Tribunal Criminal Tribunal for the Former Yugoslavia

Page 154

1 Wednesday, 5 December 2001

2 [Appeal Proceedings]

3 [Open session]

4 --- Upon commencing at 9.34 a.m.

5 JUDGE JORDA: [Interpretation] Please be seated. We will start our

6 hearing. Please have the accused brought in.

7 [The appellants entered court]

8 JUDGE JORDA: [Interpretation] I would like to say good morning to

9 everybody, to Defence counsel, to Prosecution counsel; good morning to the

10 accused. And with my colleagues, we're going to now begin. Are the

11 interpreters ready? Good morning to them.

12 Very well. We will now resume. I will not remind you of the time

13 constraints and give the floor immediately to Mr. Prodanovic, who will now

14 speak to the legal issues revolving around the factual and legal questions

15 of the problems raised by the definition of torture.

16 Mr. Prodanovic, you have the floor.

17 MR. PRODANOVIC: [Interpretation] Good morning, Your Honour, and

18 thank you.

19 The Trial Chamber found the accused Kunarac guilty of torture

20 under counts 1, 3, and 11 of the indictment, but the count of torture

21 under count 1 was done under Article 5 of the Statute, and under count 3

22 of indictment under Article 3 of the Statute, and with respect to count

23 11, it was done under Article 3 as well.

24 The Defence would like to point out that the accused did not

25 commit any of these crimes, and we would like to reiterate that it is

Page 155

1 impossible to find the same accused guilty of the same act both under

2 Articles 3 and 5 of the Statute. This does not only concern the

3 sentencing, this concerns the conviction for the same acts under the same

4 name and with the same elements, which is not permissible in criminal

5 law.

6 The Defence has already stated that the described acts of this

7 perpetrated act were not individualised in any of the instances. In

8 criminal law, every act of every perpetrator must be clearly described so

9 that the parties can prove whether elements exist or not, the elements of

10 the criminal offence. This is important both with respect to establishing

11 facts but also with respect to putting legal arguments.

12 In its judgement, the Trial Chamber cited a number of legal

13 sources in order to establish the definition of torture, and the Trial

14 Chamber concluded that in order to establish the criminal offence of

15 torture, the following conditions must be met: The infliction by act or

16 omission of severe pain or suffering, whether physical or mental; the act

17 or omission must be intentional; the act or omission must aim at obtaining

18 information or a confession.

19 The Trial Chamber believes these to be indisputable elements and

20 that the following three elements were contentious, the list of reasons

21 that can be considered illegitimate and that fall into the definition of

22 torture. The act must be perpetrated in the context of armed conflict.

23 It has to be incited or provoked or done with the acquiescence of a public

24 official acting in a public capacity.

25 The Trial Chamber believes that the aim of torture must be the

Page 156

1 following: obtaining information or a confession; or punishing,

2 intimidating, or coercing the victim or a third person; or discriminating

3 against the victim or a third person.

4 The Trial Chamber believes that it is sufficient for two of the

5 three conditions to be present, and finally, concludes that in order to

6 establish torture, the following conditions must be met: The infliction,

7 by act or omission, of severe pain or suffering, whether physical or

8 mental. This act or omission must be intentional, and the act or omission

9 must aim at obtaining information or a confession; or at punishing,

10 intimidating, or coercing the victim or a third person; or discriminating

11 on any ground against the victim or a third person.

12 The Defence can accept this view of the Trial Chamber as far as

13 the need for the requirement is concerned in order to establish the

14 criminal offence of torture, and we believe that all three elements must

15 be proven.

16 In the case of Mr. Kunarac, none of these three elements were

17 proven, nor did the Trial Chamber in its judgement indicate what

18 constituted torture. The accused Kunarac did not, by any of his acts,

19 cause severe pain or suffering to any witnesses. It was proven that he

20 had committed the act for which he was found guilty in the judgement.

21 During the cross-examination of Witness FWS-195, she responded,

22 when asked by the Prosecution, with the following: "I think that none of

23 us Muslims were physically mistreated by Serbian soldiers during

24 examination in Buk Bijela." This is on page 2220 of the transcript.

25 When asked by the Defence counsel, this witness, when asked

Page 157

1 whether Kunarac physically mistreated her, the witness on that occasion

2 responded by a "No." When asked subsequently whether he ever insulted

3 her, she replied: "I do not remember." This can be found on page 2331 of

4 the transcript.

5 The witness FWS-186 gave a very convincing testimony. When asked

6 by the Defence counsel, this witness, when she was asked how DP6 and

7 Kunarac treated her, she replied in the following manner. The Defence

8 counsel also wanted to know whether they were friendly with respect to

9 her, whether they treated her nicely, and the witness replied: "I don't

10 know how to answer this question, but they didn't mistreat us, either

11 physically or mentally." This can be found on page 2953 of the

12 transcript.

13 So the accused Kunarac did not commit any of the acts or omissions

14 in order to inflict severe pain or suffering, be it physical or mental, to

15 anybody. If we were to believe that Kunarac did have sexual intercourse

16 with any of the witnesses, who did not consent to it - and all of the

17 witnesses who the accused Kunarac claimed that he did not use any physical

18 force against them - and if physical pain or suffering would be caused by

19 the fact that there was a sexual intercourse which the victim did not

20 consent to, then this act had been done intentionally, but not in order to

21 cause pain or suffering but in order to achieve sexual intercourse, and

22 this is why this act cannot be linked to an intent to cause severe

23 physical pain or suffering, or mental pain and suffering. And I'm talking

24 about this in a conditional manner, if we were to take that the accused

25 Kunarac was indeed guilty of these acts.

Page 158

1 It is completely clear that the second element was not proven

2 sufficiently in order to establish the criminal offence of torture. Based

3 on all of the above, we conclude that the Trial Chamber misapplied the law

4 when it found Kunarac guilty of torture, either under Article 3 or under

5 Article 5 of the Statute, and this is why we believe that the accused

6 Kunarac should be acquitted of this charge. That is all I have to say.

7 JUDGE JORDA: [Interpretation] Thank you, Mr. Prodanovic. I had

8 noted that your colleagues were now going to speak about the issue of the

9 offences. I had noted that. So if we have finished with torture, let me

10 turn to my colleagues. I see that Judge Guney would like to ask a

11 question, and then perhaps Judge Meron.

12 Judge Guney.

13 JUDGE GUNEY: [Interpretation] Thank you, Mr. President.

14 Mr. Prodanovic, I would like to have some clarifications in

15 respect of the Defence's approach.

16 THE INTERPRETER: Could you come a little closer to your

17 microphone. Thank you very much.

18 JUDGE GUNEY: [Interpretation] I would like to have some

19 clarifications in respect of the Defence's approach to the elements of

20 the -- constituent elements of the act of rape. You said, or rather, you

21 emphasised the distinction -- opposition, rather. You said that verbal

22 opposition was not enough and that there had to be physical resistance.

23 There has to be physical resistance, real and continuous, throughout the

24 act of rape. Is that correct?

25 MR. PRODANOVIC: [Interpretation] Yes. It can be a verbal

Page 159

1 resistance as well, Your Honour. We had a situation like that with

2 respect to a criminal offence of rape where the victim of rape was brought

3 to a house, and she was brought there by someone called Janko Janjic.

4 There was another person there at the house, and Janko Janjic told this

5 other person to rape the witness. The witness asked or told them, "Don't

6 rape me," and he took pity on her and did not rape her. So I consider

7 this act to constitute resistance as well, not just physical resistance to

8 the perpetrator.

9 So in every particular case, the facts need to be analysed and

10 that conclusion needs to be made based on those facts to establish whether

11 there was resistance or no resistance at all. So we cannot give a general

12 role which can be applied in every single case.

13 JUDGE GUNEY: [Interpretation] Take the example of a victim who

14 under force or threats of force tried to resist the perpetrator of the

15 crime but who, from some point, was unable to do so because she was

16 exhausted. Could we consider that she had consented?

17 MR. PRODANOVIC: [Interpretation] No, Your Honour, absolutely not.

18 JUDGE GUNEY: [Interpretation] Thank you.

19 JUDGE JORDA: [Interpretation] Thank you.

20 Judge Meron.

21 JUDGE MERON: Thank you, Mr. President.

22 I, too, would like to --

23 THE INTERPRETER: Microphone, please.

24 JUDGE MERON: I, too, would like to pursue the question of

25 definition of rape. If I understood you correctly - and this continues

Page 160

1 the same line of questioning that we have heard from my distinguished

2 colleague a moment ago - you have argued that among the conditions for the

3 establishment of rape, it is required that the victim must manifest

4 constant and real resistance. You argued yesterday, you and your

5 colleagues, -- and in your written briefs, that the

6 resistance must continue throughout the act.

7 So here is my question: Imagine for a moment that an act of rape lasts

8 ten minutes, and after the first five minutes the victim stops resisting.

9 Under the definitions as presented in your briefs, that would mean that

10 no rape has taken place. Is this your position?

11 MR. PRODANOVIC: [Interpretation] No, it is not. Well, this

12 constant resistance needs to be analysed in each individual case while the

13 act is under way. In practice, we have situations where the perpetrator

14 would change his mind while the victims -- while the victim was still

15 resisting or providing resistance. So we had cases where the perpetrator

16 would simply give up.

17 JUDGE MERON: My second question is this: I'm sure the

18 distinguished counsel must be aware of the large body of international and

19 national laws regarding crimes of rape in circumstances of custodial

20 detention in which the absence of consent may be presumed by the courts.

21 Judge Schomberg made a similar point yesterday, and I would like to refer

22 to it, these are circumstances of, say, coercive context --

23 which courts have very much taken into account.

24 As you might be aware, there have been many

25 convictions, for example of prison guards in the United States for rape

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Page 162

1 and other sexual offences where they had sexual intercourse with female

2 prisoners and detainees. We would be grateful for your comments on

3 that.

4 MR. PRODANOVIC: [Interpretation] I understand the gist of your

5 question, Your Honour. I have already said that each case needs to be

6 analysed separately. If somebody possesses a weapon and the victim of a

7 rape is there, then of course the resistance would be overcome by the mere

8 fact that a weapon is there. But, however, if -- the same would be said

9 in a case where there's a prison guard raping a detainee or imprisoned

10 person. However, if there is no accusation that these acts were

11 committed, then we can't apply the same rules. So I was speaking in a

12 conditional manner. And we can't always apply the clichés to every

13 situation.

14 Let me clarify this in a different manner, and let me -- let me

15 put it to you along the lines of your argument.

16 If we were to look strictly at provisions of Article 3 of the

17 Statute, which is violations of customs and laws of war, and especially

18 paragraph (f), looting of public property and private property, if we were

19 to take a strict interpretation of that provision, then we would come to a

20 situation where if somebody were to plunder public or private property

21 during wartime, that would be a war crime.

22 So if we look at it from a formal legal point of view, all of the

23 elements are there. But, however, we have to ask ourselves whether every

24 case of plunder is a war crime. If we were to apply the provisions of the

25 Statute strictly, then we would have to find each accused guilty of a war

Page 163

1 crime. However, I don't think that to be the case.

2 Now, whether five or twenty cases of plundering can be viewed in

3 this way either, I don't think that that needs to be the case necessarily,

4 but if it's the case of an organised plundering - there is, for example,

5 an organisation that gives a directive that plundering needs to take place

6 for such-and-such reasons - then that could be qualified as a war crime,

7 yes.

8 JUDGE SCHOMBURG: Thank you, Mr. President. I understood

9 correctly that you don't want to maintain your position as from yesterday,

10 saying that verbal resistance is not sufficient, that you now want to

11 refer to the concrete situation.

12 Secondly, I would ask you: Do you agree that when there is a link

13 to a kind of enslavement, and enslavement is already established, the

14 person is already deprived of her liberty, already this can constitute a

15 coercive situation where it does not make any sense to resist for the

16 alleged victim, and this has to be regarded as rape as well.

17 And the third position I didn't understand: You made yesterday

18 the point saying that in an armed conflict, the definition of rape should

19 be another one. Could you please continue and add or give some comments

20 on this point. Thank you.

21 MR. PRODANOVIC: [Interpretation] Your Honour, there is a

22 difference in opinion here, because I have a different understanding and

23 analysis of rape as a war crime. I just gave you an example of

24 plundering, and I think that a similar analogy can be used for rape. If

25 somebody were to undertake just one act - and now here I'm talking of a

Page 164

1 rape as a war crime, not a common case of rape - so if somebody were to

2 commit a rape and all of the elements are there, they're present, I would

3 still maintain that that one act of rape cannot be viewed as a war crime.

4 It is a rape, but it is a common, ordinary rape, not a war crime.

5 And if there are five acts of rape, then a similar analogy would

6 be used as the one that I used in my example of plundering. I still would

7 not consider this to be a war crime.

8 But if those criminal offences were perpetrated in order to

9 further ethnical cleansing, if there was a plan, for example, and this was

10 committed in the context of ethnical cleansing, then in my opinion, the

11 definition of rape would be met, and it would constitute a war crime, and

12 that person, the perpetrator, would stand trial before this Tribunal.

13 This is my humble opinion. Everything outside of this, in my opinion,

14 does not constitute rape as a war crime; it constitutes a simple, ordinary

15 rape, which falls under the jurisdiction of a local court.

16 JUDGE SHAHABUDDEEN: Mr. Prodanovic, you see how very interesting

17 you are. Several members of the Bench are reacting to your submissions

18 and putting questions to you. I hope you will receive in the same light

19 my own intervention.

20 Now, it all goes back, it seems to me, to the finding by the Trial

21 Chamber that consent is a universal element of rape. You remember that

22 somewhere in the judgement, the Trial Chamber spoke on that point and said

23 that the principle to be extracted from a survey of the case law of many

24 jurisdictions, that there has to be autonomy of the will. Somebody has to

25 prove that there was a lack of autonomy in the case.

Page 165

1 Now, reference is made to Rule 96, and it seems to me that what

2 Rule 96 is doing is this: It's doing two things. It's saying that

3 certain factual circumstances shall be sufficient to show that there was

4 no consent; and, on the other hand, in the case of (iii), it introduces a

5 procedural directive into the question of proving consent or lack of it.

6 It says: "Before evidence of the victim's consent is admitted, the

7 accused shall satisfy the Trial Chamber in camera that the evidence is

8 relevant and credible." So not that consent is not relevant, but there's

9 an evidential aspect and a procedural aspect of it as well.

10 So would I be right in saying or assuming that you're not

11 challenging that part of the trial judgement in which it was held that

12 there's a consensual aspect to the thing? Am I right in that, or are you

13 challenging that?

14 MR. PRODANOVIC: [Interpretation] Your Honour, I cannot answer with

15 a simple yes or no. I will give you an example. We had a

16 situation -- what I'm about to say relates to undisputed facts in this

17 case. So this is an example of Witness DB being raped by accused

18 Kunarac. Witness DB said that it took place at her initiative, so she had

19 an active role. She started undressing him, without him directing any

20 threat or using any force against her. So the intercourse took place at

21 her initiative. We can now --

22 JUDGE SHAHABUDDEEN: I appreciate very well your interest in the

23 detailed factual aspects of the case, but I was seeking your assistance on

24 the question of principles to whether there is a consensual aspect to the

25 crime of rape, as I believe was found by the Trial Chamber. You would

Page 166

1 prefer not to answer that; is that how I read you?

2 MR. PRODANOVIC: [Interpretation] No, you did not understand me

3 well. I already said in my previous replies that the Trial Chamber needs

4 to analyse each individual case and, based on the facts of each individual

5 case, make an individual conclusion. So there is no formula that can be

6 applied in each case.

7 JUDGE SHAHABUDDEEN: Let me see if I understand you correctly in

8 your submissions about resistance. I understand you this way to be, by

9 saying no, by resistance you are not referring merely or exclusively to

10 physical resistance. Would you accept that the correct test is where also

11 something in the totality of the circumstances which showed that the

12 victim or the alleged victim was not a consenting party to the commission

13 of the act?

14 MR. PRODANOVIC: [Interpretation] Yes, Your Honour. I've already

15 said that it doesn't have to be a physical resistance.

16 JUDGE JORDA: [Interpretation] Thank you, Mr. Prodanovic, and thank

17 you to my colleagues who have clarified many of the points in your

18 presentation. You may be seated, Mr. Prodanovic.

19 I call now upon your colleague, I think, who was to add comments

20 in respect of each client, several points which would be added. I don't

21 know who is going to speak now after Mr. Prodanovic. Or is that the end

22 of the entire question? No. I see that Mr. Kolesar is standing.

23 Please proceed.

24 MR. KOLESAR: [Interpretation] Your Honour, in my part, I will put

25 forward some observations relating to the Trial Chamber judgement

Page 167

1 concerning Radomir Kovac, whose Defence counsel I am, and I will also

2 speak about sentencing, and I will endeavour to be as brief as possible

3 because our time is running out.

4 The accused Radomir Kovac was an ordinary soldier of the army of

5 Republika Srpska and as such, he took part in the military operations

6 conducted by his unit. These were combat operations against Muslim units

7 on the territory of the municipality of Foca and in Foca itself. It was

8 not only in the Muslim villages but also in the Serbian villages that

9 there was fighting. Military operations against enemy units are one

10 thing, and attacks on Muslim villages and the Muslim civilian population

11 is quite another thing.

12 He was not a member of the military police or of a paramilitary

13 unit, nor was he the deputy commander of the military police. He joined

14 the Serbian forces on the 17th of April, 1992, when the fighting in the

15 town of Foca itself was already over, so he could not have taken part in

16 the persecution of Muslims, if there was persecution.

17 But there was no persecution in the town of Foca. The Muslims

18 from the town of Foca, after the Serbs took control of the town, left the

19 town of their own free will, without any pressure, and went to those parts

20 of the territory that were under Muslim control.

21 The accused Radomir Kovac did not take part in the operations

22 against the villages of Mjesaja and Trosanj, nor did the unit to which he

23 belonged take part in these attacks.

24 The Defence of Radomir Kovac has put forward in great detail its

25 standpoint on the participation of Kovac in the attack on the village of

Page 168

1 Mjesaja. And that was on page 19 of our brief. So I will not waste any

2 more time on it.

3 The time that is relevant for the indictment of Radomir Kovac is

4 from the 30th of October, 1992, or around that date, until the 25th of

5 February, 1993, or around that date. At the time that is relevant for the

6 indictment, the fighting between the Serb and Muslim forces in the town of

7 Foca and its surroundings were long over. The Serbs had taken control of

8 the town, set up their government, and the military units had taken up

9 positions at the demarcation line. The civilian population, both Muslim

10 and civilian, moved to parts of the territory controlled by their own

11 military forces.

12 At the time relevant for the indictment against the accused

13 Radomir Kovac, civilians from Mjesaja and Trosanj, with the exception of a

14 few, had already left Foca, whether they had gone in the direction of

15 Muslim-controlled territory or whether they had gone to Serbia via

16 Montenegro.

17 The accused Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic

18 knew each other only by sight both before, during, and after the

19 conflict. They did not socialise or visit each other's homes. Each of

20 them led his own life. None of the accused knew what the other two were

21 doing, nor did they spend their free time together, nor did they have any

22 conversation, so they could not have acted with a common purpose.

23 For there to be a common purpose, it is necessary that there

24 should be personal knowledge that an operation has been planned or that a

25 protected value is to be violated or that it is being violated. And there

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Page 170

1 has to be agreement with this plan and a will to participate in it, and

2 this has to be clearly established in order for there to be individual

3 responsibility, because each perpetrator is responsible in as far as he

4 had premeditation. Kovac did not take part in any decision-making either

5 by the military or the civil authorities in Foca, and, therefore, he could

6 not be held responsible for it.

7 The accused Radomir Kovac did not, while Muslim civilians were in

8 the school in Aladza, in Partizan, in Karaman's house, and other places,

9 go to those places, nor did he know what was happening in these centres.

10 None of the witnesses mentioned his being in any of these places.

11 The time relevant for the indictment does not correspond to the

12 time relevant for the indictments against Kunarac and Vukovic.

13 All of this goes to show that the only correct conclusion is that

14 throughout the time relevant for the indictment, the three accused led

15 their own lives and that there was no awareness of a common purpose among

16 them.

17 The accused Radomir Kovac's Defence is of the view that it has not

18 been proved beyond reasonable doubt that there was a plan among the

19 accused to carry out rapes of Muslim women, that it has not been proved

20 that the accused knew that if rapes were being committed -- did not know

21 that rapes were being committed, so both the actus rea and the mens rea

22 are missing.

23 If we could speak of the actus reus as an element that is present

24 with relation to each of the accused as an active participant in the

25 system of the time - and this should be viewed only through individual

Page 171

1 actions that have been proved - we still cannot speak of mens rea on the

2 part of any of the accused because none of the accused knew of the

3 existence of a plan of repression, and there was no such plan, nor did any

4 of them have an intention to carry out a jointly conceived plan.

5 Witnesses FWS-75, 87, and AS, and the girl AB came to the flat of

6 the accused Radomir Kovac on the 30th of October, 1992, or around that

7 date; that is, they arrived at a time when all the civilians from the

8 village of Mjesaja, apart from a few girls, had left Foca. The girls who

9 remain remained of their own free will. One of them even married a Serb

10 soldier and had children with him.

11 The circumstances under which these four girls arrived in Radomir

12 Kovac's flat and the reasons for their arrival have been put forward in

13 detail in our appeal brief, pages 23 to 28, so there is no need to go into

14 this now.

15 The Defence of the accused Radomir Kovac has also put forward its

16 opinion concerning the stay of the girls in the flat used by the accused

17 Radomir Kovac. However, some opinions held by the Trial Chamber require a

18 more detailed response from me, and this is not part of the written

19 brief.

20 The Defence finds that there are no grounds for the conclusion

21 reached by the Trial Chamber that the girls were hungry while they were in

22 the flat and that this was not a consequence of a general shortage of food

23 in Foca, because cafes were open, food was available, and food could also

24 be obtained from Montenegro. The Defence asserts categorically that the

25 girls were not hungry while staying in Radomir Kovac's flat. They had

Page 172

1 food in the same amounts as every other inhabitant of Foca. They

2 themselves never claimed that they were hungry, and numerous Defence

3 witnesses confirmed that Kovac took care of their diet and personal

4 hygiene. The cafes were open, but food was not served in the cafes, only

5 coffee and drinks. The shops were open, but shelves were empty and there

6 were few foodstuffs to be bought. Goods could be brought in from

7 Montenegro to be sure, but this was very difficult because the town was

8 under a blockade by the Muslim forces at the time relevant for the

9 indictment.

10 The conclusion of the Defence of Radomir Kovac is that under the

11 circumstances, objectively he did what he could to look after the diet and

12 the hygiene of the girls while they were staying at his flat, including

13 the obtaining of medicines and cigarettes. He brought them cigarettes so

14 they could smoke.

15 It is also unacceptable to conclude, as the Trial Chamber has

16 done, that the girls had to do household chores and sexually satisfy other

17 soldiers and Radomir Kovac is held responsible for this.

18 The Defence of Radomir Kovac -- and Witness FWS-87 also confirmed

19 this. And this was a girl who stayed in the flat throughout the time.

20 And she said that the household chores they did were ordinary chores and

21 were not physically onerous, nor were they humiliating. This is in the

22 transcript page 6120. The girls were living in the flat, and of course,

23 if they were living in it, of course they cleaned it and tidied it up and

24 did other normal household chores.

25 The Defence of the accused Radomir Kovac also feels it is neither

Page 173

1 humiliating nor difficult, if the girls were cooking for themselves, to

2 also cook for Kovac and his friend who was also using the flat. So the

3 girls were simply doing normal household jobs, and this cannot objectively

4 be considered to be mistreatment or degrading treatment, because the girls

5 themselves said that there was nothing too difficult about the jobs.

6 The Trial Chamber has also concluded that the accused Radomir

7 Kovac, while the girls were staying at his flat, brought other soldiers

8 there and ordered the girls to have sexual intercourse with them.

9 Witness 75 and AB were allegedly taken to various flats and apartments,

10 where they were raped, and that Radomir Kovac raped AB and then sold her

11 for 200 German marks.

12 The Defence of the accused Kovac, in its appeal, under the heading

13 "Events concerning FWS-75 and AB," page 30 to 38, has put forward in

14 detail its standpoint concerning these conclusions reached by the Trial

15 Chamber. The Defence, however, considers that these groundless

16 conclusions require further discussion and that further facts should be

17 pointed out to the Appeals Chamber.

18 The Trial Chamber based its conclusion that Radomir Kovac raped

19 AB, and that he brought other soldiers to the flat and ordered the girls

20 to have sexual intercourse with them, and that he took Witness 75 and AB

21 to other flats in the building, and that he sold AB for 200 German marks,

22 and that he is to blame for the fact that she is missing, that he beat and

23 maltreated Witness 75 and raped Witness 75 and 87 while playing music from

24 Swan Lake, all this only on the basis of the testimony of Witness 75.

25 The Defence of the accused Radomir Kovac, in its closing arguments

Page 174

1 before the Trial Chamber, transcript of the 22nd of November, 2000,

2 analysed in great detail the contradictions in the statements of the

3 Prosecution witnesses, drew attention to the places where these statements

4 are confusing, unsure, and where Defence witnesses said something that

5 runs counter to what they said. So this is insufficient for a finding of

6 guilty.

7 The Defence has paid special attention to the testimony of Witness

8 FWS-75, transcript page 6469 to 6475 and page 6475 to 6488. The Defence,

9 in its appeal, has paid special attention to the testimony of this

10 witness, casting doubt on its veracity.

11 Witness 75 stated that Kovac brought other soldiers to the flat

12 and told the girls to have sexual intercourse with them and that he also

13 took her and AB to other flats and houses, where they were raped by other

14 soldiers. Witness FWS-87 and Witness AS, however, who were in the flat

15 throughout this time, said that Witness 75 and AB stayed in the flat only

16 briefly, about seven days; after this, they left and did not come back.

17 They also stated categorically that the accused Kovac did not bring other

18 people to the flat.

19 In the view of this testimony of Witness FWS-87 and Witness AS, it

20 is not possible that the accused Radomir Kovac could have sold AB in his

21 flat on the 25th of December, 1992, as Witness 75 claims, or in early

22 December 1992, as the Trial Chamber concluded erroneously and without

23 grounds. The written exhibits presented by the Defence with regard to the

24 wounding of Radomir Kovac should also be considered, and these were not

25 put in doubt by the Trial Chamber, Exhibits 909 and 912. It is also

Page 175

1 untrue that the accused Radomir Kovac is to blame for the fact that AB is

2 missing, and this has been ascribed to him as a very serious act.

3 Witnesses 75 and AB spent only a brief period in his flat, after

4 which they left the flat and the accused Kovac no longer was responsible

5 for them. And Witness 75 stated before the Trial Chamber, on the 3rd of

6 April, 2000, when asked by the Prosecution when she last saw AB, that she

7 had seen her perhaps two months later or something like that, that is, two

8 months after she left the flat of accused Kovac.

9 This is a witness, therefore, who was the sole witness testifying

10 to certain facts and who is unreliable, for all the reasons I have stated,

11 whose testimony contradicts the testimony of other witnesses, both

12 Prosecution and Defence witnesses, and written exhibits. The Defence,

13 therefore, holds the view that a conviction cannot be based on the

14 testimony of this witness, because it does not confirm the indictment

15 beyond reasonable doubt nor does it confirm beyond reasonable doubt the

16 statements made in the judgement that Radomir Kovac raped AB, that he took

17 FWS-75 and AB to other flats and houses, where they were raped by other

18 soldiers, and that he sold a girl for 200 German marks, and that he is to

19 blame for the fact that she is missing, and that he brought other soldiers

20 to the flats and demanded that the girls have intercourse with them, that

21 he beat them and mistreated them.

22 Let us add to all this the words of Witness FWS-75, who said

23 before the Trial Chamber that she came to this Court to judge. She was

24 referring to all three accused. And this shows how objective this witness

25 is. It also goes to show that there are witnesses who are not objective,

Page 176

1 but they are protected by Rule 96.

2 As regards other facts, all these are in the written brief, so the

3 Defence of the accused will not speak further about the facts.

4 In connection with legal matters in relation to Radomir Kovac, the

5 Defence of Radomir Kovac adheres to its standpoints in the written brief,

6 page 6689, and to the respondent's brief. These are standpoints relating

7 to cumulative convictions, cumulative sentencing, or double sentencing,

8 and, with relation to Radomir Kovac, the responsibility of Radomir Kovac

9 for particular crimes.

10 On this occasion, adhering to everything that has already been

11 said, we will simply try to clarify some points. First, the accused

12 Radomir Kovac was found guilty for the crime of rape under Article 3 and

13 Article 5(g) of the Statute. For one single action, he has been found

14 guilty twice. This decision by the Trial Chamber is erroneous and runs

15 counter to the rules of criminal law, which forbid double sentencing and

16 double punishment for the same crime.

17 We have already put forward the joint submissions of all three

18 accused, referring to Delalic, the judgement of the 20th of February,

19 2001, paragraphs 421 to 427. In the case of Radomir Kovac and his

20 conviction for rape, the accused Radomir Kovac is a particular example of

21 this, so that he has been convicted twice for the same conduct.

22 The Trial Chamber was bound to carry out a test and to establish,

23 first of all, whether every relevant provision contains the same element

24 as other provisions or whether some elements are materially, substantially

25 different, and this requires proof.

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Page 178

1 Only individual criminal offences may be subject to cumulative

2 convictions, but the indictment should contain a different element for

3 each crime that is not contained in other elements in other crimes. And

4 on the basis of this, a conviction can be pronounced. And it has to

5 relate to the act that has been defined in more specific terms, so that if

6 the Trial Chamber has concluded that in the conduct of Radomir Kovac,

7 there are elements for him to be found guilty of rape, and the Defence

8 still maintains that there are not, for the reasons we have stated in the

9 brief and the respondent brief, he could be found guilty only under

10 Article 5(g) of the Statute.

11 The Defence of the accused Radomir Kovac considers that in its

12 appeal and in its respondent's brief, it has discussed sufficiently the

13 crimes of rape and outrages upon personal dignity, as well as enslavement

14 and rape. The Defence of the accused Radomir Kovac feels that enough has

15 also been said about the criminal responsibility of Radomir Kovac for the

16 crime of rape and outrages upon personal dignity and enslavement.

17 On this occasion, the Defence of the accused Kovac wishes to ask

18 the Appeals Chamber to pay special attention in its deliberations to

19 paragraphs 161, 166 of the appeal brief, pages 86 to 89, which relate to

20 the standpoints of the Defence regarding the crime of enslavement, because

21 I do not wish to repeat what I said yesterday. And in relation to the

22 accused Kovac, there are innumerous elements relating to the standpoint

23 taken by the Trial Chamber, and as the Trial Chamber took limited freedom

24 of movement, transferring for the purposes of sexual intercourse, work,

25 and the sale of the girls as elements of enslavement.

Page 179

1 And the last part of my presentation will deal with sentencing.

2 When analysing the arguments of the Trial Chamber in its part

3 concerning sentencing, the Defence would like once again to say that there

4 was a violation of the Rules of Procedure and Evidence. In proceedings

5 before this Tribunal, the Rules of Evidence and Procedure are applied, the

6 ones that were adopted based on Article 15, and this pertains both -- this

7 is further substantiated by the decisions of the International Criminal

8 Tribunal for Rwanda and Nuremberg proceedings. These Rules of Procedure

9 and Evidence are mandatory for this Tribunal, and it is so regardless of

10 the views taken up by other tribunals which do not have a duty to apply

11 these Rules of Evidence and Procedure.

12 Article 6 of the Rules is clear and unambiguous and concerns the

13 amendments which took place afterwards, and it is clear that by

14 pronouncing a single sentence, the Trial Chamber did it to the detriment

15 of the accused -- of our accused. And the Defence stated clearly its

16 views regarding this both in its brief and reply to respondent's brief.

17 We will not belabour this point any more. We would simply like to add

18 that by doing so, by applying the role retroactively, the Trial Chamber

19 did something to the detriment of the accused Kovac.

20 The Defence has stated previously, and will repeat that again,

21 that it is inappropriate not to prescribe a punishment for each criminal

22 act. This is contrary to the principle nullum crimen nulla poena sine

23 lege. The Defence maintains that it is unacceptable not to prescribe a

24 punishment for each crime. Prescribing of punishment for each crime would

25 make a clear distinction concerning a social threat of each crime, and it

Page 180

1 would not leave it as unambiguous whether more severe punishments are due

2 for crimes against humanity or other war crimes, because the specification

3 of the punishment for each crime would determine the social threat posed

4 by each crime.

5 Since the Statute does not prescribe punishment for each crime,

6 this violates basic norms of criminal law and allows each Trial Chamber to

7 use arbitrary factors in determining punishments.

8 Now we are in a situation where Radomir Kovac was punished more

9 severely for his acts than was the case with other accused. It is clear

10 that rape and enslavement are grave criminal offences if they are proven,

11 but Defence believes that much more severe crimes are multiple murders and

12 severe beatings which had been committed by persons with a command

13 responsibility in collection centres or civilian camps. However, these

14 perpetrators were given less severe sentences, unlike Radomir Kovac, who

15 was an ordinary soldier. So he had no command responsibility. And even

16 if he was liable, which Defence believes not to be the case, all of the

17 events took place in the apartment which he himself had used.

18 Here Prosecution would like to refer to cases Kvocka, Delalic, and

19 Furundzija. Defence of the accused Kovac cannot accept that acts ascribed

20 to Kovac are more severe than acts of some other perpetrators who stood

21 trial before this Tribunal. No modern legal system provides a graver

22 punishment for rape than murder or aggravated murder.

23 When deciding on punishment for Kovac, the Trial Chamber committed

24 two more errors and violated provisions of Rule 101 of Rules of Evidence

25 and Procedure. Based on provisions of Rule 101, the Trial Chamber will

Page 181

1 take into account factors mentioned in Article 24 of the Tribunal

2 Statute. And based on Article 24(1) of the Statute, the punishment

3 pronounced by Trial Chamber is limited to imprisonment. And when

4 determining the terms of the punishment, the Trial Chamber have recourse

5 to the general practice regarding prison sentences in former Yugoslavia.

6 Based on Rule 101(B)(iii) of the Rules of Evidence, Trial Chamber

7 will take into account general practice regarding prison sentences in the

8 courts of the former Yugoslavia when deciding on the punishment.

9 The Defence of the accused invited Dr. Stanko Beatovic, a

10 university professor, to testify here as to the practice courts in former

11 Yugoslavia when punishing for crime of rape, and at the same type, Defence

12 submitted a number of final judgements reflecting the practice of

13 sentencing for such crimes in the former Yugoslavia. However, the Trial

14 Chamber disregarded all of this material. Trial Chamber, based on Rule

15 101(B)(ii), should also have taken into account whether there were any

16 other mitigating circumstances with respect to accused Kovac that would

17 lead to a less severe sentence.

18 The Defence, in its brief titled "Individualisation of

19 Punishment," on page 99 explained its full position concerning mitigating

20 and aggravating circumstances as they exist with respect to the accused

21 Kovac that should have influenced the time frame of the sentence.

22 However, the Trial Chamber did not find that any of the mitigating

23 circumstances existed with respect to the accused Kovac.

24 And finally, the Trial Chamber also violated another provision of

25 the Rules of Evidence - and this is something I elaborated on yesterday -

Page 182

1 which is that when pronouncing a sentence, the Trial Chamber failed to

2 calculate or give credit for the time spent in detention.

3 And now concluding this presentation of mine, the Defence of the

4 accused Kovac would like to appeal to the Chamber to take into account

5 everything that has been stated by us yesterday and today, including all

6 of our written submissions, and to decide in accordance with our

7 submissions. In our closing arguments, we ask for an acquittal, and we

8 adhere to this position today as well. Thank you for your attention.

9 JUDGE JORDA: [Interpretation] Thank you, Mr. Kolesar. I think we

10 now have for Mr. Vukovic or for Mr. Kunarac -- is it Mr. Jovanovic? Are

11 you going to conclude? Unless there are any questions about the issues

12 that were to some extent factual. Excuse me, Mr. Jovanovic.

13 Judge Shahabuddeen.

14 JUDGE SHAHABUDDEEN: Mr. Kolesar, I listened to you with great

15 attention, but I may have misunderstood you. I had you down as talking

16 about single sentences and multiple sentences. My impression is that you

17 submitted that the power to impose a single sentence for multiple

18 convictions violates basic norms in the criminal law. Now, I'm far from

19 being an expert on the civil law, but my impression is that single

20 sentences, global sentences, are known in the law of France, and perhaps

21 in all civil law countries. What is your impression?

22 MR. KOLESAR: [Interpretation] Your Honour, I don't remember saying

23 something to that effect. What I had in mind was something that I stated

24 yesterday as well. When we're talking about the specific charge of rape

25 with respect to Radomir Kovac, only one provision can be applied. And if

Page 183

1 it is found that he is guilty of rape, which we do not think to be the

2 case, we believe that it could only fall under Article 5 of the Statute.

3 I don't know if the misunderstanding stemmed from that case, but the --

4 JUDGE SHAHABUDDEEN: You are referring there to your arguments on

5 the question which I would characterise as a question relating to the

6 issue of the power to impose cumulative punishments or to order cumulative

7 convictions, but I thought that you were speaking of the power to impose a

8 single sentence for multiple convictions and that it was your submission

9 that that power violates basic norms in criminal law. So I misunderstood

10 you, then?

11 MR. KOLESAR: [Interpretation] You did misunderstand me, Your

12 Honour, because in the laws in former Yugoslavia, there is a provision

13 providing for a global sentence. We call this an accumulation of

14 sentences legally. But in order to pronounce a single sentence, it needs

15 to be prescribed by the law. In former Yugoslavia, it was prescribed by

16 the law and it was prescribed how to apply it; however, for each crime, a

17 specific punishment had to be prescribed, and there was also a duty to

18 apply a specific article, specific provision, and pronounce a single

19 punishment. I think this is a universally accepted norm in the criminal

20 law.

21 JUDGE SHAHABUDDEEN: I thought the position in the territories of

22 the former Yugoslavia was exactly as you described it, but not being fully

23 acquainted with it, I was reluctant to refer to it myself. I'm grateful

24 to you.

25 Now, may I turn to your absorbing analysis of the facts relating

Page 184

1 to your client and ask this question: The Appeals Chamber, as you know,

2 has jurisdiction both over errors of law and errors of fact if they

3 arrived at a miscarriage of justice, and some parts of your submissions

4 did relate to errors of law, and to those I will not be referring. I'm

5 only referring to your analysis of the facts.

6 Now, here you said, analysing the facts, that they were

7 insufficient for a finding of guilty, and you referred to the evidence of

8 a witness, and you said that testimony was unreliable, and you referred to

9 the testimonies of some other witnesses, and you characterised them as

10 objective, as against others who were not objective.

11 I'm a little concerned with the correct appreciation of the

12 mission of the Appeals Chamber, the parameters of our work. It lies in my

13 mind like this: that it is possible that in a case, we, if we sat as a

14 Trial Chamber, might have arrived at a different conclusion from the

15 conclusion reached by the Trial Chamber. But perhaps there could be a

16 question as to whether that is sufficient for us to reverse the decision

17 of the Trial Chamber, unless the presentation reached a higher level, and

18 that higher level is this: Not only must it be shown that we could have

19 arrived at a conclusion different from that reached by the Trial Chamber,

20 but that the conclusion reached by the Trial Chamber was so unreasonable

21 that no reasonable Trial Chamber could have reached that conclusion. Are

22 you saying to the Appeals Chamber this morning in your submissions that

23 the decision reached by the Trial Chamber was of this latter kind, that it

24 was a decision which no reasonable Tribunal could have reached?

25 MR. KOLESAR: [Interpretation] Your Honour, in my presentation this

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Page 186

1 morning, I said that in my closing arguments before the Trial Chamber on

2 the 22nd of November of 2000, I made an analysis of the testimony of the

3 Prosecution witness. The Prosecution, in the indictment charging

4 Mr. Kovac, brought only four witnesses who were supposed to corroborate

5 the allegations of the indictment, so we did not have a large number of

6 witnesses.

7 I stated in my closing arguments all of the contradictions,

8 claiming that on the basis of all those testimonies, it could not be

9 established beyond a reasonable doubt that Mr. Kovac was indeed guilty of

10 the crimes he was charged with. Today I mentioned only one of the

11 witnesses, pointing this witness as a drastic example of inconsistency and

12 lack of veracity and a biased attitude. Because if only this witness

13 claimed that certain facts existed, unlike other two witnesses, who

14 claimed the opposite -- and these facts concerned a number of very serious

15 issues: whether soldiers were coming to rape the girls, whether that one

16 girl had been sold or not. I don't want to go into these details. But if

17 this is indeed the case, then I adhere to what I stated in my closing

18 arguments, that testimonies of witnesses, and especially Witness 75, were

19 such that a conviction could not be based on those testimonies.

20 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Kolesar.

21 MR. KOLESAR: [Interpretation] Thank you as well.

22 JUDGE SCHOMBURG: Thank you, Mr. President. I want to refer to

23 your discussion of the principles nullum crimen sine lege. I believe we

24 are very far from this principle, but to be more concrete, I have the

25 impression you want to change Article 24 of the Statute, being not in line

Page 187

1 with the principle of nullum crimen sine lege.

2 One question: Are you aware that in most jurisdictions of the

3 world, for serious crimes there is the description of the sentencing in a

4 way, saying sentencing, for example, from one year to fifteen years, or

5 from one year to life imprisonment? And what would be the difference

6 between this approach and the approach found in Article 24, saying the

7 penalty imposed shall be limited to imprisonment, giving discretion also

8 up to life imprisonment?

9 My other question refers to Article 6(d). You mentioned this

10 Article, and you added: "Something happened to the detriment of my

11 client." I would be of the opinion that it is up to the Defence to show

12 that there was some really in concreto, as Article 6(d) states, which can

13 be regarded as a prejudice to the rights of the accused. Could you please

14 go into details of this prejudice. Thank you.

15 MR. KOLESAR: [Interpretation] Your Honour, I believe that there

16 was some kind of confusion, especially as regards Article 24 of the

17 Statute, which is titled "Punishment." I have no intention of saying that

18 something needs to be changed here.

19 What I had in mind was the following: Paragraph 1 says that

20 punishment pronounced by the Trial Chamber will be limited to

21 imprisonment, and when establishing the length of imprisonment, the Trial

22 Chamber will have a recourse to the practice in the former Yugoslavia.

23 What I had to say is the following: The Defence brought here an

24 expert witness who testified to this, and also submitted a large number of

25 final judgements convicting perpetrators for rape. However, the Trial

Page 188

1 Chamber did not give its position with respect to our submissions, and

2 that was the gist of what I wanted to say. This did not apply to

3 principle nullum crimen sine lege.

4 As far as your other question is concerned, I believe that if, for

5 example, a punishment of one to twenty years is envisaged for a certain

6 crime, then in my view, this is a specific punishment, and Defence

7 believes that punishment is not specified if there is no mentioning nor

8 provision regarding punishment. But if we do have any kind of a

9 provision, even if it says punishment from one to twenty years, then this

10 imposes a duty on Trial Chamber to take everything into

11 account - mitigating, aggravating circumstances, everything - and then

12 pronounce the sentence within that span. However, if such a provision is

13 missing, then Trial Chamber has to do it arbitrarily.

14 I don't know if I was able to answer all of your questions.

15 JUDGE JORDA: [Interpretation] Excuse me. I'm not sure whether you

16 answered that question regarding Rule 6(D) of the Rules.

17 That was your question, I believe. Was it not, Judge Schomburg?

18 MR. KOLESAR: [Interpretation] Oh, yes, Rule 6(D). Yes. As far as

19 Rule 6(D) is concerned, I mentioned it yesterday.

20 JUDGE JORDA: [Interpretation] [Previous translation continues] ...

21 to it, as your colleagues did as well. Would you please explain your

22 position to us.

23 MR. KOLESAR: [Interpretation] My position remains as it was

24 yesterday, which is that Trial Chamber, when deciding on conviction and

25 sentencing, had a duty to apply Rules of Evidence and Procedure which were

Page 189

1 in force at that time and not the ones that were adopted two months

2 later. They could not apply something that was subsequently adopted, that

3 entered into force after the conclusion of the case, after the case was

4 concluded. That was my position that I articulated yesterday.

5 JUDGE JORDA: [Interpretation] Could you explain the difference

6 that would mean that there is prejudice to your client? What would have

7 been more advantageous to your client? Because now we're speaking in

8 abstract terms. We are aware of the amendments that were made to the

9 Rules, but I'd like you to explain exactly what you mean.

10 You say, with this type of a provision of the Rules at the time of

11 the trial, my client would not have suffered prejudice, but with the

12 amendment there is prejudice. Before the break, could you explain what

13 you mean by that?

14 MR. KOLESAR: [Interpretation] I mentioned this yesterday, and I

15 will repeat it now. In accordance with Rule 101 of the Rules of Evidence

16 and Procedure, which were in force at the time when our case was

17 concluded, the Trial Chamber had a discretionary right to pronounce

18 sentences and determine whether they will run simultaneously or

19 consecutively. That was the right of the Chamber. However, with the

20 amended Rules, the Chamber was given right to pronounce a single

21 sentence.

22 I believe that the accused Kovac was prejudiced by this, because

23 if the old Rules were applied, that would impose a duty on the Trial

24 Chamber to specify an exact sentence for each crime and then decide

25 whether these sentences will run simultaneously or consecutively.

Page 190

1 By pronouncing a single sentence to the accused Kovac in

2 accordance with the new Rules, we do not know -- nobody knows except for

3 the Trial Chamber what the exact punishment, what the length of

4 imprisonment is for each crime, and this is prejudicial not only to the

5 accused Kovac, but it also creates a legal uncertainty for all of the

6 accused because no comparison can be drawn on gravity of criminal

7 offences. I believe that each sentence needs to be individualised.

8 JUDGE SHAHABUDDEEN: Mr. Kolesar, your argument on prejudice

9 proceeds on the basis that to impose a single sentence or a global

10 sentence was only introduced with the amendment made about a year ago to

11 Rule 87(C), but you are aware of the fact that prior to the making of that

12 amendment, in Blaskic and, I believe, other cases both here and in the

13 ICTR, global sentences were being imposed.

14 Now, I invite you to look at Article 23 of this Statute, and you

15 will see that there in paragraph 1, the Tribunal is given power to impose

16 sentences and penalties. It is not said that these penalties must be

17 either separate or global, and that is a matter of substance which cannot,

18 I believe, be whittled down by Rules of Procedure.

19 And Article 24, paragraph 1 refers to this. It says:

20 "In determining the terms of imprisonment, the Trial Chamber

21 shall have recourse to the general practice regarding prison sentences in

22 the courts of the former Yugoslavia."

23 Now, you have just told us that in Yugoslavia, subject to certain

24 conditions, there is a power to impose a global sentence. Would you say

25 that provision which I have just alluded to, a provision occurring in the

Page 191

1 Statute itself is broad enough to enable this Tribunal to impose a

2 sentence which it does not only accord with the practice in the former

3 Yugoslavia relating to terms of imprisonment, but which also accords with

4 the practice in the former Yugoslavia relating to the power to impose a

5 sentence which is global or which is separate? What is your view on

6 that?

7 MR. KOLESAR: [Interpretation] First of all, as far as the

8 sentencing in the former Yugoslavia is concerned, what I said previously

9 is that courts in former Yugoslavia were able to pronounce a single

10 sentence but that prior to that, they specified the exact penalty for each

11 crime and then a total, a global sentence would be pronounced.

12 What you just read us from Article 24(1) of the Statute is

13 undisputable. However, the Rules of Evidence and Procedure, which is an

14 Act, used as the legal basis for the work of this Tribunal, and in the old

15 Article 101(C), before they were amended of the 19th of January, it stated

16 that Trial Chamber, when deciding on a sentence, on a penalty, would

17 determine whether punishments for individual crimes would -- sentences for

18 individual crimes would run concurrently or consecutively, which means

19 that the old Rule 101(C) prescribed that there needs to be an individual

20 penalty for each individual crime and then the Trial Chamber needed to say

21 whether those penalties, sentences would run concurrently or

22 consecutively.

23 However, when the Rules were amended on January 19, Rule 101(C)

24 was abolished and its provision was now incorporated into Rule 87. I

25 believe this was prejudicial to my client, because now he doesn't know how

Page 192

1 much -- how long was each sentence for each of the crimes he was found

2 guilty of, and had the old Rule been applied, then he would know exactly

3 what his punishment is for each of the crimes.

4 JUDGE SHAHABUDDEEN: One last question. I've already, I think

5 yesterday, referred you to the terms of Rule 87(C) and to the

6 circumstances, that it is framed in such a way that it seems to recognise

7 a pre-existing power to impose a single sentence. Would I be right, then,

8 in understanding you to mean that in imposition of global sentences in

9 Blaskic and in other cases both here and in the ICTR, which presided the

10 making of an amendment of this kind, was erroneous, that those decisions

11 were wrong? Is that your submission, that there was no power to impose a

12 global sentence before the passing of this amendment?

13 MR. KOLESAR: [Interpretation] Your Honour, whether it is the

14 Blaskic case or a case from Rwanda, I believe that in all proceedings

15 where a decision was made similar to the one made in our case, the Rule

16 was violated.


18 JUDGE JORDA: [Interpretation] One point, Mr. Kolesar, just one

19 point. Not to dwell too much on this issue, but I would like to point out

20 to you when you speak about prejudice, the Rules gave latitude,

21 possibility to the Chamber. It did not do away with the former provision

22 but gave a broader latitude.

23 When you speak of prejudice, I could understand it if, for

24 instance, you, in your work as Defence counsel, for the proper

25 understanding of the sentence by your client, it was not possible to see

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Page 194

1 through this notion of criminal global behaviour to see what type of guilt

2 your client was being convicted on, and that is not what you find in the

3 disposition.

4 In the final disposition of the decision, you would agree with me

5 that Radomir Kovac was found guilty for counts 22, 23, 24, 25. These

6 offences, for the Trial Chamber, cover one single conduct, and that is

7 what was brought about by the changes in the Rules.

8 You are, of course, free not to agree with me, but for the Judges

9 who amended the Rules, this was an additional possibility but which did

10 not prejudice, in and of itself, the accused.

11 This is the clarification I wanted to give to you.

12 I think that it's now ten after 11.00. According to our legal

13 officer -- yes, yes. Reply, of course. I was giving you a clarification

14 in respect to the amendments to the Rules. I simply wanted to tell you

15 that whenever the Rules are amended, the Judges are very careful that they

16 apply only to ongoing cases insofar as they do not cause any prejudice.

17 All right, please proceed, but briefly, please.

18 MR. KOLESAR: [Interpretation] Thank you for these useful insights,

19 Your Honour. But let us look at specific examples. As far as Anto

20 Furundzija is concerned, he was sentenced to two years and the sentences

21 ran concurrently. Delalic received a maximal penalties or almost maximum

22 penalties, but they also run concurrently. And we, the Defence, and our

23 client, too, expected that we will receive penalties in accordance with

24 the old Rules and that that would be along the lines of decision-making

25 seen in Furundzija and the Delalic case. Thank you very much for your

Page 195

1 patience.

2 JUDGE JORDA: [Interpretation] Very well. After the break, how

3 much time is left for the Defence? We have only Mr. Jovanovic who is

4 going to speak; is that correct? How much time? About 40 minutes. I

5 think that will allow the Defence to conclude.

6 Mr. Prodanovic, did you want to speak again? I'm simply asking

7 you.

8 MR. PRODANOVIC: [Interpretation] Yes, just briefly, after

9 Mr. Jovanovic, as far as the sentencing of the accused Mr. Kunarac. Just

10 a few sentences, but we will fit within the 40 minutes allotted to us.

11 JUDGE JORDA: [Interpretation] [Previous translation continues] ...

12 11.30. After the break, you know how much time will be left to finish

13 with the presentation of the Defence arguments, and then I believe we can

14 give the Prosecutor the opportunity to reply right after 12.30. All

15 right. We will adjourn now until 11.30.

16 --- Recess taken at 11.14 a.m.

17 --- On resuming at 11.35 a.m.

18 JUDGE JORDA: [Interpretation] We will now resume the proceedings.

19 Have the accused brought in.

20 We will now resume. Subject to any questions that the Judges may

21 choose to put to counsel, we will finish around a quarter after 12.00 or

22 20 after 12.00 with all of the Defence arguments. I call your attention

23 to the fact that in respect of the last points, we will not go back to the

24 legal points that were raised by any of the counsel.

25 I believe Mr. Prodanovic is now going to take the floor.

Page 196

1 MR. PRODANOVIC: [Interpretation] No, Your Honour. Mr. Jovanovic

2 is to speak now.

3 JUDGE JORDA: [Interpretation] Very well. I had misunderstood.

4 When you stood, I had not quite thought that that's what you were going to

5 say. All right. Please proceed, Mr. Jovanovic.

6 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. Before I

7 begin the presentation of the Defence of Mr. Zoran Vukovic, which will be

8 limited exclusively to matters of fact, the manner of establishing facts

9 and the evidence produced, we would like to say something that is

10 connected not only to this case. As Your Honour has just said, the

11 Defence proposes that in future trials, the time should be allotted

12 differently in appeal proceedings, because in this proceeding, there is a

13 hypothetical possibility for me, as the third Defence counsel to speak, if

14 the first Defence counsel raises interesting issues which give rise to a

15 discussion, which takes up time, then what could happen could be that the

16 third counsel to speak is left without sufficient time to put forward his

17 arguments. So this is just a proposal for future proceedings.

18 I would now like to go back to the matters of fact.

19 JUDGE JORDA: [Interpretation] Let me respond to you,

20 Mr. Jovanovic, on that point. Your comment is very interesting, and have

21 noted it. I really did note it, because I resumed saying that this would

22 be subject to any questions that the Judges would ask. Defence should

23 complete its arguments at 20 after 12.00, but I would answer that

24 if -- well, you have distributed the time amongst yourselves, and you have

25 already argued before this Tribunal, so you must know that the Judges do

Page 197

1 take the floor. That is their right. You know, you give information to

2 the Judges, but the Judges give you information as well.

3 The second answer is that I would encourage you to take advantage

4 of the questions that your colleagues have asked. It is true that

5 Mr. Prodanovic took a lot of time, but he raised many legal issues which

6 in the dialogue between the Judges and himself must have been advantageous

7 to all of the Defence counsel. I would, rather, think that you were

8 somewhat in a privileged position. Ordinarily, you should really have

9 nothing further to say. But I think I'm going a bit too far there, so I

10 give you the floor.

11 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I will

12 now talk about the case of my accused, and I will speak exclusively of

13 matters of fact and the way these facts were established and the manner in

14 which the guilt of my client, Mr. Zoran Vukovic, was established.

15 Before entering into a brief analysis on this, I wish to point out

16 that the Defence really considers that the manner in which the guilt of my

17 client was established violated some of the fundamental principles of

18 criminal law: the right to defence and the right to a fair trial.

19 The guilt of Mr. Zoran Vukovic and the facts that were established

20 in connection with him can generally be said to refer to two things. One

21 is his connection with the attack on the civilian population, his

22 willingness and readiness to take part in the attack and the perpetuation

23 of the attack; and the second set of facts relates to the specific crime

24 formulated in count 7.11 of the indictment, for which Mr. Vukovic has been

25 found guilty.

Page 198

1 The connection of Mr. Vukovic with the attack on the civilian

2 population, his knowledge of this, his willingness to participate in the

3 attack and its perpetuation, was established on the basis of testimony of

4 Witnesses 50 and 75. We learned of these testimonies for the first time

5 just before the trial. These testimonies include very serious criminal

6 offences: murder and rape, and another rape. We learned of this for the

7 first time at the trial. The indictment did not contain any of these

8 three crimes, so the Defence was not called upon to put forward its

9 arguments. To draw conclusions from something like this and to base a

10 judgement on facts adduced in this manner, we feel, is a violation of the

11 right to defence. Also, the right to equality of arms has been violated.

12 How can the Defence put forward a defence against such

13 allegations? I shall be completely specific.

14 Witness 50 stated that on the 3rd of July, Mr. Zoran Vukovic raped

15 her orally in Buk Bijela. Witness 75 testified that on that same day in

16 July, she saw Mr. Zoran Vukovic taking an elderly gentleman in the

17 direction of the river Drina, after which a burst of gunfire was heard,

18 and the elderly gentleman was never seen or heard of again.

19 The Trial Chamber drew the conclusion that he had participated in

20 an attack on the civilian population on the basis of these two criminal

21 offences. The Defence cannot simply say Mr. Zoran Vukovic was not in Buk

22 Bijela that day and he doesn't know what was going on there. The best way

23 would be for the Defence to prove that Zoran Vukovic did not commit those

24 crimes. However, there was no indictment for those crimes. Does this

25 then presuppose that the Defence has to battle with any allegation made

Page 199

1 during a trial? We are bound by the indictment and the charges made

2 against our client. His role and his presence is based on the commission

3 of crimes. If he has not been found guilty of a crime, if it has not been

4 established that he committed a crime, we cannot draw any factual

5 conclusions from these allegations. However, I find this in some parts of

6 the judgement, which leads to even greater confusion.

7 Let me quote paragraph 163 of the judgement, towards the end. I

8 quote -- just a moment. This refers to an incident on the basis of which

9 the perpetuation of an attack by Zoran Vukovic was established, and this

10 is a crime of which we learned at the trial itself, when Witness 75 said

11 that allegedly Zoran Vukovic, in Mr. Kovac's flat, after a conversation in

12 which he admitted to her that he had killed the man in Buk Bijela, he

13 forced her to have oral sex with him.

14 The Trial Chamber says this incident was, however, not charged in

15 the indictment that is before the Trial Chamber, and the Trial Chamber

16 makes no finding on it. I am afraid that this does not correspond to what

17 follows further on in the judgement. The Trial Chamber does draw

18 conclusions from this event because in paragraph -- and just bear with me

19 for a moment, Your Honours. Because I am short of time, I will find it.

20 On the basis of this, of this event in Mr. Radomir Kovac's flat,

21 the Trial Chamber draws the conclusion that Zoran Vukovic perpetuated an

22 attack on the civilian population. This is directly contradictory to the

23 conclusion in paragraph 163.

24 The same applies to the testimony of Witness 75. Please look at

25 236 of the indictment.

Page 200

1 THE INTERPRETER: Interpreter corrects herself. "Witness 50."

2 MR. JOVANOVIC: [Interpretation] In paragraph 236 - and this refers

3 to Witness 50 - in Buk Bijela, she was raped orally by Zoran Vukovic. The

4 incident was not mentioned by the witness before, and consequently, it was

5 not charged in the indictment before the Trial Chamber. The Prosecution

6 chose not to amend the indictment against the accused Zoran Vukovic. The

7 Trial Chamber does not base a conviction on this incident. Unfortunately,

8 I have to observe that the judgement is based on this incident because

9 this incident was used to link Mr. Zoran Vukovic to the attack on the

10 civilian population.

11 When speaking of the events in Buk Bijela, there is another point

12 that should be raised in the connection with the conclusions raised by the

13 Trial Chamber. There was another witness heard before the Trial Chamber,

14 FWS-62. This lady is the wife of the man who was probably killed that day

15 in Buk Bijela. She knows Mr. Zoran Vukovic from before the war. This

16 lady saw what happened to her husband, and this lady did not identify

17 Mr. Vukovic in the courtroom as the perpetrator. Her testimony is

18 described in paragraph 384 of the judgement.

19 To establish important facts in this manner is, in the view of the

20 Defence, not the best way. The entire body of allegations concerning

21 Mr. Vukovic's participation in the attack is based on these three events.

22 I now want to draw your attention to another point. We know that

23 crime does not pay. But that a good deed does not pay, that's something

24 new.

25 In paragraph 590 of the judgement, it says that Zoran Vukovic was

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Page 202

1 aware of the dangers to which Muslims in Foca were exposed, because during

2 the conflict, he actually helped some Muslim citizens whom he knew to be

3 in danger.

4 It is not fair to use a good deed in a negative context. And

5 Prosecution witnesses testified to the fact that Mr. Zoran Vukovic did

6 help Muslims. He helped them to such an extent that he defended them,

7 with weapons, from other Serbs. It is not fair to use this in a negative

8 context. For this reason, the Defence considers that the right to a

9 defence has been violated because the Defence was not provided with a

10 possibility to put forward its case, but ad hoc conclusions were reached

11 instead, and this was used to link Mr. Zoran Vukovic with the attack on

12 the civilian population.

13 This leads us to the crux of the matter as far as my client is

14 concerned, and that is the establishment of guilt for the charges in

15 7.11 -- count 7.11 of the indictment.

16 The Defence has said a lot about Witness 50 and this incident, but

17 let us add something. To make it easier to follow my arguments, I will

18 try to describe the event briefly, as described by Witness 50.

19 One day, Mr. Zoran Vukovic, accompanied by an unknown Serbian

20 soldier, turned up in the Partizan Sports Hall. The witness hid when she

21 saw him, but frightened by the threats made by Mr. Zoran Vukovic to

22 Witness 51, who is the mother of Witness 50, she revealed herself, and

23 then he took both of them to an abandoned flat, where in one room Zoran

24 Vukovic raped Witness 50 and in another room Witness 87 was raped most

25 probably by this Serb soldier. After this incident, Zoran Vukovic took

Page 203

1 them back to the Partizan Sports Hall.

2 The starting point for this is the number of persons taking part

3 in the alleged incident: Witness 50, Witness 51, Witness 87, Mr. Zoran

4 Vukovic, and an unknown Serbian soldier.

5 The Trial Chamber had an opportunity to hear four of the

6 participants in this event: Mr. Zoran Vukovic, who declared himself not

7 guilty at his initial appearance on all counts, including this one.

8 Witness 87, who was allegedly with Witness 50 at the time in

9 question. Witness 87 denies that this took place, and the Trial Chamber

10 believed the witness, because in paragraph 246 of the judgement, which is

11 found under the heading of "Supporting Evidence" - which is very strange -

12 but the incident is the rape in question, and the Trial Chamber

13 established that Witness 87 saw Zoran Vukovic only twice and not once was

14 it in company with Witness 50.

15 Witness 51, who is the mother of Witness 50, did not confirm by a

16 single word that this incident ever took place. Moreover, in her

17 testimony, she says that her daughter was never taken out of Partizan

18 independently of Zoran Vukovic, regardless of him. But as for this

19 incident, she does not mention it by a single word, and this can be seen

20 in paragraphs 378 and 379 of the judgement.

21 There is a possibility, a theoretical possibility -- and I wish to

22 mention that all these are Prosecution witnesses. There is a theoretical

23 possibility for two Prosecution witnesses, the mother of a witness and

24 Witness 87, who was allegedly there, should be lying. But if this is so,

25 we must have very, very good reasons to believe them to be lying. We do

Page 204

1 not have such reasons. And there is a fundamental question: Why should

2 Prosecution witnesses defend - let us say - theoretically Mr. Zoran

3 Vukovic, whether he actually committed the crime or not?

4 I wish to mention that Witness 87 was -- or rather, Mr. Zoran

5 Vukovic allegedly raped her in another incident separate from this

6 incident, and he was acquitted of that other incident. She had no reason

7 to protect Zoran Vukovic, because according to the indictment, she too was

8 raped by him. Why would a mother testify against her child? Mr. Zoran

9 Vukovic, however, was found guilty on this count and sentenced to 20 years

10 in prison. I think this is unfair, to say the least.

11 Your Honour, I will conclude my presentation by mentioning

12 count 591 of the indictment [as interpreted]. When I first read it, I

13 thought it must be a mistranslation. I could hardly wait to get the

14 official translation. I am speaking of the judgement. In paragraph 591

15 of the judgement, it says: "Zoran Vukovic also perpetuated the attack by

16 personally raping at least two Muslim girls." I reiterate, "at least

17 two," which opens up the possibility of more.

18 When I discovered that the problem was not in the translation, the

19 next thing that occurred to me was that - and this is only a presumption

20 of mine, a hypothesis - that parts of this judgement were written when it

21 was expected that Zoran Vukovic would be found guilty of two or more

22 rapes. Because the victims are mentioned, the victims who are expected to

23 be the victims for the rape of which he would be found guilty, and room

24 was left for more rapes. I am still speaking of my hypothesis.

25 Maybe someone expected this kind of judgement to be reached. I

Page 205

1 don't know how they felt, but I do know how my client feels, because he is

2 not guilty and yet he has been convicted. I cannot speak of the penalty

3 in this case. I can only ask the Appeals Chamber to review the file, the

4 record, and to come to the only possible decision, and that is to acquit

5 Zoran Vukovic of the only remaining count of the indictment.

6 Your Honour, the Defence of Zoran Vukovic now concludes its oral

7 presentation, its oral arguments.

8 JUDGE JORDA: [Interpretation] Thank you, Mr. Jovanovic. I turn to

9 my colleagues. Are there any questions?

10 You should provide a clarification in respect of the judgement.

11 Remember, Mr. Jovanovic, you said that you didn't have time, but I see you

12 do have time. You were going to tell us -- well, in your first

13 intervention -- do you remember what I -- it would be interesting to know

14 where you find the judgement in contradiction with what was said in

15 another part. Would you assist the Judges, if you have the reference.

16 Please proceed.

17 MR. JOVANOVIC: [Interpretation] Of course, Your Honour. Thank

18 you. Yes. The first contradiction connected with the event in Buk Bijela

19 relating to the rape of Witness 50, paragraph 236 does not correspond with

20 paragraph 589. Paragraph 591 does not correspond with paragraph 163 of

21 the judgement.

22 JUDGE JORDA: [Interpretation] Very well. I turn to my

23 colleagues. Do you have no questions to put to counsel?

24 Judge Shahabuddeen.

25 JUDGE SHAHABUDDEEN: Mr. Jovanovic, I'm trying to follow you. I

Page 206

1 understand you to be recognising that acts which were not charged were not

2 followed by any convictions and were not taken into account for sentencing

3 purposes. Your proposition is, however, findings in respect of those acts

4 were used by the Trial Chamber in respect of the case as it related to

5 acts which were charged in the indictment. Is it your proposition, then,

6 that if an act is not charged in the indictment, evidence in relation to

7 that act is inadmissible to establish such acts as were, in fact, charged

8 in the indictment?

9 In paragraph 163 -- paragraph 28 - I correct

10 myself - of the judgement, about two-thirds of the way down in the

11 paragraph, the Trial Chamber explicitly said:

12 "Therefore, the Trial Chamber will not take these facts into

13 account for conviction or sentencing purposes, but it is relevant to the

14 identification of Zoran Vukovic."

15 Is it, then, your contention that unless an act is charged in the

16 indictment and is followed by a conviction, evidence relating to that act

17 is inadmissible for the purpose of establishing the commission of such

18 acts as were in fact charged in the indictment?

19 MR. JOVANOVIC: [Interpretation] Precisely so, Your Honour. These

20 are serious crimes. We cannot use parts of these crimes in order to prove

21 something else if the crime itself has not been proved.

22 JUDGE SHAHABUDDEEN: Thank you. I understand you.

23 JUDGE JORDA: [Interpretation] Thank you.

24 Mr. Prodanovic.

25 MR. PRODANOVIC: [Interpretation] I will try to save time. I will

Page 207

1 speak for only a few minutes.

2 JUDGE JORDA: [Interpretation] Your colleagues were brief. Try to

3 be brief as well.

4 MR. PRODANOVIC: [Interpretation] I will try to be even more

5 brief. What I wish to speak about is that we have, as far as my client is

6 concerned, statements of witnesses.

7 My client has not been mentioned by Witness 95 in statements given

8 in 1993. The same happened in statements given in 1996, where my client

9 was not mentioned as a perpetrator of a rape but that the witness was

10 familiar with my client and that his description corresponds to his

11 physical appearance. It was not until my client surrendered to the

12 Tribunal when this witness gave a third statement in 1998 in which the

13 witness recalled a rape. And the Trial Chamber used this as a basis of

14 finding my client guilty.

15 And it was not just a case with this Witness. Witness 87 did not

16 remember being raped by Kunarac. She gave two statements prior to coming

17 here, and once Mr. Kunarac surrendered himself and gave an interview to

18 the investigators, then that witness remembered that she had been raped by

19 Mr. Kunarac.

20 So it is questionable whether such statements can be accepted.

21 All of the witnesses stated that their memory was freshest in 1993 or 1994

22 and 1995. Witness 48, in August 1992, gave a statement in which she never

23 mentioned Mr. Kunarac. However, in 1996, she mentioned him in her

24 statement. However, fortunately, he was acquitted of those charges.

25 So I would like to bring this matter to your attention.

Page 208

1 And another matter that I wanted to cover with just one sentence

2 is the following: The Trial Chamber treats one conduct in two different

3 ways, both times to the detriment of my client.

4 If we take a look at paragraph 863 of the judgement, it says there

5 that Mr. Kunarac -- that Mr. Kunarac had a leading organisational role and

6 that he had substantial influence over some of the other perpetrators,

7 which means that he used his position in order to prevent some acts from

8 being committed.

9 However, in paragraph 741, when describing how Kunarac protected

10 Witnesses 191 and 196 -- 186, the Trial Chamber concluded that Kunarac in

11 fact demonstrated that he had exclusive rights over FWS-191 by forbidding

12 other soldiers to rape her. So this is not clear to me, because it is

13 held that he had a position where he had to use his authority to protect

14 victims, but when in another instance he does use his position to protect

15 a witness, it is held against him.

16 So that is all I had to say. Thank you for your attention.

17 JUDGE JORDA: [Interpretation] Thank you, Mr. Prodanovic. I don't

18 know if there are any questions on these particular points. Thank you.

19 I think that is the conclusion of the Defence arguments. I thank

20 you. You've all made efforts to be brief.

21 And this will allow me now to turn to the Office of the Prosecutor

22 and to Mr. Carmona, but invite him to make the same effort. That is, when

23 you can refer to your appeals brief, do so. The Judges read the appeals

24 briefs. Please don't forget that. That is what the Judges take as their

25 responsibility. Then you argue, according to your observations. Try to

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Page 210

1 be brief, and that will allow the Judges to put the most appropriate

2 questions to you.

3 You can begin. I think that we said that there are four hours for

4 the presentation of the Prosecution argument. I don't know if you'll need

5 the four hours, but in any case, please begin.

6 MR. CARMONA: Thank you, Your Honours. I am accordingly guided.

7 Your Honours, in an attempt to facilitate the very process that

8 you have outlined, we have prepared a structure of the Prosecution's

9 response, and we have made that available not only to the learned Bench

10 but also, in fact, to our learned colleagues on the other side. Without

11 more, I wish to just indicate to the learned Tribunal certain observations

12 with regard to the standards of review on appeal.

13 The appeal procedure in this Tribunal is of a corrective nature,

14 and so far as the Statute is concerned, an appeal does not involve a trial

15 de novo. This Chamber does not operate as a second Trial Chamber. The

16 starting point of the appellate process must thus be that decisions of a

17 Trial Chamber of this Tribunal, unless reversed or revised on appeal, are

18 correct.

19 Consequently, the party exercising a right of appeal has the

20 burden of establishing the existence of an error within the terms of

21 Article 25(1) of the Statute. Article 25 gives the party the right to

22 appeal against a judgement or sentence on specified grounds. It is for a

23 party invoking this right of appeal to establish that there has been an

24 error on a question of law invalidating the decision or an error of fact

25 which has occasioned a miscarriage of justice. Unless the party appealing

Page 211

1 a particular point establishes such an error in the judgement or sentence,

2 the decision of the Trial Chamber will stand.

3 It is for the parties seeking to impugn that decision, to

4 discharge the burden of persuading the Appeals Chamber that the Trial

5 Chamber was in error on a point of law to the extent that it must fully

6 and directly describe why the particular decision of the Trial Chamber is

7 erroneous, provide the relevant legal principles or standards of law that

8 support their position and describe the prejudice that resulted to the

9 appealing party as a result of the Trial Chamber's decision, thus

10 resulting in an invalidation of the decision.

11 With regard to fact, the standard of review on appeals for errors

12 of fact is that of unreasonableness, under which the Appeals Chamber will

13 reverse a verdict of the Trial Chamber only if it finds that the evidence

14 relied on by the Trial Chamber could not reasonably have been accepted by

15 any reasonable Tribunal or where the evaluation of the evidence is wholly

16 erroneous. It is only where the evidence cited by the Trial Chamber

17 cannot reasonably support the conclusion it reached that the Appeals

18 Chamber must appropriately intervene.

19 It is not the intention of the Prosecution to regurgitate or

20 delineate stated jurisprudence on standards of review, but it is important

21 to make this one telling observation - and we submit this respectfully -

22 that it is in the interests of the proper administration of justice that

23 parties not be allowed at the appeal stage to simply reiterate or copy

24 submissions made at the closing stage of the trial. This principle would

25 seem to be particularly important in this case not only because of the

Page 212

1 number of parties involved but also because of the complexity of the

2 matters which are before this learned Tribunal.

3 In that regard, it is pertinent to make reference to the recent

4 decision of the Prosecutor versus Kupreskic et al., where in fact the

5 Tribunal had this to say:

6 "An appeal cannot be allowed to deteriorate into a guessing game

7 for the Appeals Chamber. It is not sufficient to simply duplicate the

8 submissions already raised before the Trial Chamber without clarifying how

9 these arguments support alleged legal errors by the Trial Chamber."

10 I dare say, with respectful -- and respectfully so, that it

11 appears that some of the submissions of my learned colleagues do suffer

12 from this particular malady.

13 Coming back to the structure of the Prosecution's response, we

14 have attempted to structure our arguments consistent with the arguments

15 raised both in the written pleadings and in relation to the oral

16 pleadings. Apart from that, in this regard, you would notice, Your

17 Honours, that in our structure, we have not mentioned identification,

18 expert evidence, or torture. It is our intention to address these issues

19 in the context of our responses vis-a-vis the particular appellants.

20 Without more, I wish to now introduce my colleague Ms. Susan Lamb,

21 who, according to the structure we have outlined to you, will deal with

22 issues in relation to paragraph 2. Thank you.

23 JUDGE JORDA: [Interpretation] Yes, Ms. Lamb.

24 MS. LAMB: Your Honours, my submissions will respond to the common

25 grounds of appeal raised by all three accused - Kunarac, Kovac, and

Page 213

1 Vukovic - concerning the threshold requirements of Article 3 and 5 of the

2 Statute. My submissions will cover the following grounds of appeal:

3 With regard to Article 3, I will address the ground of appeal

4 concerning the inclusion of Common Article 3 of the Geneva Conventions

5 within the scope of Article 3 of the Statute and the scope of the

6 protections conferred by that Article; secondly, the ground of appeal

7 pertaining to the existence of an armed conflict; and finally, the ground

8 of appeal regarding the sufficiency of the nexus between the armed

9 conflict and the appellants' crimes.

10 With regard to Article 5, I will be addressing the ground of

11 appeal as to whether or not an attack was committed against the civilian

12 population of Foca; secondly, the widespread or systematic character of

13 that attack; and finally, the ground of appeal pertaining to the adequacy

14 of the knowledge possessed by each of the accused as to the broader

15 context into which his criminal offending fell.

16 I will turn now to my first ground, namely, concerning Common

17 Article 3. The appellants' written pleadings first challenge the

18 appropriateness of the Trial Chamber's conviction on the basis of crimes

19 found within Common Article 3, on the ground that Common Article 3 -- that

20 Article 3 of our Statute, rather, did not cover crimes set forth in Common

21 Article 3. This position appears to have altered during oral argument,

22 and the contention now appears to be that, in any event, Common Article 3

23 cannot apply to offences committed against the person but instead apply

24 only to, for example, the appropriate use of weaponry or to offences

25 against property.

Page 214

1 Your Honours, this ground of appeal is utterly without

2 foundation. It is indeed well-settled law before this Tribunal that

3 Article 3 encompasses, in addition to the enumerated offences, all serious

4 violations of international humanitarian law. What is more, this

5 contention that Common Article 3 cannot refer to offences against the

6 person is puzzling. Indeed, its explicit text alone refers to the

7 obligation to treat humanely and without adverse distinction persons

8 taking no active part in hostilities. Moreover, the prohibited conduct in

9 question specifically refers to violence against life and person,

10 including, most pertinent to this appeal, crimes such as torture and

11 outrages upon personal dignity. What is more, the Appeals Chamber has

12 previously ruled, on numerous occasions, as to the applicability of

13 Article 3 and its scope, and the appellants adduce no supporting

14 argumentation as to why these findings should be disturbed. In the light

15 of this, I would propose that I move directly on to my next ground of

16 appeal.

17 This ground, Your Honours, pertains to the appellants' arguments

18 concerning the existence, or rather, the non-existence of the armed

19 conflict in certain municipalities during the indictment period. Once

20 again, Your Honours, the Prosecution submits that this ground of appeal is

21 also completely without foundation.

22 Firstly, the Prosecution submits that if this ground of appeal

23 pertains to the bare existence of an armed conflict, we note that the

24 appellants have already stipulated to it. On 1st of February of 2000,

25 both parties at trial had deemed this not to be a fact in dispute and had

Page 215

1 tendered a document in which they set forth their agreement that as from

2 April 1992 to at least February 1993, an armed conflict existed - and I

3 quote - "in the area of Foca." Although the appellants conceded that an

4 armed conflict was in existence in the so-called area of Foca, they now

5 dispute that an armed conflict was also in existence in the neighbouring

6 municipalities of Gacko and Kalinovik. As a result, the appellants allege

7 that a factual error was occasioned by the Trial Chamber.

8 We note, Your Honours, that Gacko and Kalinovik are contiguous and

9 neighbouring municipalities and that the stipulation refers not simply to

10 the Foca municipality or the town of Foca but to the area. At trial,

11 there was also nothing to suggest, Your Honours, that the scope, the

12 geographical scope of the armed conflict, was not envisaged by both

13 parties to extend to all three municipalities. Indeed, the record

14 demonstrates that the Prosecution, in the course of trial, led evidence as

15 to the existence of an armed conflict across all three municipalities, and

16 at no point did the Defence seek to object to this on grounds that their

17 stipulation as to the existence of an armed conflict had to be strictly

18 limited to this town. Despite our learned friends' claim to the

19 contrary yesterday, this objection appears to have been raised for the

20 first time at the appellate level.

21 To the extent, Your Honour, that the appellants claim that they

22 were debarred from entering into arguments at trial as to the scope of the

23 armed conflict, it appears to be that this was because they purported to

24 raise the issue for purposes which were irrelevant, such as who started

25 the conflict and whether or not Muslims were also attacking Serbs. These

Page 216

1 are matters which I will be returning to later. But most fundamentally,

2 Your Honours, our submission is that this point is simply not pertinent, at

3 least to the issue of the bare existence of an armed conflict, which, in

4 the Tribunal's jurisprudence, is activated once an armed conflict breaks

5 out anywhere upon the territory of a state party; that is, it comes into

6 existence whenever there is a resort to armed force between states or

7 protracted armed violence between governmental authorities and organised

8 armed groups within a state.

9 International humanitarian law thereafter applies from the

10 initiation of such armed conflicts and extends beyond the cessation of

11 hostilities up until the general conclusion of peace; that is, it applies

12 across the scope of the entire territory or area under the control of a party,

13 whether armed conflict actually takes places in a particular location or not.

14 Accordingly, there was no requirement for the armed conflict in question

15 to have occurred within a particular geographical range. Thus, the

16 indictment, in order to be properly pleaded, would not have to have

17 stipulated to three municipalities, at least for this element of armed

18 conflict alone.

19 Your Honours, to the extent that the appellants, in raising this

20 objection, instead intended to argue that the geographical extent of the

21 conflict was relevant instead to the threshold requirements of Article 5,

22 namely, the attack against the civilian population or the widespread or

23 systematic character of this attack, these are issues which I will address

24 later in my submissions. But at this point, Your Honour, I would like to

25 address you on the next ground of appeal, pertaining to the nexus between the

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Page 218

1 crimes alleged and the armed conflict.

2 Your Honours, the Prosecution rejects entirely the appellants'

3 argument that no such nexus existed between the armed conflict and the

4 crimes in question, and that the Trial Chamber, therefore, fell into error

5 in this regard. We note, Your Honours, that the Trial Chamber correctly

6 identified the requirement of a close nexus between these offences and the

7 armed conflict and noted that this relationship would be satisfied where

8 the alleged crimes were closely related to the hostilities as a whole.

9 Upon a careful and conscientious review of the evidence, the Trial

10 Chamber was satisfied that ample linkage existed. This was so for the

11 following reasons: Firstly, they found that the fact that the three

12 accused fought on behalf of one of the parties to the conflict thereby

13 created a linkage between the accused and that conflict. Secondly, the

14 Trial Chamber found that the crimes in question were both part of the

15 armed conflict and, at a minimum, were made possible by the blanket

16 impunity afforded by the armed conflict to the perpetrators.

17 These findings, Your Honour, are unimpeachable. Firstly, the

18 Trial Chamber's emphasis upon the combatant's status and the official role

19 of the appellants and the fact that they took part in the armed conflict

20 on behalf of one party to the conflict finds support in several judgements

21 of this Tribunal.

22 Your Honours, many are referred to in our written submissions, so

23 I will not duplicate these arguments here. It suffices only to note that

24 in the case of Furundzija and many others, such as Tadic, Celebici,

25 and Kordic, the Trial or Appeals Chamber relied closely upon the

Page 219

1 appellants combatant status or links to the party conflict in conjunction

2 with the fact that he appeared to be carrying out official duties at the

3 time the offences took place.

4 The second rationale given by the Trial Chamber, Your Honours, for

5 upholding the required nexus was that the Trial Chamber found that the

6 killings, rapes, and other abuses of civilians were part of the conflict.

7 There appeared to be two aspects of this which one could distil from the

8 Trial Chamber's judgement, although the Trial Chamber --

9 JUDGE JORDA: [Interpretation] One of my colleagues has said

10 something that I wanted to say, too. I know that you speak quickly; we

11 understand that. But please be aware of the interpreters who are having

12 difficulty following you. Try to speak a little more slowly, please.

13 MS. LAMB: I apologise, Your Honours. I will indeed.

14 JUDGE JORDA: [Interpretation] Thank you very much. Please

15 continue.

16 Thank you for your comment, Judge Guney.

17 MS. LAMB: There appears to be two aspects to that the Trial Chamberís

18 finding that the crimes in question formed part of the conflict. The

19 first was that the Trial Chamber noted that many of the crimes committed

20 in the region as a whole were actually committed in the course of or as

21 part of the hostilities or in their immediate aftermath. The Prosecution

22 notes, Your Honour, that strictly speaking, such a connection to actual

23 hostilities is not required so long as there was a substantial link

24 between the crimes and the armed conflict as a whole.

25 The second aspect of this finding, Your Honours, was that the

Page 220

1 crimes in question formed part of the conflict because the women detained

2 were all Bosnian Muslims. They were detained, Your Honours, on a

3 discriminatory basis due to their sharing the ethnicity of the enemy

4 combatants in the region. This, Your Honours, was not a case of all

5 available women being rounded up for purposes of sexual exploitation, but

6 rather, the ethnicities of the detainors and the detainees tallied exactly

7 with the ethnic subdivisions of the prevailing armed conflict itself.

8 Such a factor, Your Honours, is explicable only in relation to the bitter

9 inter-ethnic conflict that was raging at the time.

10 The subsidiary finding, Your Honours, was that the blanket -- at a

11 very minimum, the blanket impunity to commit crimes offered to the

12 appellants by the conflict creates such a substantial nexus -- the

13 required substantial nexus to the conflict. Again, Your Honours, the

14 Prosecution submits that this finding is beyond reproach. It is submitted

15 that such a finding is correct because this permissive environment is

16 clearly linked to the armed conflict in the sense that it would be

17 unimaginable that such crimes could have been committed in absence of the

18 legitimising and permissive environment created by the vicious

19 inter-ethnic conflict prevailing at the time.

20 We would also call in aid, Your Honours, the so-called

21 denunciation cases of the Second World War which express the generalised

22 principle that occasionally the most odious forms of crimes committed

23 during a conflict are those which seek to rely upon an underlying system

24 of tyranny and cruelty.

25 Where an individual's attack against an individual victim is connected

Page 221

1 to that regime of violence and tyranny, where that individual's conduct

2 seeks to rely on the fact that such conduct would be tolerated, that act,

3 too, becomes a link in the chain of measures which allows such a system to

4 perpetuate. Moreover, this requirement expresses perfectly the notion of

5 a threshold requirement for international crimes in the first place.

6 The prohibition against crimes against humanity, Your Honours, is

7 demarcated from municipal crimes precisely in situations such as these,

8 where domestic measures of adjudication become impracticable or

9 unavailable due either to intransigent leadership or chaotic wartime

10 conditions.

11 Indeed, the Trial Chamber made cogent findings as to the extent of

12 official collusion within the crimes in question: Testimony, for example,

13 that indicates that when victims called upon police authorities to protect

14 them, they were either ignored or actually abused themselves. Thus, such

15 crimes of the scale and magnitude committed in the Foca municipality would

16 have been inconceivable in absence of the permissive climate and official

17 toleration notable within the armed conflict in the Foca region, and it is

18 this which solidifies the linkage between the armed conflict and the

19 crimes in question.

20 We would, however, like to respond to the appellants'

21 submissions that the required nexus requires proof that

22 such conduct could not have been committed but for the armed conflict. We

23 submit, Your Honour, that such a standard could not be upheld for the

24 simple reason that, literally speaking, the actus reus of any offence

25 within the jurisdiction of this Tribunal could also be committed in

Page 222

1 peacetime.

2 Moreover, the appellants' attempt to argue that no nexus to the

3 armed conflict existed because no plan existed to attack the civilian

4 population. As has clearly been established in our case law, Your Honour,

5 the requirement of a plan is not a requirement under the nexus element of

6 Article 3 of the Tribunal Statute. The reasons for this are

7 straightforward, Your Honours, in that the rationale -- the rationale is,

8 Your Honours, that individuals under international humanitarian -- that

9 the obligations of individuals under international humanitarian law are

10 independent of any question of state responsibility under international

11 law. Similarly, the Prosecution contends that the

12 appellants' argument that the acts in question were isolated and therefore

13 lack the required nexus must be dismissed as well.

14 Finally, the Prosecution notes that no such nexus -- close nexus --

15 requirement exists in relation to crimes against humanity. Article 5, in

16 stipulating only that offences be committed during armed conflict thereby

17 imposes no requirement of a substantial link between the crimes in

18 question and the armed conflict.

19 At this point, I turn now to the grounds of appeal pertaining to

20 Article 5 of the Statute. The first pertains to the existence of an

21 attack against the civilian population.

22 Your Honours, the appellants allege or argue that no such attack

23 against a civilian population can be said to have occurred. In this

24 regard they put forward three principal arguments. Firstly, that such an

25 attack against civilians could not be -- cannot be said to exist on

Page 223

1 grounds that the incidents in question stem from a conflict which was

2 caused by the Muslims themselves. Secondly, they submit that no attack

3 against civilians occurred, but instead that what took place were merely combat

4 activities. Thirdly, they allege that the crimes -- some of the crimes in

5 question, such as the detention of a segment of the female residents of the

6 Foca area, amount neither to an attack nor can it be said to have been

7 applied against the civilian population.

8 Your Honours, all of these arguments are baseless. With regard to

9 the first of them, the Prosecution notes that the appellants have

10 persisted in the contention that the question of who started the conflict

11 in the first place is at all relevant. This ground of appeal, Your

12 Honour, is puzzling. It appears to confuse the legitimacy of resort to

13 armed force in the first place with the prohibitions which apply in all

14 types of armed conflict regardless of their character. Moreover, even in

15 the event that so-called provocations or other sorts of moral

16 blameworthiness could indeed be attributed to the Bosnian Muslims of Foca,

17 there is no doctrine of international law which would then seek in any

18 case to justify any subsequent attack again the Bosnian Muslim civilians.

19 The second argument, namely that no attack against the civilian

20 population existed in the sense that all attacks in the region were

21 simple combat activities, is again without foundation. Your Honours, this

22 attempt to portray the victims of this attack as mere collateral

23 casualties of lawful combat cannot be sustained. The Prosecution readily

24 admits that there may well indeed have been simultaneous or parallel

25 lawful combat activities in the region; however, this does not resolve the

Page 224

1 question definitively as to whether there was also an attack against the

2 civilian population, and indeed the Trial Chamber appears to have rejected

3 evidence that the civilians in question were simply the incidental victims

4 of combat but were instead their principal targets. What is more, such a

5 rationale could, in any case, not stand as such a justification for

6 certain of these crimes such as the large-scale detention or sexual abuse

7 of civilian women and children; acts which seem by their nature

8 unjustifiable by any resort to military necessity.

9 Finally, the appellants' third ground of appeal is that crimes

10 such as the evacuation of civilians or their detention cannot amount to an

11 attack against civilians. Once again, Your Honours, the appellants fall

12 into error in the sense that they purport to equate an attack against the

13 civilian population with a military-style attack found within the notions

14 of the conduct of hostilities.

15 Instead, Your Honours, the notion of an attack against a civilian

16 population may refer to a course of conduct involving the commission of

17 multiple inhumane acts. It has been noted that such an attack need not

18 even be of a violent nature.-- for instance, the crime of apartheid, which

19 is unambiguously a crime against humanity.

20 Finally, the appellants challenge the detention of a portion

21 of the female civilian population as being a civilian

22 population as such. The Prosecution would note merely, Your Honours, that

23 there is no legal requirement that the population as a whole be the

24 subject of such measures, merely that the crimes be of a collective

25 character.

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Page 226

1 Taken together, Your Honours, the Prosecution submits that the

2 Trial Chamber did not fall into error in finding the existence of an

3 attack against the civilian population of the Foca area.

4 I turn now to the second to last ground of appeal, Your Honour,

5 namely, the widespread -- those pertaining to the widespread or

6 systematic --

7 JUDGE JORDA: [Interpretation] We might stop now, Ms. Lamb. It's

8 the time for a break.

9 We're going to a 20-minute break, and we'll resume at 1.00.

10 --- Recess taken at 12.40 p.m.

11 --- On resuming at 1.10 p.m.

12 JUDGE JORDA: [Interpretation] We will now resume the proceedings.

13 Have the accused brought in, please.

14 Ms. Lamb, would you proceed, please.

15 MS. LAMB: Thank you, Your Honours. Your Honours, I will briefly

16 summarise the final two grounds of appeal which pertain to the widespread

17 or systematic character of the attack and the accused's knowledge.

18 With regard to the first, Your Honours, the appellants attempt to

19 impugn the findings of the Trial Chamber on several grounds. Firstly,

20 they appear to allege that as, in their submission, the conflict was

21 limited to the Foca municipality alone, this attack against the civilian

22 population cannot be said to be widespread or systematic. Secondly, they

23 allege that as the accused's acts were not in and of themselves

24 particularly numerous, thus they cannot be said to be widespread or

25 systematic. And finally, they argue that the requirements of widespread

Page 227

1 and systematic are not disjunctive, or alternatives, but conjunctive.

2 Firstly, Your Honours, as I have mentioned previously in my

3 submissions, the Prosecution does not concede that the armed conflict was

4 limited to the Foca municipality as a whole.

5 JUDGE JORDA: [Interpretation] That's all been said; isn't that

6 correct, Ms. Lamb? Do you want to say it again?

7 MS. LAMB: No, Your Honour. Our

8 submissions with regard to --

9 JUDGE JORDA: [Interpretation] Very well.

10 MS. LAMB: The conflict is that it's the attack against the

11 civilian population that must be widespread or systematic, and not the

12 underlying armed conflict. So this, in one fell swoop, disposes of both

13 objections of the appellants: firstly, that the conflict was limited to

14 the Foca municipality alone; and secondly, that it was isolated and

15 independent of the armed conflicts raging in the other territories of the

16 former Yugoslavia.

17 Secondly, Your Honours, we would note only that it is the attack

18 against the civilian population which must have a widespread or systematic

19 character, and not the accused's acts as such. So therefore, the fact

20 that the accused may have committed only a numerically relatively finite

21 number of crimes does not dispose of this issue. The appellants seem to

22 confuse a mens rea requirement of the underlying crimes in question with a

23 general threshold requirement which pertains to knowledge.

24 Finally, Your Honours, concerning the argument as to the widespread and

25 systematic elements being disjunctive, we would submit only that this is

Page 228

1 settled law before this Tribunal and that the appellants have adduced no

2 argumentation as to why those findings should be disturbed.

3 My final submissions, Your Honours, pertain to the extent of the

4 accused's knowledge of the widespread or systematic attack against the

5 civilian population.

6 Your Honours, the Prosecution submits that the Trial Chamber made

7 unimpeachable findings of fact with regard to the knowledge possessed by

8 each of the accused as to the broader attack against the civilian

9 population that was taking place during the indictment period. Indeed,

10 the Trial Chamber seems virtually incredulous that each of the accused,

11 who were combatants, who themselves forwarded this attack by their own

12 conduct, could have claimed, credibly, to have been unaware of this

13 broader attack against the civilian population. We do not propose to

14 revisit in any detail the findings made at first instance but merely to

15 point Your Honours in the general direction and point out the tendencies

16 in the Trial Chamber's reasoning, which will establish beyond doubt that

17 the Trial Chamber made a careful and cogent analysis of all evidence and

18 that the findings they came to in this regard are reasonable.

19 Firstly, with regard to Kunarac, we draw Your Honours' attention

20 to paragraphs 582 to 583 of the judgement, where the Trial Chamber placed

21 emphasis upon the accused's command position, which gave him a degree of

22 privileged access to information, official information, as to the scope of

23 the attack against the civilian population that was being planned. His

24 command position gave him responsibilities for information-gathering

25 and the implementation of such plans. The fact that he personally partook

Page 229

1 in numerous combat activities gave him an unparalleled opportunity to

2 observe firsthand how civilians were treated in the course of the takeover

3 of these municipalities. And the fact that he was found to have

4 participated in moving victims around showed clearly that he knew of the

5 scope and extent of the crimes being committed against them.

6 With regard to the appellant Kovac, Your Honours, we would refer Your

7 Honour's attention to paragraphs 586 to 588, where the Trial Chamber found that

8 it was satisfied the appellant Kovac knew of the broader attacks against

9 civilians. This is principally due to his admission that Muslim women

10 were at risk in Foca, which suggests that he knew very well the fate that

11 could well befall them; secondly, his personal participation in at least

12 one violent takeover during a military operation, in which he would have

13 witnessed the mistreatment of civilians; and thirdly, his personal

14 participation in a number of crimes in and of itself suggested knowledge

15 of at least a substantial portion of those attacks.

16 Finally, Your Honours, with regard to the appellant Vukovic, the

17 evidence places the appellant at Buk Bijela as early as July 1992. His

18 subsequent interactions with Witness 75 in October and November of that

19 year, which refers back to an incident he witnessed there, suggests a

20 degree of continuity spanning some months with regard to his awareness and

21 his conduct in this period.

22 And finally, Your Honours, the fact that he had tried to assist

23 Muslim friends of his in the town also shows awareness on his part of the

24 dangers confronting the Bosnian Muslim civilian population of Foca.

25 Accordingly, Your Honours, this ground of appeal is also entirely

Page 230

1 without foundation, and should Your Honours have any further questions,

2 this concludes my submissions.

3 JUDGE JORDA: [Interpretation] Judge Shahabuddeen.

4 JUDGE SHAHABUDDEEN: Ms. Lamb, thank you very much for your

5 presentation.

6 Do you think we ought to credit your learned opponents with the

7 ability to make a distinction between state responsibility and individual

8 criminal responsibility? Should we be watchful of the risk of learned

9 counsel for the Defence saying that their posture has been caricatured?

10 MS. LAMB: Your Honours --

11 JUDGE SHAHABUDDEEN: Let me put it this way: I'm talking about

12 your very interesting reference to the question, "Who started the

13 conflict?" That might suggest that an issue is being raised about the ius

14 ad bellum, but does that necessarily follow? Is there merit in an

15 interpretation of the position taken by Defence counsel that they were not

16 asking the Court to determine who started the conflict in the context of

17 the ius ad bellum?

18 But their position was different. They're saying -- they were

19 saying this: "Look, it is necessary to see who started the conflict

20 because we say we didn't, the other side did, and what we were doing is

21 this: We were responding to a military attack against us, and we were

22 not, therefore, attacking civilians as such. Civilians may have suffered

23 but that was purely incidental." "Collateral," I believe, is the in-word

24 these days. That, I understood, to be their position.

25 MS. LAMB: Indeed, Your Honour. The submission, therefore, of the

Page 231

1 Prosecution was that simply the evidence does not indicate that the

2 conduct -- the conflict in question was of a purely defensive character.

3 The Prosecution, of course, readily concedes that there were legitimate

4 combat activities going on simultaneously in the region, but this is not

5 incompatible with the finding that an attack against the civilian

6 population also took place.

7 I believe this point is addressed with greater clarity in our

8 written submissions, Your Honour.

9 JUDGE SHAHABUDDEEN: Yes. I saw somewhere a filing to the effect

10 that the defence forces were really attacking the civilians as such and it

11 was not a question of any incidental suffering. I saw that. But that's a

12 different point. Thank you.

13 JUDGE JORDA: [Interpretation] Judge Meron.

14 JUDGE MERON: I think you have touched on this in your

15 presentation, for which I thank you, but I would be grateful if you could

16 specifically comment on the point made earlier today by the counsel for the

17 accused Vukovic, who argued that acts not pled in the indictment and not

18 proven before this Tribunal were used to establish for the accused

19 Vukovic, his involvement in crimes against humanity, in attacks

20 against the civilian population.

21 MS. LAMB: Your Honour, in this regard, I believe I am aware of

22 the quandary to which you refer. Our submissions would be as follows:

23 The specific evidentiary points which pertain to the admissibility or

24 otherwise of the evidence that I referenced in my very brief submissions

25 will be dealt with by my colleague in her subsequent presentation. At

Page 232

1 this point, Your Honour, I would distinguish generally just two things.

2 Firstly, our submission is that the appellants appear to confuse

3 the notion of the mens rea requirement for the underlying conduct with the

4 general threshold requirement of knowledge. It goes without saying, Your

5 Honours, that it is only conduct which we allege the accused actually

6 perpetrated that forms the basis of his criminal conviction. What appears

7 to have happened in the judgement, however, was that the Trial Chamber

8 made reference to a whole panoply of factors to evidence the broader

9 context of the armed conflict in question in order to establish

10 the threshold requirements Moreover, the appellant Vukovic's knowledge

11 can be fixed with regard to a number of factors and not

12 simply one incident.

13 JUDGE MERON: Thank you.

14 JUDGE JORDA: [Interpretation] No further questions. Thank you,

15 Ms. Susan Lamb.

16 MS. LAMB: Thank you, Your Honours.

17 JUDGE JORDA: [Interpretation] I think you're going to give the

18 floor to Ms. Brady.

19 MS. LAMB: [Previous translation continues]... Ms. Helen Brady who

20 will address the Chamber on the common grounds of appeal regarding the

21 elements of rape. Excuse me, Your Honours.

22 MS. BRADY: May it please the Court, Mr. President, Your Honours,

23 in this submission of mine this afternoon, which I put on behalf of the

24 Prosecution, I will be responding to a common ground of appeal, that is,

25 the elements of the crime of rape.

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Page 234

1 Your Honours, the Trial Chamber found all three appellants guilty

2 of rape both as a crime against humanity under Article 5(f) and as a

3 violation of the laws or customs of war under Article 3. The appellants

4 contest the Trial Chamber's definition of rape. They've posited certain

5 elements for this crime of rape, and using these, each submits that no

6 reasonable Trial Chamber could have found that his conduct amounted to

7 rape.

8 In response, we submit that the Trial Chamber's definition of rape

9 accords with customary international law and that proposed by the

10 appellants does not. On this basis, we ask Your Honours to dismiss this

11 common ground of appeal and uphold the Trial Chamber's finding on this

12 point.

13 Your Honours, in this submission, I will only be addressing the

14 legal aspects of the definition of rape. Later in the hearing, my

15 colleagues and I will respond to the alleged factual errors raised by each

16 appellant, and we will show for each appellant that the Trial Chamber

17 committed no error of fact by finding that the conduct of each appellant

18 satisfied the elements of the crime of rape.

19 Your Honours, the appellants take no issue with the fact that rape

20 is a crime under international law, rather, their contention goes to the

21 proper elements of this crime. In particular, they submit that in

22 addition to the sexual penetration element, the crime of rape has two

23 integral elements. Firstly, the use of force or compulsion, which they

24 say must be of a physical nature, or threat of force against a victim or a

25 third party. Secondly, they submit that the second integral element is

Page 235

1 that the victim must display genuine or real and constant or continuous

2 resistance.

3 Now, in answer to a question posed by His Honour

4 Judge Shahabuddeen this morning, learned counsel, Mr. Prodanovic, did

5 state that this resistance by the victim does not have to be of a physical

6 nature.

7 Your Honour, the appellants' first proposed element goes to the --

8 excuse me. The appellants' first proposed element, which is the use of

9 force, relates to the actus reus of the crime of rape. Their second

10 proposed element, although it's stated in terms of the victim's

11 resistance, what the victim must do, this relates to the mens rea of the

12 crime, because this argument is this: That a person cannot be convicted

13 for a rape without a showing of such a resistance, for otherwise, how

14 could the accused have known that the victim did not in fact consent? We

15 submit that both elements are contrary to the definition of rape under

16 international law, as encapsulated by Kunarac, and should be rejected.

17 International law does not mandate that the actus reus of rape can only be

18 satisfied by the application of force or threat of force to the victim by

19 the perpetrator, nor does it require that the victim genuinely and

20 constantly or continuously resist.

21 Through these proposed elements, the appellants indirectly

22 challenge the proper definition of the crime of rape under international

23 law. So in order to understand why their definition does not accord with

24 international law, it's necessary to examine the proper scope of this

25 crime under international law.

Page 236

1 The Prosecution submits that the Trial Chamber correctly

2 identified the elements of rape. In addition to the sexual penetration

3 element, the Trial Chamber found that the actus reus of the crime of rape

4 in international law is constituted - and I'm reading from paragraph 460

5 of the judgement - is constituted where such sexual penetration occurs

6 without the content of the victim. "Consent, for this purpose, must be

7 consent given voluntarily, as a result of the victim's free will, assessed

8 in the context of the surrounding circumstances."

9 The mens rea, as found in the Kunarac Trial Chamber's judgement,

10 is the intention to effect this sexual penetration and the knowledge that

11 it occurs without consent of the victim.

12 So, Your Honours, for the actus reus, the Prosecution must

13 establish and the Trial Chamber must be satisfied that in addition to the

14 sexual penetration, lack of consent on the part of the victim, where

15 consent is understood as that given voluntarily as a result of the

16 victim's free will assessed in the context of the surrounding

17 circumstances.

18 What does this mean? As the Trial Chamber itself stated, this

19 means where there's force, where there's threat of force, or where there's

20 coercion, the presence of these factors negates true consent, thus

21 rendering the act of sexual penetration into the crime of rape, or at

22 least the actus reus of the crime of rape.

23 But in addition, the Trial Chamber also noted other situations or

24 factors may render an act of sexual penetration non-consensual or

25 non-voluntary on the part of the victim, thereby also satisfying the actus

Page 237

1 reus of this crime. The Trial Chamber gave some examples: where a victim

2 is unconscious, where a victim has an inability which makes him or her

3 unable to consent, or where the perpetrator uses misrepresentation.

4 I would like to clarify at this point one matter which was raised

5 yesterday by my learned friend Mr. Prodanovic. He said that the Trial

6 Chamber had taken the view that it's sufficient to start from the fact

7 that there was an armed conflict at the time and that this fact alone is

8 sufficient to show the victim was unable to resist. He made this comment

9 at the transcript of yesterday's proceedings, pages 94 to 95. Your

10 Honours, we would like to correct this point. The Trial Chamber did not

11 say this. In fact, they said that you had to look at the factors which I

12 have just listed now for you in my previous submission.

13 As for the mens rea, Your Honours, the Prosecution must establish

14 that the perpetrator intended the sexual penetration knowing that it

15 occurred without the consent of the victim. And again, critical to this

16 is that consent, that which is given voluntarily, as a result of the

17 victim's free will, assessed in the context of the surrounding

18 circumstances.

19 This means, Your Honours, that the victim need not express his or

20 her unwillingness to the sexual act by words or conduct. No. An

21 accused's knowledge that his victim did not consent may be inferred from

22 all of the surrounding circumstances. Not only is this soundly based in

23 general principles of criminal law whereby a person's knowledge must be

24 considered in light of the existing circumstances, but critically, it

25 acknowledges that victims of rape, in the situational context of cases

Page 238

1 coming before this Tribunal, often face extreme fear, learned

2 helplessness, rendering them incapable of showing resistance through words

3 or conduct, and indeed for many it would be dangerous for them to do so.

4 In this regard, I also would like to draw attention to a comment

5 made by my learned friend Mr. Prodanovic in answer to a question by the

6 learned Judge Meron. When Mr. Prodanovic agreed that if someone possessed

7 a weapon and the victim of the rape was there, then of course, he said,

8 resistance would be overcome by the mere fact that a weapon is there.

9 We submit, Your Honours, that the Trial Chamber's definition of

10 rape is solidly founded in customary international law applicable at the

11 time that the appellants committed their offences and so binds them when

12 they committed those offences. In the absence of a binding convention

13 defining rape, the Trial Chamber referred to general principles of law

14 common to the major national legal systems of the world. It conducted a

15 wide-ranging review of laws on rape in 1992 in over 35 jurisdictions and

16 found this to be the basic principle.

17 And I'm reading from -- Your Honours, I'll get the reference for

18 you on that. They found this to be the basic principle:

19 "The basic principle truly common to these legal systems is that

20 serious violations of sexual autonomy are to be penalised. Sexual

21 autonomy is violated wherever the person subjected to the act has not

22 freely agreed to it or is otherwise not a voluntary participant."

23 We submit that the Trial Chamber's approach to the establishment

24 of the state of international law on this issue was entirely correct. How

25 a sizeable number of states legislated or created laws to prosecute rape

Page 239

1 and how they prosecuted this crime in their domestic courts is compelling

2 evidence of both state practice and opinio ius, and hence, of

3 international custom, and from this the Trial Chamber was able to distil

4 the general principle leading to the definition of rape.

5 Furthermore, Your Honours, the Trial Chamber's definition is

6 compatible with previous Trial Chamber definitions from this Tribunal and

7 from the ICTR, from the Tribunal of Rwanda. The Kunarac actus reus

8 embraces the one which was stipulated in Furundzija, that is, that the

9 sexual penetration must be by coercion, force, or threat of force against

10 the victim or a third party. It also embraces the definition that was

11 proposed by the Trial Chamber in Akayesu and followed by the Trial Chamber

12 in the Celebici case. That required that it be committed on a person

13 under circumstances which are coercive. In other words, in these

14 situations, the victim's consent is negated. But other factors, as

15 correctly noted by the Kunarac Trial Chamber, can also render sexual

16 penetration non-consensual or non-voluntary for the victim, and this

17 accurate scope of rape in international law. The recent Trial Chamber's

18 decision of Kvocka also supports the Kunarac Trial Chamber's definition,

19 and what it did was to specify the situations encompassed by the term

20 "lack of consent."

21 Now if we turn back to the appellants' definition of rape,

22 proposed elements, it's clear that it does not conform with international

23 law. As to their submission that the actus reus of rape can only be

24 satisfied if the Prosecution shows that the accused used force or threat

25 of force of a physical nature against the victim, while this is indeed one

Page 240

1 of the ways in which the actus reus of rape can be satisfied, as the

2 definition of rape under international law shows, it's by no means the

3 only way. The essence of the crime of rape is violation of a victim's

4 sexual autonomy. This can occur in a number of ways beyond simply the

5 application of physical force or threat of force to the victim or a third

6 party.

7 A variety of other circumstances making a victim unable to proffer

8 true and genuine consent can turn an active sexual penetration into

9 the actus reus of rape, and this would include situations which are by

10 their nature inherently coercive, such as when a victim is in detention or

11 captivity. Likewise, Your Honours, the victim's demonstration -- the

12 requirement proposed by the appellant that the victim demonstrate genuine

13 or real and constant and continuous resistance is not a requirement under

14 international law. While the Prosecution must prove that an accused knew

15 that his victim did not consent, this knowledge can be inferred from all

16 of the surrounding circumstances. The victim need not express his or her

17 unwillingness to the sexual act by words or conduct.

18 In summary, Your Honours, the appellants' proposed element for the

19 actus reus for the crime of rape is much narrower than that required under

20 international law and should be rejected. Their proposed requirement as

21 to the victims' resistance is not an element of the crime of rape under

22 international law and should also be rejected. We ask Your Honours to

23 dismiss this common ground of appeal and to uphold the Trial Chamber's

24 definition of rape. May it please the Court.

25 JUDGE JORDA: [Interpretation] Thank you. Who would like to ask a

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Page 242

1 question? Judge Shahabuddeen.

2 JUDGE SHAHABUDDEEN: I'd like your reaction to this kind of

3 question: The Tribunal has to apply international law in appropriate

4 places. If international law stipulated as an element of rape

5 non-consent, would it have been intra vires of the Rules to limit that

6 requirement and to say that there shall be non-consent only in the cases

7 specified under Rule 96(ii)(a) and (b), but that outside of those

8 categories there could be no question of consent or non-consent?

9 I'd like to look at it this way: Under Article 14 of the Statute,

10 there is a rule-making power to promulgate Rules on Evidence. Would it be

11 the case, then, that Rule 96(ii) might be read to mean this: that if the

12 facts and circumstances stipulated in (a) and (b) are established, that is

13 sufficient to prove non-consent? But that is not exhaustive, because

14 under (iii) of Rule 96, there seems, if only by implication but by

15 powerful implication, an overarching requirement relating to consent as

16 being an element which is generally applicable to rape, which therefore

17 brings the Rule in question into conformity with the prescripts of

18 international law on the subject. What do you say about that?

19 MS. BRADY: Yes, Your Honour. We can see a certain conundrum

20 presented. However, this is what we say: that the Trial Chamber correctly

21 analysed Rule 96 as reflecting the Judges' understanding of certain

22 matters that would negate apparent consent. This is consent on the part

23 of the victim, whether the victim in fact consented. And it referred in

24 paragraph 464 of the judgement to the matters referred to in Rule 96(ii),

25 and it said:

Page 243

1 "Thus, where the victim has been subjected to or threatened with

2 or has had reason to fear violence, duress, detention, or psychological

3 oppression, or reasonably believed that if he or she did not submit,

4 another might be so subjected, threatened, or put in fear," any apparent

5 consent which might be expressed by the victim is not freely given and the

6 second limb of the Trial Chamber's definition would be satisfied.

7 So, Your Honours, the way in which the Trial Chamber interpreted

8 Rule 96(ii) is that if these situations are shown by evidence that this

9 prima facie constitutes -- will fulfil the element of the actus reus of

10 the crime of rape, I can see Your Honours' point about Article -- Rule

11 96(iii). Why then in that situation would we have need for an evidentiary

12 rule relating to consent? But this is precisely the point. Because it's

13 an evidentiary rule that the accused may be able to raise if it reaches a

14 certain level of credibility and reliability, evidence as to his belief,

15 his mens rea, as to whether the victim did or did not consent.

16 JUDGE SHAHABUDDEEN: Let me ask you a supplementary question, if I

17 may. This relates to your reference, I think, to customary international

18 law. Are you inviting the Appeals Chamber to transact this part of the

19 business under that rubric or are you inviting the Appeals Chamber to deal

20 with the matter under the heading of "General Principles"? Or let me put

21 another question to you: Or is it your view that the two things are

22 somehow related in this case, customary international law and general

23 principles?

24 MS. BRADY: Your Honour, on that question, general principles of

25 law are a source for customary international law. However, in the

Page 244

1 Prosecution's view, what the Trial Chamber has actually done on this

2 occasion is to look at state practice and opinio ius, because laws created

3 by states, how states prosecuted the crime of rape in 1992 in 35

4 jurisdictions around the world, this, we say, is compelling evidence of

5 state practice, and for that reason - not to mention opinio ius - and for

6 that reason this is a very solid foundation for the establishment of

7 customary international law.

8 JUDGE SHAHABUDDEEN: Thank you, Ms. Brady.

9 MS. BRADY: Your Honours, if you have no further questions for me,

10 I'd now like to introduce my learned colleague Ms. Norul Rashid, who will

11 respond on the common grounds of appeal related to the crime of

12 enslavement and cumulative convictions. May it please the Court.

13 JUDGE JORDA: [Interpretation] Yes, please proceed.

14 MS. RASHID: [Previous translation continues] ... your Honour.

15 Your Honours, in this part of the Prosecution's response, I will

16 address the Chamber on the common ground of appeal raised by the

17 appellants Kovac and Kunarac in relation to the several legal errors in

18 the enslavement conviction. In responding, Your Honours, I will briefly

19 address the arguments forwarded in the written appeal brief. I will also

20 respond, at the same time, to the arguments highlighted yesterday by my

21 learned friend Mr. Kolesar, I believe.

22 Your Honours, it appears that the only jurisprudential debate that

23 the appellants have invited is limited to one main issue and several

24 sub-issues. I'll just briefly run through them.

25 First, was the Trial Chamber's definition of enslavement as

Page 245

1 submitted in the appellants' brief too broad, without clearly defined

2 elements of the criminal offence, and was the Trial Chamber therefore in

3 error? Second, Your Honours, corollary to this ground of appeal is a

4 claim that the Trial Chamber has misapplied the law to the facts.

5 The appellants argue that the definition of enslavement must be

6 construed narrowly, the appellant Kunarac argues that there was no

7 enslavement of, for instance, of Witnesses 191 and 186, as they were free

8 to move about as they pleased. It was also argued that there was no

9 element of control as Kunarac's visits to the apartment where these

10 witnesses were confined was sporadic.

11 Kovac also suggests that enslavement must be for and indefinite

12 period of time and suggests complete restriction of movements. Both

13 appellants have also alluded to the forced labour factor and argued that

14 it was not made out because of consent.

15 The appellants seem to further argue that acts of enslavement, if

16 made out, constitute what they call sexual slavery, and the opposition was

17 that if the Trial Chamber had indeed convicted them of sexual slavery,

18 then the Trial Chamber was in error.

19 The Prosecution's general response is that the Trial Chamber's

20 approach, analysis, and conclusions that they have arrived to in the

21 judgement have not been shown by the appellants to be incorrect in law.

22 Your Honours, to assist the Appeals Chamber and to place my

23 submissions in context, may I respectfully refer Your Honours to the

24 following passages made by the Trial Chamber in its judgement: Firstly,

25 paragraph 516 of the judgement. It was observed that the Trial Chamber's

Page 246

1 discussion was not intended to be an exhaustive pronouncement on the law

2 of enslavement. Secondly, at paragraph 541, it's stated that the

3 definition of enslavement may be broader than the traditional and

4 sometimes apparently distinct definitions of either slavery, the slave

5 trade, and servitude or forced or compulsory labour. Thirdly, Your

6 Honour, I will not read out the elements of enslavement. They are set out

7 in paragraphs 539 to 540 of the judgement.

8 The Prosecution's position in the ensuing discussion is simply

9 this: that although all agreements have defined the crime of slave

10 practices narrowly, today enslavement as a crime against humanity must be

11 given a much broader definition because of its diverse contemporary

12 manifestations. Secondly, that although the Trial Chamber finds that the

13 crime of enslavement is broader than slavery, the crime of enslavement is

14 nonetheless closely tied to the crime of slavery in terms of its basic

15 definition, which establishes its customary international law content, but

16 that enslavement encompasses other contemporary forms of slavery not

17 contemplated under the 1926 slavery conventions and similar or subsequent

18 conventions preceding it.

19 Your Honour, the Trial Chamber in its approach to this analysis

20 noted that the Statute does not provide definitional guidance on the crime

21 of enslavement. Its approach of turning to various other international

22 humanitarian law and human right laws is therefore the correct one.

23 Your Honours, the provenance of the crime of enslavement is

24 unclear, but it has been generally accepted by the international legal

25 community that the concept of enslavement is derived from slavery and

Page 247

1 slave-related practices. In its most simplest and perhaps non-legal

2 meaning, Your Honour, "enslavement" means "to enslave, to make someone a

3 slave."

4 The Trial Chamber studied the evolution of the crime of

5 enslavement from crimes of slavery originating from the 1926 slavery

6 convention and subsequent conventions describing forced labour, the

7 purpose of which was to simply demonstrate that the provision of the 1926

8 conventions on slavery and forced labour has attained customary

9 international law status or used cogents which is beyond any serious doubt

10 in this appeal.

11 Your Honour, very briefly in establishing the definition for

12 enslavement, the Trial Chamber did a comprehensive study of various

13 sources dealing with the subject matter. They looked at the Nuremberg

14 charter. They concluded that the Nuremberg charter did not draw a

15 distinction between the concept of, for instance, deportation to slave

16 labour or enslavement.

17 It is interesting and perhaps relevant to note that in their

18 analysis of the Nuremberg judgement, it demonstrates that there was

19 correlation between slavery-like practices and enslavement.

20 The same goes for the Tokyo charter. The Chamber concluded after

21 perusing the Tokyo judgement that it did not systematically distinguish

22 between deportation to slave labour, slave labour and enslavement, again

23 demonstrating a correlation between slavery and enslavement.

24 It is also pertinent to note, for instance, Article 4 of the 1977

25 Additional Protocol II which describes slavery and the slave trade in all

Page 248

1 their forms, again the adopting the provision of the 1926 slavery

2 convention.

3 Your Honours, to support the Trial Chamber's conclusion that

4 enslavement holds a broader definition than traditional definitions of

5 slavery, forced labour, and other forms of slavery, the Trial Chamber

6 studied developments in international law subsequent to the 1926

7 convention. For instance, the 1956 supplementary convention on the

8 abolishing of slavery, the slave trade, and institutions, and practices

9 similar to slavery are just referred to as the 1956 supplementary

10 convention.

11 This convention maintained the basic definition from the 1926

12 definition but expanded the forms of slave-related practices to include,

13 for instance, that bondage, serfdom, sale of women into marriage, and

14 transfers of people for money, child exploitation. Therefore what you

15 have is a basic similar definition for slavery but -- not only for slavery

16 but for practices similar to slavery.

17 Your Honours, specific and contemporary forms of slavery were the

18 subject matter of deliberations by the working group. On contemporary

19 forms of slavery -- the report has been cited in the judgement. I will

20 just briefly summarise it.

21 For instance, Your Honour, the group adopted a recommendation

22 stating that transit border, trafficking of women and girls for sexual

23 exploitation is a contemporary form of slavery and constitutes a serious

24 violation of human rights.

25 It is interesting to note that Article 7(ii)(c) of the Rome

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Page 250

1 Statute suggests that trafficking in women and children is in fact a

2 contemporary form of enslavement.

3 Your Honour, in concluding that the definition may be broader than

4 the traditional and distinct definitions of slavery, the Trial Chamber

5 then turned to the work of the international -- I'm sorry, law commission

6 and looked at also the post-World War II cases.

7 Very briefly, Your Honour, the 1996 draft Code of Crimes speaks of

8 enslavement in non-enclusive terms, to include slavery which has the

9 consequence of in fact bringing the definition closer to the traditional

10 concept of slavery.

11 I will be -- I'm just referring to the first line of the

12 definition. Enslavement means "establishing or maintaining of a person's

13 status of slavery." Status of slavery.

14 The Prosecution agrees with the Trial Chamber's observations that

15 in relation to this issue, the work of the ILC may be considered as

16 evidence of customary international law and that it supports the Trial

17 Chamber's conclusion that the definition of enslavement may be broader

18 than the traditional definitions of slavery, servitude, slave trade, and

19 forced labour.

20 Your Honour, it must be recalled that the signatories to the 1926

21 slavery convention intended to put an end to the traffic in African slaves

22 and the slavery trade in all its forms. There was, and perhaps there

23 still is, a perception or notion that the convention deals -- the word

24 "slavery" deals with chattel slavery in the sense that slaves were not

25 regarded as people but pieces of machinery in the productive process with

Page 251

1 a value based on the money to be made out of them, chattel labour.

2 The International Community obviously felt that there was a need

3 to extend the definitions to institutions and practices similar to

4 slavery. Hence the 1956 supplementary convention. But even prior to

5 this, we have the 1910 international convention for the suppression of

6 white slave traffic, which addressed the sexual exploitation of women and

7 girls for prostitution, again another form of slavery.

8 Your Honours, some brief observations about the appellants'

9 comments that this is a case of what we call sexual --

10 JUDGE JORDA: [Interpretation] Excuse me. I am going to interrupt

11 you. I apologise for interrupting you. We've got to stop at 2.00 because

12 there are other hearings here. Do you have much more to say? I'm not

13 trying to hurry you along, but have you got much more to say on this one

14 point?

15 MS. RASHID: I will about three more minutes of submissions, and

16 then I will conclude this ground of appeal.

17 JUDGE JORDA: [Interpretation] All right.

18 MS. RASHID: May I continue? I'm most grateful.

19 Your Honour, sexual slavery may be listed as one of the forms of

20 enslavement. It is not a specific international crime as such.

21 In Article 7(ii)(g) of the Rome Statute, sexual slavery was made a

22 distinct offence from enslavement as a crime against humanity. It is

23 clear from the definition of "sexual slavery" that one of the definitional

24 elements for "sexual slavery" is a direct importation from the crime of

25 enslavement itself. Exercise of powers attaching to the right of

Page 252

1 ownership.

2 It must be concluded, Your Honour that enslavement in the Rome

3 Statute was intended to encompass a form of slavery or that sexual

4 enslavement was to intended to encompass a form of slavery which has a

5 predominantly sexual characteristic in nature.

6 Your Honour, in conclusion, may I just very briefly comment that

7 it may be concluded that the definition of the 1926 slavery convention was

8 never meant to remain unresponsive to contemporary forms of slavery. By

9 all accounts, by 1926 itself, it became clear that freedom from any form

10 of unlawful constraints emerged as a right which was and still is

11 universally accepted.

12 The appellant has offered no credible basis to suggest why the

13 definition of enslavement should be read restrictively in the manner

14 proposed by them. No error of law has been identified in the analysis and

15 conclusions of the Trial Chamber's judgement. There is simply no merit to

16 this ground of appeal.

17 Your Honour, I'll be more than happy to assist with any

18 questions.

19 JUDGE JORDA: [Interpretation] You are right on time. I think we

20 will resume tomorrow. We'll resume tomorrow at 9.30 for the end of the

21 Prosecution's explanations and then the final Defence arguments. All

22 right. The Court stands adjourned.

23 --- Whereupon the hearing adjourned at 2.00 p.m.,

24 to be reconvened on Thursday, the 6th day of

25 December, 2001, at 9.30 a.m.