Tribunal Criminal Tribunal for the Former Yugoslavia

Page 253

1 Thursday, 6 December 2001

2 [Appeal Proceedings]

3 [Open session]

4 --- Upon commencing at 9.35 a.m.

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

6 would you have the accused brought in, please.

7 [The appellants entered court]

8 JUDGE JORDA: [Interpretation] We will now resume the third and

9 final morning, hearing, for this case. I'm saying that for the benefit of

10 the people in the public gallery.

11 First of all, good morning to the interpreters, and to be sure

12 that everybody is in his or her place. And good morning to Defence

13 counsel and to Prosecution counsel. And we will resume immediately at the

14 point where we stopped, that is -- where were we, Mr. Hocking? We were

15 working with the Prosecution, yes, dealing with the issue of slavery; is

16 that correct? Is that right, Mr. Hocking? So now we will deal with --

17 yes.

18 I believe you were to now deal with the cumulative charging; is

19 that correct?

20 MS. RASHID: Your Honour, yesterday I ended my submissions on the

21 first ground of appeal in relation to enslavement. I will now proceed to

22 the second ground of appeal. I will be very brief. It relates to the

23 indicia of enslavement, Your Honour. And then I will go on to cumulative

24 conviction.

25 May I, Your Honour? Your Honours, the appellants argue that for

Page 254

1 the crime of enslavement, there must be an intent to detain a person in

2 one location for a prolonged period of time for the specific purpose of

3 carrying out sexual acts. The appellant contends that the enslavement

4 must be carried out without a time limitation. If the period is limited,

5 there is no enslavement.

6 Firstly, Your Honours, the mens rea element, as found by the Trial

7 Chamber, is correct. There is no definition in customary international

8 law that requires any specific intent to enslave. There is only a

9 requirement that there must be an intentional exercise of such powers.

10 In relation to detention, it was never the Prosecution's case that

11 the charge of enslavement in this case may only be proved by detention.

12 The Trial Chamber found, as a matter of fact, that the acts, the omissions

13 of the appellants extended beyond detention. The Prosecution, Your

14 Honours, has summarised the range of acts in paragraph 5.173 of the

15 Prosecution's consolidated response, which in turn reflects the material

16 facts supporting the charge of enslavement in the indictment.

17 In relation to duration, when asked by the Chamber as to what

18 would constitute a limited period, counsel yesterday, I believe, replied

19 that it was difficult to put a time limit and that it needs to be viewed

20 in the context of other elements. The Prosecution agrees.

21 Your Honour, it must be noted that at his closing submissions at

22 trial, when counsel was asked the very same question by the President,

23 Judge Mumba, he replied that the duration has to be for a minimum of five

24 months. He said, "Five months or more." That's at transcript page 5523.

25 Yesterday, as I recall it, he tells this Court that it has to be 12 months

Page 255

1 or 11 months. This is simply not helpful.

2 Duration, Your Honour, is just one of the many factors that the

3 Court can look at. Considering that the crime speaks of exercising the

4 rights of ownership, focusing on the control aspect in the perpetrator's

5 conduct, duration is perhaps sometimes the least significant of the

6 factors. The Trial Chamber, in fact, said at paragraph 542 of its

7 judgement that its importance in any given case will depend on the

8 existence of other indications of enslavement.

9 Counsel for Kunarac argues that the fact that he had made sporadic

10 visits to the house where FWS-186 and 191 were enslaved vitiates all

11 inferences of enslavement. It is submitted, Your Honour, that continuous

12 physical presence of the perpetrator is not a prerequisite. The facts in

13 fact show that Kunarac held his victims for indefinite periods of time,

14 never returning them to their original places of confinement. For

15 example, 186 was held for six months, and she only managed to escape with

16 the help of another soldier.

17 The real issue is whether he had exercised any or all of the

18 powers of ownership, and this will be elaborated by my learned colleague

19 Mr. Carmona in his submissions later.

20 With regards to the indicia of forced labour, it was argued that

21 the women undertook domestic chores willingly and that it does not amount

22 to forced labour as an indicia of enslavement. Your Honours,

23 "enslavement" refers to the act of making one a slave and the subjugation

24 of the slave.

25 We examine criminal conduct from the viewpoint of the

Page 256

1 perpetrator's acts. The crime of enslavement focuses on the perpetrator

2 and not on the victim. The consequences of the perpetrator's acts,

3 however, may be relevant insofar as they determine the reasons why, for

4 instance, the victims may be compelled to stay and not to run, or to

5 submit rather than to resist. Thus the Trial Chamber was correct to

6 conclude in paragraph 542 that one of the indicia of slavery or

7 enslavement is that the consent or free will of the victim is absent and

8 rendered impossible or irrelevant by a series of influences which include

9 detention or captivity, psychological oppression.

10 The Trial Chamber's findings find support in, for example, the

11 1949 convention for the suppression of the traffic in persons and of the

12 exploitation of the prostitution of others which prescribes punishment of

13 those who exploit the prostitution of another even with the consent of

14 that person.

15 According to the US military tribunal in the Pohl case, there is

16 no such thing as benevolent slavery. Involuntary servitude even if

17 tempered by -- even if tempered by humane treatment is still slavery. It

18 is therefore inconsequential that FWS-87 felt that it was normal to do

19 domestic chores for her captors.

20 It is of little relevance that the women did not perceive the

21 tasks as labourious or hard. The focus is on the acts of the appellant in

22 placing the victims in a situation where they had very little choice with

23 their time, their labour, and their movements. Once the victim is placed

24 in a status of slavery or is enslaved, in the sense of being controlled in

25 almost all aspects of her life, whether the labour is forced, agreed to or

Page 257

1 not, is no longer relevant.

2 Your Honour, the appellants further argue that the witnesses were

3 not physically restrained. They were not with their captors all the

4 time. They were free to move around. The Prosecution knows that, yes,

5 FWS-87 did testify that she did go to cafes, restaurants, and pubs, but

6 she said it was never alone, it was always with Kovac or his friends.

7 In the case against Kunarac, FWS-191 said that she was given the

8 key at one time to the house to enable her to buy groceries. But the

9 Trial Chamber correctly noted in paragraph 740 that they had nowhere to

10 go. They had no place to hide, and Kunarac was fully aware of that fact.

11 An enslaved person, by definition, is unable to exert his or her

12 freedom and autonomy by entering into and remaining into that condition.

13 So conditioned was 87 by the acts of the appellants and all the other

14 individuals who had detained her that she held the perception that she was

15 nothing more than property; that's what she said in Court. That even

16 after leaving Kovac's apartment, it took her and Witness AS a long time

17 before they could find the courage and overcome the fear to buy a bus

18 ticket and escape from their captors in Montenegro. By that time, of

19 course, Kovac was no longer detaining them.

20 Psychological control and oppression is one of the indicia of

21 slavery, meaning that limitations on autonomy can be solely psychological

22 or situational, with no physical restraints. The incidents that counsel

23 and I have referred to, Your Honour, cannot be examined in isolation.

24 They must be seen in light of all the other evidence demonstrating lack of

25 free will.

Page 258

1 At the trial, witnesses tried to explain their feelings of

2 seclusion and fear and why they simply could not run away. The Trial

3 Chamber was perfectly correct to conclude in paragraph 742 that 191 --

4 that FWS-191 and 186 had no realistic option whatsoever to escape.

5 In conclusion, Your Honours, may I say that the crime of

6 enslavement for which the appellants were convicted happened in a place

7 and time where atrocities against the Bosnian Muslims were committed with

8 impunity, where vulnerable young women and children were confined in an

9 unfamiliar and at times hostile environment. In situations such as this,

10 to enslave women and children, you don't need chains.

11 It is submitted, Your Honours, that no legal errors have been

12 identified. There has been no misapplication of the law to the facts.

13 Insofar as this ground of appeal relates to legal errors, it must fail.

14 Your Honour, I have concluded my submissions on enslavement. I'll

15 be more than happy to respond to any queries you may have of me before I

16 move on to cumulative conviction.

17 JUDGE JORDA: [Interpretation] Perhaps you should deal with the

18 cumulative convictions first and then the questions could be put to you in

19 respect of all of the questions -- all of the issues that you've raised.

20 Please proceed.

21 MS. RASHID: Yes, Your Honour.

22 Your Honours, the Prosecution will deal with the common ground of

23 appeal raised by all of the appellants relating to cumulative charging and

24 conviction.

25 In essence, Your Honour, the appellants rely on the principle of

Page 259

1 lex consumens derogat legi consumptae, the heavier criminal offence

2 absorbs the lighter criminal offence, to argue that the Trial Chamber

3 committed errors by entering inter-article and intra-article cumulative

4 convictions under Article 3 and 5 and within Article 3 and 5 respectively.

5 Your Honours, the Prosecution has made complete submissions in

6 chapter 7 of our Prosecution respondent's brief. I would just briefly

7 summarise our position.

8 Your Honour, the principles governing the question of concurrence

9 of offences have been set out by the Appeals Chamber in the Celebici

10 judgement referred to by my learned friend and were confirmed by the

11 recent judgement rendered by the Appeals Chamber in the case of Goran

12 Jelisic. It follows that the practice of cumulative charging under the

13 Tribunal's Statute is generally permissible and that cumulative

14 convictions under the Tribunal's Statute are allowed under certain

15 conditions.

16 In the Celebici judgement, it was said that multiple criminal

17 convictions entered under different statutory provisions but based on the

18 same conduct are permissible only if each statutory provision involved has

19 a materially distinct element not contained in the other. An element is

20 materially distinct from another if it requires proof of a fact not

21 required by the other.

22 This Chamber went on to hold that where multiple criminal

23 convictions are not permissible on this test, the conviction under the

24 more specific provision should be upheld.

25 On the question of inter-article cumulative convictions for

Page 260

1 offences under --

2 THE INTERPRETER: Kindly slow down for the interpretation.

3 MS. RASHID: -- the Trial Chamber's approach is correct.

4 JUDGE JORDA: [Interpretation] Yes. You've heard counsel [as

5 interpreted]. Yes, please try to speak a bit more slowly. Thank you.

6 MS. RASHID: The Trial Chamber's approach is correct, particularly

7 in view of the judgement rendered by the Appeals Chamber in the case of

8 Goran Jelisic, because, firstly, Jelisic deals with concurrence between

9 the same categories of offences as those that are at issue here, Article 3

10 and 5. Secondly, the Jelisic appeal judgement confirms that the legal

11 criterion set forth in Celebici appeal judgement applies cumulative

12 conviction in relation to the same conduct. Thirdly, the Appeals Chamber

13 confirms each offence contains at least one distinct legal ingredient

14 which is not contained in the other.

15 Article 3 requires a close link between the acts of the accused in

16 the armed conflict. Article 5 requires proof that the act occurred as a

17 part of a widespread or systematic attack against the civilian population,

18 both of which are not required by Article 3 and 5 respectively. In

19 addition, Your Honour, the Prosecution submits that the partial dissenting

20 opinion of Judge Shahabuddeen in the Jelisic appeals judgement lends

21 further support to this position. In conclusion, it is submitted that

22 there will always be a distinct material element when Article 3 offences

23 are compared to Article 5 offences under the Statute.

24 Turning to the question of inter-article cumulative convictions of

25 rape and torture under Article 3, and rape and torture under Article 5,

Page 261

1 the Prosecution submits that the Trial Chamber correctly applied the test

2 in the Celebici judgement to this pair of offences. When compared with

3 the crime of rape, the crime of torture requires proof of an additional

4 and materially different element --

5 JUDGE JORDA: [Interpretation] Please speak more slowly. You're

6 speaking with a great deal of ardour, I understand, but please think about

7 the interpreters.

8 MS. RASHID: My apologies, Your Honour. I do apologise.

9 JUDGE JORDA: [Interpretation] Thank you. No, you don't have to

10 apologise. The interpreters have to excuse you. Please go ahead.

11 MS. RASHID: Your Honour, the crime of torture requires proof of

12 an additional and materially distinct, different element, namely, the

13 severe infliction of pain or suffering; aim at obtaining a confession;

14 punishing, intimidating, coercing, or discriminating against the victim or

15 a third person. When compared with the crime of torture, the crime of

16 rape requires proof of an additional and materially different element,

17 namely, the sexual penetration.

18 The appellants' position regarding the validity of the Celebici

19 judgement is simply confusing. On the one hand, the appellants appear to

20 accept the test; on the other hand, the appellants are -- it invited the

21 Court to reconsider the test. No cogent reasons have been offered as to

22 why the Appeals Chamber should revisit the issue and depart from its

23 previous decision.

24 Counsel's opinion that he finds it shocking that his client was

25 cumulatively convicted of rape and torture is not a legal error. Contrary

Page 262

1 to the appellants' contention, in determining whether each offence has a

2 materially different element not contained in the other, this involves,

3 Your Honour, a comparison of the elements, the legal elements of the

4 relevant offences, and the facts of a specific case play no role in this

5 determination. The principal lex consumens has no application. The Trial

6 Chamber's decision to convict the appellants cumulatively in relation to

7 the same conduct of rape and torture under Article 3, and rape and torture

8 under Article 5, should be upheld.

9 Your Honour, the next issue concerns whether the appellant Kovac

10 was convicted in relation to the same conduct. I will not go through my

11 arguments, Your Honour. It is clear from the judgement that the

12 convictions for all counts was not based on the same conduct. If Your

13 Honour has any queries on this matter, I will be more than happy to

14 assist.

15 JUDGE JORDA: [Interpretation] Judge Meron, did you want to ask a

16 question?

17 JUDGE MERON: Ms. Rashid, thank you so much for your interesting

18 presentation. I have two questions with regard to the question of --

19 JUDGE JORDA: [Interpretation] Excuse me for a moment. Had you

20 finished?

21 MS. RASHID: I have finished, yes.

22 JUDGE JORDA: [Interpretation] You had. Excuse me. Oh, excuse

23 me. I hadn't followed. Yes, please proceed.

24 JUDGE MERON: I have two questions with regard to the cumulative

25 convictions for rape and torture. Now, customary international law and

Page 263

1 the jurisprudence of this Tribunal accept that rape is a form of torture.

2 The counsel for the appellants appeared to argue yesterday that

3 convicting for rape and torture under Article 3 of the Statute may present

4 a special case in the sense that in the cases before us, rape is torture

5 and torture is rape. May I start, therefore, by asking you this

6 question: Are we talking of torture and rape, or torture through rape?

7 Thank you. And then I will have a follow-up question.

8 MS. RASHID: On the facts of this case, Your Honours --

9 JUDGE MERON: But it's also a legal question.

10 MS. RASHID: Your Honour, in relation to -- to go back to the

11 Celebici test, we simply look at the legal elements of rape and torture.

12 And, for example, if you look at the elements of torture in isolation,

13 there is no requirement of sexual penetration.

14 JUDGE MERON: Counsel, I really assure you that I'm aware of

15 that. Let me explain. Perhaps it's my fault that I have not

16 explained my question.

17 First let me make it clear that I am not speaking of rape and

18 torture in the context of Article 5 of the Statute, which has distinct

19 statutory provisions for rape and torture. But Article 3 of the Statute

20 does not speak directly of either torture or rape. However, the

21 jurisprudence of the Tribunal allows for reference to customary

22 international law, which includes Common Article 3 of the Geneva

23 Conventions. But the Common Article 3 of the Geneva Convention mentions

24 torture. It does not explicitly mention rape. Please assume that my

25 concern is not that the same conduct gives rise to different convictions.

Page 264

1 I listened with great attention to what you had to say about that. But

2 here the real problem is that there is not a statutory

3 hook on which to hang these offences. It is not a problem with Common

4 Article 5, where you have distinct statutory hooks; it's a problem with

5 Article 3. And therefore, my question is: What is the view of the

6 Prosecution on this problem and on the arguments of the appellants that

7 perhaps cumulative convictions in this particular case, for rape and

8 torture may be somewhat problematic. We would appreciate very

9 much your guidance on that. Thank you, Counsel.

10 MS. RASHID: Yes, Your Honour. I understand your question. Rape

11 is not specifically mentioned - that is what Your Honour is saying - in

12 Common Article 3. Your Honour, under the -- in Furundzija, Common

13 Article 3 does refer to torture, Article 3(1)(a). Rape is considered to

14 be an offence under outrages upon personal dignity. That is the authority

15 provided for in the Furundzija case, Article 3(1)(c).

16 JUDGE MERON: Article 3(1)(a) of the Geneva

17 Conventions does not mention -- rape?

18 MS. RASHID: Common Article 3, Your Honour.

19 JUDGE MERON: Sorry?

20 MS. RASHID: Common Article 3.

21 JUDGE MERON: Common Article 3.

22 MS. RASHID: No, Your Honour. It refers to torture.

23 JUDGE MERON: To torture.

24 MS. RASHID: Yes.

25 JUDGE MERON: I acknowledge that.

Page 265

1 MS. RASHID: That's right. Rape is an offence under outrages upon

2 personal dignity. That's Article 3(1)(c).

3 JUDGE MERON: But it's not explicitly mentioned, is it?

4 MS. RASHID: It is not explicitly mentioned, but it has been

5 analysed in Furundzija to include the offence of rape. And rape, Your

6 Honour, has always been recognised as a war crime. That is, in fact, in

7 the Nuremberg Charter under Article 6(c), I believe.

8 JUDGE MERON: Again, my problem is that with regard to cumulative

9 convictions in general, we have distinct statutory hooks to which to

10 relate, for example, like in Article 5.

11 Aren't we taking here one particular offence

12 mentioned in Article 3 and then having a sort of a double dip into it?

13 MS. RASHID: It is not a case of a double dip, because if you

14 specify the offence upon which the conviction has been based -- in this

15 case, it's Article -- it's rape and torture under Common Article 3. Rape,

16 we know that -- we have a definition for the offence of rape and then we

17 have a definition for the offence of torture. Once you have that basic

18 definition for rape and torture, you are able to apply the Celebici test.

19 And if you fulfil the Celebici test, the first limb and the second limb of

20 the Celebici test, there is no problem with cumulative conviction. It is

21 not a case of double jeopardy. I'm not sure whether that is Your

22 Honour's --

23 JUDGE MERON: We are trying -- it's not my opinion. We are trying

24 to sort of elucidate and clarify legal questions.

25 MS. RASHID: Yes.

Page 266

1 JUDGE MERON: Thank you for your explanation.

2 MS. RASHID: I'm much obliged.

3 JUDGE SCHOMBURG: In the beginning today, you said, as regards

4 cumulative convictions, the offence has to have a material distinction

5 from another. This distinction, has it to been made in abstracto or in

6 concreto? We'll say that we only have to compare, in your mind, the two

7 Articles or the concrete conduct in the case? Isn't it necessary that

8 there is a criminal behaviour not already included in the behaviour

9 covered by the first conviction already? And do you agree that, for

10 example, rape has always elements of enslavement and torture by nature?

11 Would it be correct that we need additional facts to come to

12 cumulative conviction? And I'm well aware that the Trial Chamber did

13 establish some other facts in certain cases, but I want to be really

14 precise on this test.

15 For example, can you agree, provided there is a situation of

16 enslavement, and within this framework of enslavement the abuse of this

17 enslavement for purposes of rape, there is an additional criminal conduct

18 which justifies this cumulative convictions? And in addition, could you

19 please elaborate a little bit about the situation in the former Yugoslavia

20 in 1992, in order that we don't go into the trap and worsen the situation

21 we had in the area under the rules of the criminal law of the former

22 Yugoslavia at that point of time. Thank you.

23 MS. RASHID: The answer to Your Honour's first question is yes, we

24 look at the distinct elements in abstracto. That is the test in

25 Celebici. That is the only way to apply the test in Celebici. We have to

Page 267

1 look at the distinct elements in abstracto and do not look at the facts

2 constituting the criminal conduct.

3 As for the enslavement question that Your Honour has asked me, the

4 Trial Chamber accepted the Prosecution's position that looking at the

5 offence of rape from the perspective of control - that is, the Trial

6 Chamber look at the sexual exploitation of the women and children to

7 establish one of the factors of indicia of enslavement which is the

8 control of sexual integrity - there is a difference in the act of rape and

9 looking at the act of rape from the perspective of control by the

10 perpetrator.

11 I will just give a very simple illustration. It's not the fact

12 that Kovac raped, for example, 87. It's the fact that only he could rape

13 87. So the Trial Chamber, in our view, correctly looked at the acts of

14 rape from the perspective of control and sexual exploitation in the sense

15 that he could utilise the women for sexual purposes and that he had the

16 power to do so. So there is a distinction in the criminal conduct.

17 We looked at the offence of rape as one of the factors of

18 enslavement, and then you have all the other factors which do not rely on

19 the act of rape.

20 JUDGE SCHOMBERG: The situation in the former Yugoslavia?

21 MS. RASHID: That has been -- I believe, Your Honour, that in the

22 Celebici Appeals Chamber judgement, the Chamber looked at all the

23 jurisdictions. In fact, the Prosecution did a comparative analysis of the

24 jurisdictions in the former Yugoslavia and a lot of other jurisdictions,

25 and the Trial Chamber basically rejected the concept of ideal

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Page 269

1 concurrence. The reason is simply this, and this is reflected in the

2 judgement: Offences in a civil system or in a domestic law system, it is

3 possible, for example, to determine which offence is more grave than the

4 other. It is easier, for example, in that situation to apply the concept

5 of lex consumens. A very simple illustration: Robbery assumes theft.

6 In the international legislation in what we have before us, the

7 crimes within the jurisdiction of the International Tribunal, there is no

8 hierarchy of gravity. It is difficult to make a determination as to which

9 offence is subsumed under which offence.

10 For example, it cannot be said that murder is more grave than

11 rape, for instance, or that rape is more serious than outrages and,

12 therefore, enslavement is more serious than rape and, therefore,

13 enslavement subsumes rape. It is not an easy solution. That is not the

14 answer, which is why we believe the Celebici Appeals Chamber came up with

15 the distinct elements test. It's a lot easier to fulfil.

16 At the same time, if you look at the dissenting judgement of

17 Judge Hunt and Bennouna, they give very concrete reasons and correct

18 reasons as to why we should apply the distinct element tests, because in

19 each of these statutory offences, different interests and values are

20 inherently protected, and they do reflect the entire criminal conduct of

21 the accused.

22 I hope I have answered your question, Your Honour.

23 JUDGE SCHOMBERG: Just your last sentence was what my question

24 was, because we indeed have to be aware that there are different

25 approaches in legal systems, and I'm afraid the Celebici appeals case

Page 270

1 falls a little bit short as to the extent as regards the question of ideal

2 concurrence, because sometimes you really need, additionally, comparison

3 of the concrete behaviour of this person, and the answer can't be given in

4 general. Therefore, my question is giving you the opportunity to add

5 possibly some new arguments. Of course I am aware of Celebici, but I have

6 some doubts if it's correct.

7 MS. RASHID: The Prosecution's position is that it accepts the

8 Celebici judgement. There was controversy even prior to the Celebici

9 judgement, and the Prosecution took certain views and -- but the Celebici

10 judgement resolved that issue, and that is the position that the

11 Prosecution has taken at this point in time. This Appeals Chamber, of

12 course, is at liberty to amend the jurisprudence.

13 JUDGE JORDA: [Interpretation] Judge Shahabuddeen.

14 JUDGE SHAHABUDDEEN: Counsel, you will appreciate that anything I

15 say will only be of a provisional character and will not represent my true

16 or definitive thinking, and that goes to both sides of the aisle.

17 Let me test out a certain approach on you. I will test you out on

18 a certain approach, but test out a certain approach on you. Would there

19 be any merit in the view that the problem is to drive a distinction

20 between the conduct of the accused and his criminal conduct? If you take

21 the conduct of an accused, it may exhibit a number of legal

22 characteristics. One combination of those characteristics may go to

23 constitute one crime. Another combination, even if there is some partial

24 overlapping, another combination may go to constitute a different crime.

25 The lex consumens principle applies only where the legal characteristics

Page 271

1 of one crime are wholly included within the legal characteristics of the

2 other crime or are totally congruent with those legal characteristics.

3 What do you say about an approach of that kind?

4 MS. RASHID: I think Your Honour is correct. There is a need to

5 draw a distinction between conduct of an accused and the criminal conduct

6 of the accused.

7 The criminal conduct of the accused is reflective, Your Honour, in

8 each and every distinct legal element of the offence. We take the view

9 that you have to look at the criminal conduct of the accused.

10 The approach that Your Honour has set out just a few minutes ago,

11 the second part of it does reflect the entirety of the criminal conduct of

12 the accused, and that is the view that we do accept, that we adopt, and

13 that is a view that is not inconsistent, if I may say so, Your Honour,

14 with the Celebici approach.

15 JUDGE SHAHABUDDEEN: Thank you. Let me have a quick word with you

16 on the first part of your discourse concerning slavery and enslavement.

17 MS. RASHID: Yes, Your Honour.

18 JUDGE SHAHABUDDEEN: I have a difficulty with the idea,

19 Mr. Prodanovic, that you could fix some sort of arbitrary term, but I

20 haven't entirely weaned myself away from the essence of Mr. Prodanovic's

21 submissions.

22 Now, I understand you to be making a distinction - it seems to me

23 a meritorious distinction - between chattel slavery and enslavement. May

24 it be that the temporal element needs to be seen in reverse? That is to

25 say, the characteristics of the institution will determine the time spent,

Page 272

1 which is appropriate to that institution.

2 In the case of chattel slavery, which is absolute, the time span

3 is infinite. In the case of enslavement, which is not so absolute, the

4 time spent may be finite and may well depend on the legal characteristics

5 of the particular institution.

6 Take the case of enslavement for sexual purposes. While I think

7 the woman knows that her enslavement for that purpose will come to an end

8 when she can no longer satisfy that purpose, it may be the enslavement

9 will continue for another purpose, but if the enslavement is for sexual

10 purpose, would there be any merit in the view that a time span will apply

11 to it but that the time span will be dictated by the legal characteristics

12 of the particular institution and that, in that case, the enslavement for

13 that particular purpose will come to an end when she can no longer fulfil

14 the objective in view?

15 MS. RASHID: No. The Prosecution does not agree that there has to

16 be a time span, even in that situation that Your Honour has mentioned

17 where it may be foreseeable that the enslaved could only fulfil the

18 objective of enslavement for a specific period.

19 The -- the case -- the facts of this case, Your Honour, although

20 it may be called sexual slavery as such, that is the underlying objective

21 only. As I have explained earlier, on the facts of this case or to take a

22 hypothetical, we don't even need to rely on the act of rape or the fact

23 that -- that the -- well, the predominant -- we have -- on the facts of

24 this case, the underlying objective or the predominant purpose as to why

25 these women were enslaved was to utilise their -- sexually exploit them.

Page 273

1 You also have instances where they were made to perform labour. But that

2 is just one of the criteria.

3 The time spent is not dependent on the objective. Duration is an

4 indication of the extent of your powers or your intent to exercise -- it

5 is an indication of your intent to exercise your rights of ownership.

6 I think it would be very arbitrary for to us say that in the case

7 of sexual enslavement, for example, once the victim can no longer sexually

8 perform, that is the end of the conduct, so to speak. It is arbitrary.

9 It is not, I think, called for in the system of indicia that has been set

10 out by the Trial Chamber.

11 If I may just offer another illustration as to why we believe

12 duration is not a crucial or even significant factor. If you put yourself

13 back a hundred years ago. You have a slave trading ship. Slaves are

14 unloaded. They're sent to a trader where he purchases them. He then goes

15 to the market, and he sells the slaves to another trader. Although the

16 slave master, if I may call him, is in possession of the slaves for a

17 duration of a few hours, he has still committed an offence under the 1926

18 slavery convention. It all depends on how and whether he did exercise his

19 powers of ownership.

20 JUDGE SHAHABUDDEEN: I thank you, Ms. Rashid. I really benefited

21 from your views. I may well come around to your way of thinking, but let

22 me sum it up this way: If a woman has been enslaved for sexual purposes

23 and a point of time arrives where she can no longer satisfy those

24 objectives, she may still remain in slavery. Is that your position?

25 MS. RASHID: Absolutely.

Page 274

1 JUDGE SHAHABUDDEEN: Then isn't that a case in which sexual

2 enslavement transmutes itself into chattel slavery?

3 MS. RASHID: Your Honour, enslavement as the Trial Chamber has

4 defined it, it refers to a series of indicia. The indicia includes

5 complete restriction of movements. It includes control of the physical

6 environment, psychological control, for instance.

7 The fact that the girls have moved from one place to another,

8 sometimes expressly for the purpose of cleaning the apartments of the

9 soldiers or cooking for them, cleaning for them, not necessarily sexually

10 servicing them - although on the facts of this case that is the

11 predominant or underlying objective - there will be an act of enslavement

12 as long as any or all of the powers -- there is no necessity to exercise

13 all of the powers of ownership. Any one of the powers of ownership will

14 do.

15 JUDGE SHAHABUDDEEN: Thank you. Thank you very much.

16 JUDGE GUNEY: [Interpretation] Ms. Rashid, I have a short

17 question: The crime of slavery, according to your submissions, even if it

18 is partially carried out with somewhat humane treatment, is it part of --

19 an inherent part of the crime? In other words, could one conclude,

20 therefore, according to what you've submitted, that the crime of slavery,

21 even if it occurs partially under humane conditions, is it an integral

22 part or is it a constitutive of the crime of rape [as interpreted]?

23 MS. RASHID: It is neither an integral part or a constituent

24 element of the crime of enslavement. I believe that's what Your Honour

25 said. I have it as "rape" on the transcript. It is neither. The

Page 275

1 question of humane -- the question of humane treatment was an issue raised

2 by counsel, Your Honour. They argue that some of these victims were given

3 food, they were treated well, they were given normal living conditions,

4 they were given the key to buy groceries, and so on and so forth.

5 The Prosecution's position is that this is not necessarily

6 relevant. If you look at the condition or the status of these witnesses,

7 that is, the status of being enslaved, in the sense that they have been

8 psychologically controlled, to the extent that they knew that they had no

9 means of escape, they had nowhere to hide, and that there was just no

10 point in them attempting to resist. Under these situations where the

11 victims are enslaved or controlled in almost every aspect of their lives,

12 it doesn't matter, it is irrelevant, that the perpetrator sometimes

13 treated them humanely by giving them food or clothes to wear or a

14 little -- some freedom of movement, like going to the terrace or going to

15 the shop to buy groceries. That is not a relevant consideration if we

16 look at the circumstances under which they were being enslaved.

17 Have I answered your question, Your Honour?

18 JUDGE JORDA: [Interpretation] I'm not going to torture you for

19 very long, Ms. Rashid. I do have a short question. How would you

20 characterise the attitude in an armed conflict of an officer or a

21 combatant who are victors in a territory and who then take into their

22 service women to do household chores, or soldiers of the conquered army in

23 order to do their chores for them, to do errands for them, aside from the

24 issue of rape and sexual satisfaction? And I wonder whether you consider

25 that that is slavery. Do you have any knowledge of any case law whether,

Page 276

1 after the Second World War, one could characterise as enslavement this

2 type of attitude in an armed conflict? I'm speaking about an armed

3 conflict, because that is what is at issue here. What is your feeling

4 about that? Briefly.

5 MS. RASHID: As to whether the situation that Your Honour has

6 given amounts to enslavement or not, it depends on the existence of the

7 indicia that has been set out by the Trial Chamber.

8 Now, if you have, for instance, an officer who takes a woman,

9 presumably from the enemy side, into his household to do household chores

10 or to run errands and so on and so forth, looking at that in isolation may

11 not amount to enslavement. But if the other indicia of enslavement is in

12 existence -- for example, he completely restricted her movements, he tells

13 her very specifically that "You are here only to do household chores and

14 nothing else. You cannot go back home to your family," he limits her

15 physical movement. For example, he took measures to prevent her from

16 escaping, sometimes he uses force, he uses threats to make sure that she

17 stays in his household to do household chores for him. Household chores

18 may amount to forced labour. Yes, under these circumstances, it may

19 constitute enslavement.

20 An example, Your Honour -- yes, Your Honour. I was --

21 JUDGE JORDA: [Interpretation] Are you finished? Oh, no. You

22 still have an example, some case law, perhaps. Please proceed. I'm

23 listening to you.

24 MS. RASHID: Let me just get my notes, Your Honour. I may have

25 the case law for Your Honour.

Page 277

1 If we look at recently, for example, the case of comfort women

2 held by the Japanese military, that situation, Your Honour, is probably --

3 fits very well within the definition of slavery. The comfort women were

4 deprived of their personal freedom, they had to move along with military

5 troops, they were denied control over their sexual autonomy, for example,

6 and they were made to do work for the Japanese troops. An enslaved

7 person, Your Honour, if I may, by definition is not able to exert his or

8 her freedom of autonomy. If you have a situation like that, then that may

9 amount to a person being in a status of slavery or enslavement. It may

10 amount to that situation.

11 JUDGE JORDA: [Interpretation] All right. We'll keep your last

12 sentence in mind. That's possible. I think that you've now finished,

13 Ms. Rashid.

14 MS. RASHID: Yes.

15 JUDGE JORDA: [Interpretation] I think the questions put by the

16 Judges have been very enlightening. It's now 10.30. We'll take our break

17 around 11.00. I think it is now, according to your plan, Ms. Brady who is

18 going to speak? No. Was it that, Mr. Hocking, according to the work

19 plan, Ms. Brady who would speak to -- that they would speak about the

20 errors of fact raised by each of the accused? Is that correct? Do you

21 want to continue now? All right. Please proceed. We'll now move to

22 Ms. Brady.

23 Keep your eye on the clock, please. All right. Keep your eye on

24 the clock, please, and speak slowly. I know that's somewhat

25 contradictory, but that's how things are. All right. Please proceed.

Page 278

1 MS. BRADY: Thank you, Mr. President. I'll try and do both.

2 May it please the Court. In my submission this morning, I'll be

3 addressing the errors of fact raised in the brief -- raised by the

4 appellant Zoran Vukovic. In the course of doing this, I'll also be

5 addressing some of the issues that were raised as a collective matter, as

6 common to the appellants, and this will include reference to issues

7 related to identification, expert evidence, and torture.

8 Your Honours, the appellant Zoran Vukovic alleges that the Trial

9 Chamber erred in finding that on an occasion in mid-July 1992, he raped

10 the witness FWS-50. This is the event which was averred in paragraph 7.11

11 of the indictment, and for which the Trial Chamber convicted him under

12 counts 33 to 36 of the indictment, for torture and rape as crimes against

13 humanity, and torture and rape as violations of the laws or customs of

14 war. Now, in response, we submit that none of the matters raised by the

15 appellant, either on their own or when considered as a whole, could lead

16 this Appeals Chamber to conclude that the Trial Chamber erred by finding

17 that Vukovic raped the witness 50 on this occasion.

18 Before responding to the appellant's arguments -- and what I would

19 like to do is to develop some of the main points in our response brief,

20 but also, importantly, to address and respond directly to some of the

21 submissions that were put by my learned colleague Mr. Jovanovic yesterday

22 and the day before.

23 Before I do this, I would like to draw Your Honour' attention to

24 Witness 50's highly credible and compelling account that she gave of this

25 rape, and I'm reading from the transcript at page 1263. This is what she

Page 279

1 said:

2 A. He took me to an abandoned apartment. I assume that

3 it was abandoned because I didn't see anybody

4 there. When he brought me to that apartment, he took me

5 into one of the rooms, which was to the left-hand side of

6 the hallway. There was a big bed there for sleeping in.

7 It was a bedroom. And then it happened once again. I

8 was raped again.

9 Q. Did Zoran Vukovic say anything to you?

10 A. Well, yes. Once he raped me, when he finished

11 raping me, he sat down and lit a cigarette and he said

12 that he could perhaps do more, much more, but that I was

13 about the same age as his daughter, and so he wouldn't do

14 anything more for the moment.

15 With that evidence in mind, Your Honours, I will turn to the

16 alleged errors which have been raised by -- the alleged errors which have

17 been raised by the appellant.

18 The first set of errors concern the errors related to the Trial

19 Chamber's evaluation of the evidence. And at trial, the first matter

20 averred to by the appellant is that at trial, Witness 50 testified that on

21 or about 4 or 5 July 1992, that is, about two weeks before the rape

22 alleged in paragraph 7.11, for which the appellant was convicted, the rape

23 in 7.11, for which Zoran Vukovic was convicted, she says she was orally

24 raped by Vukovic while detained at Buk Bijela. She testified that on the

25 morning after she arrived at Buk Bijela, Vukovic, who was armed and in

Page 280

1 uniform, took her to a hut and orally raped her. Her mother, Witness 51,

2 testified that she looked terrible and was crying when she came back.

3 Now, her evidence about this matter only came to the Prosecution's

4 attention in a pre-trial interview with this witness a few days before she

5 was due to give evidence. In her earlier statements she had given to the

6 investigators from the Office of the Prosecutor, although she had

7 mentioned being at Buk Bijela and being taken to a room and interrogated

8 by Zoran Vukovic, she didn't mention that at that time he orally raped

9 her. In evidence, she explained that she hadn't been able to do so

10 earlier because it had been her first and most painful experience and she

11 was ashamed.

12 Now, Zoran Vukovic's oral rape of Witness 50 was not charged and

13 not alleged in the indictment, and the appellant alleges that the Trial

14 Chamber erred by relying on that evidence. The appellant also

15 raises -- by this, he's raised a preliminary legal point, and he also

16 raises this in relation to the Trial Chamber's reliance on certain other

17 evidence given by another witness in this case, which was relied on by the

18 Trial Chamber in this case of Zoran Vukovic, and this was Witness 75's

19 evidence.

20 She testified that when she was at Buk Bijela on the 3rd of July,

21 1992, she saw Zoran Vukovic leading away her uncle, whose face was covered

22 in blood. She later heard a shot. When she was in a hut, she heard a

23 shot, and her uncle was never seen again. She also testified that later

24 that year, in October or November 1992, she encountered Vukovic in Kovac's

25 kitchen, and at that time Vukovic admitted to her that he had killed her

Page 281

1 uncle in Buk Bijela and then proceeded to orally rape her.

2 Now, while Witness 75 had told investigators in 1995 about seeing

3 Vukovic in Buk Bijela leading away her uncle, it was only in the months

4 leading up to the trial that she also told them about the encounter later

5 that year in Kovac's kitchen. In evidence, she ascribed this, the fact

6 that she had not done so earlier, brought this information to the

7 investigators earlier. She said that there were just so many incidents at

8 the time and that perhaps she hadn't been able to remember all the details

9 at the time. This is, we submit, well understandable, given the number of

10 times that this particular witness, Witness 75, was raped and had other

11 indecencies committed over her over a lengthy period. Now, these matters

12 that I referred to were not charged in the indictment. Now, my response

13 on this will canvass the Trial Chamber's reliance on both pieces of

14 evidence, that is, the evidence of Witness 50 of the oral rape in Buk

15 Bijela and this evidence of Witness 75.

16 Despite what Mr. Jovanovic -- my learned colleague Mr. Jovanovic

17 submitted to the Court yesterday, the judgement is crystal clear that the

18 Trial Chamber did not use this evidence to found convictions for the

19 uncharged acts of oral rape, nor --

20 JUDGE SHAHABUDDEEN: Ms. Brady, did he really say that, or did he

21 say that although the Trial Chamber did not use that evidence to found

22 convictions, the Trial Chamber used that evidence as the evidentiary basis

23 in relation to other acts which were charged?

24 MS. BRADY: Yes, Your Honour. Your Honour, I did hear

25 Mr. Jovanovic make two different submissions yesterday. There was some

Page 282

1 ambiguity on the first submission. I do agree, however, when Your Honour

2 posed the question to him directly, it did narrow the scope of his

3 submissions. But I wanted to make that absolutely clear that that's not

4 our position, if that was the position of Mr. Jovanovic. I certainly

5 don't mean to ascribe a position to him that he now no longer takes.

6 The judgement is crystal clear that the Trial Chamber did not use

7 the evidence to found the convictions for the uncharged rapes, nor for the

8 sentencing of Zoran Vukovic for the rape of Witness 50 in mid-July, that

9 is, the rape for which he was charged and convicted of. Rather, and we

10 say perfectly reasonably, the Trial Chamber used or relied on it to prove

11 elements of the rape which was charged in paragraph 7.11.

12 Now, the Trial Chamber used Witness 50's evidence that Zoran

13 Vukovic orally raped her in Buk Bijela as being relevant and probative to

14 two matters: Firstly, as to the reliability of her identification of

15 Vukovic as the man who two weeks later took her out of Partizan to the

16 abandoned apartment and raped her; secondly, as to his mens rea, that when

17 he raped Witness 50, on that occasion in mid-July, her evidence shows

18 that -- or is one of the pieces of evidence which shows that in early

19 July, Zoran Vukovic was at Buk Bijela, himself participating in acts

20 against the Muslim civilians, and the Trial Chamber used this to infer

21 that when he raped Witness 50 two weeks later in mid-July, he knew then

22 that attacks were being committed against the Muslim civilians and that

23 his conduct in raping Witness 50 fitted in with or formed part of that

24 attack.

25 The Trial Chamber used Witness 75's evidence regarding seeing

Page 283

1 Vukovic at Buk Bijela for a similar purpose, as relevant and probative to

2 his state of mind when he raped Witness 50 in mid-July. That is, they

3 used Witness 75's evidence on that point to establish -- again one of the

4 pieces of evidence to establish that in early July, Zoran Vukovic was in

5 Buk Bijela, again so that when he raped Witness 50 some two weeks later,

6 he knew then that his act formed part of this attack against the Muslim

7 civilians.

8 Regarding Witness 75's evidence as to her encounter later that

9 year with Vukovic in Kovac's kitchen, this the Trial Chamber used as

10 probative and relevant to the reliability of her identification of Zoran

11 Vukovic as that man that she had indeed seen at Buk Bijela with her

12 uncle. And we note in paragraph 789 that the Trial Chamber said they

13 attached much weight to Witness 75's identification of Vukovic because of

14 the traumatic context in which 75 was confronted with Zoran Vukovic in Buk

15 Bijela and then in Kovac's apartment, and on this basis, they found

16 Witness 75's identification reliable.

17 We reject the appellant's submission that this violated the

18 presumption of innocence.

19 The Trial Chamber's reliance on such evidence to prove elements of

20 the charged rape, that is, the rape which was charged in 7.11, in no way

21 diluted the onus on the Prosecution to prove the appellant's guilt on that

22 charge in 7.11, that guilt beyond reasonable doubt, nor do we say did it

23 impact on the appellant's right to a fair trial and to properly defend

24 himself. The details of both Witness 50 and 75's evidence on these points

25 was disclosed to him sufficiently before each witness testified, and in

Page 284












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 285

1 this respect, I would like to clarify something which was stated yesterday

2 by Mr. Jovanovic which is not entirely accurate. This is -- he said that

3 the appellant did not know about all of this evidence until the trial.

4 Now, the evidence of Witness 75 that she saw Zoran Vukovic in Buk

5 Bijela on the 3rd of July leading away her uncle was contained in her

6 witness statement in November 1995 and disclosed to him together with the

7 indictment and other statements which I believe were served or which were

8 served on the 27th of January, 2000, after Zoran Vukovic had been arrested

9 and transferred to The Hague in late December 1999. And the Prosecution

10 informed the Defence about the purpose for which it would be relying on

11 it, that is, to show his mens rea for Article 5 or the wider attack, at a

12 Pre-Trial Conference on the 2nd of March, 2000.

13 As for her evidence about what happened in Kovac's kitchen,

14 Witness 75 told the Prosecution about this in September of 1999 and 16th

15 March 2000, and this information was disclosed to the appellant on the 2nd

16 and 20th of March, 2000. Witness 75 gave evidence on the 30th of March

17 and was cross-examined extensively about this matter.

18 Before the Defence cross-examined the witness, the Prosecution had

19 also put him on notice about the possibility that it was thinking then of

20 amending the indictment to add a charge against Vukovic for the oral rape

21 in Kovac's kitchen as well as potentially for the rape in Buk Bijela, and

22 this is at transcript -- the rape of 50 in Buk Bijela. This is at

23 transcript April -- 3 April 2000, 1465 to 1479. Now, ultimately the

24 Prosecution did not amend, but it was put on notice that this was a

25 possibility.

Page 286

1 As for Witness 50, she told the Prosecution about the Buk

2 Bijela -- about what happened in Buk Bijela on the 26th of March in a

3 pre-trial interview, and this evidence -- and you will remember that this

4 evidence of hers was used for identification as well as knowledge mens

5 rea. This was disclosed to the Defence on the 28th of March of 2000.

6 Witness 50 gave evidence about -- gave evidence at trial on the 29th to

7 the 30th of March, 2000, so for two days, and she was cross-examined

8 extensively about this evidence that she gave as to what happened to her

9 in Buk Bijela.

10 Finally, in its closing on the 20th of November, 2000, the

11 Prosecution reiterated the purpose for which the evidence of 75 and 50

12 would be relied on, and that was as to the mens rea and identification.

13 At trial, the appellant did not object to the admission of either

14 Witness 50's or Witness 75's evidence under Rule 89, and he cross-examined

15 each witness very extensively at trial about these matters.

16 As to the question that this was not pleaded or charged, these

17 uncharged pieces of evidence of oral rape were not charged in the

18 indictment, we note that the Appeals Chamber in Kupreskic noted the

19 provisions of Article 18(4) of the Statute, Rule 47(C) of the Rules and

20 Articles 21(2) and (4) and said that these paragraphs meant -- and I'll

21 quote from their judgement which is at paragraph 88:

22 "In the jurisprudence of the Tribunal, this translates into an

23 obligation on the part of the Prosecution to state the material facts

24 underpinning the charges in the indictment but not the evidence by which

25 such material facts are to be proven. Hence the question whether an

Page 287

1 indictment is pleaded with sufficient particularity is dependent upon

2 whether it sets out the material facts of the Prosecution case with enough

3 detail to inform a defendant clearly of the charges against him so that he

4 may prepare his defence."

5 In this case, the indictment did set out those material facts in

6 sufficient detail. The Prosecution has no obligation to plead all of its

7 evidence in an indictment. To do so, Your Honours, would lead to

8 indictment that could perhaps in some cases fill a room or more.

9 Finally, Your Honours, nothing in the judgement indicates that the

10 Trial Chamber, as fact finders, were prejudiced. It made no less than ten

11 references in the judgement as to the proper use of this evidence, and

12 there's no indication that the Trial Chamber used it to draw an

13 impermissible inference such as propensity by the accused.

14 In summary on this legal point, the appellant has failed to

15 establish that the Trial Chamber erred by relying on this evidence to

16 prove elements of the crime of rape which was charged in the indictment.

17 Now, the appellant also submits that Witness 50's failure to

18 earlier recall -- to earlier recall the earlier incident of oral rape in

19 Buk Bijela taints her credibility and reliability. Now, Your Honours, we

20 would like to draw you in this respect to her explanations given about why

21 she did not mention it. This is at transcript 1293 to 94.

22 Basically in cross-examination and as well as in

23 examination-in-chief, she said she had been unable to describe this

24 specific event. Why? Well, to use her words: "It was my first and most

25 painful experience. All of them are very painful, but that was the first

Page 288

1 one, the one that made me most frightened."

2 Upon a question put by the learned counsel: "Well, precisely it

3 was the first time something like that had ever happened to you." The

4 answer: "If you can't understand me, let me put it this way: I was

5 ashamed to say."

6 Your Honours, her answers speak volumes. One can well understand

7 how the combination of fear and humiliation this particular incident, her

8 first one, brought to her, such that she couldn't even bring herself to

9 mention it when first interviewed.

10 Furthermore, her mother, 51, provides support for her evidence

11 that she was raped by Vukovic at Buk Bijela because she testified that her

12 daughter came back from her "interrogation" with Vukovic in a very

13 distressed condition.

14 The appellant also submits that at trial, Witness 50 failed to

15 mention some aspects or details in her earlier statement such as the

16 colour of the car they drove in to get to the apartment, what she was

17 wearing. While she may not have mentioned some of these more collateral

18 details, what really matters is that her description of the salient

19 features of this incident remained and was consistent.

20 The Trial Chamber specifically addressed this. They said that due

21 to the traumatic nature of the incidents which occurred eight years

22 ago - this was generally speaking about all of the witnesses, when many

23 were minors - these witnesses cannot be expected to recall in detail the

24 minutia of all particular incidents. For this reason, it didn't treat

25 minor discrepancies between a witness's testimony at trial and her

Page 289

1 previous statement as discrediting where she nevertheless recounted the

2 essence of the incident charged in acceptable detail. This is only

3 logical.

4 And even the appellant, in his brief, accepts that certain details

5 may fade with the passage of time. The appellant also refers to the fact

6 that Witness 50 recalled being taken out of Partizan on this occasion by

7 Zoran Vukovic with Witness 87. But Witness 87 didn't recall this. He

8 raised this in his final trial brief, and the Trial Chamber explicitly

9 referred to it in its judgement at paragraphs 248 and 813. The appellant

10 has not shown that the Trial Chamber erred by relying on Witness 50's

11 evidence that Vukovic raped her, notwithstanding Witness 87's -- Witness

12 87 did not recall it.

13 Firstly, a Trial Chamber is entitled to rely on the evidence of a

14 single witness to support a finding as to a material fact. More so, and

15 more to the point, of course, if one looks at the evidence of these two

16 witnesses, Your Honours, you'll see that this shows that the Trial Chamber

17 acted reasonably in accepting 50's evidence despite - despite - that 87

18 did not recall it.

19 Now, the appellant has inaccurately stated in his brief and again

20 yesterday that Witness 50 denied - denied - that the incident occurred,

21 but in fact, what she testified was that she recalled seeing Vukovic only

22 twice, first when he raped her in a classroom in Foca High School in early

23 July and then when she saw him in Kovac's apartment later that year. In

24 other words, she simply didn't recall this incident.

25 Moreover, I would like to correct for the record why the Trial

Page 290

1 Chamber did not find Zoran Vukovic guilty of this rape, that is, the

2 rape -- the rape of 87 on this occasion in mid-July. This is because 87

3 didn't recall it, not, as Mr. Jovanovic said yesterday. It's not a

4 situation where 87 denied it and that somehow the Trial Chamber believed

5 her denial.

6 Now, there are several reasons why Witness 87 may not recall every

7 single time she was taken out and raped while detained in Foca High School

8 and Partizan. We're talking about 87 here. Firstly, during her

9 month-long detention in these two places, this witness, 87, was taken out

10 and raped on an almost daily basis, sometimes serially, by several

11 soldiers, on the same night. Nor did her ordeal of rape and enslavement

12 end with Foca and Partizan. Her -- it continued until February 1993 in

13 various locations, including the house at number 16, Karaman's house,

14 Kovac's apartment, through into Montenegro. In this context, her

15 inability to recall one specific event in mid-July is entirely

16 understandable.

17 Against this, Your Honours, the Trial Chamber acted reasonably by

18 accepting Witness 50's highly credible account of what happened to her

19 about being raped by Zoran Vukovic. This was her second encounter with

20 Zoran Vukovic. She'd been orally raped by him two weeks before. Apart

21 from that oral rape --

22 JUDGE JORDA: [Interpretation] You've already developed that,

23 Ms. Brady. Try to be more sympathising -- synthesising. Well, you've

24 developed that all in your brief before the Appeals Chamber. You don't

25 have to plead the same way. You plead by observations. Just refer to the

Page 291

1 factual parts that are very important that you want to raise as a

2 challenge.

3 Soon it will be 11.00, and I remind you that -- well, otherwise,

4 we're going to have to continue with this next week.

5 MS. BRADY: Certainly, Your Honours. I'm almost complete on this

6 particular error.

7 We also submit that the comments that Zoran Vukovic made after he

8 raped her, that is, that he had a daughter about the same age, would have

9 provided a certain level of detail to firmly crystalise this event in her

10 mind.

11 Now, in relation to Mr. Jovanovic's submission yesterday

12 concerning the mother, Witness 51's evidence, he said that she did not

13 confirm by a single word that this incident took place. We simply cannot

14 accept this. You'll see from our brief, we've gone through it in great

15 detail in our response brief at paragraphs 230 to 231 about her evidence

16 of Vukovic coming to --

17 JUDGE JORDA: [Interpretation] You're referring to your brief.

18 Yes. This is the very first that you're now referring directly to your

19 brief. The Judges read the briefs. We're not retrying the case. You're

20 simply responding to the arguments that were put by Defence to the Appeals

21 Chamber. Otherwise, we're simply not going to get anywhere. I made that

22 same comment to the Defence yesterday.

23 MS. BRADY: Certainly, Your Honours.

24 Your Honours, in summary on this first error - and I'm finished

25 addressing on this first error - we submit that the appellant has not

Page 292

1 shown how any of the alleged errors in evaluation of the evidence caused

2 the Trial Chamber to err in fact.

3 Your Honours, if that's an appropriate moment -- or would you

4 prefer me to continue on and take full advantage of the next minute?

5 JUDGE JORDA: [Interpretation] Well, if you have just a few more

6 minutes, finish, all right, and then we'll move to the next person. How

7 much more time do you have left? How much more time do you have for this

8 now?

9 MS. BRADY: Your Honour, in total, I have another 20 minutes left

10 because I'm also covering the common grounds related to --

11 JUDGE JORDA: [Interpretation] Well, I give you five more minutes.

12 I give you five more minutes. There are terrible constraints here. I

13 said that to the Prosecution, just as I said to the Defence. It's not

14 possible. I prefer to say it to the Prosecution so that it be well

15 understood. Otherwise, we're going to have to sit again next week, and

16 that's not possible.

17 The Appeals Chamber has case law in terms of the facts. We're

18 very -- you know that. You've -- we mentioned that. You've got to

19 respond to the legal points raised by the Defence or factual points that

20 might cause a miscarriage of justice or a very serious judicial error.

21 That's the work which one does before the Appeals Chamber.

22 MS. BRADY: Yes, certainly, Your Honour.

23 The second error alleged by the appellant is -- are errors

24 relating to the Trial Chamber's reliance on Witness 50's identification of

25 Zoran Vukovic as her assailant. We remind Your Honours that the key issue

Page 293

1 relating to identification is whether it's reliable. The Kupreskic

2 Appeals Chamber stated that a Trial Chamber must be particularly careful

3 when a finding of guilt is based on identification made by a single

4 witness under difficult circumstances and especially rigorous in

5 articulating the factors supporting the identification of the accused and

6 addressing the factors weighing against its reliability.

7 In contrast to what was submitted by my learned friend yesterday,

8 we say that in relation to Witness 50's identification evidence, the Trial

9 Chamber thoroughly respected these parameters. It stressed the acute

10 awareness that it had of the traumatic inherent uncertainties in

11 identification evidence and that in the traumatic circumstances these

12 witnesses were in, of the possibility of making an error later of a -- the

13 possibility of error in making an identification later of a person

14 previously unknown to the witness. So it said that it had carefully

15 examined and evaluated the identification evidence and examined it with

16 particular caution.

17 Secondly, Your Honours, the Trial Chamber's summary of her

18 evidence and their findings are well articulated. Your Honours, you have

19 the evidence before you. If you look at Witness 50's evidence, especially

20 the two occasions that she was in Zoran Vukovic's company, he has not

21 shown an error of fact as to why it was unreasonable for the Trial Chamber

22 to find that her identification of Vukovic was reliable.

23 She had the first occasion where she was orally raped in Buk

24 Bijela. This evidence has particular probative value, given that she was

25 so young, 16 years and 11 months, he was armed and with a pistol, he asked

Page 294

1 humiliating and degrading questions at the time. She next saw him two

2 weeks later, when he took her out on this occasion and raped her in the

3 apartment.

4 Importantly, in her 1995 statement, she gave a description of

5 Zoran Vukovic which is consistent with his appearance. And you'll see

6 this at paragraph 562.

7 In relation to her evidence of her in-court identification of

8 Vukovic in Court as the man who had raped her, the Prosecution took the

9 position at trial, and it's still our position, that the Court is entitled

10 to place some weight on that; however, we note that, and it appeared to us

11 yesterday, that the main argument raised by my learned friend

12 Mr. Jovanovic was as to the Court's procedure using this in-court

13 identification, but we note that the Trial Chamber placed no positive

14 probative weight on these in-court identifications.

15 Finally, the appellant's comment to her after the rape about his

16 daughter being the same age or he would have done worse, we say this

17 provides a degree of validity to the reliability of her identification

18 evidence, because several witnesses testified that he had a teenaged

19 daughter at that time.

20 So in summary, the appellant has not shown that the Trial Chamber

21 committed an error in being satisfied that Witness 50 was able to identify

22 Vukovic as the man who raped her.

23 Your Honours, I would now like to turn to matters that will

24 affect -- that are responding to more consolidated grounds of appeal,

25 including evaluation of expert evidence, including the evaluation that was

Page 295

1 done in relation to Zoran Vukovic, then torture, and application of the

2 law of torture to the facts. If you would prefer to take a break now --

3 JUDGE JORDA: [Interpretation] You can speak about anything you

4 like. We're going to take a 15-minute break. I invite Mr. Carmona, who

5 is the team leader, to speak with Mr. Hocking. You have to finish your

6 presentation at 1.00, including any possible questions the Judges would

7 like to put. I said it yesterday. The Judges have the right to ask

8 questions, and you should take into account that fact. Otherwise, we will

9 have to sit next week, and I claim that the Appeals Chamber does not do

10 the same work as the Trial Chamber.

11 You have submitted briefs. You have to plead by observation.

12 That is something which is learned. One learns that in law schools, and I

13 am convinced that all of my colleagues agree with what I'm saying. We've

14 already talked about that on several occasions.

15 Mr. Carmona and Mr. Hocking, please come to an agreement. You

16 plead by observation, you refer to your briefs, and of course, you've

17 heard the Defence counsel.

18 At 1.00 we will move to our last hour, so that we'll finish with

19 the general presentations. We are not going to prove how well one can

20 speak here. We're not retrying the case.

21 We'll take a 15-minute break, and we'll resume at 20 after 11.00.

22 --- Recess taken at 11.07 a.m.

23 --- On resuming at 11.25 a.m.

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

25 Please have the accused brought in.

Page 296

1 We will now resume with the -- the Prosecution's arguments will

2 end -- is everyone ready? The Prosecution's arguments will finish at a

3 quarter to 1.00, and we'll take a 15-minute break, and then the Defence

4 will finish for a maximum of one hour.

5 Ms. Brady, please proceed.

6 MS. BRADY: Thank you, Your Honours. In view of the time, I can

7 be extremely brief. I will concentrate on the elements related -- the

8 errors of fact raised in relation to the crime of torture. I only need to

9 say two things in relation to the -- or one thing, rather, in relation to

10 the submissions made on the Trial Chamber's evaluation of the medical

11 evidence relating to Zoran Vukovic.

12 The appellant has not raised any -- has not shown how the Trial

13 Chamber erred when it came to examine the medical evidence relating to

14 Zoran Vukovic's medical evidence. It has clearly stated its findings in

15 paragraphs 800 to 805, stating the basis for its conclusions. It stated

16 that it had carefully analysed the evidence and was not satisfied there

17 was any reasonable possibility either that the injury had been sustained

18 or that such an injury could have made him impotent at the relevant time.

19 I'll move straight into the question related to torture. Your

20 Honours, this is set out in our brief responding to the appellant Zoran

21 Vukovic's brief, and I'll concentrate what I need to say in relation to

22 the submission which was made by the appellant as to the second element of

23 the crime of torture; that is, they submitted that the Trial Chamber had

24 erred in finding that the act or omission was intentional.

25 We note that this is a common ground of appeal, in that it is

Page 297

1 common also to Kunarac's appeal. And in response, we submit that a

2 perpetrator of torture need not desire or intend that his victim suffers

3 extreme mental or physical pain. It's sufficient that the torturer

4 intended the conduct and the victim in fact endured such severe pain or

5 suffering.

6 The support for this can be found in the Appeals Chamber decision

7 of Furundzija, where, in paragraph 111, the Appeals Chamber held that the

8 accused's act or omission must give rise to severe pain -- physical or

9 mental pain or suffering. And, Your Honours, this finding of the Appeals

10 Chambers in Furundzija is particularly pertinent because there, in

11 Furundzija, the appellant Furundzija had made the same argument which is

12 basically being put by the appellants Vukovic and Kunarac; that is, even

13 if I did the act, I didn't mean to cause the victim severe pain and

14 suffering. So the finding of Furundzija Appeals Chamber is directly on

15 point.

16 Your Honours, that's all I'll say on torture.

17 Finally, moving to the appellant's last submissions concerning the

18 errors relating -- the alleged errors relating to the Trial Chamber's

19 finding that the elements of the crime of rape were made out, the

20 appellant has not shown that the Trial Chamber acted unreasonably in

21 concluding that he had sexual intercourse with Witness 50 without her

22 consent. Furthermore, he has not shown that it was unreasonable for the

23 Trial Chamber to conclude, on the basis of all of the evidence, that he

24 did this knowing that she did not consent. And, Your Honours, I don't

25 need to go through and elaborate on all the evidence. You have it there

Page 298

1 before you in the judgement, as did the Trial Chamber, and we say that the

2 Trial Chamber's decisions on both the actus reus and mens rea for the

3 crime were more than reasonable.

4 In conclusion, Your Honours, we ask that Your Honours dismiss all

5 grounds of appeal raised by the appellant Vukovic and to uphold the Trial

6 Chamber's findings. May it please the Court.

7 JUDGE JORDA: [Interpretation] I thank you, Ms. Brady, for having

8 spoken so succinctly and having alluded to your brief. The Judges read

9 the written submissions, read the briefs. Thank you for having made that

10 effort. The proceedings are much clearer that way. Thank you.

11 I turn to Mr. Carmona. Who is going to speak now?

12 Are you going to continue, Ms. Brady?

13 MS. BRADY: No, Your Honour. I would now like to introduce my

14 colleague Ms. Norul Rashid, who will speak to you on errors raised in the

15 Kovac brief. Thank you.

16 MS. RASHID: May I proceed, Your Honour?

17 Your Honour, the Prosecution will now turn to other grounds of

18 appeal raised by the appellant Kovac in the appellant's written brief, as

19 well as in the submissions made by learned counsel yesterday.

20 The issue that I will address at this point in time is just one.

21 It relates to the outrages upon personal dignity charge. Now, the

22 appellant suggests that the only act that could qualify as outrages upon

23 personal dignity is the naked dancing incident. Implicit in this argument

24 is the claim that the Trial Chamber was in error in convicting him of

25 outrages upon personal dignity on the basis of other acts apart from the

Page 299

1 naked dancing incident.

2 The Prosecution submits that it was open to the Trial Chamber to

3 find that there were other acts constituting outrages upon personal

4 dignity for those reasons: The Trial Chamber defined "outrages" as any

5 act or omission which would be generally considered to cause serious

6 humiliation, degradation, or otherwise be a serious attack on human

7 dignity.

8 The Appeals Chamber in Furundzija, Your Honour, you maybe recall,

9 speaks of human dignity as being the most important value protected by the

10 offence of outrages. The Appeals Chamber in Aleksovski laid down an

11 essentially objective test. The humiliation to the victim must be so

12 intense that the reasonable person would be outraged.

13 Your Honour, bearing in mind the Prosecution's case rested on

14 instances where there has been a prolonged series of actions against a

15 particular victim and would encompass the treatment of the victims, the

16 Trial Chamber's approach in looking at individual agents or omissions and

17 then the accumulative effect is the correct one, and it finds support in

18 previous cases, such as Aleksovski.

19 In Aleksovski, Your Honour, very briefly, the specific acts were,

20 for example, psychological violence, which included a direct threat with

21 death, or was repetitive, for example, men entering the cells in the camp,

22 screams played over loudspeaker, and uncertainty weighing on the minds of

23 the detainees as to whether they will be dispatched to dig trenches and

24 whether they would be released. These are all the acts which constituted

25 the basis for a single charge of outrages upon personal dignity in

Page 300












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Page 301

1 Aleksovski.

2 Your Honour, the infringement in this case is the serious

3 mistreatment of civilians, the women and children, which would be

4 absolutely unacceptable in times of peace. Now, counsel tried to minimise

5 these acts as mere ordinary housework, for instance, he says. They are

6 not. These are not acts that would cause mere inconvenience or

7 discomfort. It was seriously humiliating, and it was an outrage upon --

8 it constituted a serious attack on human dignity because being made to

9 wash the clothes of, clean the apartment of, prepare meals for, and serve

10 the very same men who raped them and seriously mistreated them, that

11 amounted to outrages upon personal dignity. We have to take a wider

12 perspective of these simple chores that counsel has alluded to.

13 The Trial Chamber's findings and conclusions are therefore

14 unassailable, Your Honour. There is simply no merit to this ground of

15 appeal.

16 Your Honour, I now turn to counsel's allegation that the Trial

17 Chamber failed to appreciate the evidence of the eight Defence witnesses

18 that appellant Kovac has adduced in court. It was alleged that they

19 failed to correctly assess the evidence of the eight Defence witnesses and

20 erred in rejecting it on the sole basis that they provided hearsay

21 evidence. The Prosecution's position is that this is not correct. At

22 trial, the appellant did not testify. They called the eight witnesses to

23 demonstrate that, for instance, Witness 87 was Kovac's girlfriend and that

24 87 and AS had freedom and movement and were not therefore enslaved.

25 Your Honour, contrary to Kovac's complaints, the evidence of the

Page 302

1 Defence witnesses was considered by the Trial Chamber fully, and I would

2 just refer Your Honour to pages 61 to 68, 78 to 80 of the judgement.

3 Specifically, paragraph 141 of the judgement shows that the Trial Chamber

4 was perfectly aware of the significance of the Defence case and they

5 correctly summarised it as well.

6 It is submitted, Your Honour, that the Trial Chamber is not

7 obliged to criticise every single aspect of the Defence case in its

8 judgement. It is not required to articulate every step of its reasoning

9 in reaching a decision on these points. The Trial Chamber clearly

10 accepted the evidence of the material witnesses and the rebuttal

11 witnesses, whom they found beyond a doubt to be credible, and they have

12 clearly and obviously rejected any suggestion by the Defence that the

13 girls were not enslaved, mistreated, or raped. This is evident from the

14 judgement. I would just refer Your Honour to paragraph 750, 762, where

15 the Trial Chamber have obviously accepted the Prosecution's version of

16 events, thereby rejecting the Defence version of events.

17 The Trial Chamber, in its assessment of the Defence witnesses,

18 noted in several paragraphs within the judgement the inconsistencies and

19 the impossibility of the Defence case. I'll refer Your Honour to

20 paragraph 144, 145, 146, 152, 154, and 159.

21 In conclusion, Your Honour, it is submitted that the Trial Chamber

22 believed 87; they were perfectly entitled to do so. The appellant,

23 essentially, in this part of their argument is inviting you to re-examine

24 the same facts, the same issues addressed by the Trial Chamber and reach a

25 different conclusion which invitation you might decline because, as Your

Page 303

1 Honour has pointed out, that is the role of the Appeals Chamber.

2 The appellant, Your Honour, has failed to show that he was wholly

3 unreasonable for the Trial Chamber to conclude in paragraph 762 of the

4 judgement, that the relationship between Kovac and 87 was one of cruel

5 opportunism, constant abuses and domination and not one of love. This

6 ground of appeal is devoid of merit and must be dismissed.

7 Your Honour, if I may make my final observations on the case

8 against Kovac. The case against Kovac, Your Honours, rests on evidence

9 presented by three material witnesses and a rebuttal witness who were able

10 to provide concrete and accurate facts documenting months of rapes,

11 enslavement, and outrageous conduct. The evidence will show that the

12 witnesses expose explicit details about Kovac, his movement, his habits,

13 his accomplices, and the very serious crimes he that has committed. The

14 Trial Chamber was exceedingly careful in choosing to accept or reject

15 evidence. It exacted a very high standard of proof from the Prosecution.

16 The Prosecution conducted it's case fairly. For instance, it

17 readily conceded when a charge has not been proven beyond a reasonable

18 doubt. I refer Your Honour to paragraph 797 of the judgement.

19 The judgement of the Trial Chamber shows that Kovac was correctly

20 convicted on the facts and in law. He received a fair trial. There has

21 been no miscarriage of justice in his case. It is respectfully submitted,

22 Your Honour, that for all the reasons forwarded in the respondent's

23 response brief, Kovac's appeal against conviction must be dismissed.

24 Your Honour, that rests my submission. I will be more than happy

25 to respond to any queries.

Page 304

1 JUDGE JORDA: [Interpretation] Are there questions? We can, then,

2 move on.

3 MS. RASHID: Your Honour, next in line, Your Honour, will be

4 Mr. Anthony Carmona. He will be addressing the Court on grounds of appeal

5 raised by the accused Kunarac, and he will also be addressing the Court on

6 a common ground of appeal raised by all the accused in relation to

7 sentencing.

8 MR. CARMONA: Your Honours, it is the intention -- it is my

9 intention today --

10 JUDGE JORDA: [Interpretation] Just one moment, please. Just one

11 moment, please. I want to consult with my colleagues.

12 [The Appeals Chamber confers]

13 JUDGE JORDA: [Interpretation] Excuse us, Mr. Carmona. Please

14 proceed.

15 MR. CARMONA: Your Honours, the Prosecution will be responding to

16 the oral arguments as outlined by my learned colleagues on the other side

17 in relation to Dragoljub Kunarac. I think it's important to note

18 immediately that one major and particular ground of appeal has to do with,

19 in fact, a methodology or approach in the evaluation of the evidence.

20 It is indeed trite jurisprudence as observed in Kayishema and

21 Ruzindena in its oral judgement of 1st of June, 2001. The judgement

22 said: "It is neither possible or appropriate to draw upon an exhaustive

23 list for the criteria governing the assessment of evidence."

24 In this regard, it is important to note that the Trial Chamber

25 considered various facets of evaluation techniques that are both common to

Page 305

1 the Tribunal in terms of assessing evidence. They began by considering

2 things like the burden of proof, the presumption of innocence, how you

3 look at, for example, the whole issue of inconsistencies in relation to

4 the whole concept of materiality. Apart from that, they also, in fact,

5 made findings in relation to identification.

6 But what is important to note most of all is that there was a

7 particular judgement that they gave on the decision of acquittal which was

8 given on the 3rd of July, 2000, where in fact their whole analytical

9 process that they employed was encapsuled in a particular paragraph, which

10 I crave the indulgence, and I will read for the purpose of this point.

11 In that particular judgement, they said this at paragraph 4:

12 "A fundamental rule in relation to the determining issues of fact

13 that no conclusion should ever be reached until relation to the credit of

14 a witness until all the evidence has been given. A Tribunal of fact must

15 never look at the evidence of each witness separately as if it existed in

16 a hermetically sealed compartment. It is the accumulation of all the

17 evidence in the case that must be considered. The evidence of one witness

18 when considered by itself may appear at first to be of poor quality, but

19 it may gain strength from other evidence in the case. Conversely,

20 apparently credible evidence of another witness may lose an appearance in

21 the light of evidence given by other witnesses."

22 And I will, in fact, use this as the litmus test, if I may so

23 describe it, because it certainly epitomises the approach of the Trial

24 Chamber and certainly, in fact, indicates that the concerns as expressed

25 by my friends on the other side in relation to how witnesses were

Page 306

1 assessed, that the affairs need to be allayed by this particular

2 directive.

3 In relation to the particular grounds of appeal, which I must

4 admit are horribly factual, it is important to note that in relation to

5 the arguments, the oral arguments, they -- my learned friend has been

6 critical of the sufficiency and reliability of evidence in relation to

7 counts 1 to 4. He also is very critical of the findings of the Chamber in

8 relation to paragraphs 5.2 and paragraph 5.5 in the indictment.

9 In relation to paragraph 5.2, he puts forward a submission that

10 the evaluation of the evidence of Witness FWS-87 in relation to

11 paragraph -- to the indictment in paragraph 5.4 is unacceptable. What

12 basically happened in this particular situation was this: That the Trial

13 Chamber rejected the evidential matrix to be found in 5.2 which involved

14 to a large extent the evidence of FWS-87. But in 5.4 paragraph, FWS-87's

15 evidence was accepted. He attacks FWS-187's evidence on the basis of its

16 credibility.

17 It is submitted that in finding that the two allegations of rape

18 set out in paragraph 5.2 of the indictment had not been made out - and

19 it's important to note that a Trial Chamber made no adverse findings of

20 credibility or nor finding that Witness FWS-87 was completely unreliable -

21 the basis for the Trial Chamber's finding was that a witness account

22 lacked detail and clarity and found that there was no supporting

23 evidence. It is submitted that events -- different events can cause a

24 different intensity of recall, that some moments are less memorable than

25 others. And given the amount of abuse exacted on the victims, it is

Page 307

1 humanely impossible to remember every incident with the required probative

2 recall demanded by the appellant.

3 The Trial Chamber, in its assessive process, considered the

4 existence or non-existence of supporting evidence. Even in terms of

5 assessing the identity evidence in relation to FWS-187, they found that

6 apart from the credible identification of FWS-87, they found that the

7 accused himself admitted having met FWS-87 at Partizan on the 3rd of

8 August and having seen her at Karaman's house. So that in looking at to

9 determine the credibility and reliability of evidence, they essentially

10 look at other supporting evidence including various admissions made by the

11 appellant himself.

12 It is submitted in the circumstances that a Trial Chamber is

13 entitled to accept all, none, or some of a witness's testimony. It is

14 further submitted that in its oral arguments, the appellant has shown no

15 case law either originating from the ICTY or from national jurisdictions

16 in support of his proposition that if a Trial Chamber rejects part of a

17 witness's testimony, they must reject it in total.

18 If I may go on to deal with other witnesses, more particularly

19 FWS-75 and the well-known DB. The appellant submits in his oral arguments

20 that the Trial Chamber erred in finding that FWS-75 and DB were taken by

21 the appellant to Ulica Osmana Djikica number 16 where he raped DB while

22 FWS-75 was raped by a group of soldiers. He found that this entire

23 incident, the evaluative process employed, was unacceptable.

24 In so doing, he put forward various propositions in his oral

25 arguments. He said that there was a material discrepancy between the date

Page 308

1 of the offence as recalled by the witnesses and the date set out in

2 paragraph 5.3 in the indictment. Of course you would recall, Your

3 Honours, that in that particular indictment, it read "On or around the

4 16th of July, 1992." It is strange in his oral arguments he said, for

5 example, that it is vague, that what "around" that date means. Is he

6 attacking the linguistic niceties of that indictment, or is he in terms

7 referring to the whole concept of fairness in that, for example, an

8 indictment must indicate to, in fact, the appellant the pertinent facts

9 that he needs to address?

10 It is submitted that in the circumstances of this particular

11 indictment, it was a very specific and very detailed incident and that the

12 minor -- and the fact that the Trial Chamber found that the incident did

13 take place at the end of -- close to the end of month is very incidental,

14 because there is no disputing the fact that the factual incident as

15 outlined in 5.3 of the indictment is very specific. It relates to two

16 victims, not four victims as he intimates in relation to 5.4. It relates

17 to specifically named persons, Kunarac and Gaga. It relates to specific

18 separate actions, that they were taken to the house by Kunarac and Gaga,

19 that DB was taken to a separate room, and that in fact FWS was left behind

20 and she was in fact gang-raped by at least 15 soldiers. So that any type

21 of proposition that there is a mix-up between 5.3 -- the paragraph -- the

22 facts in 5.3 and 5.4, in fact, is unmeritorious.

23 They did raise an issue with regard to inconsistencies between

24 witnesses' statements and between the testimony of one witness and the

25 other. Again, it is very trite law that the Trial Chamber has emphasised,

Page 309

1 as other Trial Chambers at paragraph 564, that the very trauma of the

2 entire episode would result in a type of fractious, sequential positions

3 adopted by the various witnesses. They're not expected, in fact, to have

4 the recall of an artist. However, what is important is in fact that you

5 look to see whether the quintessential elements, factual elements as

6 espoused by the Prosecution have been proven beyond a reasonable doubt.

7 The issue to be determined by the Appeals Chamber in this regard

8 is whether in view of the alleged inconsistencies in the evidence of

9 FWS-75, no reasonable Trial Chamber could have relied on her evidence.

10 The appellant, in fact, referred to various statements given by this

11 particular witness. And the Trial Chamber recognised that because of the

12 vagaries of time, and they did, in fact, come to the conclusion - eight

13 years has since passed - that witnesses are entitled to some kind of

14 leeway in the context of detail, the detailed memory that is often

15 demanded of appellate counsels and -- Defence counsels, rather.

16 Finally on this point, we wish to indicate that in rejecting the

17 argument that the inconsistencies undermined the credibility of the

18 witnesses in question, the Appeals Chamber upheld the Trial Chamber's

19 approach as follows: That says in the face of this body of evidence, the

20 Appeals Chamber does not believe it was unreasonable to regard these

21 inconsistencies as being inadequate. This particular dicta came from

22 Kayishema and Ruzindena.

23 The third issue in relation to this particular witness is in

24 relation to the Witness DB. The third issue relates to the finding by the

25 Trial Chamber that the appellant had sexual intercourse with DB with the

Page 310

1 full knowledge that the victim did not freely consent. The position of

2 the appellant appears to be that the evidence does not substantiate such a

3 finding. The appellant alleges that the Trial Chamber's conclusion that

4 it is irrelevant whether or not the appellant knew that DB was having

5 sexual intercourse with him as a result of a threat by Gaga is erroneous.

6 It is submitted by the Prosecution that the Trial Chamber's

7 assessment is correct. Once it found that the appellant knew that the

8 victim was not consenting of her own free will, it is irrelevant that she

9 did it because of a threat by someone else. It is important to appreciate

10 the schematic approach adopted by the Trial Chamber in its assessment of

11 DB.

12 My learned colleague has already given the learned Trial Chamber

13 the law in relation to rape and the issues of consent. So I would not be

14 getting into that per se, but I would be looking at the whole factual

15 matrix of that particular incident to illustrate that there was, in fact,

16 no consent. And in this regard, I am asking the Tribunal to move from the

17 general to the specific. In other words, we need to appreciate what was

18 going on in Foca at that time, what was going on in Partizan Hall at that

19 time, what was going on in Ulica Osmana Djikica at that time, and then

20 move from that general appreciation of circumstances and then move to

21 specifics in relation to the particular incident involving DB.

22 First, the Trial Chamber rejected the evidence of the appellant

23 that he was confused by the behaviour of DB. They found those

24 circumstances incredible. The Trial Chamber looked at the circumstances

25 to which the victim found herself and of which the appellant was aware,

Page 311

1 specifically that the victim was in captivity, the general context of the

2 existing wartime situation, and the -- specifically to quote then the

3 delicate situation of Muslim girls detained in Partizan or elsewhere in

4 the Foca region during the time.

5 The Trial Chamber further determined whether in those

6 circumstances the appellant knew that the victim was not consenting, and

7 they found beyond a reasonable doubt that Kunarac had sexual intercourse

8 with DB in the full knowledge that she did not freely consent.

9 If I may so succinctly refer to some of the factual elements that

10 they would have considered having rejected his theory that he was

11 confused, he by his own admission indicated - and I refer particularly to

12 DB T-3804 - he said, "I tried to pacify her, to convince her no reason to

13 be frightened." He said, "She did not use any kind of force. I was

14 totally confused. I was even given no manoeuvring space. I had sexual

15 intercourse against my will." A type of twisted inversal of roles, if I

16 may say so myself.

17 When one considered in terms of the actual incident, he mentioned

18 particularly that he was the one, in fact, who advised that she take a

19 shower, but Gaga was the one, in fact, who advised the shower, who gave

20 her, in fact, a long T-shirt and not a summer dress, as indicated in his

21 evidence. But more particularly, the Court also looked at all his

22 previous statements in relation to that incident. They referred to

23 Prosecution Exhibit 67, where he, in fact, made mention of the incident,

24 and he spoke of the incident in -- and he spoke of that particular

25 incident --

Page 312

1 JUDGE JORDA: [Interpretation] Try to summarise the facts better,

2 please.

3 MR. CARMONA: I'm guided. The short and tall of it is that when

4 the Trial Chamber looked at his evidence, they came to the firm conclusion

5 that it was unbelievable. It was incredulous. And one little point that

6 shows up the credibility of DB is that she did indicate that there was a

7 conversation when Gaga came into the room. However, she did admit

8 honestly she was not sure if he heard the conversation in relation to the

9 threat. However, it is important to note that the Trial Chamber did not

10 use that as a basis of its finding.

11 The other oral argument submitted by my learned friend on the

12 other side is that the Trial Chamber erred in its oral submissions in fact

13 by finding that Witness 75 and DB suffered severe mental and physical

14 pain. This argument is premised upon the proposition that unless medical

15 evidence or evidence of the consequences are in fact outlined, it is not

16 open to the Trial Chamber to make such findings.

17 My learned colleague had made mention of Furundzija to indicate

18 very clinically that such a proposition is erroneous in law. Because one

19 would remember, in Aleksovski, who in fact had been charged -- who had, in

20 fact, been charged and who had made submissions with regard to the

21 physical evidence of the physical injury. The Court found, for example,

22 that there was no need for the Prosecution to lead that kind of evidence.

23 I will now move on at this point in time to a situation involving

24 the whole issue of torture, because it does represent an area of law that

25 my learned friend has ascribed a certain degree of concern, and I refer to

Page 313

1 the factual elements.

2 It is noteworthy, however, that in his submissions, absolutely no

3 mention was made of the evidence and the situation at counts 11 to 13

4 involving FWS-183. It is important to note in relation to FWS-183 that

5 that particular incident took place sometime around the middle of July

6 1992. And in that particular incident, without going into the details, it

7 shows certain persecutory elements in terms of the mens rea, in terms of

8 the facts as outlined by the Prosecution vis-a-vis the appellant Kunarac.

9 This is a case where he had, in fact, stormed into a woman's house,

10 together with two other soldiers. In fact, she was brutally raped, she

11 was robbed, and certain derogatory comments about her ethnicity were made,

12 and certainly it took place at the time when Kunarac basically is alleged

13 to have been doing not only this act but other particular acts.

14 I wish now to go on to the allegation made by my friend in

15 relation to paragraph 5.4 of the indictment, and I refer particularly to

16 the witnesses FWS-87, FWS-75, and FWS-50, and DB. My learned colleague on

17 the other side has made allegations concerning these particular

18 witnesses. He refers in his oral arguments to three versions in relation

19 to these particular witnesses. It is pertinent at this point in time to

20 refer to the judgement of the Prosecutor versus Musema, at paragraph 125

21 and 150, the appeal judgement, that said:

22 "Mere allegation that a witness's story is improbable is not an

23 error of law or an error of fact but a submission at trial. As an appeal

24 is not a trial de novo, such an argument does not suffice to sustain a

25 ground of appeal."

Page 314

1 And I'm putting forward the submission that in relation to these

2 four witnesses, it is patent that attempts have been made to make

3 allegations that were in fact made at trial and are simply being

4 regurgitated, with no additional factual or legal matrix being added.

5 Apart from looking in paragraph 5.4 of the indictment vis-a-vis

6 these particular witnesses, the appellant also points to the wrongful

7 evaluation of the evidence of FWS-186 and FWS-191. He argues that the

8 inconsistencies in the evidence is such that the Trial Chamber could not

9 have convicted the appellant for the events as outlined in 5.4.

10 In this regard, it may be appropriate to go into what was the

11 defence of the appellant at this point in time. You would appreciate,

12 Your Honours, that the defence of Kunarac was essentially one of an

13 alibi. He had, in fact, mapped out, in very strong factual terms, where

14 he was, allegedly, between the 7th July to the 21st of July, 1992; between

15 the 23rd of July, 1992 and the 26th of July, 1992; also in relation to the

16 2nd of August, 1992; and also in relation to the 3rd of August, 1992, from

17 5.00 in the afternoon, to the 8th of August, 1992. For those periods of

18 time, he, in fact, led evidence, and he led evidence from other allegedly

19 independent witnesses, people like, for example, from Vaso Blagojevic, and

20 from various other witnesses, in support of that particular time frame.

21 However, it is significant to note that in relation to the 22nd and the

22 night of the 23rd, there was no supporting evidence of his alibi. Apart

23 from that, all the Trial Chamber had in relation to his alibi in relation

24 to the 27th of July to the 1st of August, 1992 was his evidence.

25 Now, it is important to note that at no point in time did the

Page 315












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Page 316

1 Trial Chamber import that there was a requirement on the part of Kunarac

2 to prove his alibi. They recognised, quite clinically - and this

3 recognition was supported by the judgement in Kayishema and Ruzindena

4 appeals judgement - that the onus of establishing facts alleged in the

5 indictment is on the Prosecution. But with regard to the issue of alibi,

6 he bore no onus in establishing his alibi. It is for the Prosecution to

7 establish that despite the evidence of the alibi, the facts alleged in the

8 indictment were nevertheless true.

9 What the Trial Chamber did is that they analysed and showed

10 inadequacies of that particular alibi testimony and his evidence. They

11 were able to look at questions, for example, of the distance of between

12 Previla, between Dragacevo, between the Rogoj Pass and Foca, at the houses

13 where, in fact, it is alleged that these rapes were taking place, and they

14 all found that there was indeed a physical possibility that he could have,

15 in fact, been there in those places.

16 Apart from that, there are even instances - although in fact he's

17 claiming alibi - he was so proximate to the very geographical areas, that

18 one would think that it was a type of quasi-alibi, because essentially

19 what he was saying is non est factum, it is not my deed. What is ironic

20 about his alibi defence is that notwithstanding he had gone to great

21 lengths to establish it, he also destroyed the very alibi by admitting to

22 being in certain places at a certain time, inconsistent with the evidence

23 as gleaned from the record.

24 Apart from that, it is important to note that the conviction of

25 Kunarac was not based on the weakness of his alibi, and it is important to

Page 317

1 note this, because in every system of law, in the common law particularly,

2 it does not necessarily mean - and at the Tribunal - that because a man's

3 defence has been destroyed, you would necessarily find him guilty. And

4 what did the Trial Chamber do? They went back to the Prosecution's case.

5 They looked at the various types of evidence led by the Prosecution. They

6 looked at FWS-75, FWS-87, FWS-50. They looked for supporting evidence.

7 They looked for supporting circumstantial evidence. And they made a

8 clinical finding at the end of the day that those witnesses were indeed

9 credible and speaking the truth, notwithstanding, and obviously arguably,

10 in keeping with the trauma that in fact they went through, notwithstanding

11 all that, that in fact they were consistent with regard to the essence of,

12 in fact, the incidents.

13 What my learned friends on the other side are demanding is a

14 microscopic analysis by the Trial Chamber. In no jurisdiction is a

15 microscopic analysis of the evidence wanted as a basis in evaluating

16 evidence.

17 In that regard, it is important to note that even in relation to

18 the incident involving these four victims, where Kunarac is in fact saying

19 they happened on the 3rd of August, 1992, there is firm evidence from

20 independent witnesses, like FWS-96, that he did come to the Partizan Hall,

21 because, in fact, by that time, on the 2nd, he had heard that they had

22 spoken to Gordana Draskovic, the journalist, about their predicament, and

23 he came -- and this was -- what he said, according to, in fact -- he

24 said -- he came to Partizan, according to FWS-96, and he said, "I want" --

25 he called out those girls who can talk so well.

Page 318

1 It is important to note that it's only when he took those girls

2 out, as a result, obviously, of what they had told the journalist, that

3 they were carried to the Partizan Hall -- rather, they are carried to

4 number 16, Ulica Osmana Djikica 16, where, in fact, they were brutally

5 raped and tortured. One wonders whether there is indeed a significance to

6 be gleaned from the report he heard about his misfeasance coming from

7 those girls, and the subsequent acts that took place, acts of rape and

8 torture.

9 Your Honours, heavy weather was made on the identification of

10 FWS-95 in relation to Kunarac. My learned colleagues yesterday in their

11 general submissions indicated that FWS-95 ought not to be believed by

12 virtue of the description that she gave of Kunarac. The fact of the

13 matter is that Kunarac stood up in court, according to his allegations.

14 But what he fails to recognise is that FWS-95 had in fact given

15 statements, and she explained in the court as to the discrepancies that my

16 friend has relied on as a basis for saying that her evidence ought not to

17 be believed.

18 If I may just succinctly indicate where I'm referring to. It is

19 at T-2329, the evidence of FWS-95. She had this to say. She said,

20 however, in this statement from 96 -- she explained, rather, that -- just

21 a second. During her testimony, she said that the occasion that the

22 investigators asked her about, that they viewed the evidence more

23 generally in the light of the fact that the accused had not been arrested

24 and therefore did not ask about the rapes he committed in detail. In

25 addition, she mentioned she was interviewed for a few days only, but would

Page 319

1 have needed ten days to recount the details. And more importantly, she

2 says -- she explained that due to the fear and stress, she did not

3 remember many details.

4 It borders on the ludicrous when submissions are made that because

5 a witness cannot remember the layout of a room, cannot remember whether,

6 in fact, the accused has a bandage on his hand, that that has to be

7 used -- that is a basis for rejecting her testimony in a situation of

8 multiple rapes and in an environment that is downright coercive.

9 Importantly, though, on the whole issue of identification, again,

10 when one looks at the schematic approach adopted by the Trial Chamber on

11 the issue of identification, again, aptly outlined in the decision on

12 acquittal of the 3rd of July, 2000, it is obvious that whenever they were

13 in doubt or whenever there was certain apprehension about any particular

14 witness, they looked for supporting evidence. And in relation to FWS-95,

15 they found support in the evidence of FWS-105.

16 Your Honours, in relation to the rape vis-a-vis FWS-87 in

17 Karaman's House, my learned colleagues on the other side did not go into

18 that particular matter. And I'm simply adopting all my arguments in my

19 brief. The Prosecution adopts all its arguments in its brief.

20 I have already dealt with, Your Honours, in terms of FWS-183,

21 where in fact they're saying that in fact she was not raped. And again,

22 since my friends on the other side did not raise it as a substantive

23 factual issue, I stand by my arguments in relation -- in my brief.

24 In relation to the whole issue of enslavement, in terms of FWS-191

25 and 186, the Prosecution has already put forward arguments on enslavement,

Page 320

1 have already put forward arguments in terms of the factual indicia

2 relevant to not only -- not only, in fact, Kovac, but also in relation to

3 Kunarac. I dare say -- out of my concern for the exigencies of time, I

4 dare say that I would just simply like to refer the learned Tribunal to

5 the Prosecution's brief, where we mapped out, at paragraph 6.111 to

6 paragraph 6.118, all the factual indicia in relation to Kunarac vis-a-vis

7 rape, and also vis-a-vis enslavement in relation to FWS-191.

8 It is important to note at this juncture, and I wish to

9 re-emphasise, learning in Aleksovski, that good cause must be shown on

10 appeal to justify a re-examination of the factual findings of the Trial

11 Chamber. It is submitted, in relation to enslavement, in relation to the

12 rape charges, in relation to all that has been said before, that the

13 appellant has reventilated rejected arguments at trial and has made no

14 attempt, in the humble estimation in the Prosecution, to demonstrate how

15 and why the Trial Chamber's factual conclusions are erroneous.

16 On this score, you will appreciate, Your Honours, that the

17 Prosecution had put forward arguments on the whole issue of fabrication,

18 and it is the simple submission on this score, notwithstanding that my

19 friends have not adhered to it, or averred to it, rather, on the issue of

20 fabrication vis-a-vis identification. Because what the Prosecution is

21 submitting, that if there are submissions made on identification and those

22 submissions of identification are subsumed under general submissions,

23 saying, for example, that the witnesses have fabricated their entire

24 testimony, that it no longer becomes an issue of identification, but it

25 becomes an issue of credibility.

Page 321

1 Under the circumstances, the Trial Chamber, being, in fact, the

2 arbiters of fact, looking at the demeanour of the various witnesses,

3 notwithstanding what has been said in Kupreskic, can come to a conclusive

4 finding on credibility issues and make a finding that: As much as, in

5 fact, you have queried identification, we think the witness is quite

6 credible and believable, and in fact -- and that that particular fact has

7 been proved beyond a reasonable doubt.

8 Your Honours, in relation to the issue of torture, in terms of the

9 required elements and in terms of the factual elements in proof thereof, I

10 think, in fact, the Prosecution team has, to a large extent, outlined what

11 the law is and have averred to all the factual elements that were there in

12 that particular environment, in the various loci. And to the extent that

13 we have been able to do this, I do not think it will be worthwhile to go

14 through, in a very matter-of-fact way, all the factual elements in

15 relation to torture vis-a-vis Kunarac.

16 I dare say, though, that when one looks at the type of vitriolic

17 language used by the appellant, the derogatory language used by the

18 appellant at various factual incidences, if I may so describe it, it is

19 obvious that apart from the actual suffering and pain, there were, in

20 fact, firm evidence of discrimination.

21 Your Honours, it is the submission of the Prosecution with regard

22 to the substantive arguments on facts, as outlined by my learned

23 colleagues, are baseless, are notorious, that they have not, in fact, put

24 forward any credible arguments to show, for example, that the findings of

25 the Trial Chamber were unreasonable. Because, as has been said time and

Page 322

1 time again by this noble quorum, two judges hearing the same facts can

2 both come to the same reasonable -- same -- a similar -- a dissimilar but

3 reasonable finding of fact.

4 At this point in time, Your Honours, I now wish to go on to the

5 issue of sentencing. It remains, in fact, the last substantive ground of

6 appeal, and I am quite cognoscente of all the arguments of my learned

7 colleagues in relation to cumulative conviction, cumulative

8 sentencing -- cumulative charging, rather, and also in terms of the

9 various jurisprudence as outlined by my colleagues.

10 It is important initially to appreciate the standard of review in

11 relation to sentencing. The errors in the area of sentencing appear to

12 fall into two categories: an error in the substantive law applied by the

13 Trial Chamber and an error arising in the manner of the exercise of

14 judicial discretion by the Trial Chamber.

15 I do not wish to burden this Tribunal by referring to Tadic and by

16 referring to Aleksovski and Furundzija, Serushago, Kambanda, basically

17 that indicate very clinically what the standards are in relation to

18 review, but I think it is quite helpful to simply quote from the Celebici

19 appeal judgement one pertinent paragraph of four lines that illustrates

20 what the test is, and that is that:

21 "The Appeals Chamber will only intervene ..." And I refer, in

22 fact, to Celebici. "The Appeals Chamber will only intervene if it finds

23 that the error was discernible. As long as the Trial Chamber does not

24 venture outside its discretionary framework in imposing sentence, the

25 Appeals Chamber will not intervene."

Page 323

1 My learned colleagues on the other side have argued at length on

2 the whole issue of global sentence as opposed to singular sentences in

3 relation to the various counts, and it is the submission of the

4 Prosecution that they have shown no realisable prejudice under the

5 circumstances that that particular ground ought to be rejected. We have,

6 in fact, outlined our arguments by referring to various cases. And in

7 that regard, we wish to invoke the often -- the mantra, if I may so

8 describe it, of the Tribunal with regard to the need to have a type of

9 desiderata of consistency and predictability, unless, in fact, you can

10 show that, in the interests of justice, there has been a violation of the

11 rights of the appellant.

12 In relation to the issue of the consideration, the Trial Chamber

13 erred in failing to consider the sentencing practices in the former

14 Yugoslavia. What I am referring to here particularly is what I would

15 refer to as some of the consolidated arguments of the appellants. Again,

16 I think, in fact, our arguments with regard to that particular issue has

17 been properly ventilated in our written submissions, and I do not wish to

18 add to those submissions except to say that at the end of the day, the

19 Tribunal has a responsibility to look at the inherent gravity of the

20 offences in determining whether, in fact, there has, in fact, been a

21 discernible error by the Trial Chamber in sentencing.

22 Apart from that, there appears to have been the suggestion by my

23 learned friend on the other side that his client Vukovic got 20 years. I

24 do not know if this is a type of subliminal message that is being put to

25 the Chamber, but obviously there's an error. He got 12 years. So I

Page 324

1 thought I would in fact mention this. It is not 20 years Vukovic got. He

2 got 12.

3 In relation to the issue of substantive law, the Prosecution has

4 submitted, to the point that there appears to have been a lacuna in the

5 particular judgement of the Trial Chamber in terms of crediting time

6 served in custody before trial. Again, we have in fact mapped this out in

7 our arguments at paragraph 8.19.

8 The Prosecution wishes to associate itself with the learning found

9 in the recent judgement of Kupreskic, who in fact have indicated quite

10 clinically, because this seems to be a type of common-thread argument used

11 by the appellants, that since, for example, there are other cases that

12 have in fact been completed by the Tribunal that this particular Tribunal

13 ought to consider the sentencing, and more particularly, the sentencing

14 regime employed by that Tribunal, by that Trial Chamber, in determining

15 whether the particular sentences here are onerous.

16 In Kupreskic, they were quite -- they took umbrage, if I may so

17 describe it, at that particular argument, and it is no different here.

18 Because what in fact the appellants are saying is that yes, you have all

19 the previous cases of Kvocka, cases of murder, you have all these other

20 cases, and the sentence was A and, therefore, here the sentences must be

21 B. It does operate that way.

22 What Kupreskic has said quite clinically is that it is not the

23 responsibility of an Appeal Chamber to go - words to the effect - on a

24 fishing expedition to find arguments in support of that proposition. It

25 is imperative that the appellants who put forward that proposition must

Page 325

1 show the relationship between the facts in that particular case and the

2 facts in this present case, show whether there are similar or dissimilar

3 regimes of analysis, show whether, for example, the aggravating

4 circumstances were different, whether, for example, there were mitigating

5 circumstances. In other words, it is an amorphous exercise to put forward

6 a proposition, a mere proposition that because in fact Kvocka got A, that

7 definitely -- that Vukovic ought to get B. And this has been dealt with

8 in Kupreskic.

9 In relation to the whole issue of substantial cooperation -- and

10 I'm now referring -- if I may now, in fact, address the actual individual

11 grounds of the various appellants.

12 Kunarac, in fact, in terms of his grounds of appeal and sentence

13 spoke of an erroneous consideration of aggravating factors. He said -- he

14 said that since women marry at ages 16 and 17 in that geographic part of

15 the former Yugoslavia, the youth of the victims ought not to have

16 considered an aggravating factor. It is submitted that this argument is

17 fallacious. The Trial Chamber was correct to highlight criminal

18 misfeasance unleashed on the young and correctly concluded it to be an

19 aggravating factor.

20 He mentions also in his oral arguments that as an arbiter of fact,

21 the Trial Chamber is bound to accept the testimony of experts and more so

22 in a case where suffering and harmful consequences are deemed to be

23 apparent. Again, as arbiters of fact, the Trial Chamber is in a position

24 to reject, accept in part or in whole any witness's testimony, and this is

25 delineated in Aleksovski on that score.

Page 326

1 Kunarac also raised arguments. And I'm not simply in fact -- I'm

2 not going to regurgitate my arguments in relation to my brief.

3 Kunarac also made reference to substantial cooperation as a

4 mitigating factor. Again we have outlined what our position is on this,

5 and again we endorse the comments made by Kupreskic in the Kupreskic

6 appeal judgement, that the Trial Chamber is under no obligation to set out

7 in detail each and every factor relied upon, and they ought to be given a

8 certain deference in the exercise of their discretion in terms of

9 determining what would constitute aggravating circumstances and what would

10 constitute mitigating circumstances.

11 In relation -- and it is the submission of the -- apart from that,

12 he also mentions -- Kunarac also mentions the issue of mitigating

13 factors. Again, the Trial Chamber, in our view, in fact acted quite

14 reasonably in -- obviously, they would have considered that as his

15 mitigating factors, and again they do not need to list all these

16 mitigating factors, and if they don't, it is not an error of law or error

17 of fact on that score.

18 In relation to Kunarac, bearing in mind the particular seriousness

19 of the crime under international humanitarian law, and bearing in mind the

20 presence of so many aggravating factors, the Prosecution submits that the

21 sentence of 28 years' imprisonment cannot be regarded disproportionate in

22 relation to the gravity of the criminal conduct of the appellant. The

23 mitigating circumstances proffered by the appellant cannot impeach the

24 exercise of discretion of the Trial Chamber in imposing the sentence that

25 they did.

Page 327

1 In relation to Radomir Kovac's grounds of appeal in relation to

2 sentencing, he says, he submits, that the absence of elements of grave

3 physical and mental torture indicate the absence of aggravating factors.

4 This ground of appeal is without merit. The appellant states that there

5 was no evidence of grave physical or mental torture in the crimes he was

6 convicted for, and, therefore, in the absence of aggravating -- and

7 therefore, it represents an absence of aggregating factors. His assertion

8 that the witnesses could not have suffered grave physical or mental

9 torture as a result of the crimes is specious and unsupported by the

10 totality of the evidence.

11 In relation to his argument that the Trial Chamber erred in

12 imposing a 20-year term, again he has not shown any discernible error in

13 the exercise of the discretion of the particular Trial Chamber. Bravely I

14 may say that the gravity of the very serious offences he was convicted of

15 reflects, apart from the very acts constituting the crimes, the abhorrent,

16 sadistic, and depraved manner in which these crimes were executed. The

17 correct -- the Trial Chamber was correct to conclude that the appellant's

18 conduct merits serious punishment.

19 The appellant implicitly is requesting the Appeals Chamber to

20 undertake a de novo determination of sentence. The Trial Chamber took

21 into account all relevant sentencing factors as they did in Kunarac,

22 listed in the Statute and Rules, and imposed what it believes to be a

23 sentence befitting the crimes that the appellant was convicted of. Apart

24 from the mere proposition that the 20 years is excessive, he has proffered

25 no decertainable error as a basis -- as a basis of his argument.

Page 328

1 In relation to the issue that the Trial Chamber considered

2 aggravating factors wrongfully, again we have in fact mapped this out in

3 our written brief, and we would not wish to further regurgitate those

4 propositions. It is important, however, to note that the Trial Chamber

5 correctly noted that in the context of what would constitute retribution

6 vis-a-vis sentence, that it was meant to express the outrage of the

7 International Community at these crimes.

8 And finally, it is the submission in relation to Kovac that there

9 was no relevant mitigating circumstances to be considered by the Trial

10 Chamber, and one cannot fault the Trial Chamber on any aspect of

11 reasonableness or in the exercise of their discretion.

12 In relation to Vukovic, again he has submitted arguments in

13 relation to single sentence. We have already dealt with this. He has

14 also indicated that the Trial Chamber erred as it was obligated to follow

15 the sentencing practices in the former Yugoslavia. We dealt with this

16 both orally and in our submissions.

17 In relation to the question of aggravating circumstances, he

18 asserts that the Trial Chamber erred in two respects: that the age of the

19 victim was not an aggravating factor, and erred in considering that FWS-50

20 was a particularly vulnerable and defenseless girl. It is submitted that

21 the Trial Chamber did not err in finding on the facts of this case that

22 she was indeed a vulnerable and defenseless girl.

23 Apart from that, he has indicated that the Trial Chamber erred in

24 its consideration of mitigating factors. As I have outlined -- as the

25 Prosecution has outlined previously, there is no rule of thumb that a

Page 329

1 Trial Chamber ought to express verbatim what mitigating factors must be

2 considered or what factored in their assessment essentially of determining

3 what sentence to inflict on the particular appellant.

4 It is the submission and it is the global submission of the

5 Prosecution that the particular sentences that a Trial Chamber imposed on

6 all the appellants were in keeping with the intrinsic and inherent gravity

7 of the offences. When one looks at the circumstances of this case, when

8 at times one looks at almost the factual surrealism and the circumstances

9 that these victims endured, one can well appreciate that there was a need

10 for a statement to be made by the Trial Chamber in the context of crimes

11 of this ilk. In passing, you may even say that when one looks at -- at --

12 just a second, Your Honours.

13 [Prosecution counsel confer]

14 MR. CARMONA: When one looks even, to use a modicum of analysis,

15 which I'm not necessarily employing, with regard to Furundzija, that he

16 quoted that Furundzija got ten years, that Furundzija was found guilty of

17 aiding and abetting rape and torture. He was not found guilty of being a

18 perpetrator. So at the end of the day, Your Honours, it is the submission

19 of the Prosecution that the appeal of Kunarac should be dismissed and that

20 in fact that the decision of the Trial Chamber ought to be confirmed

21 consistent with the various tests that we have outlined previously in the

22 context of law and facts.

23 Without more, these are the submissions that the Prosecution

24 intends to make on the relevant issues. Thank you.

25 JUDGE JORDA: [Interpretation] I thank you. Judge Meron.

Page 330

1 JUDGE MERON: Thank you very much for your very interesting

2 statement. You have reverted a few minutes ago to the question of

3 standards of review which you have mentioned briefly in your first

4 statement, but you reverted to it in the context of

5 sentencing. Of course, the question is much broader.

6 When you discussed standards of review with regard to questions of

7 fact on Tuesday, you explained that the standard was whether a reasonable

8 trier of facts could have made a certain finding.

9 With regard to questions of law, paragraph 2.9 of the

10 Prosecution's consolidated respondent's brief refers to the standard of

11 discretion or abuse of discretion. You wrote: "When an appellant alleges

12 that the Trial Chamber erred in law, in the exercise of its discretion, it

13 is a matter for the Trial Chamber how that discretion is to be exercised

14 so you appear to support an abuse of discretion standard. Now, could you

15 please clarify this a little bit more for the Bench? For example, your

16 three learned co-counsel discussed the question of definitions of crimes.

17 Would this approach based on abuse of discretion apply also to definitions

18 of crimes? Thank you very much, Mr. Carmona.

19 MR. CARMONA: I'm saying that if in fact the issue is a factual

20 issue, it is only then, for example, the issue of abuse of discretion

21 arise. In relation to an error of substantive law, the burden will be

22 more in the light of persuasion than proof, than proof.

23 JUDGE MERON: I understand this seems to be different from what

24 you stated in your briefs, -- where you discussed abuse of discretion

25 in the context of findings of law. But I understand. Thank you very

Page 331












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Page 332

1 much.

2 MR. CARMONA: I'm much obliged.

3 JUDGE JORDA: [Interpretation] Thank you, Judge Meron. I turn to

4 my colleagues. There are no further questions.

5 It's twenty to 1.00. We're going to take a 20-minute break before

6 we give Defence counsel an opportunity to provide the final reply.

7 --- Recess taken at 12.40 p.m.

8 --- On resuming at 1.05 p.m.

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

10 Have the accused brought in, please.

11 Before giving the floor to the Defence, I believe that the

12 Prosecutor wanted to provide a very brief response.

13 MR. CARMONA: I do crave the indulgence of this Chamber. In

14 relation to the question that was asked by Judge Meron, I just wish to

15 clarify something that -- in our appeal brief, we may not have been as

16 full in our explanations. But to the extent that you are referring to

17 errors of law in connection to abuse of discretion, I just wish to clarify

18 that an error in the substantive law applied by the Trial Chamber that it

19 would require a full de novo hearing, because especially in relation to

20 definition of the elements of an offence.

21 At the second limb is an error arising in the manner of the

22 exercise of a judicial discretion by the Trial Chamber such as a refusal

23 to grant an adjournment to allow sitting evidence to go into evidence,

24 that type of thing. So I thought I would just clarify that particular

25 area. I'm much obliged.

Page 333

1 JUDGE MERON: Thank you. Thank you, Mr. Carmona.

2 JUDGE JORDA: [Interpretation] Thank you, Mr. Carmona. It's ten

3 after 1.00. I think four Defence counsel are on the list.

4 All right. The floor is yours, Mr. Prodanovic.

5 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour. Today

6 and yesterday, I listened very carefully to the presentations of my

7 colleagues from the Prosecution, and I can say that many of their

8 arguments cannot be substantiated, and I will point only some of them.

9 Our distinguished colleague Rashid said today that Kunarac held

10 Witness 191 and 186 until 186 escaped with somebody else's assistance.

11 This argument is not valid, cannot be supported at all.

12 Yesterday when I spoke about enslavement, I said that the house in

13 which 186 and 191 stayed was the property of DP6. During the trial, it

14 was established that Kunarac would occasionally come for a visit to that

15 house. It was established without any doubt that the witnesses had a key

16 to that house, that in September, Kunarac obtained a travel pass for them

17 to be able to leave the territory of Foca freely. So why would they --

18 why would they have a reason, have a wish to escape? They had complete

19 freedom. So this is something that is not disputed.

20 When Kunarac stopped coming to that house, he had no further

21 contact with 186. So she was able to leave on her free will, whereas

22 Witness 191 got married. She married a Serb soldier.

23 Today when my learned colleague Brady spoke about torture, I think

24 that it was inappropriate to compare Kolundzija to Kunarac case. In the

25 other case, the act was very clearly individualised, and the perpetrator

Page 334

1 took -- committed the act in order to obtain information, some kind of

2 information. That is completely clear. And we stated that in our case,

3 none of the acts that are supposed to fall within the scope of torture

4 were specified.

5 When we are talking about testimonies, I do agree with my

6 colleagues from the Prosecution that some of the witnesses did not

7 remember all of the details. They could not recall them. That is not a

8 question that we dispute here. However, what we find strange is that the

9 Witness 85, when giving a statement in 1993, listed a number of people who

10 had raped her, but she never mentioned Kunarac as the one raping her.

11 However, in 1996, this witness gave another statement, but on that

12 occasion, she remembered Kunarac as somebody who had led a group from

13 Montenegro, and even on that second occasion, she did not point to Kunarac

14 as a person who had raped her. So it was not a question of memory. She

15 did remember who Kunarac was. And if she did remember him as an important

16 person, then why wouldn't she mention him as a person who had raped her as

17 she has mentioned other people -- other persons that had raped her?

18 And the same applies to Witness 87. She gave two statements

19 without mentioning Kunarac in them at all. However, when Kunarac

20 surrendered and came here to the Tribunal, he gave a very detailed

21 interview. He spoke to the employees of the OTP, and on that occasion he

22 mentioned coming to Karaman's house on one occasion. And after that, this

23 detail was probably mentioned to the witness, and the witness was asked,

24 you know, "Kunarac stated, `Come into Karaman's house.' Did he rape

25 you?" And then the witness probably replied, "Yes, he did." And only

Page 335

1 after that did this witness in fact accuse Kunarac of raping her.

2 I -- as far as the witness 183 is concerned, I did not bring this

3 witness up, because I ran out of time, and I did not want to repeat

4 something that was already contained in my brief. I naturally made a

5 selection of what I was going to discuss in my oral argument. So it

6 wasn't that I had nothing to say regarding this. But the Witness 183 --

7 JUDGE JORDA: [Interpretation] I'm very satisfied that you're

8 clarifying that point. When you have temporal constraints, it's because

9 the Judges have the feeling that you have had an exchange of -- with --

10 have had certain exchanges.

11 What I simply wanted to say was I am satisfied that you provided

12 us with that clarification. I'm also saying it to the representative of

13 the Prosecution. Thank you very much. Please continue.

14 MR. PRODANOVIC: [Interpretation] I will complete my presentation

15 very briefly, Your Honour.

16 When speaking about sentences, my learned colleagues said that the

17 International Community was horrified, horrified by these events involving

18 rapes. However, the International Community fabricated lies for many

19 years, telling that there were multiple rapes committed in that area.

20 Your Honours, I would like to remind you that an expert witness

21 was scheduled to come and talk about this issue; however, when the Defence

22 counsel noticed that this expert witness did not directly talk to any of

23 the victims but in fact compiled the report based on newspaper articles

24 and when Defence objected to this, the Trial Chamber did not allow this

25 expert witness to come and appear here.

Page 336

1 And if we look at the -- if we look at the decision of the

2 cantonal court in Sarajevo which was issued on the 24th of October, 2001

3 pertaining to Dragan Stankovic, we'll see that this individual was

4 sentenced to 10 years in prison for a rape that was considered to be a war

5 crime.

6 This is what I had to say, Your Honour. In all other issues, I

7 adhere to what had been stated in my brief. Thank you.

8 JUDGE JORDA: [Interpretation] Thank you, Mr. Prodanovic. And I

9 once again reiterate it isn't because we are giving you time constraints.

10 This is just so you will be more succinct and to draw the attention of the

11 Judges to those points which you consider to be most important.

12 Everything, of course, will be in your submissions that are written, and

13 these will be read and analysed by the Judges. Thank you,

14 Mr. Prodanovic.

15 I don't know who wants to take the floor now. Which Defence

16 counsel will take the floor?

17 Mr. Kolesar?

18 MR. KOLESAR: [Interpretation] Your Honour, I will also be very

19 brief, I think. I have no intention to return fire to the Prosecution,

20 but I do have to say that during the presentation of my learned friends on

21 several occasions - and I'm sure this was unintentional - they put forward

22 things that cannot be upheld. The first of these statements refers to the

23 issue of an armed conflict.

24 I will remind you that there were stipulations made by the

25 Prosecution and the Defence, and one of the facts that was agreed on was

Page 337

1 that there was an armed conflict on the territory of the municipality of

2 Foca between two ethnic groups, Serbs and Muslims, and from the map which

3 can be found in the judgement, it can be seen that the municipality of

4 Foca borders on five other municipalities.

5 We still maintain that if one fact was agreed on by both sides, we

6 have to stick to what was agreed. We cannot say that this can also be

7 stretched to cover the neighbouring municipalities of Gacko and

8 Kalinovik.

9 The second point that was raised today was that I said in my

10 presentation that the time needed for enslavement to exist has to be

11 unlimited, that it has to be indefinite enslavement. This is not

12 correct. What I said was that the time of ownership of a person against

13 whom sexual offences are committed should be either permanent or

14 long-term.

15 It is true that in reply to Judge Mumba's question, I said it

16 could not be less than five months but should be more and that the other

17 requirements for enslavement to be established as a criminal offence also

18 have to exist. Yesterday, to the question of Judge Shahabuddeen, I

19 replied that this period could be eleven months, referring to the

20 judgement of the Japanese court, which tried a person who held somebody

21 captive for 11 months. I never said that I held the view that it had to

22 be indefinite, but either indefinite or long-term.

23 With respect to Articles 3 and 5 and their application to the

24 offence of rape, which refers to Kovac, the Defence still maintains that

25 Kovac did not commit the crime he was charged with. But regardless of

Page 338

1 this, we fail to see what the difference is in the Prosecution's

2 submission today that justifies the application of both Articles 3 and 5.

3 International law has established the elements that have to be fulfilled

4 for this crime to exist, and these are identical elements and the only

5 elements. The conduct is the same. It's one single action. So there is

6 nothing, in the Defence's submission, to show that this does not refer to

7 the same conduct.

8 What I heard today in relation to enslavement leads me to conclude

9 that, at least according to the submission of the Prosecution, in Kovac's

10 case, the enslavement was for the purpose of sexual exploitation and it

11 ended the moment the girls left his flat, so that this kind of enslavement

12 was not transmuted into other form of enslavement. And if the crime was

13 committed - and we say it wasn't - then it would subsume rape, and he

14 could be found guilty only of enslavement.

15 Furthermore, the appellant never claimed that the girls' dancing

16 was an outrage upon personal dignity. When analysing this event in our

17 appeal, we pointed out that the Trial Chamber erred in not paying

18 sufficient attention and providing sufficient grounds for not believing

19 Defence witnesses. We also provided an analysis of the witness in our

20 closing argument on the 20th of November, 2000. The Defence is well aware

21 of the role and the powers of the Appeals Chamber, and it was not our

22 intention, nor did we ever say or write anything to this effect -- we do

23 not want -- we are not asking the Appeals Chamber now to believe other

24 witnesses that the Trial Chamber did not believe. What we are saying is

25 that the facts have not been correctly and fully established to an extent

Page 339

1 that would enable a judgement to be reached beyond a reasonable doubt, and

2 if, for justifiable reasons, the Appeals Chamber should find this to be

3 so, it should order a retrial.

4 As for the penalty, the judgement states that the behaviour of the

5 accused Kovac was sadistic, and other words are also used to describe it.

6 The Trial Chamber never commented or explained what the sadistic behaviour

7 consisted of. All this is in the written submission, so I will not

8 enlarge upon it.

9 At the end of his presentation, my learned friend mentioned the

10 Furundzija case. Furundzija was found guilty of torture and rape, but he

11 was responsible only for aiding and abetting. However, this involved a

12 large number of soldiers, on which occasion Mr. Furundzija was also held

13 responsible under command responsibility.

14 Your Honours, that was all I had to say, and I wish to thank you

15 for your patience and your understanding.

16 JUDGE JORDA: [Interpretation] Thank you very much, Mr. Kolesar.

17 Mr. Jovanovic, for Mr. Vukovic.

18 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I will

19 speak very briefly about factual issues raised by my learned colleagues

20 from the Prosecution, and prior to that, I believe I owe an explanation to

21 the Appeals Chamber. It is true that the transcript reflected the figure

22 "20," as 20 years' punishment, but I have to say that I did not use the

23 word "twenty." I mean, it is possible that it was a lapsus linguae, that

24 I said, by omission, "20 years of imprisonment," and it was just a simple

25 error on my behalf. I did not mean to imply that Zoran Vukovic was

Page 340

1 sentenced -- received a lenient sentence.

2 JUDGE JORDA: [Interpretation] The Judges are absolutely persuaded

3 that you know how many years in prison your client was convicted to. You

4 may continue.

5 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

6 I followed very carefully the presentation of my learned colleague

7 from the OTP, who spoke about factual issues which I had raised

8 yesterday. She also spoke about the errors made when establishing such

9 factual issues.

10 As I see it, the concept is as follows: The accused is guilty of

11 everything. Everybody mentioning of the accused in a negative context

12 imposes an obligation on Defence to refute such allegations. If the

13 Defence fails to do so, then this will be held as something that was

14 properly established and will be used against the accused. What I want to

15 know is how many times can a witness mention the accused in a negative

16 context? Once, twice, a million times? I know that this would greatly

17 help the Prosecution's case; however, I'm afraid that this is not in

18 accordance with the principles of justice and of logic. This is what I

19 had to say as far as the manner of establishing the facts is concerned,

20 and here I mean the attack against civilian population, and so on and so

21 on.

22 The other essential part of the judgement which pertains to

23 Mr. Vukovic is paragraph 7.11. So what is the Prosecution telling us?

24 The testimony of the witness is a beautiful testimony. It is full of

25 details. And the witness referred to a sentence allegedly uttered by

Page 341

1 Mr. Vukovic, which we had an occasion to hear many, many times, and it

2 pertains to the age of the witness and Mr. Vukovic's daughter, and this is

3 used as a main factor to support the veracity of this witness's

4 statement. And we are disregarding everything else. We are disregarding

5 the testimony of the witness's mother, Witness 51. We also are forgetting

6 that the following witness, Witness 87, did not support, did not

7 corroborate, this previous testimony. And I would like to draw your

8 attention to the fact that the testimony of this witness, Witness 50, is

9 full of details, and I think that the manner which was adopted here was

10 not the proper manner to reach truth.

11 The Prosecution also gave their own vision of reasons why

12 Witness 87 did not corroborate this alleged incident. The Prosecution did

13 not mention anything about the mother's statement, the statement of

14 Witness 51. The Prosecution claimed that Witness 87 did not remember this

15 incident, and we need to raise a very logical question now: How is it

16 that the Prosecution knows that Witness 87 did not remember this

17 incident? This is a very complex issue, why a witness remembers this

18 incident, does not remember the other incident, and so on, and I think

19 that there is a very simple answer to this very complex question. The

20 witness does not remember this happening, because this never actually

21 happened. If the witness remembered, then that would constitute a

22 perjury.

23 Your Honours, distinguished members of the Appeals Chamber, I

24 remain by everything else that has been stated by the Defence for

25 Mr. Vukovic, and this concludes my presentation.

Page 342

1 JUDGE JORDA: [Interpretation] I turn to my colleagues. I see they

2 have no specific questions to put to counsel. I believe that is the end

3 of the -- oh, yes. One more counsel. Excuse me.

4 Please proceed. Whom are you speaking for?

5 MR. SAVATIC: [Interpretation] In general terms. I'm speaking in

6 general, about the general issue of cumulative convictions. I have two

7 comments -- actually, a comment, and then additional information.

8 As regards my comment, it was asserted today by my learned friends

9 that the Defence presentation in respect of the cumulative convictions

10 relied only on the application of the principle of lex consumens derogat

11 legi consumptae. This is only partially true, because emphasising the

12 application of this principle was particularly placed in respect of the

13 cumulative convictions inter-article. As regards the inter-article

14 issues, that is, application -- the cumulative application of Article 3

15 and Article 5, in respect of the same criminal conduct, we also based our

16 arguments on the principle lex specialis derogat generalis, that is, that

17 specific laws, particular laws, must take precedence over a provision

18 which is set out as an example in the case. Article 5, which defines

19 expressly -- expressly covers the offences of rape, torture, and

20 enslavement. And that, in our opinion, by this very principle, must take

21 precedence over Article 3, which is only given as an example. This

22 appeared to us to be a clear handicap the first day of these hearings, but

23 we wanted to recall this principle, because I think it is appropriate. I

24 see that from the point of view of the Prosecution, it was important to

25 reduce that argument to a simple principle, or maybe two, as regards the

Page 343

1 inter-article convictions.

2 An additional piece of information I'd like to provide: The

3 Tribunal has subsidiarily raised the issue of applicable law in the

4 territory of the former Yugoslavia. In the case that there would be

5 several offences, the question was asked of the Prosecution - and we

6 believe that the response was really lacking only in respect of this

7 factual point - assuming that several offences were to be used pursuant to

8 the laws of the former Yugoslavia against a single accused, the Tribunal

9 passed a sentence for each distinct offence, and in the end, after having

10 pronounced the sentence for each distinct offence, a single penalty was

11 handed down, which would necessarily be harsher than the harshest of the

12 penalties individually listed in that system. The accused had two

13 guarantees. The first would be that he, by necessity, could see which

14 sentence was being pronounced for each offence; and, in the second place,

15 that the punishment was not pronounced successively, there was no adding

16 up of the penalties, but that a single sentence, a global one, was set,

17 and that that was not the result of an addition of the distinct penalties.

18 That's the additional information in respect of facts I wanted to

19 give you, and I hope that it will answer the questions that were asked

20 today, and I thank you very much.

21 JUDGE JORDA: [Interpretation] Very well. I believe -- thank you.

22 Thank you, Mr. Savatic. I think that the reply is finished for the

23 Defence.

24 The Judges in this Chamber wish to hear for the last time several

25 of each -- any of the comments that each of the accused would like to

Page 344

1 make. We can give four or five minutes to each accused, if the accused

2 wish to do so. So I first now turn to the accused, and we'll start with

3 Mr. Kunarac.

4 Do you have a statement you would like to make in your own

5 defence? Short, of course. Did you hear me?

6 THE INTERPRETER: Microphone, please.

7 JUDGE JORDA: [Interpretation] Turn the microphone on, please.

8 THE INTERPRETER: Is that better?

9 JUDGE JORDA: [Interpretation] Can the interpreters hear?


11 THE APPELLANT KUNARAC: [Interpretation] I do wish to address the

12 Chamber and to point out only two things that the Trial Chamber did not

13 take into account and that were not mentioned. First, I wish to point out

14 that I learnt of the indictment that was issued and was able to read it,

15 and the same day I was willing to appear before the Court. I believed

16 then, and I still believe, that it is a court that wishes to discover the

17 truth and to issue judgements based on the truth.

18 I had health problems, which I still have, and when these problems

19 were solved, I came to face the Tribunal. I wished to talk to the

20 Prosecutor and tell him the truth about the indictment and tell him what I

21 pleaded guilty to, and I did say when I first appeared before the Chamber

22 that I felt myself to be guilty in part, according to some of the counts

23 in the indictment.

24 When I talked to the Prosecution in my first interview, the

25 Prosecutor said this could not be accepted as an offence or a crime, and

Page 345

1 my statement about guilt was rejected. The Chamber then altered my plea

2 and said that I had pleaded not guilty. That was the first interview I

3 gave, when I had seen no evidence, apart from the indictment itself, and

4 then I accused myself of what was true.

5 I therefore appeal to you to look at that first interview, which I

6 made three days after I arrived in the Detention Unit, where I explained

7 everything that had happened. That was on the 3rd of August, 1992, where

8 I explained what happened with Witness DB, what the circumstances had

9 been, what my intentions and wishes had been, and how this event

10 occurred. In that interview, I explained clearly that my decision to come

11 to this Tribunal was prompted by a wish to apologise to that witness and

12 to ask for forgiveness because of what had happened. And from the moment

13 I learnt about Gaga's threat, which with I had not been aware of at the

14 time the event occurred, I have been plagued by remorse because of what

15 happened, and I am still plagued by remorse, and I wish to apologise to

16 Witness DB publicly, before the whole world.

17 As for the other witnesses who have accused me of raping them

18 here, I say that I had never seen Witness 50 or 183, nor 95, or any of

19 them, before they entered this courtroom, and what I said about Witnesses

20 191 and 186 I still maintain is the truth, and that's what I said in my

21 interview.

22 I am not asking to be forgiven or what I am guilty of, and I do

23 wish to be justly sentenced for what I have done, but I cannot accept

24 guilt or plead guilty to something I have not done. I truly hope that

25 this is an institution whose aim is to arrive at the truth, an institution

Page 346

1 that cares about the truth, an institution whose goal it is to punish

2 perpetrators for what they have done. Thank you, Your Honours, and I hope

3 that you understand my message.

4 JUDGE JORDA: [Interpretation] Thank you. You may be seated. Let

5 me turn to Mr. Kovac. Mr. Kunarac may be seated.

6 Mr. Kovac.

7 THE APPELLANT KOVAC: [Interpretation] Your Honours, I have only a

8 few sentences to say. I entirely agree with my Defence counsel. I am not

9 a very learned person as far as law is concerned, so I am not going to go

10 into any legal matters. And to tell you the truth, I didn't understand

11 much of the legal issues discussed here. But I did read the indictment

12 and the judgement, and what I, as a layperson, do not understand is that a

13 lot of these things that allegedly took place in Foca are attributed to us

14 ordinary soldiers. That is one thing I want to say.

15 The other thing is that we heard some 60 to 70 witnesses here, the

16 Prosecution and the Defence witnesses, and what I can observe is that

17 generally, only the witnesses for the Prosecution were held to be

18 reliable, and not those that testified for the Defence.

19 That is all I had to say. And I would like to ask this

20 distinguished Tribunal to make its decision in accordance with justice.

21 Thank you.

22 JUDGE JORDA: [Interpretation] Thank you. You may be seated.

23 Mr. Vukovic.

24 THE APPELLANT VUKOVIC: [Interpretation] Thank you, Your Honour. I

25 will be very brief as well.

Page 347












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Page 348

1 What I would like to say first is that the Trial Chamber found me

2 guilty, although I am entirely innocent. I was not the one about whom

3 much was said during this trial, and I think that this is something that

4 the Prosecution counsel will confirm as well. My soul is entirely clean,

5 both before this Tribunal and before God. That is all I had to say.

6 Thank you.

7 JUDGE JORDA: [Interpretation] Very well. This is the end of the

8 appeals hearings of the International Criminal Tribunal for the former

9 Yugoslavia. The Court stands adjourned.

10 --- Whereupon the hearing adjourned at 1.43 p.m.