Page 12555

 1                          Wednesday, 18 July 2001

 2                          [Radic Defence Closing Statement]

 3                          [Open session]

 4                          --- Upon commencing at 9.25 a.m.

 5                          [The accused entered court]

 6            JUDGE RODRIGUES: [Interpretation] Good morning.  Please be

 7    seated.  Good morning, ladies and gentlemen, to the technical booth, the

 8    interpreters, Registry staff, counsel for the Prosecution and counsel for

 9    the Defence.  We are here today to continue our proceedings, and today, it

10    is the turn of Defence counsel for Mr. Radic.

11            So, Mr. Fila, you have the floor for your closing arguments.

12            MR. FILA: [Interpretation] Mr. President, Your Honours, Judges of

13    this Tribunal, before I begin with my closing arguments, I should like to

14    point out that I feel pleased that we have come to the end of a major

15    undertaking relatively quickly, in view of the fact that the proceedings

16    started on the 22nd of February last year.  And I think that we would have

17    been even more efficient if it had not been for the changes that occurred

18    and the subsequent arrest of Mr. Prcac which slowed the proceedings down.

19            I think that the merit for such good quality work lies primarily

20    in the efficiency and quality of Your Honours, the Trial Chamber, my

21    learned friends of the Prosecution.  And for my part, I apologise if, in

22    any way, I have slowed down proceedings, and I particularly apologise to

23    the interpreters if I have caused them any problems.

24            I wish to say that one has to bear in mind that the accused, too,

25    have contributed to speeding up these proceedings.  As regards Mladjo

Page 12556

 1    Radic, who I am representing, it should be borne in mind that he did

 2    cooperate with the investigators of the Tribunal; that he voluntarily

 3    agreed to testify; that he authorised me to agree to many adjudicated

 4    facts and to many other points that had been proposed by Prosecutor,

 5    Mr. Niemann.

 6            All this was designed to achieve greater understanding on the part

 7    of the Trial Chamber and the Prosecution, because at least one of the

 8    messages of this Tribunal was that those who cooperate with the Tribunal

 9    can count on a more favourable position than those who refuse to do so.

10            If I may, I would now address my closing arguments proper.

11            As you know, the final brief, which the Defence for Mr. Radic has

12    filed, consists of 200 pages and embraces all the submissions I have made

13    ever since the beginning of this trial.  To repeat all this would be to

14    insult the Trial Chamber, because the Trial Chamber understands very well

15    what I have said.  What I do wish to address will be linked more to the

16    closing arguments of the Prosecution than my closing brief.

17            As we all know, Article 1 of the Statute defines the jurisdiction

18    of this Tribunal, and it is to criminally prosecute persons responsible

19    for serious violations of international humanitarian law.  I underline the

20    word "serious."  In the report of the United Nations Secretary-General,

21    Omarska holds a prominent place when it came to the decision to form an ad

22    hoc tribunal for the former Yugoslavia.

23            Regarding the stipulations that we have made and the cooperation

24    with the Prosecution in general, one thing is quite clear, and that is

25    that Omarska and what happened in the investigations centre at Omarska

Page 12557

 1    does constitute a serious violation of international humanitarian law, and

 2    there is no doubt about that whatsoever.  That is evident also from the

 3    stipulations that we have made.

 4            What is disputed is the role of Mladjo Radic, also known as Krkan,

 5    in the events at Omarska and which, as I have said, does come under the

 6    competence of the International Tribunal, pursuant to Article 1.  In other

 7    words, the question is whether any of the acts of Mladjo Radic can be

 8    considered to be serious violations of international humanitarian law.  Is

 9    he liable, according to the provisions of Article 7(1) through (5), for

10    everything that occurred in Omarska?

11            I think, however, it is worth mentioning something of great

12    importance for this Tribunal in traditional law which we are all

13    professionals in, the trial -- the Court has a twofold role to establish a

14    crime and to punish him.  First, as reprisal for what he did and also

15    general deterrence, that is, to deter others from committing such a crime

16    again.  Those are the two aims of punishment.

17            However, this Tribunal has a third function which makes it

18    especially responsible, and that is the creation of international law,

19    something that Your Honour, the President of this Trial Chamber has

20    insisted upon as has the first President of this Tribunal, Mr. Cassese.

21            The result of the work of this Tribunal and the work of the

22    Tribunal in Rwanda, if possible, will provide a basis for the future

23    permanent criminal tribunal.  If we err, both you and the Prosecution and

24    ourselves, this will be a historical error, not an ordinary error of any

25    local court.

Page 12558

 1            I'm saying this because it is my opinion that we have to be very,

 2    very cautious.  We have a saying that you have to cut a hair into four, so

 3    subtle the rulings of this Trial Chamber.  So the point I wish to make is

 4    that we have to quadruple our attention when a decision a made by this

 5    Tribunal because we have no right to make a mistake.  Regular courts in

 6    national jurisdictions have this right.  This Tribunal does not have such

 7    a possibility.  A legal error made by this Tribunal would have permanent

 8    consequences, and this is something that must make us extremely cautious.

 9            Finally, I -- towards the end, I will also comment on the

10    vocabulary that has been used with this particular point in mind, but I

11    will come to that point later.  So as I was saying, the competence of this

12    Tribunal is not debatable for the events in Omarska because what happened

13    there is certainly a serious violation of humanitarian law.  It is also

14    undisputed that the persons facing this trial are members of the lowest

15    level of the hierarchy in Omarska.

16            There was no one in rank below Mladjo Radic.  He was an ordinary

17    policeman.  Whether he was or not shift leader de facto, we will come to

18    that later, but it is a fact that he was an ordinary policeman as were

19    Kvocka and the others, but that is another matter.  I'm underlining this

20    because, as opposed to the situation in 1993, and 1995, and 1998, we have

21    the chain of responsibility for the centres such as Omarska, Trnopolje,

22    Keraterm and so on.  So we can clearly identify the chain of command which

23    went from the lowest level upwards to Drljaca, and part of the security of

24    the camp were -- are the defendants here in this courtroom.

25            When the Prosecutor spoke about Omarska, she said something that I

Page 12559

 1    absolutely disagree with, and Mr. Simic also commented on this.  She said

 2    the Serbs established the Omarska camp.  According to Article 6 of the

 3    same Statute, your competence is limited to natural persons, and Article 7

 4    indicates when those natural persons are responsible.

 5            It's not right to say the Serbs did that because we're all Serbs.

 6    We are Serbs.  There are Serbs in Belgrade.  There are Serbs in America

 7    and Canada.  It's not quite right to say that we all did that.

 8            It is clearly known who, in the chain of command, did this and

 9    Ms. Somers could have done that and she could have even charged somebody

10    who has still not been charged.  One thing is undisputed, that this was

11    not done by all the Serbs, and what is particularly important for us who

12    are in these proceedings now is that this was not done by these four [as

13    interpreted] defendants.

14            If we were to review the indictment, we will see that at the

15    beginning, they were charged with the conditions, organisations,

16    establishment, and all other things regarding the camp.  In the past

17    period, many of those charges have been dropped, at least that they have

18    nothing to do with the formation of the investigation centre, as it is

19    officially known.  What is hidden behind that name we all know, you can

20    call it a concentration camp or what you will.  But one thing is quite

21    certain, they did not make it up.  They did not form it.

22            From the Prosecution evidence presented, it can be seen that food

23    was not prepared in the camp.  It was brought to the centre.  Other people

24    were responsible for preparing the food.  The quality and quantity of the

25    food was not under control of the security service of the camp or the

Page 12560

 1    investigation centre, rather.

 2            Another half of the indictment discusses what they did to improve

 3    things.  We'll come to that.  But they were not directly responsible for

 4    the quantity and quality of the food.

 5            As regards water, if the Prosecution had made an effort ever since

 6    1993 to this day, they could have checked the quality of the water, and

 7    they would have come to the same conclusion that I came to that that water

 8    was checked before the events in Omarska, during the time of the centre,

 9    and today, and that the water is the same today as it was then.  It is not

10    technical water.  It is normal tap water.  Whether it was of high or

11    medium quality, that is another matter.  So the accused also had no

12    responsibility regarding the water.

13            As for accommodation, it is a fact that such a large number of

14    people in such small quarters is far from humane, it's atrocious, but we

15    have to see whether these people are responsible for this.  Did any one of

16    them, for instance, Mladjo Radic, say, "Put a thousand people in this

17    building," or did someone else decide about that.  So as I am saying, you

18    are trying the people of the lowest rank.

19            I'm referring, again, to the indictment where it says that Mladjo

20    Radic was responsible when there were no investigators, no visitors, and

21    two other superiors above him.  If we assume that he was shift leader when

22    the commander wasn't there, and his deputy was not there.  So you see how

23    many levels we find in the indictment to establish his own liability.  So

24    the indictment itself limits that liability.  That brings me to the point

25    that these three points were in no way influenced by any of the accused,

Page 12561

 1    that is, food, water, and accommodation.

 2            Health care, again, is not part of their responsibility.  There

 3    was some kind of health care.  There was no medication in Prijedor itself,

 4    not just in the centre.  And, again, what formal and legal role did they

 5    have in that?  None.

 6            There was the centre management, Simo Drljaca and it is not a

 7    matter of us shifting the blame to him.  We are just referring to what he,

 8    himself, said.  In the film, he said he was the centre commander, and in

 9    the order on the establishment of the centre we see his signature.  So

10    this is part of the evidence presented in these proceedings.  He is the

11    person people are reporting to so we have written evidence to support

12    this.  On the part -- on the basis of the evidence produced by the

13    Prosecution, we see the salaries that the defendants received as ordinary

14    policemen.  Who knew that in May, June, or July, that some ad hoc Tribunal

15    would be set up in The Hague and then to make up wage lists and make up a

16    police station department?  These are facts as we can see from the

17    evidence.

18            That brings us to the second question:  What could they have done

19    to improve the conditions which were bad, but for which they were not

20    responsible?  This is a question that is fully addressed in our final

21    brief.  But to be able to answer that question, we have to say who is

22    who.

23            Who is Mladjo Radic, known as Krkan, who my colleague and myself

24    are representing?  He comes from a poor peasant family with nine

25    children.  His father only just managed to see him through elementary

Page 12562

 1    school.  He worked as an ordinary worker.  He had a chance to finish a

 2    short course and become a village policeman.

 3            At the relevant period, he had 20 years of service behind him as a

 4    policeman, and everyone knew him in the area.  In that 20-year period, he

 5    didn't make a single step forward in his career.  He is the lowest level

 6    beat policeman.  He is not even a patrolman, who is also a policeman but

 7    slightly further up in the hierarchy.

 8            The only thing that the Prosecution could charge him with in his

 9    career was the reward he received of 50 marks after all this, and witness

10    Bogdan Delic, who signed this and whom we called as a witness, explained

11    that this was a printed form and this was a way to help people

12    financially.  What it, in fact, meant was 50 German marks.  Of course,

13    salaries in those days was the equivalent of two or three German marks.

14            In the relevant period, the accused Mladjo Radic, whom we all

15    agree upon was a policeman - in communism it was called a militiaman - is

16    a family man with three children.  His wife was a cook.  He got the

17    nickname Krkan because he likes to eat.  He was under 180 centimetres tall

18    and 140 kilogrammes in weight.  If you add a rifle to such a heavy body,

19    it looks like a macho man.  But in fact he is just a heavily built man

20    with a big tummy.

21            He has been referred to as a bull, a psychopath, sadist by

22    Ms. Somers, expressions which are not at all nice.  And we have the

23    findings of a Dutch psychiatrist.  Most of those terms come under

24    psychiatry.  We see exactly how Ana Najman and the psychiatrist described

25    him, and you see the description is quite the opposite.  All the people

Page 12563

 1    who spoke about him, about his work before and after the events, speak in

 2    the best of terms.  They even said he never even hit anyone.  He didn't

 3    even intervene properly.  What he cared most about was to have a good bite

 4    to eat.

 5            How does that fit into these descriptions of bulls, machos,

 6    sadists, and I don't know what?  The psychiatrist tells us that he was not

 7    aggressive, a family man, accepting orders.  We have science on the one

 8    hand and lightly uttered insulting terms on the other.  So we have

 9    science, the psychologist and psychiatrist, and on the other side, lightly

10    used, difficult words.  These are hurtful.

11            We had a well-known Yugoslav poet called Miljkovic who killed

12    himself, who committed suicide, and he said, "An overly strong word killed

13    me."  I'm sure this is difficult to interpret.  Words are our weapons as

14    jurists, but we have to be careful how we use them.

15            So one morning Mr. Mladjo Radic came to the Omarska Police Station

16    Department, to his regular job - and this was his regular work until

17    retirement - and he was told that he had to go to the investigations

18    centre.  They put him in a van, they take him there, they give him a guard

19    post, and that is where he had to stand.  And he did so for two and a half

20    months.

21            The Prosecution, as the main proof against Mladjo Radic, showed

22    you a clip, a video clip, which was meant to show the macho position of

23    Mladjo Radic from which you are asked to infer that he was a shift leader,

24    which is command responsibility under Article 7(3).  Look at that film

25    carefully and look at the still made from that video and which shows who

Page 12564

 1    are the people liable under 7(3).  This is Prosecution Exhibit -- I'll

 2    give you the number later.  We see Simo Drljaca, Meakic, and two other

 3    officers.  None of them are holding a rifle to their stomach.  They are

 4    dressed normally.  And by their position and attitude, they show that they

 5    have power.  In fact, that is how it was.  Simo Drljaca describes himself

 6    as the commander of the centre.  Meakic was without any doubt the

 7    commander of the security.  And these are the two who belonged to the

 8    army.

 9            But why Mladjo Radic?  If we're talking about command

10    responsibility, 7(3), why isn't he in the company of these others?  Making

11    statements to the press, showing them around, that is how people in

12    command behave.  He was photographed together with all the other guards at

13    his guard post.

14            Another conclusion that you are asked to make on the basis of that

15    photograph is that he was shift leader.  If he was, why isn't Milojica Kos

16    and Gruban, why don't we have them at the same post, standing in the

17    circular window as Mladjo Radic is, if that is the position of the shift

18    leader?  So we know if one person passes on duty to another, as the

19    Prosecution would have us believe, they would have to have the same post.

20    It would be first Krkan with the rifle, then Gruban, then Kos.  I don't

21    know who.

22            Almost all the Prosecution witnesses have said that Mladjo Radic

23    was more or less always there except occasionally, when it was very hot,

24    as Mladjo Radic explained; or when Meakic told him, "Go and answer the

25    phone in the office"; at times when he was given another assignment to

Page 12565

 1    bring someone over, to bring something, and so on.  But on the whole,

 2    mostly his guard post was where he was photographed.  He didn't

 3    intentionally go there that day to be photographed.

 4            So from the same video clip, the Defence draws quite the opposite

 5    conclusion from the one drawn by the Prosecution.  This film proves that

 6    Mladjo Radic was an ordinary guard.  He had the qualifications of an

 7    ordinary guard.  His whole 20-year career was the career of an ordinary

 8    policeman.

 9            What distinguishes him from others?  He is an active policeman and

10    not a reservist.  He was active as a policeman in the area of Prijedor,

11    Ljubija, Omarska, and so on, and people knew him.  People knew him because

12    he had a specific appearance and a specific nickname.  And that is how he

13    is easily remembered and that is why his shift is referred to as Krkan's

14    shift, that is the reason, because you identify a shift by someone you

15    know.

16            So as not to repeat everything that Mr. Krstan Simic and

17    Mr. O'Sullivan have said, mutatis mutandis, the Defence supports

18    everything they have said regarding 7(1) and 7(3) and the organisation of

19    the centre.

20            I would just like to add a few words regarding Mladjo Radic to

21    make it quite clear that he does not belong under 7(3).  Was he de jure

22    shift leader?  For him to be that, there would have to be a decision.  In

23    the same way that Meakic was appointed security commander, so all the

24    others would need a written decision for their appointments and Mladjo

25    Radic would need to have such a decision as a shift leader.  There is no

Page 12566

 1    question that there is no such written order, so de jure he was not that.

 2            Now, de facto, a question arises that was repeatedly mentioned by

 3    Your Honours.  How is it possible for the same number of people who were

 4    in the Omarska Police Station Department to now cover a large centre?

 5    There may have been hundreds of thousands of men.  And for nothing to

 6    change in the command structure, how is that possible?  For Meakic to be

 7    at two places at once?  How is it possible for all those tasks to be

 8    carried out without assistants, deputies, chiefs to have been appointed?

 9            Let us deal with one thing at a time.  To put together the shift

10    leader and the corporal of the guards, a mixture of military and civilian

11    terms is unpermissible, which the Prosecution is doing.  A shift corporal

12    in Tito's Guards was a general.  When I served in the JNA, I had that

13    rank.  It is the lowest possible military rank, corporal of the guards.  I

14    never got to Tito.  Maybe I would have become a general too.

15            If he had been shift leader, somebody would have had to appoint

16    him as such.  However, we also have a formal reason to claim that that was

17    not the case.  In 1994, two years after the relevant period, he was

18    appointed shift leader.  Why would he be appointed twice?  Why wouldn't he

19    receive a salary as an ordinary policeman in 1992 and 1993?  And only in

20    1994, because he was about to retire, he was appointed shift leader to get

21    a slightly higher pension.  No one can be appointed to the same position

22    twice.

23            Can we indirectly conclude from his conduct that he did duties

24    which were reminiscent of those of a shift leader.  Look at the very broad

25    spectrum of things that were done; lining people up, hoisting the flags,

Page 12567

 1    singing, going left and right, moving around, saying something they don't

 2    know what.  And then we hear the -- there was a rumour in the camp that he

 3    was shift leader.  We also heard that he was the commander and all kinds

 4    of other things.

 5            So nowhere have we seen or heard that anyone said that Krkan

 6    ordered somebody to be beaten, somebody to be killed, somebody to be

 7    placed somewhere, that he actually issued an order.  Nobody has told us

 8    that except by inference.

 9            When you see the way he assisted people by bringing a bag of bread

10    to the hangar to be distributed among the detainees and the moment he

11    left, another guard grabbed that bread to give it to the pigs.  If he's

12    such an authority, if he's a shift leader, how can a guard in his own

13    shift turn a deaf ear to his order?

14            The Prosecution asked all witnesses:  "Did Krkan prevent them from

15    beating you?"  Except for two cases which we will analyse later, no one

16    said that they were present when this occurred.  Then came the next

17    question:  "Did Krkan give any orders to anyone?"  And what was the answer

18    given by all the witnesses, all of them, without exception?  "There was

19    anarchy in the centre.  You could be beaten by anyone.  You could be

20    killed by anyone.  No one needed an order to do that."

21            Therefore, if we start out from this point, which is whether

22    Mladjo Radic actually ordered somebody to stop beating somebody else, if

23    we turn the question around that way, we ought to turn it around again and

24    ask whether any -- he ordered anybody to be beaten or killed, and more

25    than one person was beaten, as we know.

Page 12568

 1            In the introduction made by Mr. Niemann, he said that the

 2    Prosecution would show that there was -- that the Defence will move to

 3    show that there was anarchy in the camp and no clear line of command.  We,

 4    through witnesses, showed who was there, all the people who were there,

 5    and not even Meakic had control over them.  We had the army from the

 6    outside that was placed -- we had the army outside and we had the army

 7    inside.  And we listened to a soldier here who said that he didn't know

 8    who his commander was either but he knew that the police wasn't.

 9            Then we had the police force from Banja Luka.  These people

10    weren't superior to them there.  They were there for 20 days.  Not even

11    Drljaca was able to undertake anything, and they did what they did.  They

12    looted, pilfered, killed, beat and so on.

13            Then we have the inspectors as another category.  They came by a

14    design of their own.  They had their own policemen, policemen who brought

15    in the detainees and serviced the investigators.  These policemen did not

16    stand guard.  On guard was Mladjo Radic.

17            Witness AK, a Prosecution witness, used the word anarchy himself,

18    the term "anarchy."  He said, "That at any time, anybody could have beaten

19    us where and when they liked."  Now, let us take a look at that, what the

20    other witness said was that people came in from outside as well.

21            The entrance gate was one kilometre away from the administrative

22    building which is where Mladjo Radic was.  The factory guard was on guard

23    at the entrance gate and some other people.  So the entrance and exit from

24    the centre was not under the competence and jurisdiction of the Omarska

25    station.

Page 12569

 1            I have said that the shift was referred to as Krkan's shift

 2    because people knew him, knew Krkan, because he was one of the three

 3    professional policemen who were in Omarska; Meakic, Kvocka, and Radic,

 4    those were the three professional policemen there.  He had been in service

 5    for a long time and many people knew him.

 6            But I think you all noticed, and that is the pivotal point, that

 7    all shifts were bad, but the Krkan's was the worst.  And probably when you

 8    came into the customs control in Holland, people would say Krkan's shift

 9    was the worst.  As soon as they entered the Netherlands, people would say

10    that.  But when we actually asked them why Krkan's shift was the worst, we

11    asked:  "Did Krkan beat you?  No.  Did Krkan kill anyone?  No."  They

12    mentioned names, these witnesses mentioned names, the names of four

13    people; Drazenko Predojevic.

14            They also mentioned another person who was never in Krkan's shift

15    which was established later on.  His name was Pavlic.  And they spoke

16    about Pavlic's misdeeds and said that was Krkan's shift.  He was heard

17    here, and we were able to ascertain that this Pavlic was never in Krkan's

18    shift.  But according to the various witnesses, he was in Krkan's shift

19    too, and that is why Krkan's shift was said to be the worst shift.

20            It's easy to put a label on someone, to utter words easily, but

21    when you come down to brass tacks, you have to see what this actually

22    means and why somebody said something, what the person was like, whether

23    he liked to eat a lot and they said it because of that or whether he was

24    actually aggressive.

25            The truth is something that has been falsely presented here, that

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Page 12571

 1    is why I say you have not gained the right impression.  Radic said to

 2    the -- testified, the Prosecution says that Radic said that he did not

 3    know who was going on, what was happening.  That, quite simply, is not

 4    true.

 5            Radic said he knew what was going on.  He saw that there were many

 6    dirty people there.  Of course they would be dirty when there was so many

 7    people in such a small space.  He heard moans and groans.  He knew what

 8    was going on, and he went to Drljaca and asked him to release him from

 9    that duty.  And we know what Drljaca said in response to his request to be

10    transferred.  He said, "It is not up to you to do any thinking of your own

11    but to execute orders."  And the kind of characteristics that the

12    psychiatrist found Krkan had, he said, "I understand.  Yes, sir."  He went

13    home and complained to his wife.  That's all he could do.

14            And now we come to the most subtle point which is the key issue in

15    this case.  If we were to take, for purposes of example, that all the

16    witnesses had told the truth and that is that Mladjo Radic never killed or

17    beat anyone, and if you take him to have said the truth and when he said

18    that he would not beat anybody or not kill anybody, that this was

19    recompense for himself in a way, redemption for himself, and in this way,

20    he was looking after his family and keeping his three sons and family

21    safe.

22            This brings us to a moral issue, not a criminal issue, according

23    to the Statute in Articles 2 to 5, but a moral dilemma as to what a human

24    being can do faced with a situation that kind.  Because we must ask

25    ourselves the alternative.  The alternative was for him to escape.

Page 12572

 1    Ms. Somers even said that in a way.  If one person could go to be

 2    butchered, then Mladjo Radic could have escaped as well.  He could have

 3    not turned up to work, but what would have happened to him?  What would

 4    have been the consequences of his action?  So that was the dilemma he

 5    faced.  Quite certainly he wouldn't have been allowed to live in peace.

 6            We have the military court's decisions which we have attached to

 7    our final brief, and we see these judgements.  We see what happened to the

 8    people who left.  So let me stress this was a moral dilemma.  Perhaps a

 9    stronger personality, a more resolute personality could have said, "Well,

10    I can't take this anymore.  I have to leave regardless of the consequences

11    to myself, my wife, and my children."

12            But we're not all made of the same material.  We are all different

13    human beings.  What weighed heavily was his patriarchal upbringing and his

14    care and responsibility for his family and his children.  And he said to

15    himself, "I'm not going to do anything active, and come what may, I'll try

16    and get through it somehow."

17            Don't forget another thing, they were all told that this would go

18    on for two or three days.  That this was a centre.  Something had

19    happened, the takeover of Prijedor.  We are going to rally up the people

20    here to ascertain who the culprits were.  This will last for a few days

21    and then we will go home.  That was the general belief.

22            This assertion stated by Meakic which was repeated here by all the

23    witnesses, they all said that they didn't know how long this would take,

24    and it was prolonged for one, two, three days, ten days, the first group,

25    the second group.  This led to the fact that the command structure in

Page 12573

 1    Omarska didn't change at all.  They were told that the investigation

 2    centre, which was to last for the next two years.  They weren't told that

 3    it would last for two years, that they would have 2000 detainees.

 4            Had they have known that, the command structure would have

 5    changed.  There would have been a camp commander, there would have been a

 6    camp management and everything else, but all this was supposed to be

 7    temporary, provisional.  They expected the whole thing to be disbanded in

 8    just a few days' time as, in fact, did happen on the 6th of August.

 9            Mladjo Radic said in -- when cross-examined in answer to questions

10    put to him by the Prosecution that he heard moans and groans and that he

11    saw people who had a stench about them, who were black and blue with

12    bruises.  He didn't say that he did not see dead people or people being

13    beaten.  It is the thesis and the position of the Prosecution that he was

14    in the command structure because somebody said, "Stop the beatings,

15    Krkan's coming."  This was taken to show that.  One witness said another

16    name, not Krkan and the Prosecution is well aware of that.  But that

17    person is another accused so I don't want to mention his name.

18            But why would they be afraid if somebody had said Krkan's coming

19    in Krkan was in this structure and if they had this general purpose,

20    common purpose, this genocide intent.  Why would Krkan then prevent

21    something from happening for which he was positioned there to implement?

22            So that, too, speaks about the individual trends, individual

23    statements made by individuals.  And he said, "I will not beat.  I will

24    not kill, and I don't want to see this happen.  I will help to the best of

25    my ability as much as I am able to."

Page 12574

 1            Let us go back to the beginning now.  We have ascertained that

 2    there was no responsibility, especially of this lowest level echelon for

 3    the establishment of the investigation centre and the conditions that

 4    prevailed in them.  The second part of the indictment and the charges

 5    against Mladjo Radic is what they did to improve conditions which they

 6    were what they were.  They were terrible conditions, inhumane.  We agree

 7    with all.

 8            You were you were always present.  You know that I said to all the

 9    witnesses that came here that I am very sorry that they had to experience

10    the difficult things they did.  But where is Mladjo Radic's role and

11    position in all this?  Let us have a look at that.

12            Now, what does the Prosecution wish us to believe?  If we bring in

13    witnesses, and we did bring in about 40 witnesses who testified that

14    Mladjo Radic helped people.  He helped the whole Ljubija group plus the

15    women which would make it at least 150 people from Ljubija and the women

16    as well, even the ones who claimed that they were raped, and I'll come to

17    that later, said that he brought in food to them.  He would give --

18    distribute the food to the guards and tell them to distribute it on to the

19    detainees.

20            Now, if the witnesses say that someone did that, then the

21    Prosecution says, "There you are.  That's proof that he was in the command

22    structure.  He was in superior command."  If we say that he did not do

23    that then he is a person without any soul.  He didn't do anything to

24    improve conditions.

25            So if Mladjo Radic gives a piece of bread to somebody then he --

Page 12575

 1    necessarily means that he was a shift leader.  If not, he was a bull, a

 2    sadism, a psychopath, or whatever.  So you can't have it both ways, you

 3    must decide what you want to prove and show.  You can't be doing two

 4    things at the same time.

 5            Had every one of the guards tried to protect these 150 people,

 6    attempted to protect them, this would have been an enormous thing, 150

 7    people.  There were 150 people from Ljubija, and many witnesses,

 8    Prosecution witnesses such as Witness Y, P, E, all these witnesses

 9    confirmed this, bore this out.  And all our witnesses from DC1 to DC7 plus

10    Mujagic also confirmed this.  They said the whole group was protected

11    during lunchtime.

12            However, to final dilemma through this protection that he offered,

13    is it -- did he show what is necessary under Article 7(1) or 7(3) or did

14    he show the humane qualities that he had, the humane qualities of Mladjo

15    Radic?  And we're going to show this, quite simply, in a different way.

16    If he did have the power to order any of this, first of all why did he do

17    so clandestinely by bringing in food, medicines, letters, and so on.  Why

18    did he do this secretly if he was one of the commanders there, he would

19    have done it quite officially, quite openly, out in the open.

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted) If somebody is a commander, if he is the head person there,

24    the chief, why does he have to hide and do things secretly?  He could just

25    come up, take the man out, and take him off.  I cannot understand the fact

Page 12576

 1    that humanism, humanitarian qualities, humane qualities are mixed up with

 2    command responsibility, these are two quite different and separate

 3    things.

 4            We have the testimony of witnesses from the kitchen, and we know

 5    that suppers were distributed to people who stayed on in the night shift.

 6    This food that arrived in the evening from the kitchen was food that was

 7    distributed by Krkan to the women who had their meals upstairs on the

 8    first floor.  Is that proof that he was shift leader as well then because

 9    he said, "Give this piece of bread to so and so or you take a piece of

10    bread," or things like that.

11            Let us conclude.  One thing is certain, and that is that in the

12    Investigation Centre of Omarska, chaos reigned.  Chaos.  The centre was of

13    a temporary nature, provisional nature, and that's why things were like

14    that.  To all practical terms, nobody knew who was whose superior, and the

15    30 people who were on the shift didn't listen to anyone.  He did no one

16    [as interpreted].  Many of the guards that came here said that nobody

17    could issue them any orders.  And don't forget there were reserve

18    policemen there too.  Nobody knew who these reserve policemen were.  Were

19    they people who had lost someone dear to them at the front and reacted as

20    they did?

21            So where does the power, where does the power of Mladjo Radic lie

22    in preventing this?  How could he have prevented this?  I said that from

23    the video clip that you could see quite clearly where his guard post was.

24    That was what I wanted to say with respect to charges under Article 7(3).

25            I would now like to bring up two names which the Prosecution

Page 12577

 1    referred to in respect to Article 7(1).  They are Hase Icic and Nusret

 2    Nivac.

 3            Hase Icic was the only man who the Prosecution was able to find

 4    and the Bosniak Intelligence Service, which interrogated all the people

 5    who passed through Omarska, the only person who has said that he ever saw

 6    Mladjo Radic do anything in the "white house."  Nobody said that he was

 7    present at all.  Nobody even saw him go into the "white house" or pass by

 8    the "white house."  Only this man, Hase Icic, said that.

 9            And what does Icic say?  That he came in the morning at 10.00 or

10    before 10.00, in the early morning hours, that's when he came; that he saw

11    Mladjo Radic when he got off the bus and then they went off to the "white

12    house."  In the evening, at night, at about 2300 hours, he once again sees

13    Mladjo Radic who now goes into the "white house" and is supposed to take

14    him off for interrogation.

15            Now let us stop, let us pause.  Everybody said, including the

16    Prosecution witnesses, that there were three shifts.  Everybody testified

17    to that, that the shifts rotated 7.00 in the morning, 7.00 in the

18    evening.  Now, if Hase Icic didn't see Mladjo Radic at 10.00 a.m., he

19    could not have seen him at 11.00 at night performing his duties.  He might

20    have seen him pass by or having a cup of coffee off duty, because he had

21    no transportation to take him home.  But on duty, no, because another

22    shift would have taken over at that time.

23            How come it was only Hase Icic who was interrogated by the

24    investigators at 11.00 p.m. at night?  The others didn't.  We heard that

25    the women went to sleep at 9.00, 9.30, having cleaned up all the rooms.

Page 12578

 1    Now, suddenly Hase Icic says that he was interrogated at 11.00 at night.

 2    Nobody said that Mladjo Radic, Krkan, asked for money from anyone, wanted

 3    to extort money from anyone.  The only person who said that was Hase

 4    Icic.  And the only man who said that Mladjo Radic was present during a

 5    beating, not that he ordered a beating to take place but that he had seen

 6    it taking place, was Hase Icic again.

 7            There is a Latin maxim, testis unum, testis nullum.  That is not

 8    an absolute because it is testis unum but not testis nullum in the case of

 9    rape.  But testis unum, testis nullum is applied in continental law in

10    Yugoslavia linked to another Latin law maxim, and that is in dubio, when

11    in doubt, pro reo.

12            So how are we now going to assess the statement made by Hase

13    Icic?  He is the only man who has said something that nobody else ever

14    saw, heard, and testimony different from everyone else.  Not only is his

15    testimony hanging in the air as an individual, but when you bring it into

16    context and in relation to what the other witnesses said, and I repeat

17    they were Prosecution witnesses, it indicates that he is contradictory not

18    only to the other witnesses but contradictory to himself as well.

19    Therefore, we cannot believe him beyond reasonable doubt, because

20    everything that he says was doubtful.

21            The second witness to which the Prosecution refers, particularly

22    in their closing argument, is Nusret Sivac.  Those are the only two men

23    that Mladjo Radic is charged with under 7(1).

24            Now, what does he say?  There were some beatings on the way to the

25    restaurant, to the canteen, and this beating in which Nusret Sivac was

Page 12579

 1    involved, many witnesses have testified to, when the floor was slippery.

 2    Some said from water, others from detergent, others from sweat.  And we

 3    know that there were not the necessary sanitary conditions.  If they had

 4    detergent to wash dishes, then it means that the hygiene conditions were

 5    not that bad, and so on and so forth.

 6            However, Nusret Sivac was the only man to state that Mladjo Radic

 7    was, in a way, in charge of all that.  But he was the only one to claim

 8    that.  Other people were heard, other testimonies were heard, and he was

 9    seen upstairs in the tower at his usual guard post, not that he was

10    downstairs and that would let people move in and out.

11            And that same man, Nusret Sivac, said that he bowed down his head,

12    and that when he raised his head, I remember him answer, "No, I didn't see

13    Mladjo Radic there anymore."  I remember that answer very clearly.  So

14    how, then, was he in command and present?  So when he raised his head, he

15    was not present anymore.  When he began his testimony, he said Mladjo

16    Radic was present; when he finished his testimony, he said he wasn't.  So

17    testis unum, testis nullum, and in dubio pro reo.  So I do not think that

18    the Prosecution has shown beyond reasonable doubt Radic's involvement in

19    that.

20            This brings me, Your Honours, to Counts 14 -- that is, the counts

21    involving rape, Counts 14 to 17.  I don't know whether we should at this

22    point move into private session.  I will endeavour and try to avoid

23    mentioning anything that might be harmful in any way but ...

24            JUDGE RODRIGUES: [Interpretation] Mr. Fila, it's really up to

25    you.  If you think it will be easier for you to address the issue in

Page 12580

 1    private session, then we will do so, at least for a couple of moments.

 2    Let us move into private session.

 3                          [Private session]

 4  (redacted)

 5  (redacted)

 6  (redacted)

 7  (redacted)

 8  (redacted)

 9  (redacted)

10  (redacted)

11  (redacted)

12  (redacted)

13  (redacted)

14  (redacted)

15  (redacted)

16  (redacted)

17  (redacted)

18  (redacted)

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 12581

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10 

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17 

18 

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20 

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23 

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Page 12587

 1  (redacted)

 2  (redacted)

 3  (redacted)

 4  (redacted)

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 6  (redacted)

 7  (redacted)

 8  (redacted)

 9  (redacted)

10  (redacted)

11  (redacted)

12  (redacted)

13  (redacted)

14  (redacted)

15  (redacted)

16  (redacted)

17  (redacted)

18  (redacted)

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25                          [Open session]

Page 12588

 1            JUDGE RODRIGUES: [Interpretation] So we are in open session now.

 2            MR. FILA: [Interpretation] The Defence feels that it has devoted

 3    sufficient attention to this issue, and we will no longer refer to the

 4    brief which discusses all these matters in greater detail.

 5            Let me now focus briefly on the closing arguments of the

 6    Prosecution orally delivered, and this is something I think I have to

 7    comment upon.  It is not a matter of the sentence proposed by the

 8    Prosecution, that is their right to propose whatever they wish, but there

 9    are words which it is difficult to utter without giving them very serious

10    thought.

11            To say of someone that there are no mitigating circumstances, this

12    implies tonnes of burden on an individual, tonnes of weight.  Bearing in

13    mind everything I have said about Mladjo Radic and his life, after all, he

14    spent his whole life decently without violating the law ever, without

15    doing anything shameful.  On the contrary, everyone describes him in the

16    best terms, even Muslims.  So let me just remind you of the people from

17    Ljubija.  Let me remind you of the Croats who spoke well about him, his

18    kums, his friends.

19            No one said that he was anybody's enemy.  He was never

20    discriminatory ethnically.  He had a family of three sons.  The oldest,

21    again, is in the police in the K4 and UNMIK and all those international

22    forces have no criticism against him.  He is here to listen.  We are

23    talking about children.  What is it like for a child to hear that his

24    father has no mitigating circumstances?

25            So we have to pay attention as to the words we use.  And when we

Page 12589

 1    mete out a sentence in Yugoslavia, we know exactly what mitigating factors

 2    are; family status, criminal record, any recognition.  Did any one of them

 3    say that they were proud of being there, that they were happy that they

 4    were in that centre?  Didn't you hear from each and every one of them that

 5    it was terrible for them?  They wanted to get out as quickly as they

 6    could?  Didn't you hear from all four accused the same, and yet we are

 7    told that they sadistically enjoyed the suffering of a people that they

 8    had shared life with for decades.

 9            We hear that they are going back to Prijedor and links are being

10    re-established among the ethnic communities.  So I really don't

11    understand.  I find it very difficult to accept such harsh words.  Why

12    would he have not accepted certain adjudicated facts and other things if

13    they had been happy to be there, they carried letters, packages, and other

14    things if they were happy to see those people behind bars?  I really

15    cannot understand that.

16            Then also allow me to remind you of the words uttered by

17    Prosecutor Niemann, that every cooperation with the Tribunal will be

18    rewarded.  What did Mladjo Radic fail to do as requested by the

19    Prosecution?  And he reward he got was that there are no mitigating

20    circumstances.  Is Ms. Somers asking us to convey a message to all others,

21    "Do not cooperation with the Tribunal.  Behave like a person who behaved

22    in that way because whatever you do, you will be found not to have

23    mitigating circumstances."

24            Those of us who have been here in this Tribunal for years are

25    trying to persuade people to surrender and to cooperate, and this Tribunal

Page 12590

 1    will know how to appreciate every positive step and that they will know

 2    how to weigh their guilt.

 3            If an ordinary guard is to be sentenced for life, what are we

 4    going to do with the leaders?  Are we going to impale them or ask for a

 5    death penalty or what?  The old Greeks used to say "pan metron ariston,"

 6    and I originate from there.  So the important thing is to have a feeling

 7    of balance.

 8            Allow me, finally, to say something that I hesitated a lot about,

 9    whether I should say that or not.  I am a member of a very small nation, a

10    nation that was exposed to something in 1999, the bombing by the strongest

11    forces that exist in the world.  In that bombing, 1.700 civilians; women

12    and children were killed, and several hundred were wounded.  All this was

13    described by Jamie Shea as collateral damage, all those dead and wounded

14    people.  We were horrified.  Fortunately the world was horrified too.

15            This was described as collateral damage.  Men, people cannot be

16    called collateral damage.  Never did any one of us say that the dead

17    Muslims were collateral damage.  "I beat him.  I didn't know he would

18    die."  That is collateral damage.

19            The radio television of Belgrade was hit.  Sixteen journalists

20    were killed, hospitals, schools, a train was machine-gunned, a convoy of

21    Albanian and Gypsy refugees were shelled.

22            I'm not saying this for any ulterior purpose, but simply to

23    underline that words are very dangerous.  For us, words are our

24    instruments, our tools, and we must have a scale to measure them.  It is

25    terrible to say of someone that he is guilty.  It's easy to say of someone

Page 12591

 1    that he is not guilty one someone is not guilty; when he is really

 2    innocent.  I'm not meaning a mistake.  But it is very bad to use words

 3    like bull, sadist, and so on.

 4            And allow me, finally, to thank you for your attention, to

 5    apologise once again to the interpreters.  To thank you for your patience

 6    and to add about common purpose.  I didn't discuss this because I don't

 7    see what I could add to what I have written and what Mr. O'Sullivan has

 8    said.

 9            Even when talking about a common purpose, we have to bear in mind

10    who we are talking about.  A village policeman belonging to a police

11    station department in Omarska.  What common purpose can he have except to

12    put his children through school?  It is difficult to push a common

13    policeman into a common purpose.

14            Let us not forget that the Muslims were the first to form their

15    organisation and the SDS was the last.  And if someone did have a purpose,

16    they will come here and we have them here or, rather, you have them here

17    almost all of them in your hands or at least indictments for all of them.

18    It's just a question of time as the Prosecutor has said.

19            So let us make that distinction.  Who could have had a purpose?

20    Who was the creator?  The sentences that are being proposed by Ms. Somers

21    are for those people.  Otherwise, we will have no criteria.  That is why I

22    said at the very beginning that it is extremely important for this

23    Tribunal to convict for serious crimes and not all.  That it sentence even

24    in the case of rape, if the object was sexual violation, that is not the

25    competence of this Tribunal.  It is the competence of a regular court.

Page 12592

 1            Let me not go back to the testimony of Stanko Beatovic who went a

 2    little further than he should have, but we know what rape is.  Use of

 3    force or threat must be present for the existence of rape, the criminal

 4    act of rape.  And resistance might be present on the part of the victim.

 5    And when someone is in a camp, then the resistance doesn't have to be

 6    waving around hands and legs and screaming, but it is sufficient for that

 7    person to indicate her opposition.  And all this I have discussed in my

 8    written brief.  So please, when meting out your judgement, please bear in

 9    mind the meaning of words and the level of the people we are talking

10    about.

11            Omarska was certainly a disgrace, but it is also true that the

12    people we are trying here are of the lowest level.  There's no one below

13    them.  We cannot treat them as if they were Karadzic and Mladic so that is

14    the distinction.

15            Thank you very much.  In my proposition, I submit that the

16    Prosecution has not proven beyond reasonable doubt the guilt of Mladjo

17    Radic.  Thank you.

18            JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Fila.

19            MR. FILA: [Interpretation] I do apologise, I'm sorry.  May I say

20    something else to Your Honours?

21            Having used less time than I am entitled to, and as you know, I

22    use Latin a lot, there is another Latin saying I would like to say, to use

23    bis dat qui cito dat, who speaks briefly gains double.  Thank you.

24            JUDGE RODRIGUES: [Interpretation] Very well, Mr. Fila.  That was

25    your choice to say one time so we appreciate your effort.  We will now

Page 12593

 1    have a half-hour break upon which we will start with the closing arguments

 2    for the accused Mr. Zigic.  A half-hour break now.

 3                          --- Recess taken at 10.52 a.m.

 4                          --- On resuming at 11.27 a.m.

 5            JUDGE RODRIGUES: [Interpretation] Please be seated.

 6            So we're now going to proceed with the closing arguments on behalf

 7    of the accused, Mr. Zigic.

 8            Mr. Stojanovic, you have the floor.

 9                          [Zigic Defence Closing Statement]

10    MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

11            Your Honours, I must admit that the inspiration and guideline for

12    this closing argument has, to a large extent, been a very frequent

13    question which was asked by our Honorable President by the witnesses at

14    the end of their testimonies, "Is there anything you wish to say?  Is

15    there anything that you wish to add, something that you haven't said so

16    far?"  But it seems to me that the answer to this question would result in

17    a lengthy and complex argument with various subject matters, a little bit

18    of everything.

19            However, I think that even such a complex argument could be

20    divided into three major groups.  The first part would actually be a

21    supplement to the answers to some questions that have been raised or

22    debated so far to a great extent.  The second part of the argument would

23    address the final submissions of the Prosecution.  Finally, the third part

24    of the closing argument would be a kind of summary of the trial of these

25    proceedings as it is interpreted and viewed by this Defence team with some

Page 12594

 1    brief explanations.

 2            As part of this first group, first part of the argument, I would

 3    like to address the issue of persecution as it is defined in Article 5 (H)

 4    of the Statute of the Tribunal.  "Persecutions on political, racial, and

 5    religious ground," as it is phrased in the original text of the Tribunal.

 6    As early as in the Nuremberg Statute, instead of the word, of the conjunct

 7    "and" which linked up all these various bases for the persecution was the

 8    word "or."  And we do not know why the Statute of this Tribunal has chosen

 9    the word "and," the conjunct "and" which creates a certain confusion, that

10    is to say, it seems that for the offence of persecution to exist, it is

11    necessary to have all three requirements, all three grounds fulfilled, and

12    in a cumulative way.

13            However, we don't think it is very difficult to solve the issue

14    because the word, the offence, itself, that is "persecutions" is stated in

15    plural form.  And it follows from that that from the existence of one

16    single criminal offence of persecution, it is enough to have only one of

17    these grounds.  However, there can also be two grounds or even all three

18    grounds for the offence of persecution to be established.

19            However, the list of grounds for persecution has not been

20    exhausted in that manner.  Persecution can be committed on other grounds

21    as well.  Persecutions both of individuals but also smaller or larger

22    groups of individuals.  There can be, for example, persecution on

23    economical grounds, persecution of drug addicts, persecution of sects

24    which need not be of religious character.

25            Furthermore, there can be persecution of refugees from other

Page 12595

 1    countries or immigrants from other countries, persecution of members of

 2    various other movements which are not of political character; persecution

 3    of homosexuals, and various other types of persecutions.

 4            However, these persecutions do not constitute the criminal offence

 5    that is described in Article 5(h) of the Statute.  In our submission, not

 6    even the persecution of enemy armed forces in war, in particular, in

 7    theatre of operations, even if the war does fulfil the criteria described

 8    in Article 5(h) of the Statute can constitute the offence of persecution,

 9    and not only the persecution of members of armed forces.

10            For example, we do not see why members of the opposing party in an

11    armed conflict which can also be a civil war, the other belligerent party

12    would place such individuals, would place such members, would assign such

13    members of the opposing party to sensitive important positions and posts.

14            Let me mention the example of the civil war in the States or the

15    example of the civil war in Spain.  So members of the confederation forces

16    of the old south, did they remain on key positions within the armed forces

17    of the north or did they ever hold any political, important political

18    positions of the north including important economy positions in similar

19    posts?

20            Citizens of Germany, did they remain on such positions in the

21    United States and Great Britain during the Second World War, for example?

22    It is therefore necessary to establish the grounds of persecution both in

23    the indictment and in the judgement, but it is also necessary to provide

24    detailed explanation for such grounds because they constitute an important

25    element of the offence without which the offence of persecution, as it is

Page 12596

 1    described in Article 5(h) of the Statute, cannot exist.

 2            In addition, one should make a distinction and one should restrict

 3    oneself to the persecution which is not merely a standard consequence, a

 4    usual consequence of any armed conflict.  So far, Your Honours, this has

 5    not been done.  Often attempts were made to merely allege grounds for

 6    persecution but in a quite inadmissible, impermissible way by merely

 7    alleging that the accused committed persecution on political, racial, or

 8    religious grounds.

 9            However, it is our submission, Your Honours, that no person can be

10    convicted for a serious criminal offence in a rather unclear or

11    unspecified manner.  But even worse consequence would be to have a

12    conviction for something that was not even committed.  If we say that John

13    Doe, if we allege that John Doe committed persecution on political,

14    racial, or religious grounds, by using the word "or," we make a very firm

15    assumption that some of it is lacking or did not exist.

16            The word "or" presupposes exclusion of some kind.  Therefore,

17    there is something that is lacking, that did not exist, yet a conviction

18    is sought for that act.  For the existence of this particular criminal

19    offence, a discriminatory intent is also required.  Therefore, what is

20    required here is the most severe type of premeditation, and in that

21    respect, we cannot speak of the application of the mental element or

22    recklessness.  Not even dolus eventualis in respect of that element is

23    possible.

24            Severe forms of inebriation, the state in which certain criminal

25    offences are committed, cannot be even linked with this type of intent.

Page 12597

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Page 12598

 1    This is obvious, this is manifest also in the case in point, where the

 2    grossest type of behaviour in a state of inebriation was demonstrated

 3    towards everyone.  There is considerable case law coming from national

 4    courts in Yugoslavia in respect of this problem and for these types of

 5    criminal offences, but that case law is not uncommon with Anglo-Saxon

 6    courts either.

 7            There seems to have been a pause in the interpretation so let me

 8    repeat my last sentence.

 9            In that respect --

10            JUDGE RODRIGUES: [Interpretation] There seems to be a problem.

11    Just a moment, please.  I think that we are now ready to continue.  I

12    think so at least.

13            Mr. Stojanovic, you may continue.

14            MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

15            In this respect, there is considerable case law coming from the

16    national courts in Yugoslavia for similar criminal offences, but that case

17    law is not uncommon with Anglo-Saxon courts either.

18            By way of illustration, let me quote the judgement, the decision

19    in case DPP versus Majewski of 1977.  A United Kingdom court held the

20    following:

21                    "Where the crime charged is an crime of specific intent,

22                     intoxication may amount to a defence if it is sufficient

23                     to negative intention."

24            Speaking of discrimination, as this Defence team has already

25    indicated in its final brief, the discrimination presupposes a comparison

Page 12599

 1    of some kind, implies that a comparison is being made.

 2            Discrimination in itself is a particular kind of treatment of a

 3    specific group of people, a group of people, of individuals, which

 4    corresponds to the grounds listed in Article 5(H) of the Statute, which

 5    treatment is much worse than the treatment of a different group of

 6    people.  For the record, I stated one additional requirement, and that is

 7    a continuously worse treatment, treatment perpetrated in a continuous

 8    manner.

 9            This other group of people, this other group of individuals must

10    be of the same kind as the group of individuals which is discriminated

11    towards, and to which the discriminator belongs in a certain manner.

12    However, what is lacking here is the proper definition of the group which

13    is being discriminated against; whether the members of that group are only

14    Muslims, as it has been often alleged, or both Muslims and Croats, or

15    other non-Serbs as well, which would then constitute discrimination on

16    ethnic grounds; or was it the discrimination of political character, which

17    the Prosecution failed to specify in any way, although this assumption

18    might seem to be more realistic than the one advocated by the Prosecution,

19    a political persecution in which religious and national elements were

20    abused for the purpose of achieving exclusively political goals.

21            Was it only a group of Muslims from the camps, whereas the

22    attitude of Zigic towards numerous Muslims outside the camps at the same

23    time was not addressed at all.

24            Finally, was it only a group of individuals who, in the opinion of

25    their captors, were extremists, because from the facts established, it

Page 12600

 1    could be seen that certain prohibited actions of the accused Zigic were

 2    perpetrated only against certain specific individuals.  Therefore, for the

 3    discrimination to be proved, it is necessary to make that comparison, in

 4    particular in the case where established facts point to that reality.

 5            As far as the accused Zigic is concerned, facts have indicated

 6    that, beginning with the fact relating to Zigic's conviction in Banja

 7    Luka.  However, no comparison was made, nor has it been proved with

 8    anything that Zigic had adopted a different and continuously different

 9    treatment, generally speaking, towards, according to the allegations of

10    the Prosecution, a discriminated group in relation to the members of some

11    other group.

12            Finally, it is our submission, Your Honours, that discriminatory

13    intent must fulfil the requirement of a widespread character or systematic

14    character of the acts alleged.  Discriminatory intent must fulfil that

15    condition, must fulfil that test.

16            Mens rea as such must follow the grounds of actus reus, which

17    means that the intent on the part of the perpetrator must be a firm one,

18    must be a continuous one, relatively speaking, and all-encompassing.

19    Therefore, such an intent towards individual members of the group and not

20    towards the group in its entirety, or only at one isolated moment or

21    place, would be irrelevant.

22            The second question that we would like to address here is the

23    dilemma.  Recklessness or dolus eventualis.  It would appear that the

24    Prosecution, in its final brief, even appears to equate the two, if we

25    have understood correctly the formulation used in paragraph 108 of that

Page 12601

 1    final brief.  But it is not the same thing.

 2            The Anglo-Saxon category of recklessness is closer to negligence

 3    than intent with respect to the consequences of the act in question, and

 4    it is less favourable vis-a-vis the accused than dolus eventualis, and

 5    even more so than dolus directus.  In the continental system of Europe,

 6    for acts of this kind, as a rule, what is sought is dolus directus

 7    followed by dolus eventualis.

 8            There are no grounds, especially not in the Statute of the

 9    Tribunal, for the responsibility of the accused to be expanded according

10    to the mens rea element.  There is no logic either, as we put forward in

11    our final brief, for the Anglo-Saxon mental element to impose itself to

12    the European man instead of an existing European one, especially as the

13    latter, on a world level, is more universal, particularly for grievous

14    crimes.

15            As far as the indictment is concerned, which refers to Mr. Zigic,

16    we believe that these debates can be highly topical in charges for the

17    beating of certain individuals where these individuals later died.  It is

18    our position that this problem can be solved easily with the application

19    of a solution which has already become present and generally applicable in

20    international law, which has been well thought out and dovetailed amongst

21    dozens of states.

22            We are talking about the solution pursuant to Article 30,

23    emanating from Article 30 of the Statute of the International Criminal

24    Court, where a person can be deemed responsible who effected actus reus

25    with intent and knowledge, along with a highly precisely defined intent

Page 12602

 1    and knowledge, if the knowledge and intent have been precisely defined.

 2    However, neither when it comes to intent nor when it comes to knowledge is

 3    there any recklessness to be found.

 4            The relationship towards the consequence there is based on the

 5    ordinary course of events, in the ordinary course of events.  This last

 6    sentence has, as its implication -- has an implication not only with

 7    respect to mens rea but also to actus reus.

 8            In respect of causality, the Statute of the ICC quite obviously

 9    advocates the theory of adequate causality.  Why and on what grounds would

10    this Tribunal place far less advantageous circumstances for the accused's

11    responsibility than has been dovetailed or is applied through the vast

12    majority of countries throughout the world?  Why would it want to do

13    this?  Especially as I'm convinced that this Tribunal represents a

14    forerunner of an international criminal court with great prospects that,

15    for a certain time, it de facto be transformed into precisely that.

16            As to the common purpose theory or doctrine, this Defence has, on

17    several occasions, addressed the issue and we wish at this point to

18    emphasise something with respect to its application.  The doctrine or

19    theory is an exception from customary individual criminal responsibility,

20    and that is why it must be interpreted narrowly when it comes to

21    application.  We think that this was done precisely in the Appeals Chamber

22    judgement with respect to the Tadic case as well as in the judgements upon

23    which they refer.

24            In two other cases, Essen Lynching and Borkum Island, the common

25    purpose of German citizens was not ascertained as being the persecution of

Page 12603

 1    other nations although this, undoubtedly, was the goal of the war which

 2    the German authorities waged.  Quite simply, it was the killing of a group

 3    of English and American pilots as well as their war adversaries.

 4            We must not forget that in each concrete case, we must, without

 5    doubt, ascertain that a consequence -- that the consequences have arisen

 6    in the relationship between causality and the crime committed within the

 7    common purpose, that is to say, that the concrete crime is the result of

 8    the common purpose.  Whether the survival of the former multinational

 9    Yugoslavia or the emergence of an entity oriented Bosnia-Herzegovina as

10    Zigic's goal, was it a common one, a common purpose?  Zigic does not know

11    that to this very day, that is to say, he does not know whether he took

12    part in a common purpose, a common goal.

13            The existence of an armed conflict, this particular condition is

14    necessary for the application of both Article 3 and Article 5 of the

15    Tribunal's Statute although as practice has shown so far, in two different

16    ways, for those two different articles.  An armed conflict is a major

17    event with a multitude of consequences.  It is our impression, however,

18    that in this case, in this trial, mention was made of it only in order to

19    apply punitive standards, the mere observation of the fact that the armed

20    conflict existed and nothing more than that.

21            Sometimes in the course of this trial, I seemed to gain the

22    impression that only one side was at war which is an argumentum in

23    absurdum.  According to witness statements [Realtime transcript read in

24    error "in arguments"] put forward by the Prosecution, of those who were

25    detained in the camps -- I said witness in the -- "testimonies of

Page 12604

 1    witnesses put forward by the Prosecution," and therefore according to

 2    those testimonies, nobody attacked the Serbs, nobody took part in the

 3    battles and other conflicts either in a material or another way aided

 4    this, and nobody bore or used weapons.

 5            Allegedly, there were no prisoners of war.  But if all this is

 6    absent, then an armed conflict is absent too by the same token.  It is

 7    true that with respect to this particular condition, it is sufficient for

 8    a conflict of that kind to exist in some other area of one and the same

 9    state.  But there was not a great deal mentioned about those other areas

10    and regions.

11            An armed conflict necessarily produces prisoners of war and there

12    is no doubt that hundreds of these prisoners of war were detained in both

13    Omarska and Keraterm.  A typical example of these prisoners of war were

14    Sead Jusufovic, nicknamed Car, Emsud Bahonjic, and the people from the

15    Brdo area captured in battle.

16            The status of prisoners of war can never be changed by the mere

17    fact that they were detained together with civilians.  Therefore, as a

18    whole, the standards must be applied to these people which are prescribed

19    to prisoners of war and not for civilians.

20            In its motion for judgement of acquittal, the Defence has already

21    expressed its position that for the application of Article 3, it is not

22    sufficient to ascertain the existence of an armed conflict alone, but that

23    that conflict must have the character of an all-out war.  It is true that

24    this kind of attitude, in the extent to which the definition of an armed

25    conflict is different from the definition of war proper, it will diverge

Page 12605

 1    from existing practice too.  This position, in addition to the numerous

 2    arguments that we have already put forward in that respect has other very

 3    numerous and serious arguments in its favour as well.

 4            Here, the linguistic, grammatical, and even historical

 5    interpretation is being opposed to the utilitarian and opportunistic

 6    approach.  However, even if there is a mistake in the language, in the

 7    linguistics, it should be put right by a correction or an amendment, and

 8    not by making another mistake.  Language which is expressed through the

 9    written or spoken word is a basic tool and instrument of law, and words

10    should not be destroyed.  By destroying words, we destroy law, especially

11    legal safety or security.  We will also be forfeiting communication among

12    people.

13            On the other hand, we will be stimulating, conditionally speaking,

14    the law maker to ago ahead with work of poor quality.  There are we are

15    advocates of the rule of broad application of linguistics and grammatical

16    interpretations and explanations, and these can be deviated from only when

17    the contents are unclear.

18            Of course this is a principled approach, a general approach to

19    which we should aspire and for which we need to perfect language and legal

20    technology and techniques.  The perfection of language is, of course, an

21    ideal to which we must all aspire but which, most probably, will never be

22    reached fully.  However, we are nonetheless talking about clear words with

23    clear meanings.  If we were to take this argumentation of mine to an

24    extreme, we could conclude this presentation with the words by saying that

25    what I said should not be taken and conceived of in that way but, rather,

Page 12606

 1    that we must draw another meaning from everything said.  The word is law

 2    as all the great religions prescribe, and that is one of the heritages of

 3    our civilisation.

 4            We should like now to go on to the second part of this

 5    presentation with a brief focus on the final brief and the closing

 6    arguments made by the Prosecution, and that is a sore spot with us, I have

 7    to say.  Nonetheless, in this review, many questions -- I will not deal

 8    with many of the questions presented as our response can be found in

 9    detail in our own final brief.

10            Generally speaking, quite different from this Defence which has

11    always tried to present everything that was said in the course of the

12    proceedings and evidence put forward for each part of the indictment, the

13    Prosecution, in its closing argument, in its final brief and closing

14    arguments, has restricted itself and limited itself very narrowly to

15    individual statements made by witnesses called by the Prosecution itself.

16    However, these statements were very frequently inconsistent with respect

17    to the testimonies made by other witnesses.

18            So, for example, they refer to the statement made by one witness

19    although, from the subsequent or other -- of the statements of at least 20

20    other witnesses called both by the Defence and the Prosecution, this fact

21    does not emerge, but the statements of these -- this vast majority of

22    witnesses are completely ignored.  These statements by individual

23    witnesses are most often, come most often from precisely those witnesses

24    who were the least credible witnesses.

25            The Prosecution usually refers to these statements for which it

Page 12607

 1    has more material to give thought to false testimony rather than referring

 2    to them.  The Defence has given a detailed and precise assessment of all

 3    these statements in its brief but would now just like to make a general

 4    assessment.

 5            Generally speaking, what the Prosecution relies on and refers to

 6    is just a drop in the ocean.  Expressed mathematically, it is only one or

 7    two per cent of the bulk of what, during the trial, has emerged and was

 8    stated with respect to a certain event.  So, for example, the massacre,

 9    talking about the massacre which occurred on the 24th of July, 1992, the

10    Prosecution bases its case on two or three sentences whereas 15 witnesses

11    have testified to this event on many hundreds of pages.

12            We do not challenge the -- dispute the possibility, although it is

13    only a theoretical one, that you may draw a conclusion even from only one

14    or two per cent of the material presented on a certain event in a certain

15    case, but this can be done only after an assessment and careful analysis

16    of the remaining 99 per cent of the material available.  Most important of

17    all, one must be very convincing in one's explanation of how that 99 per

18    cent is unacceptable.

19            It is not up to us to meddle in the affairs of the Prosecution,

20    but we must express our great disillusionment due to the fact that life

21    sentences are being requested for somebody whereas in a very superficial

22    manner and in a highly minimal portion, they treat the events.  We ask the

23    Court to protect us from things of that kind.  All the more so as the

24    Defence, in its final brief, has not omitted to analyse each piece of

25    testimony and evidence, regardless of whether it is to its advantage or

Page 12608

 1    not.

 2            As has been stated, the Prosecution, as opposed to this Defence,

 3    relies almost entirely only on statements of the witnesses that they have

 4    called.  Regarding statements of witnesses called by the Defence, the

 5    Prosecution does not even mention or comment upon.  Nevertheless, as an

 6    exception in the final brief of the Prosecution, reference is made in a

 7    couple of places to the testimony of one Defence witness which is not to

 8    Zigic's advantage, as well as to Zigic's statement in which he admits

 9    certain acts.  That admission is not considered, in any way, to be a

10    mitigating circumstance by the Prosecution even though in that admission,

11    sincere remorse is expressed for everything admitted to, and in spite of

12    the fact that an apology has been made to the victim.

13            Furthermore, in her final arguments, the Prosecutor claims that

14    admissions, apologies, and expressions of remorse were lacking which we

15    find difficult to attribute to any forgetfulness on the part of someone

16    who frequently refers to that in a negative context.

17            In the closing arguments, it is claimed that Zigic was brought by

18    force and against his will before this Tribunal.  However, from the

19    document issued precisely by the Honourable President of this Chamber, it

20    is evident that this was done upon Zigic's will.

21            I should at this point ask for the assistance of the usher so that

22    we might read a part of those instructions as we haven't done so hitherto,

23    regardless of whether we do so on the basis of the English or the B/C/S

24    versions.  I think we are familiar with this.  For the benefit of the

25    public, could we place this on the ELMO, please.  I'm referring to a

Page 12609

 1    document called "Instruction further to Rule 59 bis for passing on the

 2    arrest warrant issued on the 15th of April, 1998, in case number IT-95 --"

 3            JUDGE RODRIGUES: [Interpretation] Excuse me, Mr. Stojanovic, I'm

 4    sorry for interrupting you.  What is the number of the exhibit, please?

 5            MR. STOJANOVIC: [Interpretation] Your Honour, to this day we have

 6    not been given a number for this exhibit, though we did make such a

 7    request ever since our opening statement, even in writing.  We were even

 8    in a dilemma as to whether it is an exhibit, because it is a document of

 9    this Tribunal, and we applied to the Court to assist us in defining the

10    status of this document.  It may be a part of the file, of the record of

11    this case.

12            JUDGE RODRIGUES: [Interpretation] But this document, is it a part

13    of the documents which were exchanged between the Prosecution and the

14    Defence for the Chamber to be able to rule on it or not?  Or is it a new

15    document now?  Because I remember seeing this document.

16            MR. STOJANOVIC: [Interpretation] Your Honour, it is a document

17    whose admission I sought throughout the Defence case, starting from my

18    opening statement.  It is a document on the basis of which Zigic was

19    arrested and transferred to the Tribunal, but I have not been given a

20    number for this document to this day.

21            JUDGE RODRIGUES: [Interpretation] Yes, but you did submit this

22    document in your opening statement; is that what you're telling us?

23            MR. STOJANOVIC: [Interpretation] I mentioned it only.  I mentioned

24    the number and the date, but I didn't tender it, I didn't show it.

25            JUDGE RODRIGUES: [Interpretation] I think at this stage we are

Page 12610

 1    trying to introduce new documents, so that is what I'm asking you.  We are

 2    now at the closing argument stage, not in the stage of the presentation of

 3    evidence.  I don't know if you're aware of that.

 4            MR. STOJANOVIC: [Interpretation] Your Honour, we wish to show this

 5    document on the ELMO and to read a part of the contents of that document.

 6    Nothing more.  We are not tendering it.

 7            JUDGE RODRIGUES: [Interpretation] In any event, there's something

 8    here that I need to confer with my colleagues on.

 9                          [Trial Chamber confers]

10            JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, you may continue

11    and show the document.

12            MR. STOJANOVIC: [Interpretation] So I would like to read the first

13    paragraph on page 2 of that document.

14            JUDGE RODRIGUES: [Interpretation] I don't think that is of much

15    assistance, Mr. Stojanovic.  We would prefer to see the English version on

16    the ELMO, don't you think?

17            MR. STOJANOVIC: [Interpretation] For the transcript, we are

18    providing the English version.  So the first paragraph of that decision

19    reads:

20            [In English] "Having heard the Prosecutor to the effect that the

21    accused is presently in custody on other matters in Banja Luka, Republika

22    Srpska, Bosnia and Herzegovina; (2) that he is willing to surrender

23    himself to the Tribunal for trial; (3) that the authorities of Republika

24    Srpska are prepared to release him from custody for the purposes of

25    allowing him to surrender to members of the Prosecutor's staff; and (4)

Page 12611

 1    that members of the Prosecutor's staff stand ready to visit Banja Luka to

 2    take the accused into their custody, having made arrangements to allow the

 3    prompt transfer of the accused to the seat of the Tribunal in The Hague."

 4            [Interpretation] We no longer need the assistance of the usher,

 5    and we are grateful to him.

 6            From this general position of the Prosecution on admission and

 7    defence, if it were to be accepted in its entirety, then the Defence

 8    should draw certain lessons and pass on this experience to other future

 9    clients and others; that is, that from the Defence testimonies, only

10    negative conclusions are made, whereas the host of positive statements are

11    totally ignored.  No attempt is even made to challenge that evidence.  So

12    that the defence is not only unnecessary but is even harmful, so there is

13    no need for it anyway.  However, we are confident that the position of the

14    Prosecution, as well as the response of the Defence regarding such a

15    position is basically flawed.

16            We should like to address several specific submissions from the

17    final brief of the Prosecution.  Thus, in paragraphs 54, 114, and 389, it

18    is alleged that Zigic can be liable merely for the fact of being a guard

19    in Keraterm.  However, according to Zigic's testimony that the Prosecution

20    also refers to in this section, as well as the testimony of several

21    witnesses, Zigic's duties in Keraterm were limited to the first ten days

22    or so of June 1992.  In that period, the detainees were, after

23    interrogation, released home in large numbers.  Food and other necessities

24    could be brought to the detainees.  The situation in the camp was,

25    relatively speaking, good, and according to the testimony of Prosecution

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Page 12613

 1    witnesses, in that period, not a single murder occurred in Keraterm in

 2    that period.  According to witness Abdulah Brkic, for example, there were

 3    no major excesses.

 4            On the other hand, the very fact that someone was a guard in a

 5    camp is not sufficient for him to be charged.  There are no such

 6    indictments before this Tribunal, and a number of guards have already

 7    appeared in this courtroom in the capacity of witnesses.  However, Zigic

 8    was not even a guard.  His only duty, a minivan for supplies, as claimed

 9    by Witness DD/9 on page 10410, line 6, of the transcript.  In view of the

10    condition he was in at that time and that he had an injured hand and his

11    experience as a taxi driver, it was not unusual for him to have been given

12    such an assignment.

13            In paragraph 62, second sentence of the Prosecution brief, it is

14    alleged that Witnesses AK, AJ, and Emir Beganovic testified that Zigic had

15    called them out from Mujo's room and taken them to the "white house" where

16    they were beaten, and a reference is even made to particular pages of the

17    transcript.  However, that is incorrect.  Witnesses AK and Emir Beganovic

18    did not say that Zigic had called them out and taken them to the "white

19    house," and no such testimony can be found in the transcript.

20            In paragraph 79, the Prosecution alleges that for liability,

21    presence on the site of events is sufficient in itself.  Such a solution

22    has not been adopted in practice, and certain exceptions are made only

23    when it comes to command responsibility.  Even if someone's presence were

24    to constitute encouragement for someone else to commit an act, that is not

25    sufficient for the person present to be condemned or convicted.  In the

Page 12614

 1    first place, a mens rea on the part of the person present must be

 2    established.

 3            To what extent the mens rea of the person present is important can

 4    be seen, for instance, from the premise that a person who is asleep may

 5    also be present, or he may only be dozing without noticing anything

 6    happening around him.  It may be a person who may be dangerous for the

 7    victim.  But it is our person that under those circumstances, there can be

 8    no serious allegation regarding the responsibility of the person present.

 9            Secondly, that would mean that the person present, for him to be

10    exculpated, he would have to flee from that spot.  In that context, the

11    Prosecution needs to tell us what it is that implies his obligation to

12    flee, particularly the person whose duty or need is to remain there;

13    whether a person who is drunk and sick and who is present should flee not

14    to be considered liable even if they move with difficulty.  Finally, a

15    person present, even if awake, may not even notice everything happening

16    around him, particularly not each and every detail especially if he has no

17    interest in those events or is busy doing something else.

18            In our concrete case, presence at an event has not been defined

19    and it is debatable.  Is only an eye witness present or is somebody who is

20    not an eye witness present and yet is close by.  Can a person who is three

21    metres, 10 metres, 100 metres away consider -- be considered to have been

22    present and so on.

23            In paragraph 84 of the same brief of the Prosecution, it is stated

24    that Zigic was a reserve policeman when he allegedly beat Witness T.

25    However, that same brief refers to Zigic's statement to the effect that he

Page 12615

 1    was in the reserve police until the 10th of June, 1992, and that Witness T

 2    was beaten sometime between the 15th and 17th of June, 1992.  The Defence

 3    is not challenging those dates roughly.

 4            Anyway, Witness T claims that "Zigic," i.e. the person who beat

 5    him, was wearing a military and not a police uniform.  And this issue is

 6    addressed in further detail in the final brief of the Defence.

 7            In paragraph 101 of the Prosecution brief, the position is taken

 8    that the common purpose doctrine was implicitly recognised in the Criminal

 9    Codes of the former Yugoslavia relying on the statement of the expert

10    witness Boro Cejovic; however, that is far from the truth.  Professor

11    Cejovic spoke about criminal associations as a form of conspiracy.  This

12    is a recommend in any event of the Soviet model which has been abandoned

13    in practice and the draft new Criminal Code of the Federal Republic of

14    Yugoslavia it is -- it has been totally omitted.

15            It does have some minor similarity with the common purpose

16    doctrine just as any form of complicity may contain certain elements of

17    this doctrine.  But similarity in criminal law means nothing and as a

18    criterion, it is usually extremely harmful.  Starting from an analogy when

19    somebody is sentenced for crimes which are similar to those that have been

20    prescribed as being criminal acts on the basis of similar institutions,

21    someone is a murderer or is not a murderer.  If reference is being made to

22    certain legal provisions from the former Yugoslavia, the most important

23    question is whether that institution could apply, in this specific case,

24    to the accused, Zigic.  It certainly could not, and that is why the

25    Prosecution does not even make an attempt at answering this most important

Page 12616

 1    question.

 2            Paragraph 225 of the brief relates the killing of Becir

 3    Medunjanin, and this is corroborated with allegations in footnote number

 4    468 in which it says that Witness T testified that Fadil Avdagic was

 5    present on the first day when Becir Medunjanin was beaten, and reference

 6    is made to certain pages of the transcript.  However, nowhere in the

 7    transcript can we find that Fadil Avdagic was present only the first day,

 8    and this is something that the Prosecution has made up and added.

 9            It is our assessment that this was done because Fadil Avdagic gave

10    a completely erroneous description of Zigic and so as to remove the

11    consequences of his very poor testimony from the standpoint of Zigic's

12    indictment on the killing of Becir Medunjanin, an attempt is being made to

13    present him as a witness of the first beating only and not of subsequent

14    ones due to which Medunjanin passed away.

15            In paragraph 230 of the final brief of the Prosecution, the

16    killing is described of Hankin Ramic based exclusively on the testimony of

17    Azedin Oklopcic.  Oklopcic claims that the perpetrator of that killing was

18    Zeljko Timarac, and the Prosecutor, in her final closing arguments quite

19    in contradiction to her final brief mentions exclusively Zigic without

20    giving any explanation.  Why she does so and what the aim is is something

21    we do not know.

22            The killing of Becir Medunjanin is completely redacted from the

23    testimony of Witness Azedin Oklopcic, and is described quite differently

24    in other paragraphs differently from what that particular witness said.

25    Actually, Azedin Oklopcic is not even mentioned with Medunjanin's killing

Page 12617

 1    and Witness Azedin Oklopcic, who was called by the Prosecution, described

 2    in detail the killing of Hankin Ramic and Becir Medunjanin as a single

 3    event which occurred simultaneously and at the same location.

 4            However, the witness said that Zigic had not killed Medunjanin.

 5    So this appears to be the reason why, in the description of this unified

 6    event given by this witness such a -- what we would describe as an

 7    unnatural surgical cut was made.  In this and the following paragraph,

 8    Zigic is not mentioned of the perpetrator and Hankin's killing is placed

 9    at the doorstep of the accused, Kvocka, with the reasoning that the

10    accused, Kvocka, was aware that violent and dangerous persons were

11    frequently entering Omarska and abusing the prisoners.  And in the

12    footnote 477 it says that witnesses AK and J had stated that Kvocka was

13    present when a group of people, among whom was the accused Zigic entered

14    the camp and abused the detainees.

15            This wording gives the impression that Zigic was frequently in

16    Omarska.  However, from -- judging by the statements of witnesses the

17    Prosecution is relying on, it is evident that they saw Zigic in Omarska

18    only once, though they spent a long time there, and not at the time that

19    Hankin was murdered but on another occasion.

20            Paragraph 239 adds liability for torture and rough treatment of

21    Abdulah Brkic which is something that does not exist in the indictment.

22    In that paragraph, again, in footnote 490, Witness AK is said to have said

23    that Zigic called out Emir Beganovic, Witness AK, Asif Kapetanovic, and

24    Witness AJ, something that Witness AK did not say.

25            After that, in the same paragraph, comes a fabrication.  There's

Page 12618

 1    no other word for it.  Since the Prosecution lacked the motive for the

 2    torture of Witness AK who said that he didn't know why Zigic beat him, the

 3    motive had to be construed on the basis of untruths, and we quote from the

 4    text of the Prosecution,  [In English] "The final point as he beat the

 5    prisoners, the accused, Zigic, began to scream that the detainees had

 6    killed his entire family and we will do the same to you."

 7            [Interpretation] And then we have the footnote 495 indicating that

 8    this is a quotation from the testimony of Witness AK to be found on page

 9    2035 of the transcript.

10            Then in paragraph 242 --

11            JUDGE RODRIGUES: [Interpretation] Excuse me, Mr. Stojanovic, are

12    you about to conclude one -- a particular point or would this be a good

13    time for a break for you?

14            MR. STOJANOVIC: [Interpretation] Your Honour, with your

15    permission, let me just finish this point and then it will take me a

16    minute or two.  After that, I may need another hour.

17            JUDGE RODRIGUES: [Interpretation] Very well then.

18            MR. STOJANOVIC: [Interpretation] And then in paragraph 242 in

19    connect with the same act, it is mentioned that this Zigic's, "We will do

20    the same to you," constitutes intimidation of witnesses because they are

21    Muslims.  Therefore, it is presented as if Zigic was taking his revenge

22    for something that the Muslims had allegedly done to him which could be an

23    element of torture.

24            In actual fact, in the actual transcript regarding this event, we

25    find that Witness AK said that Zigic had allegedly said that they had

Page 12619

 1    killed Slavko Ecimovic's entirely family and he was also in the "white

 2    house" and that they would do the same to the witness.  That is page 2035,

 3    lines 15 to 22 of the transcript.  It cannot be seen from this statement

 4    what is essential for torture, and it is also well-known that Slavko

 5    Ecimovic was not a Muslim.  So if the situation had been depicted

 6    properly, the argument on Zigic's alleged persecution of Muslims could not

 7    have been reinforced.

 8            Your Honours, the next paragraph is linked to this but,

 9    nevertheless, I think this would be an appropriate moment for the break.

10            JUDGE RODRIGUES: [Interpretation] Yes, I think so.  Otherwise we

11    have a long period and then a short one.  So it's better to have more or

12    less  equal periods of work.  So we have a 50-minute lunch period now.

13                          --- Recess taken at 12.58 p.m.

14                          --- On resuming at 1.56 p.m.

15            JUDGE RODRIGUES: [Interpretation] Please be seated.

16            Mr. Stojanovic, you have the floor to continue with your closing

17    argument.

18            MR. STOJANOVIC: [Interpretation] Thank you, Your Honours.  Let me

19    continue and follow up to the text which is still on the transcript.

20            In support of the same charge, in paragraph 240 of the brief, it

21    is stated that Witness AI said that he had seen Kvocka when Zigic called

22    Asef, Kiki, Rezak, and Began, when he called them out, and that that was

23    to be found on pages 2150 and 2152 of the transcript.  Again, an untruth

24    which, by the nature of things, can only be intentional.  No where in the

25    transcript can it be found that the witness said that that calling out had

Page 12620

 1    been done by Zigic.  During the cross-examination, the witness in question

 2    described the individual who called out the above-mentioned individuals

 3    differently than Zigic, he gave a different description of him.

 4            During the oral arguments, during the closing arguments, the

 5    Prosecution placed the contact of Zigic and Brkic in which Zigic made

 6    Brkic write down who was the president of the SDA in Puharska, (redacted)

 7    (redacted), that it be placed in the context of

 8    the event involving Becir Medunjanin, because it was more suitable to the

 9    Prosecution case.  And when I say that it was more suitable for the

10    Prosecution, I say it conditionally, because it has always been our belief

11    that a conviction of an innocent man should not suit the Prosecution.

12            This interpretation is done only now, after the Defence mentioned

13    this detail in the (redacted), final brief.

14    However, we allow for the possibility that the other side is not reading

15    our submissions, or is not reading or erroneously interpreting

16    transcripts.

17            Paragraph 388 of the Prosecution brief addresses the issue of

18    Zigic's persecution not only of Bosnian Muslims, but also Bosnian Croats

19    and other non-Serbs.  As far as Croats are concerned, as far as we know,

20    in the indictment against Zigic, and in Schedule D, no mention was made of

21    any Croat.  It is only disputable what Drago Tokmadzic is, but Zigic has

22    nothing to do with the murder of the said individual.

23            However, we must emphasise the fact that four Croats came to

24    testify on Zigic's behalf during this trial who, among other things, spoke

25    in favourable terms about the attitude of Zigic towards Croats during the

Page 12621

 1    relevant times, but also before and after that.  The witnesses I'm

 2    referring to are Ivica Sikic, Danilo Dejanovic, Mile Ivankovic, and Drazen

 3    Kroca.

 4            As for other non-Serbs, there is a statement of witness Nedenko

 5    Milicka [phoen], a Ukrainian, which is part of the record, in addition to

 6    the statement given by (redacted), an Albanian, who spoke about

 7    an extraordinarily favourable attitude of Zigic towards members of other

 8    ethnic groups.

 9            Paragraph 393 of the brief addresses the position of the

10    Prosecution in respect of the event involving Zigic's kum, Hasan

11    Karabasic, and the interpretation given to this event is disgraceful for

12    the Prosecution.

13            As stated by the Prosecution in the paragraph that I mentioned,

14    [In English] "The incident happened outdoors within Trnopolje camp, in

15    plain view of all around."  [Interpretation] The text is followed by

16    footnote 665, with a note that that was stated by Witness V and that his

17    words could be found on page 3746 of the transcript.

18            However, everything that Witness V said about this fact, that is,

19    the same witness, can be found on page 3728, lines 8 to 11 of the

20    transcript, and I will now quote the original transcript:

21            [In English] "You described the incident in Trnopolje with Hasan

22    Karabasic.  Can you tell us where this took place, roughly speaking?

23    Within the framework of Trnopolje, was it outside, inside?  What part?"

24    Answer:  "It was outside.  It was opposite the cafe."

25            [Interpretation] As we can see, Witness V was very clear when he

Page 12622

 1    stated that the incident in question had taken place outside the Trnopolje

 2    camp.  However, Prosecutor, in its final brief, referring to the very

 3    statement of the witness, is attempting to mislead us and state that the

 4    witness in question had said that the incident had taken place inside the

 5    camp.  This is a very important, essential fact in view of several aspects

 6    of the issue.

 7            In the following paragraph, it is stated that Zigic tortured Hasan

 8    Karabasic which is with no -- which is groundless, unfounded totally.  It

 9    cannot be seen what is it that he wanted from his kum.  In paragraphs 396,

10    397 and 398, an alleged event involving Zijad Krivdic is described whereas

11    in 397, Zigic's responsibility is sought pursuant to Article 7(1) of the

12    Statute as well as a conviction for offence of outrages upon personal

13    dignity upon Zijad Krivdic.

14            The Defence does not wish to address this alleged event in any

15    serious manner because, first of all, it hasn't done it so far because

16    Zigic was never charged with any criminal offence against Zijad Krivdic.

17    Not only the fact is not pleaded in the indictment, it is not even

18    mentioned in Schedule D.  Therefore, the Prosecution seems to be claiming

19    that Zigic is responsible for the crime with which Zigic has not been

20    charged at all, and in respect of which he didn't lead any Defence, he

21    didn't present any Defence.

22            During the oral argument of the Prosecution, it is stated that

23    Zigic had shot at this man and that he had smashed part of his skull.  One

24    should not forget here that the Prosecution proposed this individual,

25    Zijad Krivdic, as a rebuttal witness, as a physically and psychologically

Page 12623

 1    healthy man, and it did so last month.

 2            The murder of Becir Medunjanin is discussed in paragraphs 409 and

 3    410 of the final brief.  What is interesting here is that the statement of

 4    Fadil Avdagic, that Duca in the "white house" had kicked Becir Medunjanin

 5    and slit his nose is put forward as one of the important arguments and it

 6    is also stated that Zigic and Duca laughed when the individual in question

 7    sustained that injury.

 8            The Defence is not clear here whether the Prosecution is not

 9    following the statements of other witnesses, is not taking into account

10    statements of other witnesses, in particular, Witness T, or whether the

11    Prosecution is attempting to put forth to the Court something that cannot

12    even -- cannot be presented.

13            Duca had slit Medunjanin's nose while the latter was still in the

14    barracks and it was -- and he came to Omarska with a slit nose as it was

15    claimed by Witness T, and there were -- and all other witnesses who spoke

16    about that event said that Medunjanin had arrived in Omarska with a slit

17    nose.  Fadil Avdagic stated that the nose of Becir Medunjanin had looked

18    normal before Duca kicked him in the "white house" and this was discussed

19    in detail by the Defence in its final brief.

20            What is ironical here is that it is the fact that it is on the

21    basis of this untruth which the Prosecution must have noticed.  The

22    Prosecution is now trying to use this as an aggravating circumstance when

23    they speak about some perverse satisfaction during the beatings of

24    prisoners, an allegation which is elaborated in pair 514 and, in

25    particular, in footnote 968.

Page 12624

 1            At this point, the Defence wishes to draw your attention to a very

 2    important portion of a document which was presented during this case.  It

 3    is the submission of the Prosecution with summarised witness statements

 4    pursuant to Rule 73 bis (B)(iv) dated 17th of September, 1999, which

 5    submission was signed, first of all, by Mr. Grant Niemann, the then senior

 6    trial attorney for the case.

 7            On pages 49 to 55 of the B/C/S version of this document, abridged

 8    statements of four witnesses are mentioned.  The witnesses that were

 9    proposed by the Prosecutor concerning the charge of the murder of Becir

10    Medunjanin.  There is a note below -- before these statements which I

11    would like to quote at this point.  I quote -- the interpreters do not

12    have the original text.

13                "Zigic is not mentioned as a participant in any of these

14                statements as far as I can see, since Zigic did not play --

15                did not have any role as a superior.  I don't see how we can

16                charge him with this death without any evidence of his

17                participation in the event.  Unless investigators bring

18                additional evidence, I don't think that we have any other

19                opportunity but to leave this out of this portion of the

20                schedule to the extent it refers to Zigic and to place this,

21                to insert this within the context of general allegations

22                against Kvocka and others because the event occurred in

23                Omarska.  However, I think that without further evidence, I

24                think that the allegation will have to be redacted from this

25                portion of the document."

Page 12625

 1            We wonder why and on the basis of what Zigic was charged with the

 2    murder of Becir Medunjanin.  The brief in question was filed in 1999, and

 3    the indictment was filed earlier on.  Furthermore, we wonder why it is

 4    necessary to justify this charge without choosing means or manners to do

 5    that.

 6            As far as the false interpretation of the statement -- testimony

 7    of Witness DD/9 in paragraph 411 of the final brief by which the

 8    conviction of the accused Zigic is sought for the murder of Drago

 9    Tokmadzic is addressed in detail in our written final brief due to the

10    intentional misrepresentation of the testimony of the witness by the

11    Prosecution on the 11th of July, 2001.  The Prosecution has accepted this

12    objection made by the Defence, and the day before yesterday, it filed a

13    written apology for this mistake and it has -- they have corrected their

14    final brief with this respect.

15            I think that one could perhaps say -- we could, perhaps, say we

16    accept this apology by the Prosecution to the extent they accept Zigic's

17    apology to (redacted).  However, we should like to ask here whether

18    it would be -- we wonder whether it would be possible for the Prosecution

19    to apologise at least ten more times for such intentional mistakes, and we

20    would leave the sorry task -- and we would leave the Trial Chamber the

21    sorry task in catching them in further mistakes.  It would have been much

22    better for various other corrections to have been made at that time, and

23    not only corrections that the Defence has drawn your attention to.

24            After the counsel for the Prosecution stated the day before

25    yesterday that witnesses Ivica Sikic and Soka Sikic had given Zigic their

Page 12626

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 11

 12   Blank page inserted to ensure pagination corresponds between the French

 13   and the English transcripts.

 14

 15

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 17

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 20

 21

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Page 12627

 1    car, their weapons, and their son to rob Edin Ganic, we are compelled to

 2    ask the Trial Chamber to provide protection for the witnesses from such

 3    onslaught, unjustified onslaught.

 4            Generally speaking, it is the submission of this Defence team that

 5    to seek a life sentence on the basis of falsely interpreted evidence, on

 6    the basis of evidence which was not even read or, even worse, on the basis

 7    of fabricated contents of the transcript, is something really appalling.

 8            There is one single exception, one single case in which the

 9    Prosecution has taken into account the evidence of the Defence.  That

10    exception is stated in paragraph 416 of the final brief of the

11    Prosecution, where it is stated that Zigic, in the night of 24th July,

12    1992, was not at the barbecue at his house but that he was at the Prijedor

13    hospital at around 2100 hours, where he stabbed to death Omer Karadzic.

14    And they refer in this respect to the exhibit which is only a criminal

15    report.  First of all, the exhibit in question is merely a criminal report

16    which does not, in itself, prove that Zigic did such a thing.  It is only

17    an initial document of that kind, and we have to mention that Zigic was

18    never convicted for such an offence.

19            But there is something else that is worth mentioning at this

20    point.  All alibi witnesses said that they had finally gathered in the

21    house and in the yard of Zigic's house, that is, the house of his parents,

22    sometime after 10.00 p.m.

23            Furthermore, those witnesses who had seen Zigic before this time

24    claim that he had left the house and the yard on several occasions before

25    that, that he was absent for brief periods of time; and the reason for him

Page 12628

 1    doing that was to get some more food and liquor.

 2            Thirdly, the hospital in question is located some 500 metres from

 3    Zigic's house, in the direction of the town and in the opposite direction

 4    of Keraterm, which means that it is twice as far from Keraterm than

 5    Zigic's house is.  And even if Zigic had gone towards Keraterm after the

 6    hospital, he would have had to pass by his house before that.

 7            In any case, certain events, even if they had occurred, which

 8    occurred at some 500 metres from Zigic's house, which is the direction

 9    opposite of the direction of Keraterm, at 9.00 p.m., cannot challenge the

10    alibi of barbecue from 10.00 p.m. until 4.00 a.m.  And if Zigic had been

11    in hospital, if Zigic was in hospital, then it means that he was not in

12    Keraterm.

13            However, I think that it is even more important that the

14    Prosecution, although they had ample opportunity to do that, failed to

15    verify their doubts during the cross-examination of Defence witnesses.

16    And now they're trying to put forward the consequences of their failure to

17    do so.

18            In paragraph 418, the Prosecution requests that Zigic be convicted

19    of torture and inhuman treatment against Fadil Avdagic and Dalija Hrnjak.

20    How can he be convicted of crimes with which he was not even charged?

21    Those acts were not pleaded in the indictment at all.

22            In paragraph 428, it is stated that Zigic put a knife to Edin

23    Ganic's throat, and that this was allegedly claimed by Edin Ganic himself

24    on transcript page 5912 to 5913, and Husein Ganic, transcript page 5770.

25    However, although we are dealing here with a father and son who lived

Page 12629

 1    together and worked together, their testimonies differ substantially on

 2    this detail too.

 3            Husein Ganic claims that Zigic took him outside at the end of the

 4    compound and that he and a group of others brought his son to him and

 5    mistreated him before his very eyes - this can be found on a page of the

 6    transcript, 5672 - while Edin Ganic claims that he was taken out and taken

 7    to his father's room, the room his father was put up in, which is on quite

 8    the opposite side of Keraterm, and that they mistreated him there.

 9            However, while Edin Ganic claims that Zigic put a knife under his

10    throat in front of his father Husein and that Husein pleaded with Zigic

11    not to kill Edin - that is on pages 5912, 5913 of the transcript - Husein

12    Ganic doesn't make any mention of that event at all, nor does he recall

13    it.  The father, who allegedly remembers everything, the only thing he

14    doesn't seem to remember is that before his very eyes they put a knife to

15    his son's throat and that he entreated them to spare his son's life.

16            Therefore, Husein Ganic did not say what the Prosecution refers

17    to, and this can represent yet another attempt on the part of the

18    Prosecutor, in an unlawful manner, to "put right" the contradictions

19    between two Prosecution witnesses and their testimonies.

20            The Prosecution prepared witnesses for testimony which it called.

21    However, the statements that they already made before the Trial Chamber

22    are being distorted, are distorted by them, and they do this even with the

23    testimonies of some Defence witnesses.  The Defence, therefore, is giving

24    careful consideration to the following:  How, then, does the Prosecution

25    go about preparing witnesses for their testimonies?

Page 12630

 1            In their presentation, the Prosecution especially exploits the

 2    statement made by Dusko Sikirica, the accused for genocide and other acts

 3    in the Keraterm case, the statement which charges Zigic but for nothing

 4    specific.  That statement is dated the 4th of July, 1992 and has been

 5    marked as Exhibit 3/249.

 6            On condition that this is, indeed, an authentic document, we

 7    should like to state the following in its regard:  If we recall the

 8    statement made by witness Dusan Zelenjakovic, the Keraterm Commander Dusan

 9    Knezevic was very angry when he learnt of the death of a colleague of his

10    called Drago Tokmadzic and saw that he was dead.  So in front of that

11    witness, he told everybody that he had ordered that the detainees must not

12    be beaten.  He quite certainly, therefore, requested a report from his

13    security commander, Dusko Sikirica, who in turn, in order to disguise and

14    mask his acts and the acts of the guards to whom he was superior,

15    attempted to show that - and I say this under quotations - "those from

16    outside were to blame for everything that happened," and not him or any

17    one of the guards.

18            In this report of his, first and foremost, he is not there

19    personally, who has been charged for shooting, raping, and so on, since

20    the beginning of Keraterm.  So if the report is correct, then probably

21    Sikirica should not have been accused either, charged with this.

22            Second, in that particular report, we don't see Sikirica's guards,

23    the Banovic brothers.  So that if the report is true, they, too, should

24    not be charged and accused; but they are.  His report makes no mention of

25    them, but they are mentioned by many witnesses in connection with the

Page 12631

 1    killing of Emsud Bahonjic, Sead Jusufagic, nicknamed Car, some Albanians,

 2    Drago Tokmadzic, and others.

 3            We don't see two other guards either whose superior Sikirica was

 4    and who Witness DD/4, also a guard, on page 10567 of the transcript, line

 5    16, mentions in connection with the killing of Drago Tokmadzic.  Instead

 6    of all those guards of his and himself too, Sikirica mentions Zigic who,

 7    in the 15 days which came prior to the report, was very ill.  Because he

 8    was so ill, he had to be hospitalised, and after that he was in prison

 9    too.

10            However, although Sikirica refers to the complaints of his own

11    guards, Witnesses DD/6, DD/4, DD/7, and even DD/9 who were precisely those

12    kinds of guards in Keraterm know nothing about all that.  They did not

13    complain to Sikirica about Zigic.

14            Let us return, for a moment, to a statement made by the

15    Prosecution to the effect that none of the accused have shown remorse for

16    everything that happened in Prijedor nor are they repentant, and that

17    was -- went out into the public.  The night before last,

18    Bosnia-Herzegovina television showed a programme with a report from The

19    Hague as did many other TV companies from the former Yugoslavia and

20    outside it.  The accent was placed on the oral presentation of the

21    Prosecution about the fact that none of the accused had apologised or

22    expressed remorse for the events in Prijedor that took place in -- since

23    1992.  They also broadcast the fact that none of the accused gave

24    themselves up voluntarily.

25            In today's paper, the "Oslobodjenje" which is the -- a paper of

Page 12632

 1    Bosnia and Herzegovina with the largest circulation, and I'm referring to

 2    page 5, it says also -- there is a text which refers to the statements of

 3    the Prosecution when they said that none of the accused had expressed any

 4    remorse or regret, and that is a very important portion of the article and

 5    the text also contains a photograph of the four accused including the

 6    accused Mr. Zigic.

 7            However, let us remind not so much the Trial Chamber whom we are

 8    convinced remembers all that, but in the interests of preventing

 9    disinformation from going out into the public and being broadcast, that

10    the accused Zigic in his statement pursuant to Rule 84 bis expressed

11    profound regret and apologies to all the Muslims who consider that, in one

12    way or another, they were hurt by his conduct and behaviour.

13            This refers, in particular, to (redacted) to whom Zigic

14    publicly apologised in his statement and expressed remorse.  He also said

15    that all this including his behaviour towards Sead Jusufagic, Car, he

16    would never repeat again.  He would never behave in the same way again.

17            This Tribunal was established in order to contribute to a

18    conciliation of nations on the territories of the former Yugoslavia.  By

19    putting out disinformation of this kind on the part of the Prosecution,

20    all we are contributing to is the opposite goal.  We wonder how (redacted)

21    (redacted) and all the others when they hear that Zigic -- when

22    they are told that Zigic never even apologised.  Zigic, however, from the

23    bottom of his heart, and publicly, did do this.  He expressed his deep

24    remorse.

25            The Prosecution mentioned the statement of the accused Zigic which

Page 12633

 1    is not all-embracing, use the parts of the statement on several occasions,

 2    and I'm sure that they knew full well of his apologies and remorse, but

 3    they are not putting out the truth to the public and this can result in

 4    pressure from public opinion on the Trial Chamber.

 5            The Defence, however, is convinced that the Trial Chamber will

 6    react in the proper manner here, in the right way.  At all events, this

 7    brief, oral intervention on the part of the Defence at this place and at

 8    this time has, as its goal, to do away with the harm that the Prosecution

 9    has done with the disinformation that is has broadcast to the public.

10            The third part of my presentation would represent a brief summary

11    of the trial as seen by the Defence.  One morning when the trial started

12    in a hotel in The Hague, I was woken up by a sudden thought, and the

13    thought was that the police could come and arrest me on a charge that I

14    had, in the period of two months, killed, for example, a certain Jan Timan

15    in some place called Beverijk for example.  They take me to a judge and

16    the judge said that Jan Timan has disappeared and that two witnesses,

17    could be five witnesses, why not, said that they had seen me do it, commit

18    the act.  It is quite possible that you could find people like that

19    because I wrote very stringent criticisms and articles in the press and

20    scientific journals against many powerful people and institutions.  But I

21    do not know name Jan Timan at all, nor do know where place Beverijk is

22    because I was never there, nor do I know anybody there.  I am imagining I

23    am speaking to the Court.

24            The Court then tells me that I should disclaim this charge made by

25    those witnesses.  Now, I asked myself the question:  Which and what kind

Page 12634

 1    of witnesses am I going to find and in what space of time?  I cannot

 2    defend myself by alibi, a defence by alibi, because not only did nobody

 3    see me go up to bed, but mostly because it is impossible, in the space of

 4    just two months, to cover all my actions with watertight proof and

 5    evidence.  And to have all this at hand after so many years, years during

 6    which I had never, nothing had told me that I would have to evidence and

 7    prove my actions over all those many years for every given day and time.

 8            But even if I could find witnesses of that kind, the basic

 9    assumption there is that the killing actually did take place, and I don't

10    know that with any certainty at all, whether it actually did take place.

11    However, if I ensure, find the witnesses and the killing did not happen, I

12    have secured a false witness for myself.  But I won't even know that it is

13    a false witness because I don't know with any degree of certainty that the

14    killing had actually taken place.  However, if I fail to find some

15    witnesses because, let us say, that the killing didn't take place, then I

16    will be condemned as a murder because there are witnesses who say that I

17    am, indeed, the killer.

18            It would be necessary for those witnesses to testify a negative

19    fact, that is to say, that I did not do the killing.  That means that they

20    must be eyewitnesses too.  Most frequently, eyewitnesses are killers or

21    participants in killings.  If there are no other eyewitnesses or I fail to

22    come up with them for the simple reason that they don't want to come or

23    they are unavoidably detained for other reasons, then I'm finished.

24            With murders and killings, there are usually no other eyewitnesses

25    or very few.  And how can I learn who they are and where they are, whether

Page 12635

 1    they are alive at all or not?  Unless I have a great deal of luck working

 2    for me in my investigation, I'm a condemned man.

 3            Finally, I've just thought of something for which I can breathe a

 4    sigh of relief.  There are no chances of anybody being accused in Holland

 5    of things like this under conditions of that kind.

 6            To summarise, the Defence of the accused Zigic, in its final

 7    brief, was categoric and clear.  Zoran Zigic did not commit a single

 8    murder that he has been charged with in the indictment, nor in any way did

 9    he participate in it.  Zoran Zigic, on a couple of occasions, did hit

10    detainees as he himself said in his statement given pursuant to Rule 84

11    bis which he acknowledges, and for which he is profoundly and honestly

12    sorry and expresses his remorse.  However, from this recognition, we can

13    see that in this procedure and behaviour there was no discriminatory

14    intent.

15            In the foregoing context, persecution, the act of -- the crime of

16    persecution as described in the indictment remains void of all of its

17    essential elements and void of its most important content.  For that crime

18    to be proved, there is no adequate mens rea nor any of the other

19    circumstances that were brought up by the Defence team during this trial.

20            However, even if, on the basis of facts ascertained in this way as

21    seen the way the Defence sees them, we were to assume the standpoint that

22    Zigic, nonetheless, did perform acts of persecution, we must bear in mind

23    the fact this his participation in the persecutions were -- took an

24    exceptionally mild form.  One must make a great differentiation and

25    distinction between persecution, for instance, by long-term, continuous

Page 12636

 1    bombardment of villages and towns, and the alleged persecutions by using

 2    the words "balija" or things like that.

 3            What would have happened if Zigic had done this to the same people

 4    in Prijedor during peacetime?  He would go to the -- he would have been

 5    taken before a magistrate and if he was less lucky, he would be held

 6    criminally responsible for minor criminal offences and he would get

 7    probation of a sentence or a symbolic financial fine, and we cannot

 8    exclude the fact that everything would have ended up by just being --

 9    receiving a court reprimand.  It would be very -- a very happy thing if

10    all war crimes were to end with acts of this kind.

11            In the preamble of the code of conduct for lawyers before this

12    Tribunal, it states, among other things, that a lawyer before the Tribunal

13    is duty-bound to be courageous, brave.  On the other hand, somewhere in a

14    judgement by the Appeals Chamber in the Tadic case, and that is something

15    which is fairly common knowledge, it is stated that lawyers, attorneys

16    with a lot of practice and experience were, in the course of their career,

17    faced with situations when they had to say something which the Trial

18    Chamber did not, perhaps, like to hear.

19            I hope that by saying this, I have made a -- the proper

20    introduction to what I'm going to say now.  It is our impression that the

21    witnesses of this Defence team have sat for a much more difficult test

22    than the Prosecution witnesses.  We state this on the basis of a synthetic

23    overview, and if I had more time, I could go into it in more precise

24    details and more analytically.

25            The Defence witnesses were forced to answer far more unpleasant

Page 12637

 1    and complex questions that were put to them.  They were asked many more

 2    things, things that often had nothing to do with the indictment, and they

 3    were not allowed not to respond even to those questions which were not

 4    directly linked to the indictment and only led to the denunciation of

 5    their superiors, their fellow citizens, their friends, and relatives.

 6    They abided by all this, and did what they were asked.  In our opinion,

 7    they passed the test with flying colours.

 8            The Prosecution witnesses were spared these questions.  These

 9    questions were never asked of them and, on occasion, they were even

10    allowed, without any reason, not to provide an answer to some important

11    questions.  And a case in point is, for example, Witness AD.  He did

12    precisely that.  However, the Defence interprets this difference in a

13    positive light.

14            Firstly, the Prosecution witnesses were victims, and so it was

15    difficult to ask them painful questions.  Nonetheless, the Defence

16    witnesses, many of the Defence witnesses were victims too.

17            Secondly, and more importantly, the Defence does not hide its

18    satisfaction over this approach because it enables us to dispel all doubts

19    in the minds of the Judges with respect to Zigic's responsibility.

20            A more cautious approach in this direction could have left a great

21    deal of reservations in the minds of the Judges.  All of this, however,

22    does not at all mean that this Trial Chamber, in the opinion of the

23    Defence team, does not -- that it was always proper, correct, showed a

24    maximum degree of patience and attention towards all the Defence

25    witnesses.

Page 12638

 1            In closing, on behalf of this Defence team and in the name of the

 2    accused, I should like to express our heart-felt gratitude to this Trial

 3    Chamber for its correct and proper approach and conduct, for the

 4    understanding it has shown as well as the patience, and its very frequent

 5    assistance in helping us conduct this highly complex and unwieldy

 6    procedure, and helping us in our difficult work.

 7            In my own personal name, I should just like to add one more

 8    thing.  With its approach to this trial, the Trial Chamber has offered me

 9    the opportunity once again, with all the effort that this requires, for me

10    to feel the pleasures of working in my own profession, which in my own

11    family has been a tradition.  I was deprived of this pleasure and

12    privilege for many years and so I am profoundly grateful to them for

13    that.

14            But my colleagues of the Prosecution also had their part in giving

15    me this satisfaction and privilege, and as the dean of this Tribunal said

16    on one occasion, and the great lawyer himself, Mr. Grant Neimann, that we

17    are here as boxers, fiercely fighting; but outside the room, outside the

18    courtroom, we can only be the best of friends.

19            A wonderful colleague also once pointed something out to me.  She

20    said that there can be differences between the two parties and the two

21    sides.  When, with respect to the Defence case in the Celebici trial,

22    there was a proceeding which I thought was at the very edge of fair play

23    or not fair play, I suggested to a representative of the Prosecution,

24    Mr. McHenry, that the Prosecution could behave in the same way, not for

25    revenge purposes but in order to strike a balance in the procedure.  She

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Page 12640

 1    looked at me and said very honestly and seriously the following:  "But,

 2    Mr. Stojanovic, the Prosecution must have higher standards than the

 3    Defence."  I remained speechless with admiration.

 4            And finally, this Defence team is not going to enter into any

 5    bidding like at an auction and propose disproportionate, immoderate,

 6    unobjective and incompetent demands with respect to sentencing.  The many

 7    serious mitigating circumstances have already been highlighted in our

 8    briefs.

 9            We expect of the Trial Chamber only that which can and must be

10    expected: the right decision pertaining to responsibility, a just decision

11    on sentencing, and a well-expounded judgement.

12            Once again, I should like to express our gratitude to all the

13    Judges.  It was both a pleasure and privilege to have been able to take

14    part in this strenuous, responsible, and complex task.  Thank you.

15            JUDGE RODRIGUES: [Interpretation] So we come to the end of the

16    closing arguments for the accused Mr. Zigic.  Thank you very much,

17    Mr. Stojanovic.

18            So for today we are going to stop there, and tomorrow we will meet

19    again at 9.20 to hear the closing arguments on behalf of the accused

20    Mr. Prcac by Mr. Jovan Simic.  I assume you are ready.  So we will hear

21    the closing arguments for Mr. Prcac tomorrow morning.

22                          --- Whereupon the hearing adjourned at 2.54 p.m.,

23                          to be reconvened on Thursday, the 19th day of July,

24                          2001, at 9.20 a.m.

25