibility for ensuring

11    compliance with international humanitarian law.  When one looks at his

12    position where he exercised supervisory control, he had the primary

13    responsibility for ensuring compliance, and to take such factors into

14    account in this case fails to acknowledge the more influential effect of

15    encouraging or promoting crimes and an atmosphere of lawlessness within

16    the camp created by his own ongoing failure to exercise his duties of

17    supervision.

18            The Trial Chamber -- the Appeals Chamber in Celebici recognised in

19    like form that Mucic was very similar with regard to the fact that he in

20    fact did exercise supervisory responsibility but did not in fact act it

21    out.

22            The second error that the Trial Chamber's blanket rejection of the

23    effect of crimes on others apart from the victim in evaluating a crime's

24    gravity is unduly restrictive interpretation of the concept of both harm

25    -- the concept of both the victim and harm.  In our arguments we have in

Page 136

 1    fact mapped out various international instruments.  We have referred to

 2    national jurisdictions.  We have also referred in fact to the ICC in terms

 3    of how there is an expanding position that victims go beyond the

 4    particular individual concerned.

 5            As a result, Your Honours, we in fact would be adopting in toto

 6    the arguments that we have in fact put in our brief.  Apart from that, I

 7    would make mention that in fact there were instances, especially in Krstic

 8    at paragraph 720, in Kayishema, on the 21st of May, 1999 where, for

 9    example, mention is made of in fact the role of victim, the definition of

10    victim, and the fact that "victim" includes more than just the individual

11    himself or herself.

12            Celebici also makes mention of the fact that the gravity of the

13    crime is determined in personam and is not one of universal effect

14    acknowledged, that the assessment of the gravity of a crime could be

15    determined by the crime's effect on the victims.

16            THE INTERPRETER:  The interpreters are completely unable to follow

17    that speed.  Will you please slow down.

18            MR. CARMONA:  The Celebici trial judgement, which said that the

19    gravity of a crime is determined in personam and is not one of universal

20    effect, acknowledge that assessment of the gravity of a crime could be

21    determined by the crime's effect on the victim or on persons associated

22    with the crime and their nearest relations.

23            Your Honours, in fact it is our position with regard to the third

24    error in the sentencing discretion that, in determining sentence, the

25    Trial Chamber wrongly in fact gave credit to the accused for the extent to

Page 137

 1    which his counsel cooperated with it and the Prosecution in the efficient

 2    conduct of his trial.  We have in fact mapped out our rationale for

 3    submitting that this is in fact erroneous and we have done so not only in

 4    our substantive brief but also in fact in terms of our reply to the

 5    appellant's response.  We stand by those arguments.

 6            In relation to the fourth particular area of concern where in fact

 7    comparisons were made among the various individuals who have in fact been

 8    convicted of crimes within prison-type situations, prison camp situations,

 9    we again in fact have mapped out our arguments very in extenso and we

10    stand by them in relation to what in fact they have said.

11            There is but one additional point, however, I wish to make in

12    relation to the whole area of sentencing, and that has to do with the area

13    of killings.  If in fact the Trial Chamber is of the view that there was

14    sufficient information specifically in relation to the killings and to the

15    murders under count 8 and 10 and that therefore in fact the Trial Chamber

16    was in fact wrong in dismissing those charges and reinstate those charges

17    and find him guilty accordingly.  We are submitting that there is one

18    aggravating point that would need to be considered by this learned

19    Tribunal, and that is learning that emanates from Vasiljevic, that a

20    discriminatory state of mind may however be regarded as an aggravating

21    factor in relation to offences for which such a state of mind is not an

22    element.  No violation of Article 3 charged in this indictment requires

23    such a state of mind.  The Trial Chamber therefore accepts that in

24    relation to the murder conviction pursuant to Article 3 of the Statute,

25    the accused's discriminatory state of mind constitutes an aggravating

Page 138

 1    factor.

 2            So we are submitting that by virtue of the fact that he had been

 3    charged under Article 3 where, for example, there is no need for the

 4    material element of a discriminatory intent, but in those circumstances it

 5    can constitute an additional aggravating factor.

 6            Additionally, if in fact, for example, the Trial Chamber in

 7    relation to my learned colleague's submissions on torture finds that the

 8    beatings in fact reach a point of torture, as much as in fact it would not

 9    effect the Trial Chamber's findings in relation to his -- his supervisory

10    responsibility under 7(3), it would certainly up, up the bar in relation

11    to the type of offences that were committed by subordinates, and those

12    offences, by virtue of torture, would be a more grievous offence and

13    therefore that also would be another aggravating factor.  Yes.

14            Before I come -- these essentially are my submissions.  However, I

15    notice that I do have two or three minutes remaining, and my learned lead

16    counsel wishes to just make some conclusions based on our arguments that

17    we have in fact put forward.  Thank you.

18            JUDGE JORDA: [Interpretation] I'll give -- well, I have a question

19    I'd like to ask first.  You worked on the general subject of the idea of

20    raising the sentence.  You have no other details to give to the Court.

21    You're not giving any suggestions for a specific sentence but simply that

22    it should be raised; is that what you're saying?

23            MR. CARMONA:  Indeed.  And the Trial Chamber in fact had -- the

24    Prosecution at trial had recommended a particular amount, time frame.  But

25    I must admit I do come from a jurisdiction where, for example, the

Page 139

 1    discretion with regard to sentencing is something that resides in the body

 2    of the Tribunal and the body of the Judges.

 3            If in fact I am asked with regard to --

 4            JUDGE JORDA: [Interpretation] The Judges, of course, determine the

 5    sentence.  I don't have to tell you that, Mr. Carmona.  But there are some

 6    systems, even here, in fact, sometimes where the Prosecution asks for a

 7    minimum sentence.  But having said this, I have understood where you are

 8    going.

 9            Mr. Staker, do you want to make any further comments?  Who wanted

10    to make additional statements?

11            MR. CARMONA:  Your Honour, you did pre-empt me.  I do in fact have

12    a minimum in mind.  I don't know if the Court wants to -- the Prosecutor

13    has a minimum, and the minimum --

14            JUDGE JORDA: [Interpretation] Yes, yes, yes.  Yes.  I'd like you

15    to go to the end of your thought, please.

16            MR. CARMONA:  We think that, in light of the fact that Mucic got

17    nine years, and in relation to Aleksovski, in fact he got seven, we're

18    thinking in terms of in fact a minimum of 12 years.

19            JUDGE JORDA: [Interpretation] Very well.  Mr. Staker, did you want

20    to add something?

21            MR. STAKER:  I'd simply add, for the benefit of the Chamber by way

22    of winding up, a question has arisen about the scope of our theory on

23    joint criminal enterprise in relation to the appeal as a whole.  I would

24    clarify that we are relying on the joint criminal enterprise in relation

25    to the unlawful imprisonment, the inhumane living conditions, the forced

Page 140

 1    labour, and the deportation.  It follows from the submissions I made

 2    earlier that it is the Prosecution position that the killings and the

 3    tortures were also part of this joint criminal enterprise, but it was on

 4    the basis that there were no express findings in the trial judgement that

 5    the accused knew of the killings and that the accused knew of the

 6    prohibited purpose of the tortures that the appeal in relation to those

 7    crimes was confined to Article 7(3) where the Prosecution argument relates

 8    not to knowledge but to inquiry notice, had reason to know for the

 9    purposes of Article 7(3).

10            Other than that, I would simply conclude by stating that the

11    Prosecution's formal submissions are contained in paragraphs 10.1 and 10.2

12    of the Prosecution appeal brief.  We make the submission there that if

13    sentence is to be increased, this is a matter that can be decided by the

14    Appeals Chamber in this appeal without any need to remit to a Trial

15    Chamber.

16            And if I cannot assist further, those are the submissions of the

17    Prosecution in this appeal.

18            JUDGE JORDA: [Interpretation] Very well.  If there are no further

19    questions, we're going to adjourn until 2.30.

20                          --- Luncheon recess taken at 1.00 p.m.

21                          --- On resuming at 2.30 p.m.

22            JUDGE JORDA: [Interpretation] We will now resume the hearing.

23    Have the accused brought in, please Madam Registrar.  We are now resuming

24    the hearing.  Can everybody hear me?  Yes.  Fine.  Thank you.

25            After having heard the arguments of the Prosecution, we will now

Page 141

 1    turn to the Defence response.  You have two hours.  We will take a break

 2    after an hour and a half.

 3            Who is going to take the floor?  Mr. Bakrac, is it?

 4            MR. BAKRAC: [Interpretation] Yes, Your Honours.

 5            JUDGE JORDA: [Interpretation] Thank you.

 6            MR. BAKRAC: [Interpretation] That is right, yes.

 7            JUDGE JORDA: [Interpretation] The floor is yours.

 8            MR. BAKRAC: [Interpretation] Thank you, Your Honours.  In French,

 9    perhaps it would be Bakrac, but in our language it is Bakrac.

10    Nevertheless --

11            JUDGE JORDA: [Interpretation] I will try to adjust to your

12    language.  All right.  Bakrac.  Yes, please proceed.

13            MR. BAKRAC: [Interpretation] Thank you, Your Honours.

14            Your Honours, my learned friends in the Prosecution, I will now

15    try to answer questions concerning grounds of appeal and the argument of

16    the Prosecution expounded both in their written brief and today in oral

17    presentation.  I shall also reply to each one of the grounds of appeal.

18            As for the first one, the first ground of appeal of the

19    Prosecution that the Prosecution spoke about in their written brief and

20    during today's hearing, in this regard, the Defence thinks that the

21    argument brought forward by the Prosecution is not of such a nature to

22    necessitate a change of the Trial Chamber of the first instance, and we,

23    therefore, propose to reject them as unsubstantiated.

24            To begin with, the Prosecution, when they spoke about the joint

25    criminal enterprise, they went into the judgement of the Trial Chamber of

Page 142

 1    the first instance and the decision in the Tadic case.  The Defence, with

 2    all due respect, deems that basically there is no fundamental difference

 3    between the findings of the Trial Chamber and what is in point of fact the

 4    decision of the appeal judgement in the Tadic case.

 5            Therefore, the questions arises as to whether the judgement of the

 6    Trial Chamber also recognises the three categories of joint criminal

 7    enterprise regardless of whether one calls the first category as a basic

 8    form and the third category as an extended form of the JCE.  We think such

 9    categorisation, we think it should be split into two categories and the

10    first and the second would be the basic form of the JCE and the third

11    category an extended form of a joint criminal enterprise.  We do not think

12    that it goes beyond -- that does not deviate from the jurisprudence of

13    this Tribunal or the decision in the appeal judgement of the Tadic case.

14    What we believe is the most important thing when it comes to establishing

15    the liability or participation in a joint criminal enterprise is the

16    question of the actus reus and the mens rea, that is, what the Prosecution

17    is duty-bound to show if it wishes to prove that any acts were committed

18    on those grounds.

19            As for the objective elements, that is the actus reus and the

20    elements contained in mens rea, and it can vary depending on the category

21    of the JCE, we also believe that the judgement of the Trial Chamber did

22    not deviate from the standard normally applied when establishing those

23    facts.

24            When we look at the findings of the second -- of the Appeals

25    Chamber in the Tadic case to which the Prosecution refers to, it is quite

Page 143

 1    clear that the criminal liability on the basis of the participation of

 2    joint criminal enterprise also necessitates that the existence of

 3    awareness and intent were present in every individual case.  We therefore

 4    deem that the finding of the Trial Chamber agrees with what was

 5    established during -- in the appeals judgement in the Tadic case.

 6            The question arises as to the interpretation of the subjective

 7    element, that is, the element which concerns the intent.  And we,

 8    therefore, believe that the depositions of the Prosecution in this regard

 9    are not acceptable because the intent is interpreted much too broadly and

10    has to do with something which we do not think represents a foundation for

11    mens rea, that is, to show that there was indeed criminal liability based

12    on a criminal intent.

13            It is also to us quite clear that in this case, the Trial Chamber

14    distinguishes three types or, rather, three categories of association for

15    criminal purposes and that it does not deviate from the findings in the

16    appeal judgement in the Tadic case with regard to the subjective element

17    and that the Defence wishes to lay an emphasis on that particular aspect.

18            So with regard to the first category of the JCE is that there is

19    intent to commit a particular crime, but this joint intent is shared by

20    all the co-perpetrators regardless of whether we call them co-perpetrators

21    or accomplices.  What is important is the intent to perpetrate a crime.

22            With regard to the second category, the condition for it is not

23    only the awareness but also an intent or, rather, the will to carry out

24    such a joint criminal enterprise, that is, the ill-treatment.  My

25    apologies.  I have just been warned to slow down.

Page 144

 1            So with regard to a third category, the condition is to have the

 2    intent, the volition to participate in the criminal activity and --

 3            JUDGE JORDA: [Interpretation] What was the second category?  I'm

 4    sorry, I didn't catch that.  Would you go to that again?  You had moved to

 5    the second category, hadn't you?  I'm not sure if I got the interpretation

 6    of that.  Could you repeat that again, please, the second category?

 7            MR. BAKRAC: [Interpretation] Thank you, Your Honour.  I will try

 8    not to get confused.  I thought that what I had said with regard to the

 9    second category had already been interpreted.

10            With regard to the second category, the precondition is, apart

11    from the intent, there must be also volition to that effect, that is the

12    desire to put into action such a system of criminal intent.  And in the

13    third category, again it is the intent and wish to participate in a

14    criminal activity or the criminal intent of a group and also to promote

15    them and also to contribute to the JCE or at any rate the crime committed

16    by a group.  Apart from the responsibility for a crime which has not

17    been -- which had not been agreed on the basis of a joint plan.  This can

18    happen only if one takes into account all the circumstances of the case by

19    singling out the responsibility of one or more members of the group who

20    could foresee the consequences of their acts.  Therefore, the accused will

21    bear the consequences of such an act.

22            In the judgement of the Trial Chamber, it transpires quite clearly

23    from it that the judgement does not deviate from what the Prosecution is

24    duty-bound to establish if an accused is to be pronounced guilty on the

25    basis of his participation in the JCE, that is, his intent to participate

Page 145

 1    in such an enterprise.

 2            When we talk about the intent, it is possible that here we have to

 3    face the problem of different interpretations of the notion of intent.

 4    And the Defence, therefore, wishes on its part to try to shed more light

 5    to it or, rather, to explain what in the Defence's opinion the intent to

 6    commit such crimes means.  This subjective component is of vital

 7    importance if one is to determine the nature and the degree of

 8    responsibility of an accused.

 9            If we speak about the intent, we believe that it is necessary to

10    establish that there is a wish that a particular crime or crimes

11    perpetrated within a joint criminal enterprise be accepted as one's own.

12            When we talk about the appeals judgement in the Tadic case, the

13    Trial Chamber referred to an example of the concentration camp of

14    Auschwitz concentration camp where the intent was also being established,

15    although the will of co-perpetrators to commit a particular crime and

16    where it was indicated that although it was impossible to prove that the

17    accused had indeed identified himself with the purposes of the Nazi

18    regime, yet the Tribunal considered him as an abettor because he did not

19    have a specific intent to see this crime as his own.

20            What is the principal objection of the Defence with regard to the

21    thesis and position of the Prosecution is that fundamental difference

22    between the notion of intent to participate and participation in a JCE and

23    acceptance with acts which are the outcome of such a JCE.  So this is this

24    very delicate, very subtle difference between the participation in the JCE

25    and the aiding and abetting as a form of liability under 7(1).

Page 146

 1            So in order to claim that an accused participated in the second

 2    category of a JCE, it is necessary to prove that the acts committed during

 3    such a JCE are acts which he accepts and perceives as his own.

 4            With all due respect, the Prosecution has failed to prove that and

 5    has not produced a single relevant -- single piece of evidence to that

 6    effect.  And that is we think the -- so we think that their position that

 7    the Trial Chamber has erred is not acceptable.  We think that there is

 8    also inconsistency with regard to the objective elements regarding the

 9    role and conditions which are indispensable if a person is to be

10    pronounced guilty on the basis of his or her participation in the JCE.

11    The Prosecution is also duty-bound to prove that such an activity is more

12    important with regard to the perpetration, because the co-perpetrator is

13    somebody who in one way or the other participates in the perpetration of

14    an act.  The contribution of an individual is also functionally related to

15    the activities of other persons, that is, they must be complementing one

16    another in a decisive and important manner.

17            We also think, if we refer to the appeals judgement in the

18    Celebici case, that something more, that simple conscious participation in

19    a general system needs to be proved.  And we believe that the Prosecution

20    was also duty-bound to prove that.  In other words, one needs to prove

21    participation in a decisive, in a fundamental manner.

22            From all that I have just said --

23            JUDGE JORDA: [Interpretation] Judge Guney has a question to ask.

24            JUDGE GUNEY: [Interpretation] Mr. Bakrac, I'm trying to follow you

25    very carefully, and you spoke about three categories as part of the joint

Page 147

 1    criminal enterprise.  The first has to do with the intention of committing

 2    the crime and common design.  As second, you spoke about the will to apply

 3    or to follow that intention.  But I did not fully understand what the

 4    third category is.

 5            You spoke about the consequences of the crime which must be

 6    foreseeable and similar things, but I want to know exactly what the third

 7    category that you're mentioning is, that is, the category that you're

 8    putting forward before this Appeals Chamber.

 9            MR. BAKRAC: [Interpretation] Your Honour, it is precisely the

10    third category concerning the participation in a JCE is the category where

11    the common awareness of the perpetration of a crime, where there is a

12    joint decision to commit a crime, but to commit a crime which is the

13    foreseeable and logical outcome of a system within which such a crime is

14    committed.  And that is why I considered it justifiable to distinguish

15    between this third category, the third category as an extended form of the

16    joint enterprise as against the first two categories which are basically

17    the same except that their object is different.  The second one went into

18    the problems of concentration camps.  That is, problems involved in a

19    particular system.

20            So in the third category, the principal performs a crime which

21    goes beyond the common design but is a logical and natural outcome of the

22    initial joint criminal enterprise.

23            So from what we have tried to point out, we come to the conclusion

24    that the Defence thinks that the second category is not applicable to the

25    concrete case of this Appeals Chamber, especially not in light of the fact

Page 148

 1    that, apart from the theoretical debate, the Prosecution has not offered

 2    sufficient evidence to enable us to conclude beyond any reasonable doubt

 3    that the accused shared in that intent or, rather, that he played an

 4    important part in the operation of the KP Dom and the execution of the

 5    joint criminal enterprise.

 6            And this is very important.  We believe that it is important to

 7    establish, and beyond any reasonable doubt, the fact that the acts that

 8    were committed within the JCE, that the accused accepted them as their own

 9     -- as his own.  Excuse me.

10            As for alleged subgrounds of the first ground of appeal in the

11    Prosecution's brief, it speaks about the alleged error of the Trial

12    Chamber regarding the request for additional concert.  In its brief, the

13    Prosecution applies solely a linguistic interpretation to offer a

14    one-sided interpretation of the decision of the Trial Chamber, saying that

15    we've been -- the Prosecution is duty-bound to prove that for each of

16    these cases every person, together with the principals or a principal

17    shared the awareness required to commit a particular crime.

18            The Defence thinks that what the Appeals Chamber established in

19    the Tadic case, to which the Prosecution refers, clearly says that a

20    participant in the JCE in any of the three mentioned categories must share

21    the awareness as the -- with the chief principal or principals, and that

22    is one of the grounds for liability for the participation in a joint

23    criminal enterprise.  When the intent to participate becomes a condition

24    sine qua non, that is quite obvious that they might also share the

25    awareness.  However, the example quoted by the Prosecution in their brief

Page 149

 1    goes in the opposite direction.  That is, the Prosecution quotes the

 2    example of persons who planned a crime and direct -- when persons who are

 3    planning a crime create indirect perpetrators, legal confusion, mislead

 4    the direct perpetrators and therefore induce them to commit a crime.

 5            So we say we establish such a manner of participation, a joint

 6    criminal enterprise and the need to have a shared awareness, common

 7    awareness, then those who order the crimes would be exculpated if the

 8    direct perpetrator were unaware of the true intent of the person ordering

 9    the crime.  And here we went to the other to establish a criminal

10    liability, because it is quite clear that in this particular case we're

11    not talking about co-perpetrators or co-perpetration, because the direct

12    perpetrators are merely tools in the hands of those who ordered the crime,

13    and they are merely perpetrating the act, which does not relieve of

14    responsibility those who planned and designed the crime.

15            So in the criminal law, one cannot accept that one starts from

16    these things which exclude the criminal liability in order to establish

17    the criminal liability of some other persons.  And we therefore believe

18    that the example quoted by the Prosecution is not an adequate example.

19            The Defence, in its reply to the appeal brief of the Prosecution

20    offered an example to show how unfounded and unacceptable was such a

21    thesis of the Prosecution.  For instance, if a child under the age of 14

22    were to be instructed by, say, his father to commit a crime and that child

23    is not aware that that is a crime, then it will mean, if one accepted this

24    kind of logic, that even the person who ordered the crime, father or any

25    other person, would not -- would not be held liable because the two

Page 150

 1    persons do not share the awareness of the crime.  We do not think that

 2    such a position of the Prosecution is acceptable, and therefore, it cannot

 3    be accepted as grounds for pronouncing the sentence erroneous.

 4            So in view -- in view of all the above, we think that the first

 5    instance judgement does not contain errors insofar as it establishes that

 6    the accused cannot be responsible under 7(1) as a participant in a JCE and

 7    in relation to the second category.

 8            So as for the subground of appeal concerning the alleged error

 9    about the illegitimate imprisonment, we think it was said that the

10    criminal intent was equalised with the motive.  Of course the motive

11    cannot be the chief element of a criminal act, but it is nonetheless very

12    important if one is to establish the true intent of the accused, that is,

13    a motive does not help us but it does show us the way if -- show us the

14    way to establishing the true intent of the perpetrator.

15            We, therefore, think that the example produced by the Prosecution

16    concerning the fact that the Trial Chamber starts from the motive or,

17    rather, that the motive is incorporated in the essence of the crime is not

18    acceptable and, therefore, we think that the Prosecution's position

19    regarding the participation in the JCE are unacceptable in this regard and

20    should therefore be rejected.

21            If you don't mind, I'd like to move on, that is, if there are

22    no -- any questions, I'd like to move on to the second ground of appeal of

23    the Prosecution.

24            JUDGE SHAHABUDDEEN:  Mr. Bakrac, I'm indebted to you for an

25    excellent argument, but tell me this and see if you can help me.  A

Page 151

 1    distinction is drawn between mere knowledge of an intent to commit a crime

 2    and sharing that intent.  Now, we are talking of KP Dom and of a man who

 3    was warden of KP Dom.  We assume that he knew of an intent to commit a

 4    crime.

 5            I think the position taken by yourself is that he did not share

 6    the intent to commit the crime.  Would you think there is some difficulty

 7    in the circumstances of KP Dom of saying that a warden knew of an intent

 8    on the part of his subordinates to commit a crime in relation to inmates

 9    of KP Dom but that he did not share their intent?  Is there a difficulty

10    there?

11            MR. BAKRAC: [Interpretation] Your Honour, the Defence's position

12    is that the Prosecution hasn't established beyond any reasonable doubt

13    that the accused was aware of the actual intentions of the perpetrators of

14    the crimes and that therefore, we consider that he could not have shared

15    their intent, and he could not have accepted these crimes as his own.

16            The Trial Chamber concentrated on the issue -- on all the counts

17    in the indictment and also on the reliability of the knowledge that the

18    accused had given the objective circumstances and bearing in mind his acts

19    and omissions.  So it is our position that it hasn't been established

20    beyond any reasonable doubt that the accused was fully aware, outside the

21    context of the conflict, what the intention of the main perpetrators was.

22    Naturally, it is clear that under such conditions the accused was aware of

23    the conflict.  He had knowledge about the context.  But outside of the

24    context of the conflict in that territory, we don't think that it has been

25    established beyond any reasonable doubt that the accused was aware of the

Page 152

 1    exact intention of the perpetrators, and we believe that given the main

 2    form of participating in the JCE in spite of such knowledge, the Defence's

 3    position is that the accused should have shared the intent.  He should

 4    have agreed with such acts and accepted them as his own.

 5            JUDGE SHAHABUDDEEN:  Let me see if I recollect right your

 6    position.  I understand you -- I understand you now to be taking the

 7    position that the Defence, if I may call it that, is challenging both

 8    knowledge and sharing the intent.

 9            MR. BAKRAC: [Interpretation] Yes, Your Honour.  Yes.

10            May I continue?  Thank you, Your Honours.

11            As far as the second ground of appeal, the Prosecution's second

12    ground of appeal is concerned, the Defence shall also concentrate on this

13    second ground of appeal regardless of the fact that the Prosecution quite

14    clearly made it known that they weren't requiring that the Trial Chamber's

15    decision be revoked or revised.

16            We believe that the Trial Chamber was correct when it

17    decided -- when it decided that the indictment said that the accused acted

18    with others with regard to torture, beating, and enslavement.  And this

19    all had connotations of sharing, of acting together.  This is a main

20    crime.  The indictment has identified this second category that we have

21    mentioned, and in its -- but it didn't state that it was relying on the

22    third category of participation in a joint criminal enterprise.

23            It is our position that the Trial Chamber's decision was correct

24    when they decided that it would be an injustice to the accused if the

25    Prosecution was allowed to rely on the extended form of joint criminal

Page 153

 1    enterprise, which is not mentioned in the indictment but which was

 2    announced in the pre-trial brief of the Prosecution.

 3            As far as the Prosecution's position is concerned, we think that

 4    the Prosecution's position was wrong when they said that they should be

 5    allowed a certain amount of flexibility when drafting the indictment, and

 6    this -- which is quite contrary to the pleadings the Prosecutor in the

 7    first brief with regard to inciting a unified and rational call in order

 8    to ensure that the proceedings before the Tribunal are coherent and

 9    foreseeable.  The Prosecution itself in its brief accepted that --

10    accepted practice is that there is an obligation that the accused be quite

11    clearly informed in the indictment the nature and the reasons for the

12    charges that are directed against him.  So it is quite clear that this was

13    the Prosecution's duty.  The Prosecution had the obligation of quite

14    clearly indicating in the indictment in unambiguous terms that they rely

15    on a third form of joint criminal enterprise which is something the

16    Prosecution failed to do.  And such a position shows that the Prosecution

17    is obliged to inform the accused in very clear terms in the indictment as

18    to the form of responsibility he is being charged with in the indictment.

19            The fact that someone is charged on the basis of extended

20    participation in a JCE implies that it is necessary that the accused

21    should be aware of the crimes concerned outside the common plan, and it's

22    also necessary that he know which consequences of such a plan are

23    foreseeable so that he can prepare his defence with regard to this.

24            Naturally, with regard to this extended form, it is necessary to

25    deal with this decisively, and the accused should be clearly informed of

Page 154

 1    the nature of the charges directed against him.  The nature and the

 2    reasons for the charges directed against the accused in terminological and

 3    logical terms also entail the form of his responsibility.  So the Defence

 4    thinks that this extended form of responsibility on the basis of joint

 5    criminal enterprise has to be clearly indicated in the indictment because

 6    it represents the nature, the form, the reasons for which an individual is

 7    charged with certain crimes.

 8            We would also like to point out that the indictment was returned

 9    on two occasions to be revised, and in a third decision, that is to say

10    the decision on the basis of the third objection filed by the Defence, the

11    Trial Chamber made it known that in addition to the fact that the

12    indictment was not quite precise, this would have consequences with regard

13    to the final decision rendered by the Trial Chamber.

14            For this reason, we think that the Prosecution's position is

15    unacceptable when they say the Defence failed to react in a timely fashion

16    with regard to the absence of this form of charges in the indictment

17    itself.

18            The Defence would like to refer to logic.  If such an omission on

19    the part of the Prosecution, the omission, the failure to mention in the

20    indictment the form of joint criminal enterprise concerned, this omission

21    would later result in the fact that the judgement -- that in the judgement

22    the Prosecution would be informed that the accused cannot be proclaimed

23    guilty on the basis of that third form because it was not contained in the

24    indictment.  And therefore, for these reasons it's quite illogical and

25    contrary to the rights of the accused to say that the Defence had the

Page 155

 1    obligation to inform the Prosecution in time of such an omission.

 2            The Defence does not have the obligation to make the proceedings

 3    of the accused more difficult, and therefore we think that such arguments

 4    on the part of the Prosecution are not acceptable.  We think that making

 5    it clearly known what form of joint criminal enterprise is concerned, on

 6    the basis of which form of JCE the accused is charged, this should be

 7    contained in the indictment because this shows the nature and the reasons

 8    for which accused is charged.  And it is on this basis that an accused can

 9    prepare his defence, on the basis of such information.

10            And that concludes my response to the second ground of appeal.

11            As far as the third ground of appeal is concerned, the

12    Prosecution's third ground of appeal, the error of the Trial Chamber with

13    regard to the crime of maltreatment, the Defence would like to say that in

14    its brief, it emphasised the fact that the accused did not have the

15    position of a superior with regard to the guards and non-Serbian detainees

16    in the KPD and therefore was not authorised to issue orders to them or to

17    control their acts or to punish their acts.  But even if the findings of

18    the Trial Chamber according to which the accused had such effective

19    control over non-Serbian detainees and over the Serbs in the KPD who have

20    been referred to as some of the perpetrators for crimes that were

21    committed, even in such a case, on the basis of the facts established by

22    the Trial Chamber, it is not possible to reach a conclusion beyond any

23    reasonable doubt that the accused is responsible as a superior according

24    to Article 7(3) of the Statute for counts 2 and 4, which is what is stated

25    in the Prosecution's appeal brief.  And for this reason, we think that the

Page 156

 1    Prosecution's position, this position on the part of the Prosecution is

 2    erroneous and the findings of the Trial Chamber with that regard, as far

 3    as this matter is concerned, is absolutely correct.

 4            And the Defence has also pointed out to the -- a lack of legal

 5    force of the arguments presented by the Trial Chamber with regard to the

 6    established facts as far as the knowledge of the accused is concerned

 7    according to which the accused was aware of the beatings in the KPD.  And

 8    in the Prosecution's brief, they have pointed out -- they have pointed

 9    three examples of beatings which were established by the Trial Chamber,

10    and according to the Prosecution, they should represent -- this should be

11    sufficient evidence to prove that the accused could have known that

12    criminal acts of maltreatment were being committed in the KPD.  These are

13    three examples that the Trial Chamber has referred to as -- referred to as

14    having been established.  And the Prosecution, in its brief, also referred

15    to these examples when it pleaded, when it argued that the -- that it had

16    been proven beyond any reasonable doubt that the accused was responsible

17    and, therefore, that he could have been aware of the fact that there was

18    maltreatment in the KPD.

19            As far as the first example is concerned with regard to these

20    allegations that the consequences for the physical state of the -- the

21    physical condition of the detainees could have been the result of such

22    acts, the Defence's position is that the Prosecution with regard to such

23    findings on the part of the Trial Chamber, it can't rely on such findings.

24    The Prosecution can't rely on such findings, and it has been established

25    beyond any doubt in all the other evidence presented that Muslim detainees

Page 157

 1    who were taken to the KPD throughout -- almost throughout the entire

 2    period during which the accused had the position that he had, they

 3    appeared there and it was obvious that they already had traces of

 4    beatings.  There were visible physical traces of the conflict, of the

 5    beatings that they had sustained.  So the fact that these -- that this was

 6    visible, that it was -- that the traces were visible on these people, this

 7    fact is relevant and it indicates that the accused may have had knowledge

 8    that these beatings were taking place elsewhere.

 9            And in its appeal, we have said that it is for this reason that

10    the accused could not be charged on the basis of beatings either, and

11    especially given that -- and to an even lesser extent can such a finding

12    of the Trial Chamber can be the basis for the Prosecution to claim that

13    the accused could have and should have been aware of the crime of

14    beatings.

15            So there is evidence that detainees were taken to the KPD, and

16    they already had very evident physical injuries.  This evidence in itself

17    does not present proof of any significant kind in the sense that -- or not

18    according to the jurisprudence or the request of the jurisprudence of this

19    Tribunal.  And it especially cannot prove the crime of beating, of

20    maltreatment.

21            The second example concerns the witness RJ referred to by the

22    Prosecution in its oral address to the Chamber today.  In the case of this

23    witness, it was established that he informed the accused that non-Serb

24    detainees were beaten and maltreated and that they were aware of this fact

25    because they heard the sounds of beatings from the administrative

Page 158

 1    building.  And although -- if the Trial Chamber takes this into

 2    consideration, accepts this evidence, the testimony of the witness RJ,

 3    which is restrictive in our opinion, this same witness also testified that

 4    the accused told him that he was not competent for these matters but that

 5    he had borne a responsibility for these matters but that he would look

 6    into it.  And the Defence considers that what the witness said to the

 7    accused was not necessarily true.  And the accused did not have the

 8    obligation of accepting this without any doubt, without having any

 9    reservations about this information.

10            Regardless of the fact that the Defence considers that the accused

11    was not under any obligation to investigate such allegations, we think

12    that when the Prosecution cites this example, they have not proved beyond

13    any reasonable doubt that this piece of information is of great relevance

14    and that an investigation should have been lunched into the allegations

15    given the information provided.

16            As far as the third example is concerned, that of Ekrem Zekovic,

17    we think that this finding of the Trial Chamber is not appropriate to be

18    taken as a basis upon which one could establish that it is a fact that the

19    accused had knowledge of beatings being perpetrated in the KPD, especially

20    not that he had knowledge of beatings for a forbidden objective.

21            The Defence would like to mention that the incident that the Trial

22    Chamber established with regard to the beating of Ekrem Zekovic, an

23    incident which was established to have happened on the 8th or 9th of July,

24    1993, and the Defence has proven this with material evidence, at the time

25    the accused was no longer even formally a warden of the KPD since the

Page 159

 1    Ministry -- since on the 1st of July, 1993, he no longer had this function

 2    and he spent only a little more time in the KPD subsequent to this date.

 3    But this will be a matter of discussion, a matter of issues that the

 4    Defence will deal with in its appeal.  But what we consider is essential

 5    and what must be emphasised at the moment is that such knowledge, such

 6    information, which was provided a few days before the accused left the

 7    KPD, cannot be used to retro -- cannot be used to oblige the accused to

 8    retroactively carry out investigations.  He cannot be retroactively

 9    obliged to look into certain acts that may have been perpetrated.  So this

10    isolated piece of information is a piece of information he was provided

11    with at the end of his term in the KPD and did not necessarily entail his

12    responsibility for carrying out investigations into something that took --

13    that had already happened, that had happened at an earlier date.  So we

14    don't think that such an argument on the part of the Prosecution is an

15    acceptable one.

16            This isolated piece of information, in our opinion, cannot be

17    accepted on a retroactive basis, and the accused cannot be charged with

18    not having looked into the incidents given that he knew on the 8th or 9th

19    of July, Zekovic may have been beaten for a prohibited objective and that

20    he was therefore obliged to do something and that represented the basis on

21    which he was responsible for all the prior excesses in the KPD.  This

22    piece of information cannot be considered to be relevant, cannot be an

23    indication of the fact that he's responsible for all the acts that

24    occurred in the KPD prior to that date.

25            Thus we consider that this incident cannot a priori -- could not a

Page 160

 1    priori have proven to the accused that beatings were concerned for an

 2    objective -- for a prohibitive purpose.  This is Ekrem Zekovic from the

 3    KPD who is concerned, who the guard Burilo beat up when he arrived in the

 4    KPD according to the findings of the Trial Chamber.  And the accused

 5    appeared at the moment that that was happening, at the time that this act

 6    was being perpetrated.

 7            So the Prosecution has not established beyond any reasonable doubt

 8    that the accused, even if he had carried out such an investigation would

 9    necessarily have obtained information that what was at stake were beatings

10    in order to attain a prohibited objective.  What the Defence wants to

11    point out here is that the Prosecution, in legal terms, has given a far

12    too broad interpretation of legal standards as far as establishing

13    responsibility of the accused is concerned.

14            We believe that given the fact and given the facts that perhaps

15    the accused was aware that there were beatings, we don't think that on

16    this basis the Prosecution can conclude that the accused, had he conducted

17    an investigation, would necessarily have had to find out that certain

18    beatings were carried out for a prohibited objective.  These assumptions

19    that the Trial Chamber did not want to consider and thus we don't think

20    that they made an error and it is for this reason that we suggest that

21    this ground of appeal on the part of the Prosecution also be rejected.

22            I would now like to move on to --

23            JUDGE JORDA: [Interpretation] Judge Guney would like to ask a

24    question.

25            JUDGE GUNEY: [Interpretation] Mr. Bakrac, under 3 and 4 here you

Page 161

 1    said that the accused did not have power over the guards and that he had

 2    no power in order to prevent the criminal acts which were being committed.

 3    And so that power, that is, his prerogatives were very limited.

 4            Could you compare the powers and prerogatives of the accused as

 5    the warden of the KP Dom?  Can they be seen positively?  According to you

 6    as the Defence, what were the powers and prerogatives of the accused as

 7    the warden of the KP Dom?

 8            MR. BAKRAC: [Interpretation] Your Honour --

 9            JUDGE GUNEY: [Interpretation] Could you list them quickly, what

10    his powers were, the powers that he had as the warden?

11            MR. BAKRAC: [Interpretation] Your Honour, with your permission, I

12    will attempt to answer this question, although the Defence has dealt with

13    this issue exhaustively in its first ground of appeal in its appeal brief.

14            There are witness statements, statements given by Defence

15    witnesses, and there's material evidence that indicates that part of the

16    KPD had been leased to the army and to the military authorities in order

17    to detain Muslims there, or rather, non-Serbian civilians, and there is a

18    lot of material evidence which the Defence has attempted to present to

19    show the Trial Chamber that the accused had no control over that part of

20    the KPD.

21            Perhaps there was a misunderstanding in that the Defence is not

22    pleading and is not claiming that there was some clear-cut physical

23    division that occurred, that this fact is reflected in particularly with

24    regard to the rights and the authority of the accused within the framework

25    of that institution.  The Defence has provided the Trial Chamber with a

Page 162

 1    number of proofs that show that the military authorities were in charge of

 2    exchanges.  They also compiled lists of persons and established who would

 3    be released and when.  Permission to visit was also issued by the military

 4    authorities, and the Defence has proven this by using a lot of evidence.

 5    So there is not a single piece of evidence presented by the Prosecution

 6    that would show that the accused played a role of any kind in organising

 7    the part of the KPD where Muslim detainees were being held or that he had

 8    authority of any kind there.

 9            And with the permission of the Appeals Chamber, the Defence will

10    also indicate how numerous this, how voluminous this evidence is.  And

11    with all the other evidence we have, it shows that the accused had no

12    authority, was not competent for that part of the KPD, and he had

13    absolutely no authority whatsoever with regard to the detained Muslims and

14    with regard to the military authorities.

15            JUDGE SCHOMBURG:  Just a very short follow-up question.  I think

16    we should always bear in mind that we are acting as an Appeals Chamber

17    here and therefore, in principle, are bound by the facts found by the

18    Trial Chamber, and the threshold to reverse the factual findings is

19    extremely high, and I want to draw your attention to your conclusion which

20    is a conclusion of the Trial Chamber in paragraph 107 that the accused

21    exercised supervisory responsibility over all subordinate personnel and

22    detainees in the KP Dom.

23            However, coming back to the question of -- asked by my colleague

24    Judge Guney.  In paragraph 98, the question is whether or not the Trial

25    Chamber came to this conclusion in the proper way.  And there we can read

Page 163

 1    that there was an appointment by the Ministry of Defence, and the Trial

 2    Chamber did not achieve -- have the necessary documents that they would

 3    need.  And I quote paragraph 98:  "The Defence said that it would seek to

 4    obtain these documents upon which the Ministry of Defence relied to offer

 5    the certificate for tender at that stage.  These documents were never

 6    produced and the Defence does not seek to enter the certificate into

 7    evidence at any later stage.  The Trial Chamber takes these circumstances

 8    into account when coming to the conclusion."

 9            My question is:  Isn't it the opinion of the Defence that this way

10    of arguing in this very limited sphere would lead to place the burden of

11    proof to the Defence rather than the Prosecution?  And my question is:

12    Did you identify in the factual findings any findings in support of your

13    legal submissions?

14            MR. BAKRAC: [Interpretation] Yes, Your Honour.  I find it a little

15    embarrassing to repeat it, and I think that the Defence, when it comes to

16    presenting its brief, will point at a large bulk -- large evidence and

17    very many other things which bring me to question the decision of the

18    Trial Chamber.  The onus was on the Prosecution, and they had to prove not

19    only de jure responsibility but also the de facto responsibility of the

20    accused.

21            I touched up on the third ground of appeal of the Prosecution as

22    to the form of indictment, and the Trial Chamber has warned the

23    Prosecution that they could not and should not rely merely on his title of

24    a prison warden, that they were bound to prove his true authority over

25    certain individuals.  The Defence on its part has undertaken to prove the

Page 164

 1    innocence of the accused or, rather, the onus to prove that apart from his

 2    de jure role, his de facto role did not exist and that here we were

 3    dealing with two completely different systems of chain of command, because

 4    the defence has produced evidence to show that the accused was appointed

 5    to the position of a warden by the Minister of Justice.  And the part of

 6    the KP Dom where non-Serb prisoners were kept was leased to the army and

 7    the army exercised authority over those individuals.

 8            Furthermore, the Defence, through the testimony of guards, and

 9    they testified here before the Chamber, and we also produced some evidence

10    to show that even the security guards in the KP Dom were appointed by the

11    military authority.  And that is why we claimed, alongside other evidence,

12    that the accused had no authority over these guards nor that he had any

13    resources, any means at his disposal to punish them for whatever

14    transgression that they had committed and he had learnt about.

15            JUDGE SCHOMBURG:  I only wanted to alert you that it would be in

16    favour of your client not to try to replace the findings by the Trial

17    Chamber by your own factual submissions during appeal.  Thank you.

18            JUDGE JORDA: [Interpretation] Please continue, Mr. Bakrac.

19            MR. BAKRAC: [Interpretation] Thank you, Your Honours.

20            So insofar as the fourth ground of appeal is concerned, killings;

21    the Defence deems, as in the previous cases, in this ground the

22    Prosecution refers to allegations and indicia endeavouring to use some

23    facts, some information that the accused might possibly have raised to the

24    level of alarming information and which would then lay down the standard

25    for mens rea, that is are allowed to bring charges against the accused

Page 165

 1    under 7(3) of the Statute.

 2            So all that was mentioned here with regard to the previous two

 3    grounds of appeal with regard to the shifting the onus of proving some

 4    facts, an unduly broad approach, we think the same argument is applicable

 5    also in this case, and the Defence thinks all of this can be said also of

 6    the fourth ground.

 7            In its fourth ground, the Prosecution analysed the Trial Chamber's

 8    finding as to the position of the accused as a person who had certain

 9    powers in the KP Dom and said that part of the KP Dom, the fact that part

10    of it was leased to the army affected little the hierarchy in the KP Dom.

11    The Prosecution says it had little effect, but we practically think that

12    the fact that part of the KP Dom was leased must have had some effect on

13    the powers.

14            This fact, however, needs to find its reflection in the status,

15    establishing whether the information available to the accused was of such

16    nature that it could be applied under the mens rea standard to be able to

17    charge the accused under 7(3).  This fact had to find its reflection also

18    in the nature of information.  It has to do both with this ground of

19    appeal of the Prosecution and -- so the duty to inform.  And a sufficient

20    number of alarming and adequate information that we referred to in

21    replying to the third and fourth grounds of appeal also holds true in

22    relation to the fifth ground of appeal of the Prosecution.

23            In this case, the Prosecution relied on the findings of the Trial

24    Chamber which said that for 15 months the accused was the warden of the

25    penitentiary, of the KP Dom, and that the widespread excesses both in time

Page 166

 1    and space could really provide you with sufficient information that such

 2    acts might have indeed been committed in the KP Dom.

 3            The Trial Chamber also established that 26 killings happened

 4    during a relatively short period of time, that is end of July and

 5    beginning of August 1992.  The Defence does in no way wish to

 6    underestimate the severity of this crime and the effects, but the Defence

 7    knows that we are talking about 26 killings which happened over two,

 8    three, or maybe four evenings in -- towards the end of June and early July

 9    1992.

10            These facts does not show that the killings were so widespread

11    both in time and space that one should take it that the accused had enough

12    possibility, enough opportunity to come by sufficient information in this

13    regard, especially when one bears in mind that these killings were

14    performed during a few evenings at a specified period of time when the

15    accused was not present in the KP Dom as has been established.

16            So in itself, it cannot lead us to a valid conclusion that the

17    accused had at his disposal sufficient information that would, if nothing

18    else, warn him that some of his subordinates were committing murders.

19            Furthermore, the additional element which is the one that the

20    Prosecution indicates as possible indicia that such killings were

21    happening during the relevant period of time of KP Dom once again do not

22    lead us to a conclusion that the accused had sufficient and alarming

23    information that such crimes were taking place.

24            The Prosecution also invokes additional elements such as marks and

25    traces in KP Dom or evidence in KP Dom a car with an exhaust pipe which

Page 167

 1    was broken, and with some bloodstains, then screams and cries of pain,

 2    bullet traces in the walls of corridors and the metal door in the

 3    administrative building, and so on.  All of these are elements which could

 4    not tell the accused, which did not constitute sufficient and alarming

 5    information that murders were being committed in the KP Dom.

 6            The Prosecution has failed to show that the accused, although he

 7    had access to the canteen and the yard of the KP Dom, was necessarily

 8    informed and aware of these traces and marks.  That is, this could not be

 9    something that will be the subject of his direct observation.

10            Bullet markings on the walls of the KP Dom need not have meant

11    alarming and sufficient information that murders were being committed in

12    the KP Dom.  The shots that were heard at night when he was there once

13    again do not suffice to show that -- did not suffice to be termed as

14    alarming and sufficient information telling the accused that crimes were

15    being committed in the KP Dom.

16            In other words, we think that all these things that the

17    Prosecution relies on cannot be interpreted as information that was

18    adequate and necessary to start an investigation for crimes, and they have

19    also failed to show that the accused was aware of all these details to do

20    anything.

21            All that is said in the Prosecution's brief in this regard could

22    not constitute information at all, because such information never reached

23    the accused.  That is, the Trial Chamber has not found that this

24    information reached the accused.  It has not found it beyond any

25    reasonable doubt.  And in particular, we do not think that these -- that

Page 168

 1    this is worrying, alarming information that would be indicative of

 2    killings committed by persons subordinate to the accused Krnojelac.

 3            In their brief and today, the Prosecution mentioned that the

 4    accused was -- knew of a death which occurred under suspicious

 5    circumstances and pointed out that the accused had learnt from a nurse

 6    that the person had committed suicide.  We think that the Prosecution has

 7    once again failed to show that such information which the accused obtained

 8    from a nurse could be -- could constitute an alarming piece of information

 9    which would then bind him to conduct investigation in order to establish

10    whether killings indeed were happening in the KP Dom.

11            If we went along with such an interpretation of the Prosecution

12    that some signs such as revolver shots at night or bullet marks on the

13    walls of the KP Dom, which is as was established by the Trial Chamber,

14    which was shelled during the armed conflict, we still cannot agree that

15    they're representing round to claim that the accused is responsible under

16    7(1), that he can be held responsible for these killings, and we therefore

17    think that this ground of appeal of the Prosecution should also be

18    rejected as lacking foundation.

19            Now I'd like to move on to the next ground of appeal of the

20    Prosecution, that is if there are no questions by the members of the

21    Chamber.

22            JUDGE SHAHABUDDEEN:  Mr. Bakrac, should I understand you this way,

23    that your position is the question whether there was alarming information

24    was one of fact to be evaluated by the Trial Chamber and that the Appeals

25    Chamber cannot intervene unless it is satisfied that no reasonable

Page 169

 1    Tribunal of fact could have found otherwise?

 2            MR. BAKRAC: [Interpretation] Yes, Your Honour.

 3            JUDGE JORDA: [Interpretation] I would like to follow up on Judge

 4    Shahabuddeen's question.  To be clear, there are errors of fact which you

 5    do tend to bring out in response to what the Prosecutor said, but I recall

 6    what I said to you at the beginning of our hearing this morning, as Judge

 7    Schomburg has already told you and as Judge Shahabuddeen has told you; in

 8    terms of errors of fact, keep in mind that would be related to a trier of

 9    fact.  For example, if there was a suicide in a prison in an

10    administrative system which would be reasonably constituted, would that

11    cause the higher authorities to be alerted to what had happened?  That

12    would be a criteria which could be of interest to a Chamber.  When there

13    is a suicide in a prison, perhaps one could imagine that an administrative

14    system in a democratic well organised country there would be an alarm

15    system.  Those are the types of criteria that you should bring us back to

16    but not to again plead what was already pleaded so well by yourself.  And

17    I said this also to the Prosecutor.

18            Having said this, please proceed.

19            MR. BAKRAC: [Interpretation] Thank you, Your Honour.  Should I

20    move on to the next ground of appeal or -- thank you, Your Honour.

21            The fifth ground of appeal of the Prosecution deals with

22    persecution and beatings.

23            The Defence deems that the Prosecution has no evidence, that is,

24    has produced no objective and solid facts and, therefore, it wishes to

25    shift the burden of proof to the Defence in this ground, and they rely

Page 170

 1    merely on some assumptions deriving from some general circumstances and

 2    general facts which have been found.

 3            Ergo, we think that what the Prosecution claims under this ground

 4    runs counter to legal principles and international customary law, that is,

 5    principles which can also find in modern legislations but which existed

 6    also in the Roman law, that is in dubio pro reo; if I doubt then it must

 7    be in favour of the accused.  What is the basis of the Prosecution's fifth

 8    ground of appeal moves in the opposite direction.  If in doubt, then --

 9    then it will incriminate the accused further.  That is what we believe,

10    and we believe it because the Prosecution does not corroborate their views

11    with concrete facts and circumstances which would persuade the Trial

12    Chamber to change the decision of the first instance Chamber.  That is, in

13    their fifth ground the Prosecution objects to the finding of the Trial

14    Chamber and says that the interpretation of the Trial Chamber was too

15    narrow and that things were not viewed within a broader context within

16    which some fundamental acts took place.

17            And therefore even if it comes from the Prosecution but the

18    Defence finds surprising the objection that in this case the Trial

19    Chamber, as the Prosecution says, applied a narrow and legalistic,

20    discriminatory, that is, approach.  We think that the Trial Chamber could

21    not apply any other approach but the one which the Prosecution objects to

22    in this ground of appeal.

23            In the Defence's view, the Prosecution said that discrimination

24    based on racial or ethnic basis should be interpreted in the broadest

25    possible way on the basis of assumptions so as to alleviate the

Page 171

 1    Prosecution's burden of proof so that they would need to invest less

 2    effort in proving that this crime happened.

 3            The Trial Chamber established in judgement that there was a

 4    persecution as a crime against humanity as shown in imprisonment and

 5    inhumane living conditions.  When the Trial Chamber established that the

 6    detention of non-Serbs in the KP Dom was the result of discrimination and

 7    the inhumane acts relative to living conditions also were the result of

 8    discriminatory policies.  If we bear in mind this finding of the Trial

 9    Chamber which has to do with the discrimination underpinning the crime of

10    detention and inhumane living conditions, then it is quite unacceptable to

11    use it to draw the conclusion that all the other acts envisaged by the

12    statute of this Tribunal were committed as forms of discrimination without

13    having to establish concrete facts, and only on the basis of the

14    discrimination-driven imprisonment and the inhumane living condition.  The

15    fact that the Trial Chamber has already established that the accused was

16    responsible for persecution as a crime against humanity in view of the

17    imprisonment and inhumane living conditions; no.  It must necessarily --

18    it makes it indispensable to establish that all the other acts, all the

19    other things that were done in KP Dom were also driven by desire for

20    discrimination.

21            Now, we think that it is the duty of the Prosecution to establish

22    clearly that each one of these acts which are -- with which the accused is

23    charged were based on discrimination and driven by discrimination.

24            The Defence tried to respond to this.  It is quite possible that

25    the living conditions in the KP Dom, in detention in a small milieu, we're

Page 172

 1    talking about the town of Foca and its surroundings, it is quite possible

 2    that being a Serb guard and a detained Muslim might have come to settling

 3    perhaps some old scores, those which existed even before the conflict.  So

 4    one need not necessarily assume, since the detainees are non-Serbs,

 5    Muslims guarded by Serbs, any act which could be interpreted as a crime

 6    under the statute of this Tribunal could not have been based on

 7    discrimination.

 8            It is the duty of the Prosecution, the Defence deems, to, in every

 9    concrete case, for every count of the indictment, for everything that it

10    charges the accused with, to prove that that act was based on

11    discrimination, was done with a view to discrimination and was driven by

12    discrimination.  It is unacceptable that the Prosecution claims -- when

13    the Prosecution from indisputable facts, that there were two groups that

14    were opposed to each other in a conflict, to then draw general conclusion

15    and they cannot draw the conclusion that because certain acts were

16    committed they must have been -- they could not have been committed except

17    for reasons of discrimination.

18            So these assumptions, the Prosecution may not raise these

19    assumptions to a higher level, to a level of found facts.  They must

20    provide proof to show that these acts were the fruit of discrimination,

21    that these acts were committed with a view to discrimination and for no

22    other reason or motive.

23            So it is clear why the Prosecution says that it is not necessary

24    to prove that every individual act was based on discrimination, because

25    the fact that all these acts were very widespread is showing this

Page 173

 1    discrimination itself.  We do not think that such a broad system of

 2    evidence, of proof can be accepted and we do not think that the burden of

 3    proving is now shifted to the Defence.  We do not think that it is

 4    acceptable.  It is not up to the Defence to have to prove that every act

 5    that is laid at the door of the accused was committed -- was not committed

 6    for a discriminatory reason.  It is up to the Prosecution to offer proof

 7    that a particular act was committed with such intentions in mind.

 8            So this would be our answer to the fifth Prosecution's ground of

 9    appeal, and perhaps it is now time for a break.

10            JUDGE JORDA: [Interpretation] Yes.  We think that it is time for

11    the break which will resume at half past four, and then you will have

12    another half hour.  Thank you.

13                          --- Recess taken at 4.00 p.m.

14                          --- On resuming at 4.33 p.m.

15            JUDGE JORDA: [Interpretation] We will resume the hearing now.

16    Please have the accused brought in.

17            I was a bit too generous with you, Mr. Prosecutor, when I gave you

18    more time, but I'm sure that with the ability you have to summarise things

19    -- I mean Defence, that is -- you will be able to finish in the limited

20    time scheduled today.  Tomorrow you will have as much time as the

21    Prosecutor had this morning.

22            All right.  So we can hear you until about 5.00, and then there

23    will be the final reply of the Prosecution.

24            All right.  The floor is yours.

25            MR. BAKRAC: [Interpretation] Thank you, Your Honour.  Given what

Page 174

 1    you have said, I will say in advance for each ground of appeal that I

 2    stand by the allegations -- the statements that I made in my written

 3    response to the Prosecution's appeal.  I'll try and summarise the essence

 4    of what the Defence wanted to present before you.

 5            The next ground of appeal concerns persecution based on forced

 6    labour.  The main objection in the Defence's view made by the Prosecution

 7    has to do with the voluntary nature of performing the work, and the Trial

 8    Chamber established that such work was in fact carried out in the KPD.

 9    Supporting its claims with regard to the absence of the voluntary nature

10    of such work, we think that the Prosecution, when it charged the accused

11    with this crime, compared it to the crime of rape, and this was

12    inappropriate, the crime of rape which is the subject of jurisprudence in

13    this Tribunal and with regards to which an appeals judgement was reached

14    in the Kunarac case.

15            If a parallel is established without any restrictions between

16    those two crimes, we think it is not appropriate, and we do not believe

17    that the Prosecution can base itself on such a situation.  But we do

18    consider that unlawful confinement and inhumane conditions by themselves

19    do not make -- do not deprive the Prosecution of the obligation to

20    establish a certain degree of voluntary work.

21            The degree of criminal responsibility isn't adequate and can't be

22    irrelevant for establishing whether the crime of forcing people to work

23    was committed.

24            The Prosecution attempted to use many examples of errors committed

25    by the Trial Chamber with regard to facts which the Trial Chamber

Page 175

 1    established through a number of witnesses.  They negate -- and to negate

 2    that this work was voluntary, in our opinion, was done in a way that

 3    doesn't show that the accused could be proclaimed guilty on the basis of

 4    these crimes.  On the contrary, on the basis of all the examples provided

 5    by the Prosecution and in the findings of the Trial Chamber, one can see

 6    that none of these witnesses refused to work.  On the contrary, we have

 7    information according to which all of them, for various personal reasons,

 8    wanted to work.

 9            The very fact that the civilians in the KPD were detained without

10    there being a legal basis for this, and the fact that the living

11    conditions were -- were very poor cannot -- does not mean that the

12    Prosecution doesn't have the obligation to prove that people were forced

13    to work and that such -- and that the reason for forcing them to work was

14    of a discriminatory nature.

15            I apologise.  I have been warned to slow down again.  And I would

16    also like to apologise to the interpreters.  I'm trying to say as much as

17    I can in a short period of time.

18            It was for the Prosecution to prove that this work was forced.  If

19    the Prosecution enumerates various motives, which is what it does in its

20    brief, it cannot claim that the circumstances were such that no one worked

21    on a voluntary basis.  From the examples of the Trial Chamber, from the

22    findings of the Trial Chamber, one can see that all the individuals for

23    whom the Trial Chamber decided they worked, it can be seen that they had a

24    motive to work.  Some of them worked in order to obtain better food,

25    others in order to be able to circulate more freely.  There were others

Page 176

 1    who wanted to work in order to find out more information.

 2            So there is not a single reason, for example fear of being

 3    punished.  One can't say that they all worked because they were afraid of

 4    being punished.  There were a number of reasons, a number of subjective

 5    reasons.  These people worked for a variety of reasons and motives.  So

 6    the living conditions in the KPD, the fact that they were unlawfully

 7    detained, by themselves do not indicate, do not prove that the work was

 8    forced.  On the contrary, in our opinion, the Prosecution does not have a

 9    single piece of evidence to support the claim that the work was forced.

10    The Trial Chamber's findings were correct when they said that the

11    individuals worked on a voluntary basis and that this was confirmed by the

12    individuals involved in the work. The reasons for which they worked cannot

13    play a decisive role in deciding on the criminal responsibility of the

14    accused.

15            The basis of this complaint is the idea of persecution based on

16    compulsory work.  The Prosecution should have proved that this forced

17    labour was of a discriminatory nature, that its purpose was

18    discrimination.  The Defence could just like to point out very briefly,

19    and I do not want to diminish the gravity of the crimes established by the

20    Trial Chamber, the gravity of the crimes that occurred in the KPD, but I

21    would like to emphasise that the fact that the Trial Chamber established

22    that there were over 500 -- or between 500 and 700 Muslims in the KPD and

23    that about -- well, perhaps between -- about 50 individuals were involved

24    in the work - that's about 10 per cent - this proves the contrary.  This

25    proves that the reason for which the detained civilians were discriminated

Page 177

 1    against, if the reason for making them work was of a discriminatory

 2    nature, then each one of them would have had to perform tasks of a certain

 3    kind, carry out work.

 4            In our brief, the Defence, with regard to the functioning of the

 5    Drina Economic Unit, mentioned -- we mentioned that economic unit, and it

 6    is possible to decide what the background of this work was, the background

 7    of the work in which a number of people were involved.  So we don't think

 8    that the Prosecution can support its claims with established facts.  And

 9    it is also our opinion that this can't be a basis for the Trial Chamber's

10    decision to be reversed.  And thus we suggest, given all the arguments

11    presented by the Defence in its written response, we suggest that this be

12    rejected as a basis for reversing the decision.

13            I would like to move on to the following ground of appeal, the

14    following ground of appeal of the Prosecution to which the Defence

15    responds is the crime of deportation as persecution.

16            I believe that the Prosecution when discussing this ground of

17    appeal concentrated on certain terms, on certain ideas of deportation.  I

18    think that the Appeals Chamber assisted to quite an extent when clarifying

19    the position of the Prosecution with regard to this matter.

20            In the opinion of the Defence, the Defence in its response to the

21    Prosecution brief also developed a -- expanded on a number of these

22    issues, and we also believe that this ground cannot be accepted, and we

23    believe that the Prosecution has not demonstrated that the decision of the

24    Trial Chamber with regard to this ground was incorrect and should be

25    reversed or revised.

Page 178

 1            The Prosecution's position with regard to the crime of deportation

 2    is that the issue of international borders, the issue of the location, it

 3    concerned the issue of the location to which certain individuals were

 4    sent.  They claimed that this -- it wasn't important whether this location

 5    was beyond the state borders or not in order to establish the existence of

 6    such a crime.  I think that such an approach would result in many problems

 7    with regard to establishing the responsibility of the accused.

 8            In a specific example, in a given example if we accepted the

 9    Prosecution's position, according to which deportation is just the

10    forcible transfer of a given individual regardless of the location or

11    regardless of the location or regardless of the destination to which this

12    individual is transferred, then we can reach the conclusion that

13    deporting, transferring Muslims from their flats to the KPD already

14    amounts to a form of deportation.  So for that group for which the -- with

15    regard to that group for which the accused is not responsible, we have

16    already established that there was the crime of deportation.  They are

17    transferred from their flats to an institution where they were unlawfully

18    detained, and given the Prosecution's position, this amounts to

19    deportation.

20            The fact that these people were released from the KPD, from

21    prison, from living in such conditions amounts to deportation.  This is

22    contrary to the indisputable fact that these individuals were taken from

23    their flats, from their homes to an institution where they were unlawfully

24    detained in inhumane conditions.  Releasing them from such an institution

25    is not something that can -- for which an accused can be considered to be

Page 179

 1    criminally responsible, given exchanges that occurred, because the

 2    alternative was to detain them in such inhumane conditions, in conditions

 3    of unlawful detention.

 4            So preventing these people to be transferred would result in the

 5    criminal responsibility for another act.  And the Prosecution has pleaded

 6    about, has argued with regard to this matter, and the accused has been

 7    declared responsible for this act.

 8            If one viewed deportation in the way that the Prosecution views

 9    deportation, then there would be kind of equivalence between deportation

10    and unlawful detention, because those people were taken, were transferred

11    from their flats to the KPD and they were unlawfully detained there.  And

12    that is why I believe that this ground of appeal presented by the

13    Prosecution, and it refers to the crime of persecution and deportation,

14    this ground of appeal should also be rejected and be considered to be

15    unfounded.

16            If there are no further questions, I would move on to the last

17    ground of appeal presented by the Prosecution, which refers to the

18    decision on the sentence.

19            JUDGE SHAHABUDDEEN:  Just one question, Mr. Bakrac.  I was

20    interested in your proposition that if the Prosecution were right, then

21    there would be an act of deportation as soon as an inmate was transferred

22    to the KP Dom.  Is there a difficulty in this sense, that the act of

23    deportation might be thought to mean the forcible removal of a person from

24    one living environment to another living environment in which he will have

25    to live?  He wouldn't be having to live in KP Dom, would he?

Page 180

 1            MR. BAKRAC: [Interpretation] Yes, Your Honour, that's correct.

 2    However, the essence of what the Defence wanted to say in its response to

 3    the Prosecution is that, first of all, the transfer, the Defence expanded

 4    on this in greater detail in its written response to the Prosecution's

 5    brief.  We explained that transfer can also be permitted if it is done for

 6    security reasons or if it is done because it is necessary for military

 7    reasons, and thus the Prosecution with regard to this matter was also

 8    obliged to establish, to demonstrate that these transfers from the KPD,

 9    the exchanges, in fact, weren't transfers of a permanent kind in the sense

10    required by the crime of deportation.  It didn't meet the standards

11    required by the crime of deportation.  On the contrary, these exchanges

12    which involve taking people from the KPD to the territory which is not

13    under the control of the people in the KPD, in itself this is not a

14    sufficient reason to apply the standard of deportation in accordance with

15    the jurisprudence of this Tribunal.

16            JUDGE SHAHABUDDEEN:  Thank you.

17            MR. BAKRAC: [Interpretation] Thank you.  As far as the last ground

18    of appeal of the Prosecution is concerned, in which they mention the fact

19    that the Trial Chamber violated its right of discretion on four occasions,

20    and the Prosecution in its response to the brief provided an

21    interpretation according to which, given that the accused was a warden in

22    the generic sense of the term and as a superior he was responsible for all

23    the subordinates and the detainees in the KPD, for this reason it was not

24    possible to say that there were mitigating circumstances.

25            We think that the Trial Chamber didn't commit this first error and

Page 181

 1    that such response on the part of the Prosecution has no foundation.

 2    Given that the position of the accused, in fact, the position of the

 3    accused as a warden is already contained in the essence of the crime, that

 4    is to say the accused as a superior was proclaimed, was declared guilty.

 5    Thus his responsibility in that sense was established.  And it is

 6    contained in the essence, in the substance of the crime, that is to say in

 7    the basis of his responsibility according to 7(3), Article 7(3).  So there

 8    is no reason for the Trial Chamber to be allowed -- to allow reasons of a

 9    personal nature to determine the decision on the sentence.  It is for

10    these reasons that the Defence does not believe that the Trial Chamber

11    considered an error with regard to this issue.

12            As far as the argument that the Trial Chamber in its judgement

13    committed another error with regard to the application of its discretion

14    to measure the crime, the judgement, and that it didn't have any relevance

15    for the criminal consequences, we also believe that the idea of a victim

16    in terms of international law, international criminal law, is already

17    incorporated in the acts, in what the acts represent.  So the

18    responsibility for some of the violations of international law that are

19    treated as war crimes, this is already incorporated, everything that such

20    a crime represents.  These include the sufferings of the victims and of

21    the families.  So in addition to the fact that this has already been

22    incorporated into the nature of the crime for which the accused has been

23    declared responsible, this cannot be considered as an aggravating factor.

24            As far the third area is concerned, as far as the application of

25    discretionary right is concerned, which according to the Prosecution

Page 182

 1    refers to participation and the efficient act in the Defence of the

 2    accused and objection that this position of the Trial Chamber has exceeded

 3    its discretionary right, we also think that it hasn't been supported by

 4    arguments.

 5            It is clear that the Defence must behave in accordance with the

 6    code of their profession in front of the Trial Chamber, and this includes

 7    cooperation.  This includes cooperating and acting efficiently before the

 8    Trial Chamber and participating with the various parties, but it is also

 9    clear, I think, it's the Defence's position that the Trial Chamber had

10    this in mind, that the Defence should legally articulate the attempts and

11    the strivings of its client, of the accused.  The accused is the person

12    who could have requested from the Defence that certain matters be

13    investigated, that indisputable events be investigated and thus the work

14    of the Prosecution, the Trial Chamber, would have been rendered more

15    difficult.  So such cooperation is the result of a request on the part of

16    the accused, a request according to which anything that he thought was

17    established beyond a doubt, doubt shouldn't be cast on this.

18            I think that this is what the Trial Chamber had in mind and that

19    is something which in the legislative system from which I come is

20    considered to be a mitigating factor.  It concerns the behaviour of the

21    accused before the Trial Chamber, his assistance to the Trial Chamber, and

22    it concerns whether or not he has facilitated the proceedings, facilitated

23    the conclusion of the proceedings.

24            I think that the Trial Chamber, given that they took as a

25    mitigating factor, I think that they -- by doing that, they did not

Page 183

 1    violate their discretionary right when determining the sentence.

 2            In the Defence's position, the Prosecution's thesis that the Trial

 3    Chamber committed a fourth error is not acceptable with regard to its

 4    discretionary right to apply a sentence, because the Trial Chamber did not

 5    show the gravity of the crimes committed by the accused in its judgement.

 6    We think that the gravity of the crimes and the degree of criminal

 7    responsibility of the accused, the degree to which he participated in the

 8    crimes, we consider -- we believe that this determined the decision in

 9    this case, and that is something that is the right of the Trial Chamber.

10    In this specific case and on the basis of the established facts, it has

11    the right to establish the degree of responsibility of the accused and the

12    gravity of the acts perpetrated.  Or to be simple, a certain degree of

13    participation within a group of crimes provided for in the Statute of this

14    Tribunal.

15            The Prosecution believes that the sentence -- the seven-year

16    sentence meted out to Zlatko Aleksovski influenced the decision and they

17    mentioned that that sentence would have been high if he hadn't been

18    charged on two occasions, cumulatively twice.  If the Prosecution claims

19    that in each specific case the Trial Chamber should have the discretionary

20    right to measure, to decide on the appropriate sentence, on the sentence

21    that is appropriate for the circumstances of a given case, then this case

22    could be described as similar to the other case in general terms.  But

23    both cases have their special circumstances and factors which are relevant

24    for whether the sentence should be large or not so large.  If there are

25    these mitigating factors which influenced the Aleksovski judgement, then

Page 184

 1    there are mitigating factors in this case which cannot be taken into

 2    account in the Aleksovski case.

 3            The Defence will mention the direct participation.  It was stated

 4    that in the Aleksovski judgement that Aleksovski was personally present at

 5    the scene of certain crimes, crimes which must also be valued and

 6    compared.  And the Trial Chamber didn't establish that Krnojelac was

 7    physically present or participated directly in any of the acts that he is

 8    charged with.

 9            The Prosecution also denied that it was possible for the Trial

10    Chamber to draw a parallel between the sentence in the Kvocka case,

11    because that sentence is not final yet.  However, the Prosecution may not

12    disregard the fact that in that case in which the accused Kvocka was

13    sentenced to seven years, that there has been no appeal whatsoever, not

14    even appeal against sentence.

15            From the point of view of the Prosecution, as said, we can say

16    that for the Prosecution, that case has been concluded.  Therefore, we do

17    not think that their claim that the Trial Chamber erred when comparing

18    cases which seem to be the same, if one looks at all the facts which are

19    common to all of them and those which are specific to all of them, that

20    they determine the sentence.  We do not think that the Chamber erred in

21    this regard, and I believe that this ground should be rejected, all the

22    more so as we heard today something that was not addressed in the written

23    brief of the Prosecution, that is, a suggestion as regards the sentence,

24    12 years.  And I do not think this had been properly argued, and therefore

25    I think that suggestion should also be rejected.  But after all, it is the

Page 185

 1    Appeals Chamber which will decide on the sentence regardless.

 2            Thank you.

 3            JUDGE JORDA: [Interpretation] Very well.  Thank you.  And now I

 4    turn to the colleagues.  I want to turn to the Prosecution and ask if you

 5    wish to exercise your right to respond.  You do not have to if you do not

 6    wish to.

 7            MR. STAKER:  Certainly.  Thank you very much, Your Honour.  The

 8    Prosecution does intend briefly to exercise its right to reply, and with

 9    the Appeals Chamber's permission, we propose to address each of the

10    grounds of the appeal in the same order and with the same speakers as our

11    principal submissions.  I'll then proceed to with grounds 1 and 2.

12            With relation to ground 1, my understanding is that my colleague

13    counsel for the defence does accept the existence in law of the three

14    categories of joint criminal enterprise liability identified in the Tadic

15    appeal judgement, and that the issue in this case is one of the

16    interpretation of the elements and their application to the facts.

17            I understand that the Defence takes issue with one element of the

18    actus reus.  It was said by my colleague for the Defence that

19    participation in a joint criminal enterprise must be such that the

20    participants are complementing each other in an important manner and that

21    the contribution must be decisive or fundamental.

22            In answer to that, I'd refer to the fact that in my principal

23    submissions I did cite paragraphs 127 and 171 of the trial judgement in

24    which the Trial Chamber made the finding of fact that there was a

25    contribution to the joint criminal enterprise, and indeed, in paragraph

Page 186

 1    171, that it was substantial.  I don't want to repeat my principal

 2    submissions, but I did refer to the paragraphs of the trial judgement

 3    stating the facts that the respondent was the warden for 15 months, that

 4    he was the most senior figure and so forth.  It's clearly a substantial

 5    role, one that kept the whole enterprise running.

 6            We would submit that the contribution need not be a sine qua non

 7    of the joint criminal enterprise.  To give the analogy of the murder

 8    committed by a group of perpetrators, presumably the most important

 9    contributor of the sine qua non is the person who commits the actual actus

10    reus but that is not to say that others aren't liable as participants in a

11    joint criminal enterprise.

12            In relation to the mens rea element, in response to a question by

13    Your Honour Judge Shahabuddeen, my colleague for the Defence said that the

14    Prosecution had not proven beyond a reasonable doubt that the respondent

15    knew of the intent of the perpetrators.

16            Again, I would refer to my submissions in chief.  I cited

17    paragraph 127, again of the trial judgement, in which the Trial Chamber

18    found in relation to the imprisonment that the respondent knew of his

19    contribution to the maintenance of the unlawful system by the principal

20    offenders.  So we have a finding of fact by the Trial Chamber.  And

21    paragraph 171, in relation to the inhumane conditions, where the Trial

22    Chamber said that it was satisfied that the accused was aware of the

23    intent of the principal offenders.

24            I would submit, therefore, that we have findings of fact --

25            THE INTERPRETER:  Could you slow down, please.

Page 187

 1            MR. STAKER:  If my colleague for the Defence is alleging that no

 2    reasonable trier of fact could have come to that conclusion, that is the

 3    standard to be met, we submit it has not been met.

 4            The last issue was whether the respondent, if he knew of the

 5    intent, shared that intent.  Again, the Defence says that the Prosecution

 6    hasn't proved that.

 7            Our submission was that the error of the Trial Chamber was to look

 8    for an express agreement in each case for the commission of a crime by the

 9    joint criminal enterprise, and in fact the approach of the Trial Chamber

10    in that respect was very similar to the way that it looked for some kind

11    of express statement every time a beating was committed to see if that was

12    committed on a discriminatory purpose.  In a way, the Trial Chamber was

13    always looking for direct evidence that went inside the subjective mind of

14    the perpetrator at the relevant time.  And our submission, as I said, is

15    that it's normally rare, particularly in the kind of cases that come

16    before this Tribunal, that one has direct evidence of a state of mind and

17    that normally intent is inferred from surrounding circumstances.

18            Again, I won't repeat the body of my main submissions, but we have

19    findings of fact by the Trial Chamber that the respondent was in the

20    position of warden.  It was accepted voluntarily.  He was the most senior

21    figure.  He was there for 15 months with knowledge of the systematic

22    crimes being committed there.

23            I have submitted that intent is different to motive, and the only

24    reasonable conclusion on the facts as found was that intent existed.

25            Now, I've set out the Prosecution's submissions on what the test

Page 188

 1    for intent is.  I referred in that respect to Article 30 of the Statute of

 2    the International Criminal Court.  My colleague for the Defence has

 3    adopted a slightly different test in his submissions.  He used expressions

 4    such as "the will to carry out," "prepared to accept as his own," and

 5    "volition to that effect."

 6            Now, I note the test for intent may vary from legal system to

 7    legal system.  Precisely because of that the Tadic appeal judgement said

 8    at paragraph 225 that solutions to legal issues of this kind are not to be

 9    found in national legal systems.  But I would simply make the observation

10    that the kind of language being used by my colleague for the Defence is

11    rather reminiscent for the test for intent distinguishing between a

12    principal and aider and abettor under German law.  This was a test

13    referred to in the Stakic case in a decision on a rule 98 bis motion for

14    judgement of acquittal of the 31st of October, 2002, at paragraph 58 and

15    if I could quote if briefly there it said:  "Under German law, the

16    perpetrator has to have the animus auctoris, the additional intent to act

17    as perpetrator.  The animus auctoris reflecting the intent of the direct

18    perpetrator requires an active will to commit the offence.  The animus

19    socii, by contrast, reflects the intent of an aider and abettor of the

20    offence."

21            Now, as I say, I'm not an expert on German law, but my

22    understanding is that even in Germany in the 1950s and 1960s, I believe

23    the German courts did look for evidence of a purely subjective state of

24    mind.  But more recently from the 1970s even under German law this animus

25    auctoris is determined by the courts by reference to surrounding

Page 189

 1    circumstances and objective factors such as that, and we submit that this

 2    is an approach simply of common sense, that in crimes of the kind the

 3    Tribunal deals with on a very large scale, direct evidence of a

 4    perpetrator's state of mind will be very rare.  It will almost inevitably

 5    be inferred from all of the surrounding circumstances and that if any

 6    other approach were adopted, almost anyone involved in large scale crimes

 7    against international humanitarian law would be an aider and abettor and

 8    not a perpetrator.

 9            Turning then to the Prosecution's second ground of appeal.

10    Mention was made of the principle that the Prosecution asserts a

11    flexibility in drafting indictments.  I think that's simply a fact that

12    the Tribunal as a legal system has not developed to the point where there

13    is a very rigid requirement for the way indictments are drafted.  The

14    desirability of developments in this effect is not denied, but at this

15    stage there has been a flexibility in practice and acknowledgement in case

16    law that there are no rigid requirements.

17            The obligation to give notice to the Defence of the nature of the

18    case again the accused is acknowledged.  Our point was that the

19    indictment, though, need not plead law and need not plead evidence.  The

20    question is whether by omitting specific reference to a legal theory in

21    the indictment that that legal theory cannot be relied upon.

22            It was also suggested that if the extended form of joint criminal

23    enterprise is not expressly referred to in the indictment, that this would

24    lead to the result that an accused might be convicted on something he had

25    not been charged with in the indictment.  That's certainly not the

Page 190

 1    Prosecution contention.

 2            Our starting point was the assumption that an indictment contains

 3    general language that certainly would include the extended form of joint

 4    criminal enterprise.  If the language of the whole of Article 7(1) is

 5    pleaded in an indictment, then as a matter of logic, all forms of

 6    participation under Article 7(1) are included, including joint criminal

 7    enterprise liability and including the extended form.

 8            So, it's not a case of including something in the judgement of a

 9    Trial Chamber that wasn't pleaded.  On the contrary, to exclude the

10    extended form of joint criminal enterprise liability would be to ignore

11    something that in fact is contained in the indictment.  It is our

12    submission that a Trial Chamber needs to consider all modes of liability

13    that are pleaded in the indictment.

14            The question is not whether it's in the indictment or not, the

15    question is whether greater detail needs to be given to the Defence.  And

16    as we say, that's a matter of fact in all the circumstances and that if

17    the Defence has any difficulties in that respect, as I made the point in

18    my main submissions, that needs to be raised by the Defence at the

19    appropriate time.

20            That concludes my reply on the second ground.

21            JUDGE SHAHABUDDEEN:  Would the Defence ask for particulars?

22            MR. STAKER:  The Defence might ask for particulars.  There is a

23    variety of remedies including pre-trial briefs, anything else.  But, of

24    course, normally this is resolved at the pre-trial stage.  I would ask the

25    Trial Chamber to call on my colleague Ms. Brady to continue.

Page 191

 1            MS. BRADY:  Your Honours, in reply I can be extremely brief.

 2    There are two points I wish to reply to in relation to torture and one

 3    point in relation to persecution.

 4            Your Honours, in relation to torture, Mr. Bakrac has submitted

 5    that basically the information wasn't enough to put him -- to be alarming

 6    information putting him on inquiry notice or giving him reason to know

 7    about the tortures.  And basically what he's done is to break down the

 8    evidence, to parse the evidence, the major strands of evidence that we

 9    relied on as his reason to know.  And in our submission, really this is

10    not an appropriate way of proceeding.  Our submission is based on a

11    package of knowledge, and the package of knowledge includes the knowledge

12    of what he was told by the witness RJ.  It includes what he knows from

13    what he saw happen to Ekrem Zekovic, and it includes his knowledge of

14    having seen the widespread marks on detainees walking around or perhaps

15    not walking around because they were so injured but limping around.  And

16    indeed that package has to be examined in light of the discriminatory

17    nature of the inhumane conditions and the living conditions and the

18    imprisonment of the detainees.

19            And it's our submission that if this is not enough to trigger the

20    duty to inquire then what is.  I won't go through each and every one of

21    those indicia, as it were, that should have alerted him to the torture but

22    I would like to say in response he seemed to be submitting as a legal

23    principle that the superior has to know about the -- has to have

24    information as to the exact nature of the crime, that the information

25    itself has to somehow have the -- contain the information.  And this, in

Page 192

 1    our submission, is simply not correct as a matter of law, and indeed in

 2    the Celebici case, it was held that the information available to the

 3    superior does not have to be information as to the exact nature of a

 4    crime.  It's enough -- it has to be enough to put the superior on notice.

 5    It doesn't actually have to say,"There's torture going on out there, and

 6    it's on this prohibited purpose."  It has to be enough to place him on

 7    notice that he's got to do something further.

 8            I also would like to respond to the second point on torture, and

 9    that is when he said that there would be no certainty or there would be no

10    certainty that any investigation would have disclosed that torture was

11    happening as a conclusive fact.  And I think that this shows a

12    misunderstanding of what 7(3) liability is all about, and it's about a

13    derelict -- a culpability for a dereliction of duty for not even doing the

14    investigation.  It's not so much premised on an assumption on what might

15    have been the final outcome, what might have been discovered had he done

16    the investigation, because indeed he doesn't even have to complete the

17    investigation - perhaps he takes steps to start it and to send the

18    necessary reports on - but rather it's about his dereliction of duty in

19    not investigating when he had notice or information that clearly placed

20    him on inquiry notice that the crimes were going on.

21            That's all I'll say on torture.  I'll turn to address one point

22    raised by Mr. Bakrac in relation to persecution based on beatings.  And

23    the main thrust of his argument was that basically by the Prosecution

24    arguing for a contextual approach to the assessment of discriminatory

25    intent, we've somehow -- the Prosecution is trying to shift or evade its

Page 193

 1    burden of proof.

 2            Your Honours, the Prosecution is certainly not seeking to shift

 3    the burden of proof which remains firmly on the Prosecution.  We are not

 4    doing that.  But in reality, most cases -- in most cases, the only way you

 5    can prove intent for a crime - and this is both in the Tribunal cases and

 6    we know from national cases - the only way to prove it is to infer it from

 7    all the surrounding circumstances.  It's extremely rare to have a case --

 8    or not rare but it's not as common to have a case where there's a direct

 9    expression of the intent, that the actual perpetrator yells out his intent

10    at the same time as doing the act, or even that makes it -- it's not a

11    given that the person would have made a confession which would have

12    revealed his intention at the time.

13            One must be able to -- and the Trial Chamber must be able to infer

14    intent from surrounding circumstances, especially -- and here the

15    circumstances are the systemic nature of discriminatory conduct in the KP

16    Dom and the systematic nature of the beatings therein.  And to -- this

17    context was comprised of frequency and a repetitive pattern of beatings

18    which in fact makes it highly unlikely that it could have been motivated

19    by completely extraneous factors.

20            Our submission is that the -- if the evidence discloses a

21    widespread pattern of acts which have taken place in an environment that

22    is overwhelmingly marked by discrimination on one of the listed grounds -

23    racial, religious, or political grounds - the only rational inference in

24    the absence of any evidence to the contrary is that these acts were in the

25    significant part carried out with the requisite discriminatory intent.

Page 194

 1            In other words, we're saying that the inference is compelled when

 2    this sort of environment which is overwhelmingly marked by discrimination

 3    exists.  And in particular, we point out the close proximity, that is a

 4    major feature of the acts, the beatings, in time and place to the other

 5    crimes which were found indisputably to have been committed on

 6    discriminatory grounds, and by the same people we're talking about, the

 7    guards, the same ones.  This doesn't reverse the burden of proof.  It's

 8    still clearly on the Prosecution to adduce the evidence, the high level of

 9    evidence to trigger that presumption.

10            So what we're saying in summary is that if the Trial Chamber can

11    conclude that yes, these acts took place, and yes, this is an environment

12    overwhelmingly marked by systematically discriminatory practices, the

13    Prosecution has difficulty -- or asks rhetorically, why should an accused

14    hide behind a hypothetical -- possible hypothetical example in that sort

15    of situation?  And the drawing of permissible evidentiary presumptions is

16    recognised in a number of jurisdictions.  We've put them in our brief,

17    coming from both civil law and common law case law and from the regional

18    human rights decisions.  For example, from the Inter-American Commission

19    on Human Rights, and I think Your Honours will find those authorities

20    extremely helpful in your thinking on this.

21            And even, indeed, this Tribunal has recognised legitimate

22    presumptions being drawn in certain situations, and I won't go into detail

23    on this to allow my colleagues to have time to reply on their grounds, but

24    I draw Your Honours' attention to the Aleksovski Appeals Chamber,

25    paragraph 42.  And even indeed Your Honours' decision in the Kunarac

Page 195

 1    Appeals Chamber decision on rape, that where there was evidence of force

 2    and threat of force and coercion, in the absence of no other evidence,

 3    there is no other possibility; there can be no consent.  And it's a

 4    similar type of analysis here.

 5            Those are my submissions in reply, and if I cannot be of any

 6    further assistance, I will call on my colleague Ms. Norul Rashid to reply

 7    on the sixth and seventh grounds.  Thank you.

 8            MS. RASHID:  May it please the Court.  Your Honour, I wish to

 9    respond to two points which my learned friend has raised.  They both --

10    they both relate to deportation, the seventh ground.

11            Learned counsel has raised the issue of deportation or, rather,

12    transfer.  He gave an example of a transfer of Muslims from their homes to

13    KP Dom.  This is similar to the question that you, I think, two of the

14    learned Judges have raised, Judge Shahabuddeen and Judge Schomburg, which

15    unfortunately, I think I did not respond to.  I will take this opportunity

16    to respond to Your Honours' queries.

17            Your Honours, the position with regard to house-to-house transfer

18    or what I perceive to be short-distance transfer is simply this:  The act

19    of deportation as defined, for instance in the Blaskic Trial Chamber or

20    under Article 7(1)(D) of the ICC Statute, place no limits.  Distance is

21    not an issue here.  And as I've elaborated in my submissions earlier, the

22    focus is on the interests that deportation seeks to protect and the harm

23    that it seeks to prevent.  The very essence of the act of deportation is

24    the unlawful or forcible displacement of an individual from their places

25    of residences.

Page 196

 1            The answer, the short answer to the question raised by counsel and

 2    Your Honours is yes.  It also depends on why the victim was transferred,

 3    and yes, the Prosecution consider that it does have the responsibility to

 4    show that the deportation was unlawful under international law.  So it all

 5    depends on whether all the elements of deportation, Your Honour, are

 6    satisfied on the facts of the case.

 7            If the victim was forcibly removed from one house and transferred

 8    to another house for security reasons or imperative military reasons as

 9    provided for in Geneva law, then that might not amount to deportation.

10            On the facts of this case, no such exceptions arose on the facts

11    of this case.  It was never alleged, and there was just no evidence that

12    the victims or the detainees were transferred for security or military

13    reasons.  The fact that the detainees were removed from their homes to KP

14    Dom, theoretically speaking, that is deportation.  They have been removed,

15    forcibly removed from their homes.  That, of course, was not the

16    allegation, I'm just responding to my learned friend's hypothetical

17    situation.

18            Most of the detainees who left KP Dom who were so-called exchanged

19    or transferred out of KP Dom simply disappeared.  This sort of situation

20    is not uncommon in conflicts.  In the case of Srebrenica, we're talking

21    about 25.000 women and children who were deported from one place to

22    another.  If forces -- if the Serb forces walk into Ahmici and decided to

23    expel all the Muslim inhabitants, expel them not really concerned as to

24    where they ended up but with the sole objective of making sure that they

25    leave Ahmici, it is virtually impossible for the Prosecution to prove

Page 197

 1    where each and every of these detainees ended up, or, rather, the victim

 2    ended up.  Some of them may end up as refugees still living within the

 3    region.  Some of them ended up in Germany, in Holland.  We don't know.

 4    This is the reason why we submit that the focus of the act of deportation

 5    has to be on the act of removal and not the final destination.

 6            The second point that counsel has raised is in relation to the

 7    exchange, and here, Your Honour, I wish to clarify my earlier responses in

 8    relation to the exchange.

 9            It is unclear in international law as to whether exchanges as such

10    are crimes.  It is simply not clear, and we have not briefed the Appeals

11    Chamber in our appeal brief specifically on this issue simply because the

12    issue did not arise on the facts.  So the issue of legality of exchanges

13    or otherwise is still unclear.

14            The Trial Chamber categorised the deportation incidents as

15    so-called exchanges on the facts because, as we allege in the indictment,

16    they were in fact acts of transfers.

17            The Defence at trial did not allege that the exchanges, the

18    so-called exchanges that occurred were legal.  The Defence -- the defence

19    at trial was that Krnojelac was not responsible for the exchange

20    programme, that it was someone else, Marko Kovac, a military person who

21    was responsible for these activities.  That was his defence.  The issue of

22    the legality of the exchanges, it was never litigated and it was not in

23    fact an issue at trial.

24            If the Appeals Chamber wishes us to review further on this matter

25    we would be more than happy to assist.  We could file further briefs on

Page 198

 1    this issue, but on the facts of this case, Your Honour, and for purposes

 2    of this appeal, it is simply not relevant.

 3            That concludes my reply, Your Honour.  I believe my learned

 4    colleague Mr. Carmona wishes to address the Court on the final two

 5    grounds, grounds number four and eight.  Thank you, Your Honours.

 6            JUDGE JORDA: [Interpretation] Thank you, Ms. Rashid.

 7            Mr. Carmona.  You really have no luck today.  You're always last.

 8            MR. CARMONA:  Yes.

 9            JUDGE JORDA: [Interpretation] Proceed, please.

10            MR. CARMONA:  Indeed.  Your Honours, I just wish initially to

11    raise a particular point that was raised by one of your learned personnel

12    in relation to paragraph 98.  What in fact -- concerns were raised --

13    sorry.

14            Concerns were raised about whether, for example, a certificate

15    that in fact was brought before the Court that was dated the 11th of

16    January, 2000, whether in fact the Defence was allowed to submit this

17    document for evaluation by the Trial Chamber.  But one needs to look at

18    the history of that particular procedure that took place, because what in

19    fact happened is that there was another document that was in fact dated

20    from -- the other document was Momcilo Mandzic, the president, who in fact

21    had appointed -- had appointed Krnojelac in a permanent capacity as warden

22    effective from the 17th of May, 1992.  And what had happened is that

23    basically that document came of course from the Department of Justice.

24            The document was -- that the Defence was seeking to tender was a

25    document from the Department of Defence, and that document was --

Page 199

 1    represented a summary of data in relation to the rule and function and

 2    responsibilities of, in fact, Krnojelac to the extent that in fact it said

 3    essentially that his responsibility was really in terms of seeing about

 4    property at KP Dom.

 5            The Court, the Trial Chamber, out of an abundance of caution

 6    recognised that there were two contentious documents, asked the Defence,

 7    "Listen.  You said this was in fact a summary of data.  Is that data

 8    contemporaneous?  Because in fact we have here a document that is

 9    contemporaneous and it can affect the weight that will attach this

10    particular document."  Of course they left with them the option of getting

11    additional material and of course tendering the document if they so

12    desired, and they didn't.  So the extent to the fact that they didn't

13    tender of the document, it appears that there was some kind of waiver in

14    that area.  Apart from that, even the Prosecution attempted to

15    cross-examine on that document that was not in fact in evidence and it was

16    objected to by the Defence.  So it is really an inconsistent approach to

17    hint that maybe in fact they weren't given the opportunity to tender this

18    particular document in evidence when in fact that particular facility was

19    available and they never exercised it.  But again, it is not something

20    that I don't want to go in contentiously because I suspect my friend will

21    continue to raise that document tomorrow and I will have to respond to it

22    factually.

23            Apart from that, my learned friend indicated that in terms of the

24    evidence that one could not really come to the conclusion that in fact the

25    killings did in fact occur.  Again my learned colleague, Ms. Brady, has in

Page 200

 1    fact indicated that as much as in fact, for example, there is no need for

 2    specific knowledge, I will add to that that there is in fact no need to be

 3    aware of all the elements of the offence.  You know, this is what

 4    Celebici, in fact, says.

 5            In relation to RJ, I am a bit nonplussed by the response of my

 6    learned colleague in relation to RJ when he says that the Defence

 7    considers that what the witness said to the accused was not necessarily

 8    true.  But this particular witness was a confidant in fact of Krnojelac,

 9    (redacted) and in fact was very supportive of his position

10    because they indicated -- he indicated very matter-of-factly when he was

11    arrested he said, "No, not Mico.  Mico couldn't have been arrested," you

12    know.  But of course in fact he was.  So the evidence that RJ gave in

13    relation and -- in relation to his conversations with in fact the

14    Krnojelac is something that in fact that I think the Court believed and

15    specifically in terms of bringing knowledge to the appellant in regard to

16    what was happening, there is line 'T' at page T3867 when, for example,

17    when he told Krnojelac about the large group of people missing,

18    Krnojelac's response was, "(redacted) you just don't ask anything.  Don't ask

19    me.  I don't know."  You know.

20            Okay.  The other point that my friend raised was the question of

21    whether there was a need for retroactive investigation in relation to the

22    particular incident involving Ekrem Zekovic.  You will recall that in fact

23    that particular beating took place sometime about the 8th of 9th of July,

24    some three weeks before, in fact, Krnojelac demoted office, and he's

25    saying that Krnojelac, that particular incident couldn't have been used by

Page 201

 1    us to illustrate in fact that it would have put him on inquiry notice.

 2    But the bottom line is this, is that it concerned an individual who in

 3    fact everyone agreed, it was common knowledge, was a man of extremely

 4    violent temperament during the conflict, before the conflict.  One

 5    individual, in an objective view, ought not to have been a guard in the

 6    camp given his general deportment.

 7            So that as much as, in fact, for example it was late in the day,

 8    it did not in fact preempt him from his responsibility to inquire further.

 9    And there is no evidence that in fact he did in relation to this

10    particular incident and there is no evidence in relation to any particular

11    incident involving Burilo he in fact checked out.  Which in fact he would

12    have been entitled to by virtue of that startling information that came to

13    his attention and what he saw, because he was there when that beating was

14    taking place.

15            With regard to the absence from the camp, I think in fact this

16    is -- this is adequately responded to by our -- in our -- in our brief at

17    footnote 184.  We make reference to the ICRC commentary to the Additional

18    Protocol at page 1014 where we say for example that the fact the

19    respondent was absent for a period of seven days is in and of itself

20    immaterial to the respondent's superior liability because "a superior

21    cannot absolve himself from responsibility by pleading ignorance of

22    reports addressed to him or by invoking temporary absence as an excuse."

23            And you would recall only that in fact in Mucic in Celebici, his

24    in fact was a similar type complaint although it found no favour with the

25    Appeals Chamber with regard to his absenting himself a lot from the camp.

Page 202

 1    Granted, of course, he was there for only seven months as opposed to in

 2    fact Krnojelac who was there for some 15 months.

 3            With regard to my friend's concern that I raised the issue of the

 4    position of the warden, it was raised in the context of his conformist

 5    personality and the fact that the Trial Chamber had in fact used that as a

 6    basis for placing less weight on his superior responsibility.  And we were

 7    contending that someone who in fact voluntarily accepts a post in those

 8    circumstances cannot know in fact -- and one who is a commander in the

 9    scheme of things, cannot know, in fact indicate, "Well, listen, my

10    position as a warden is something that in fact would not have been

11    considered."

12            In relation to the whole issue with regard to victims, again we

13    have in fact in our brief adequately responded in our response with regard

14    to the expanding rule of the definition of victim, internationally and

15    also related to the extent that FWS-183 had indicated -- and if I may in

16    fact refer particularly to -- FWS-183 did in fact refer to -- to the type

17    of -- I do have my document here.  Sorry about that.  Yes.  Yes.

18            FWS-183 did in fact indicate and gave evidence with regard to the

19    type of hurt and pain endured by families in terms of lack of visits, in

20    terms of a daughter in fact knowing her father's out there being beaten,

21    things like that.  So again in fact that has been responded to in our

22    brief.

23            With regard to the issue of cooperation, we do not think, for

24    example, that the pliancy of counsel is a factor they needs to be

25    considered in the area of sentence.  At the end of the day it is all about

Page 203

 1    conduct.  Again, we have indicated in our response, in our reply to the

 2    response why it is, for example, we think so, that counsel in this

 3    Tribunal has certain responsibilities that are in fact -- ought not to

 4    fall under the umbrella of the unity of counsel and client, that in fact

 5    the fact that counsel helps to expedite matters has nothing to do with the

 6    conduct of the accused or the appellant at the time in question.

 7            And then fourthly, with regard to the whole issue of a comparison

 8    with regard to other individuals who are in fact of similar ilk in the

 9    context of the position they held in the camp and in the context of the

10    sentencing that they received, it is important to know that both Celebici

11    and Kupreskic were quite adamant that any kind of analysis being done with

12    regard to using the precedents, if I may so call it, in terms of

13    sentencing must be on the basis of substantial similarity, not general

14    similarity.

15            And in this regard, for example, we need to consider certain

16    peculiarities about Aleksovski, for example, who in fact the Court said

17    very categorically would have in fact attracted a far weightier sentence

18    than he did only because of issues of double jeopardy and the fact that he

19    was facing the court on two occasions.

20            The bottom line is in fact we are also in fact saying that in the

21    event that the learned Appeals Chamber finds favour with our arguments

22    with regard to the offences in terms of the killings, in terms of torture,

23    that certainly in fact you are talking about killings involving some 26

24    individuals, or in fact 23, that it is -- it is a factor that in fact

25    would loom large in considering whether, for example, the sentence in fact

Page 204

 1    meets the appropriate standard.

 2            And I say this more so when one considers, for example, the -- and

 3    if I may in fact end up -- if I may consider what in fact the Trial

 4    Chamber indicated at paragraph 514, that the sentence in this case must

 5    make it clear to others who, like the accused, seek to avoid the

 6    responsibilities of command which accompany the position which they have

 7    accepted, that their failure to carry out these responsibilities will

 8    still be punished.  If you are prepared, in other words, to take the

 9    benefit, you must take the burden.  And I dare say it is puzzling.  Our

10    sentence of seven and a half years can effectively transmit what I would

11    refer to as the hallowed objectives of the said Trial Chamber.

12            Without more, I think this is in fact the end of my submissions in

13    terms of responding to my -- the concerns of my learned friend on the

14    other side.  Thank you.

15            JUDGE JORDA: [Interpretation] Thank you.  Thank you, Mr. Carmona.

16    I don't think there are any questions.  No.

17            All right.  We're going to suspend the hearing and say that we'll

18    see one another tomorrow at 9.00 for the Defence appeal.  Let's try not to

19    repeat ourselves.  Thank you very much.

20                          --- Whereupon the hearing adjourned at 5.42 p.m.,

21                          to be reconvened on Thursday, the 15th day of May,

22                          2003, at 9.00 a.m.