Tribunal Criminal Tribunal for the Former Yugoslavia

Page 330

1 Thursday, 25 March 2004

2 [Appeal Proceedings]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE SHAHABUDDEEN: Well, good morning. We are continuing the

7 case of the Prosecutor against Kvocka. Madam Registrar, would you call

8 the case. Yes, that will be nice.

9 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honours.

10 This is case number IT-98-30/1-A, the Prosecutor versus Miroslav Kvocka,

11 Mladjo Radic, Zoran Zigic, and Dragoljub Prcac.

12 JUDGE SHAHABUDDEEN: I have to test the equipment again. I take

13 it counsel can hear me. Will any counsel who cannot, indicate. And I

14 take it the appellants can hear me. There seems to be some hesitation.

15 So may I ask you, Mr. Kvocka: Can you hear me?

16 THE APPELLANT KVOCKA: [Interpretation] Yes, Your Honour, I hear

17 you.


19 THE APPELLANT RADIC: [Interpretation] Yes, Your Honour.


21 THE APPELLANT ZIGIC: [Interpretation] Yes, Your Honour, I hear

22 you.


24 THE APPELLANT PRCAC: [Interpretation] Yes, Your Honour. I hear

25 you.

Page 331

1 JUDGE SHAHABUDDEEN: I hope I'm improving in my pronunciation.

2 Now, so we've finished the appearances.

3 Now, then, Mr. Prosecutor, I think it is now your turn. Are you

4 ready, Mr. Carmona?

5 MR. CARMONA: Indeed, but it would be my esteemed colleague,

6 Ms. Norul Rashid, who would be submitting initially, and --


8 MR. CARMONA: Yes. And in fact, she would be responding to

9 arguments in relation to joint criminal enterprise, and specifically, to

10 the Appellant Kvocka's submissions.

11 JUDGE SHAHABUDDEEN: Well, Ms. Rashid, welcome. You have the

12 floor.

13 MS. RASHID: Good morning, Your Honours. Good morning,

14 Mr. Presiding Judge and good morning to Your Honours.

15 Your Honour, I will respond to the legal arguments raised by the

16 appellants in their respective briefs, and during the oral submissions

17 made by several of the appellants' counsel in relation to the legal

18 elements of joint criminal enterprise.

19 The challenges to the factual findings of the application of this

20 form of liability will be addressed by the prosecuting team in response

21 to each of the appellants' briefs.

22 Your Honour, briefly, the Trial Chamber found that the camp, the

23 Omarska camp, was established by the Serb authorities in Prijedor

24 municipality on or about 27th of May, 1992. They will call Omarska and

25 the other camps were called collection centres. And the purpose was to

Page 332

1 identify individuals suspected of collaborating with the opposition.

2 Omarska camp was dismantled at the end of August due to pressure

3 exerted from the international community. The individuals establishing

4 and running the camps were all Serbs. The Crisis Staff, including Simo

5 Drljaca, established the camp. The camp commander was undisputably

6 Zeljko Meakic. It was undisputed at trial.

7 Security and sentry posts were manned by men from the army and

8 the Omarska Territorial Defence. There were interrogators, there were 30

9 guards from the Omarska police station, there were people in charge of

10 logistics and mines, management personnel, which had about 35 staff

11 members. This collection centre detained and interrogated not only men

12 of military age, that is, between the ages of 16 and 60, but also older

13 men and some women, about 36 women.

14 At the conclusion of its work sometime in August 1992, the Trial

15 Chamber found that a vast number of the non-Serb men and women, the

16 detainees, were killed, maimed, tortured, raped, and generally

17 mistreated. Three of the appellants were from the Omarska police station.

18 Kvocka was the senior police officer. Prcac was a retired crime

19 technician from the station, and Radic was a police officer assigned to

20 the Ljubija police station.

21 When assigned to work at the camp, each individual took on

22 specific roles and functions. The issue the Trial Chamber had to resolve

23 at trial was why and how is an individual performing seemingly ordinary

24 tasks in an extraordinary place like the Omarska camp liable for the

25 systematic crimes perpetrated by other individuals.

Page 333

1 The concept of collective criminality, Your Honour, is not new to

2 the Tribunal's jurisprudence. The legality of this mode of liability

3 that the Trial Chamber has applied to the facts of this case is no longer

4 controversial in light of the Appeals Chamber's own judgements and

5 decisions in Tadic, Vasiljevic, Krnojelac, and the Ojdanic decision dated

6 21st of May, 2003. Essentially, Your Honour, the Appeals Chamber has

7 accepted that there are three categories of cases falling within the

8 concept of joint criminal liability or joint criminal enterprise, JCE.

9 The most relevant and appropriate category applicable to this case is the

10 second category or the second variant, which I will call JCE 2. The

11 Appeals Chamber has accepted that the elements relevant and common to all

12 the categories of JCA, there are basically three. The Prosecution need

13 to prove a plurality of persons. There has to be the existence of a

14 common plan, design, or purpose which amounts to or involves the

15 commission of a crime provided for in the Statute. The third element is

16 the participation of an accused in the common design.

17 Now, the Appeals Chamber has accepted a broad category of

18 participation which included -- which involved the perpetration of one of

19 the crimes provided for in the Statute or in the form of assistance in or

20 contribution to the execution of the common plan or purpose. So the

21 emphasis is contribution to the execution of the common plan or purpose.

22 With regard to the mens rea element for JCE 2, the Trial Chamber

23 adopted Tadic, and this is in line also with the recent Krnojelac Appeals

24 Chamber judgement. The mens rea is sharing the intent of the system

25 which presupposes the knowledge of the system of ill-treatment and intent

Page 334

1 to further the concerted system of ill-treatment.

2 Your Honour, in the trial judgement, the Trial Chamber was very

3 careful to circumscribe the legal discussion on the mode of liability to

4 the facts at hand and in relation to the participation of lower-level or

5 mid-level actors in the criminal enterprise. Not low-level actors, Your

6 Honour, lower-level actors. The Trial Chamber recognised and

7 acknowledged that the appellants did not organise the camps, they did not

8 orchestrate the campaign of violence within the camp, but that they were

9 key players who had participated in the functioning of the camp operating

10 as a criminal enterprise.

11 What the Trial Chamber did was that they made a very careful and

12 studied analysis not only of established Tribunal jurisprudence, such as

13 the Tadic Appeals Chamber's judgement, but they also conducted an

14 extensive survey of post-World War II cases, also World War II cases.

15 The analysis can be found from pages 71 to 88 of the judgement.

16 What was the Trial Chamber looking for? The focus of their

17 analysis was the liability of individuals, civilians performing tasks

18 within the ordinary course of their employment and who often did not

19 physically perpetrate the crimes committed by the organisation that they

20 were working in: Medical personnel; industrialists who supplied poisoned

21 gas to concentration camps; persons who work in an administrative

22 facility where children were abandoned and died.

23 In relation to camp cases, the Trial Chamber concluded that those

24 who did not physically perpetrate a crime can be found guilty if crimes

25 falling within the common plan, if they remain -- can be found guilty of

Page 335

1 crimes falling within the common plan if they remain in their assigned

2 positions and continue participating in the functioning of the camp if

3 the participation is significant in position or effect. And that can be

4 found at paragraphs 284 and 310 of the judgement.

5 The Trial Chamber concluded at paragraph 282 it is possible,

6 then, to trace in the jurisprudence of the concentration-camp cases a

7 theory in which criminal liability will attach to staff members of the

8 camps who have knowledge of the crimes being committed there unless -

9 unless - their role is not administrative or supervisory or interwoven

10 with illegality; or unless, despite having a significant status their

11 actual contribution to the enterprise was insignificant.

12 Therefore, Your Honour, the Trial Chamber found that in order to

13 be criminally liable as a participant in a joint criminal enterprise, an

14 accused must have carried out acts that substantially assisted or

15 significantly affected the furtherance of the goals of the enterprise

16 with the knowledge that his or her acts or omissions facilitated the

17 crime through the enterprise.

18 There is at this point in time, Your Honour, a point that we wish

19 to highlight which is not in the briefs. It is our submission that

20 although the Trial Chamber was correct in its factual analysis and in

21 concluding on the facts that the appellants' contributions were

22 significant, under Tribunal law, under existing Tribunal law, and

23 particularly in light of the recent Krnojelac Appeals Chamber's judgement

24 dealing with the systematic form of JCE, the Prosecution need only show

25 that the participant contributes to the execution of the common plan.

Page 336

1 That is the clear requirement from the Tadic Appeals Chamber's judgement.

2 Therefore, the Trial Chamber's conclusion that the participation

3 must be significant is additional, over and above the requirements set

4 out by the Appeals Chamber in all of its judgements. If the Appeals

5 Chamber is of the view that the Trial Chamber did apply an additional

6 requirement, we submit, however, that this in no way prejudiced the

7 appellant, in no way occasioned a miscarriage of justice, and in fact,

8 what it does is to strengthen the findings of the Trial Chamber.

9 Applying the legal elements to the case at hand, the Trial

10 Chamber concluded that the crimes in the Omarska camp were committed by a

11 plurality of persons, indeed, they could only have been committed by a

12 plurality of persons. The establishment, the organisation, the

13 functioning of the camp required the participation of many individuals,

14 playing a variety of roles and performing different functions of lesser

15 or greater degrees of importance.

16 The JCE pervading the camp was the intent to persecute and

17 subjugate the non-Serb detainees. The persecution was committed through

18 crimes such as murder, torture, and rape and by various means, such as

19 mental and physical violence, and inhumane conditions of detention. We

20 submit, Your Honour, that apart from the additional requirement that I

21 have highlighted, the Trial Chamber's legal findings correctly set out

22 the basis of criminal responsibility of the appellants.

23 Your Honour, I would like to turn to more specific arguments

24 raised by two of the appellants, Zigic and Kvocka, Your Honour. They

25 have sought refuge in the contentions that they should not have been

Page 337

1 found liable for crimes committed in their absences. Zigic also added

2 that this form of liability is completely unnatural, as he was convicted

3 of crimes even when he was in prison, when he was sleeping or when he was

4 physically out of the camp. Kvocka claims that since he was on official

5 leave from the camp on two occasions, he should not have been found

6 liable for crimes committed during those times as well.

7 Related to this issue, Your Honour, raised by all the appellants

8 is the scope of the contribution to the JCE, which is required to attract

9 liability. As I've said, Your Honour, my colleagues will address the

10 challenges to the legal -- to the factual findings but I will deal with

11 the general legal principles now.

12 It must be highlighted that there is a 98 bis decision by the

13 Trial Chamber in this case and which is set out at paragraph 349 of the

14 judgement, where the Trial Chamber decided, Your Honour, that the accused

15 will not be responsible for crimes committed before he arrived at the

16 camp to take up his employment and after the accused leaves the camp.

17 All parties accepted that decision. We proceeded with a trial on that

18 basis.

19 However, in the -- in our response brief, Your Honour, we have

20 stated our positions on the Trial Chamber's decision to impose temporal

21 cuts to an accused's liability in light of the continuing nature of the

22 crimes committed in Omarska. We submit that this is a legal issue of

23 general importance, to the Tribunal's jurisprudence and we invite the

24 Appeals Chamber to consider our submissions and to provide us with some

25 guidance on this issue, Your Honour. The arguments are set out from

Page 338

1 paragraphs 3.4 onwards. I do not propose to touch on this issue but I'd

2 be more than happy to assist the Court with any clarifications or

3 elaborations.

4 In response to specific arguments, there are a few points that I

5 wish to make. Firstly, the basis of the appellants' liability is the

6 significance of their contributions to the common design, to the system

7 of ill-treatment, and I must emphasise again, Your Honour, the element

8 common plan or design or purpose amounts to or involves the commission of

9 a crime provided for in the Statute. Therefore, Your Honour, it follows

10 that in a systemic form of JCE, the crimes are relevant to establish the

11 existence of the system of persecution or subjugation in this case.

12 Third, the significance of a participant's contribution is not

13 necessarily dependent on the duration of the contributions. It is one of

14 the -- a number of relevant considerations. It is not necessary for the

15 Prosecution to show, for example, that the appellants intended to

16 persecute the non-Serbs at the camp every minute of their waking hours.

17 Most of the staff who worked at the camp worked normal working hours or

18 in 12-hour shifts. I can cite you some references to the trial record.

19 The evidence of Milenko Jasnic at transcript page 11533 and the evidence

20 of DD/10, transcript page T1066. These individuals, they went home after

21 their work was done. They get to leave camp.

22 The arguments that the appellants cannot be held liable for

23 crimes not committed every time they stepped out of the camp fully

24 intending to return to the camp to continue with their job, it militates

25 against the systemic theory of liability and must be rejected.

Page 339

1 Therefore, Your Honour, for example, at paragraph 399, although

2 the Trial Chamber noted that Kvocka was physically working at the camp

3 for approximately 17 days or 20 shifts, the amount is not insubstantial,

4 considering the litany of crimes that were committed on a daily, even

5 hourly, basis. The Trial Chamber found in relation to Radic that despite

6 knowledge of abusive treatment, he continued working in the camp for

7 nearly three months. Finally, Your Honour, liability is not excluded.

8 It is not truncated even if persons enter and leave the system.

9 The Appellant Zigic was correctly held liable not because of the

10 duration of his contributions but because he contributed in the most

11 direct way possible. By committing very serious crimes, he contributed

12 to the system of persecution, which consisted of the commission of

13 crimes. Without the crimes, there would be no system of persecution;

14 without the likes of Zigic, there would be no crimes.

15 Fourth, Your Honour, in relation to knowledge of the system, the

16 Trial Chamber correctly observed the participant did not know of each

17 crime committed. Knowledge that a wide variety of crimes committed

18 within a system, the criminal nature of the system, the discriminatory

19 practices and policies is sufficient. The Belsen trial also supports

20 that conclusion. The judge advocate in that case in summarising the

21 evidence stated that the case for the Prosecution was that all the

22 accused employed on the staff knew that a system and a course of conduct

23 was in force and that in one way or another, in furtherance of a common

24 agreement to run the camp in a brutal way, all those people were taking

25 part in that course of conduct.

Page 340












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

13 English transcripts.













Page 341

1 Personal involvement with crimes is also -- or physical presence

2 at the time of the commission of the crimes are not prerequisites when

3 determining significance of the contribution of the accused to the

4 system.

5 Fifth, Your Honour, a position of authority in the sense that the

6 accused has command responsibility or control over the perpetrators as

7 suggested by counsel is not a prerequisite. It's not to be found

8 anywhere in the jurisprudence. The reliance on Krnojelac for this

9 proposition is also misplaced. In paragraph 269 of the judgement, Your

10 Honour, I would highlight the Trial Chamber's reliance on the Dachau and

11 the Belsen concentration camp cases and noted that the accused held some

12 position of authority not formally prescribed. Even camp inmates were

13 given authority over others. Having analysed the jurisprudence, the

14 Trial Chamber concluded that these cases, the World War II cases, Your

15 Honour, seemingly establish a rebuttable presumption that holding an

16 executive, administrative or protective role in the camp constitutes

17 general participation.

18 This is consist with the modern approach applied by the Appeals

19 Chamber in Krnojelac, for example, where his position as the camp

20 commander raised a very strong inference that he was aware of the

21 systemic crimes and that he agreed to the system. Therefore, the

22 position of authority or influence of the accused is just one of the

23 relevant indicators.

24 Sixth, Your Honour, the fact that a few crimes fell outside the

25 period of employment, for example, in the case of Kvocka where we have

Page 342

1 analysed some of the murders and the tortures and, quite clearly, some of

2 the murders occurred after Kvocka had left the camp. We have identified

3 about three murders. We submit that --

4 THE INTERPRETER: Could counsel please slow down. Thank you very

5 much.

6 MS. RASHID: I apologise, Your Honour, to the interpreters.

7 We submit that this does not extentuate the extent of his

8 liability. It does not in a material way affect his sentence in any

9 significant matter or at all. And that is because the basis of his

10 liability was his contributions to the system. The crimes were the means

11 to achieve and perpetuate the prosecutory system. Count 1 of the amended

12 indictment essentially charged Kvocka with involvement in the persecution

13 of non-Serbs on discriminatory grounds using the following means:

14 Murder, torture, torture and beating, sexual assault, and rape. It is

15 sufficient for the Trial Chamber to find that one or a few of these means

16 were committed during Kvocka's stay to ascribe liability to him as a

17 participant in the JCE.

18 Therefore, Your Honour, the Trial Chamber's approach of attaching

19 liability from the perspective of significant contribution, rather than

20 an approach of seeking to establish precise links to the individual

21 crimes or individual perpetrators, is the correct one; and in fact it

22 finds support in the Krnojelac Appeals Chamber's judgement, for example,

23 at paragraph 97 of that judgement.

24 The crimes committed in Omarska were of a continuing, pervasive

25 nature. In light of their frequency, the scale and magnitude, the Trial

Page 343

1 Chamber rejected Kvocka's argument that he was only working on 20 shifts

2 in the camp, days working in Omarska, concluding that this amount of time

3 is not insubstantial given the frequency and the scale of the crimes and

4 given his own significant contributions when he was there.

5 In relation to the scope of contribution, Your Honours, first,

6 the participation in the enterprise must be significant. What is

7 significant? An act or omission that makes an enterprise sufficient or

8 effective; participation that enables the system to run smoothly without

9 disruption. Physical or direct perpetration of serious crimes that

10 advances the goal of the criminal enterprise will definitely constitute a

11 significant contribution.

12 In the Dachau trial it was observed that the culpability of an

13 accused for participation in a common criminal design could arise when

14 the accused's duties were, A, they were such as to constitute in

15 themselves an execution or administration of the system. That would be

16 sufficient to make the accused guilty of participation in the -- in that

17 system; or B, were not in themselves illegal or interwoven with

18 illegality but were performed in an illegal manner.

19 Now, this second category makes it clear that any individual,

20 regardless of his position within the camp's hierarchy, can be held

21 liable as a participant in a system of ill-treatment if he or she

22 performs her job in an illegal manner.

23 Secondly, the significance of a participant's contribution

24 determines not only liability but also liability either as a

25 co-perpetrator or an aider and abetter, particularly in the case of

Page 344

1 lower-level perpetrators.

2 A person who does not commit crimes but directs the overall

3 operations, thus ensuring perpetuation of his crimes offers significant

4 contribution. In the case of Krnojelac, he was the camp warden. The

5 Trial Chamber found Krstic, in the case of Prosecutor and Krstic, guilty

6 of co-perpetrator of a joint criminal enterprise because his

7 participation of playing a key coordinating role is of an extremely

8 significant nature and at the leadership level. And that's at paragraph

9 642 of the Krstic judgement.

10 The contributions of, for example, Zigic, were significant

11 because he contributed directly to the core of the common design which is

12 the common plan to persecute against the non-Serbs. Similarly with

13 appellant Radic; his contribution straddled both categories, commission

14 of egregious acts and in fulfilling his duties as the shift-guard leader,

15 thereby ensuring that the system functioned efficiently.

16 Kvocka's and Prcac's role provided a valuable service to the

17 camp. Their administrative duties substantially contributed to the

18 execution of the persecutory system.

19 Your Honour, it is useful to know the Einsatzgruppen case which

20 distinguished between significant and insignificant contributions to the

21 JCE, taking into account the nature of the duties performed by the

22 accused and also whether the accused was in a position to protest or

23 influence the criminal activities.

24 In the case of Ruehl, from the same case, the Einsatzgruppen

25 case, it was concluded, Your Honour, that although Ruehl had knowledge of

Page 345

1 some of the illegal operations of the unit that effected the execution of

2 Jews, it was not established that he was in a position to control,

3 prevent, or modify the severity of its programme although he remained

4 with the organisation for no more than three months and during the entire

5 period took no part in the execution. Nor did his low rank place him

6 automatically into a position where his lack of objection in any way

7 contributed to the success of any executive operation. So he was

8 acquitted of the crimes.

9 But as the Tribunal has correctly pointed out, this is not the

10 case if he was the commander. He would have been liable for the crimes.

11 The Trial Chamber concluded that none of the appellants here fall

12 into the category of humanitarian workers. For example, a doctor who

13 visited the camp at Omarska to assist the detainees, he will not be held

14 liable because his contributions do not further the system of

15 ill-treatment.

16 Perhaps the most important factor to examine, Your Honour, at the

17 end of the day, is the role of the accused vis-a-vis the seriousness and

18 scope of the crimes committed.

19 Third, Your Honour, the significance of participation will also

20 determine the requisite mens rea, whether the participant shares the

21 intent of the enterprise, in the sense that he intended to further the

22 system, or that he merely had knowledge in the sense that he is at the

23 end of the day an aider and abetter to the system. If I may offer an

24 illustration, Your Honour. If an individual was asked to drive his truck

25 into Omarska camp and a truck -- and the bodies at the Omarska camp were

Page 346

1 loaded on his truck and he drives away to a mass grave, he is of course

2 aware that mass killings had occurred and he knew that he was assisting

3 in the efficient disposal of the bodies; substantial contribution.

4 However, it cannot reasonably be inferred that because he assisted on

5 that one occasion he agreed to the system or actively shared intent.

6 Now, if an individual walks into Omarska camp knowing full well

7 that there is this climate of impunity, that detainees are abused on a

8 daily basis, and on that one occasion maliciously, deliberately, killed a

9 detainee, his contribution is so direct and so significant to advancing

10 the purpose of the system that the only reasonable inference is that he

11 agreed with the system, he shared the goals of the system, and that he

12 must be liable as a co-perpetrator.

13 We submit, Your Honour, that the Trial Chamber's analysis and

14 conclusions on the legal criteria in determining the appellants'

15 liability are unimpeachable and must be upheld. The appellants'

16 challenges to these findings must be rejected.

17 Your Honour, I will now turn to the appellants' collective

18 argument that they lacked the requisite mens rea applicable to this mode

19 of liability. Kvocka claimed, for example, that he lacked any shared

20 intent. He said that he was obliged by his superiors and professions to

21 carry out his duties. Radic submitted that he acted in accordance with

22 the structure of his personality, that he was merely obeying orders and

23 that he had no discriminatory intent. Prcac argued that he acted -- he

24 was at the camp under threat and duress.

25 All these arguments must be dismissed. Basically they're saying

Page 347

1 that they should not have been found liable as a co-perpetrator due to

2 all these reasons. The factual aspects of the argument will be

3 addressed, Your Honour, later, but the legal requirement of the mens rea

4 will be addressed now.

5 The Trial Chamber made a factual finding that all four appellants

6 shared the discriminatory intent of the common enterprise in light of

7 their knowing and substantial participation in the system of persecution.

8 The Trial Chamber's legal findings are correct; they are consistent with

9 the Appeal Chamber's judgements and decisions.

10 First, Your Honour, precise knowledge of each and every crime

11 committed is not required. Second, the Krnojelac Appeals Chamber's

12 judgement at paragraph 100 has held that shared criminal intent does not

13 require the co-perpetrator's personal satisfaction or enthusiasm or his

14 personal initiative in contributing to the system. Personal motives of

15 the perpetrator must be distinguished from intent, motive is not relevant

16 to establishing liability.

17 Third, at paragraph 96 of its judgement, the Krnojelac Appeals

18 Chamber clarified the interplay between knowledge and intent, explaining

19 that in a systemic form of JCE, the intent, that is, the shared intent of

20 the participants, not necessarily the direct perpetrators, presupposes

21 two things: Knowledge of the system and intent to further the system of

22 ill-treatment.

23 Using this criteria what needs to be proved is their involvement

24 in the system, not necessarily to establish an agreement between all the

25 participants. Therefore, Your Honour, from the -- in Krnojelac all that

Page 348

1 was required was that he knew of the system and agreed to it, that is,

2 the system, and not with individual perpetrators or the commission of

3 individual crimes.

4 Therefore, intent in JCE 2 exists where an accused is aware of

5 the nature of the intent of other co-perpetrators and guided by such

6 knowledge voluntarily contributes to that common design, meaning to make

7 that contribution.

8 In conclusion, Your Honour, if an accused acted with intent, it

9 is immaterial that the accused's motive was to follow orders, or do his

10 duty, or to avoid possible negative consequences. An indifferent,

11 unenthusiastic, reluctant co-perpetrator is still a co-perpetrator,

12 provided he or she has contributed in a significant way to the JCE and

13 that he or she shares the common criminal intent.

14 The appellants' arguments to the mens rea element must also be

15 rejected.

16 Your Honour, turning to my last final point on the -- on JCE,

17 this relates to the issue of abandonment, disengagement or withdrawal

18 from the system. This issue has arisen because -- partly because Kvocka

19 argues that he should not have been found liable for crimes committed

20 during periods of absences and that he was unable to leave the camp

21 because it might affect his job. Prcac appears to argue that he was

22 mobilised under threat and duress and that he was appointed to work at

23 the Omarska camp. Radic argues that he feared his sons would be sent to

24 the front line if he had refused. In other words, most of the appellants

25 have argued that they had very little choice to work at the camp.

Page 349

1 In its judgement at paragraph 709, the Trial Chamber concluded

2 the defendants worked in the camp from between 17 days to three months.

3 If during this time they had relentlessly sought to improve the

4 conditions, prevent crimes, alleviate the suffering, they would likely

5 escape liability for participating in the persecutory scheme. The Trial

6 Chamber found on the facts of this case none of the defendants fits the

7 bill. The Trial Chamber has therefore addressed the very same issue

8 raised, whether there were circumstances relevant to either extenuate

9 liability or mitigate culpability. Circumstances where an individual

10 could effectively disengage or withdraw from an enterprise which was

11 clearly illegal, thus possibly escaping liability.

12 The Trial Chamber in Krnojelac indicated that resignation from a

13 job that places one in such a system is the only way to disengage or

14 withdraw from the system. Some of the more pertinent questions to ask:

15 Was the accused in a position to refuse the work assignment? Was there a

16 risk that the accused would suffer, for instance, imprisonment if he

17 refused the assignment? Is there evidence that -- of others leaving the

18 system without any adverse consequences?

19 In rejecting Kvocka's complaints also made at trial, the Trial

20 Chamber found at paragraph 402 that there is no evidence that indicates

21 that Serbs who worked in the camp who assisted or tried to improve the

22 conditions of the detainees were punished.

23 Your Honour, I must point out that in the brief, in the response

24 brief, the Prosecution has offered a comparative analysis of domestic

25 jurisprudence to illustrate the general principles underlying the concept

Page 350

1 of withdrawal or abandonment, but I must point out that their

2 applicability depends on the nature of the crime. For example, the US

3 model Penal Code and the English jurisprudence that we have cited pertain

4 to specific crimes, a single crime, that is, and averting the completion

5 of those crimes of conduct amounting to -- and if there is a successful

6 renunciation, that might amount to mitigation; for example, in the cases

7 of attempt. In this present case, Your Honour, the Trial Chamber

8 recognised the continuing nature of the crimes. Because of the

9 continuing nature of the systemic crimes, Your Honour, the notion of

10 completion of a crime does not necessarily arise.

11 However, the cases we have cited offer some guidance consistent

12 with the Trial Chamber's observations on withdrawal from the system. For

13 example, in the German law, for the affirmative defence of renunciation,

14 it is required that the actor, after conspiring to commit a crime,

15 thwarted the success of the conspiracy, under circumstances manifesting a

16 complete and voluntary renunciation of his criminal purpose. The Statute

17 of the ICC also contains an express provision on abandonment of a

18 criminal attempt, and thus in Article 25(3)(f), which relieved the actor

19 of any liability for the attempt if that person completely and

20 voluntarily gave up the criminal purpose.

21 The question is do the appellants' own personal motivations and

22 reasons for staying at the camp amount to a recognised legal defence? We

23 submit that the reasons for Kvocka's absences do not amount to effective

24 disengagement or abandonment by him of the joint criminal enterprise. He

25 was on official leave and sick leave from the 2nd to the 6th of June, the

Page 351












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

13 English transcripts.













Page 352

1 16th to the 19th of June respectively, and during his leave, he spent

2 time with his wife's family.

3 As for the sick -- Your Honour, yes.


5 MS. RASHID: Yes, Your Honour.

6 JUDGE SHAHABUDDEEN: Do bear with us. Could you slow down your

7 pace a little.

8 MS. RASHID: I'm sorry, Your Honour.

9 JUDGE SHAHABUDDEEN: It will help the translation and the

10 reaching of the translation to some members on the Bench.

11 MS. RASHID: I'm sorry, Your Honour. I think there is a problem

12 with my microphone. I'm not able to hear whether the translation -- the

13 translators told me to slow down.

14 JUDGE SHAHABUDDEEN: Could you slow down your pace.

15 MS. RASHID: I will, Your Honour. I also have an eye on the

16 clock. So do forgive me, Your Honour.

17 Your Honour, we submit that the periods of absences that Kvocka

18 had taken were well within the usual terms of employment. When Kvocka

19 returned to the camp, he continued to be actively involved with his

20 duties. He was not dismissed. He didn't lose his job. But he was

21 transferred to another police station at Tukovi. He did not leave the

22 camp on his own initiative. He did not abandon the camp on his own

23 initiative. There was no evidence, Your Honour, that he did anything to

24 precipitate his departure from the camp. On the contrary, he made it

25 very clear that if he had a choice, he would have continued working at

Page 353

1 the camp.

2 The Trial Chamber concluded at paragraph 403 even if a knowing

3 participant in a criminal enterprise was unwilling to resign because he

4 would prejudice his career or he feared he would be spent to the front

5 lines, imprisoned or punished, the Trial Chamber emphasises that this is

6 not an excuse or a defence to liability for participating in war crimes

7 and crimes against humanity. Kvocka's only excuse is that he feared he

8 would lose his job. Presumably because of this, he knowingly

9 participated in a system where hundreds of detainees lost their lives.

10 Could the appellants, Your Honour, have chosen not to work in an

11 organisation that was so obviously criminal? Yes, they could. Radic

12 testified in court that nothing happened to guards who did not turn up

13 for work. Some went to their farms, others went swimming. He said it

14 depends on the individual and how conscientious he was in performing his

15 job at Omarska. That's at transcript page 11297.

16 Another witness, Nada Markovska, she was ordered to work at

17 Omarska as a typist. She went all the way and saw Simo Drljaca complain

18 about the work being too hard and was permitted to leave the camp.

19 That's at transcript page 7782. DD/10 left at her own initiative,

20 complained to Drljaca and confronted him about conditions at the camp and

21 as she puts it, she didn't lose her head. That's at transcript page

22 T10699. And then Defence witnesses testified that the organisation in

23 the camp was so lax that guards failed to show up for work without any

24 repercussions.

25 The only reasonable conclusion open to the Trial Chamber was that

Page 354

1 the appellants were knowing and they were willing participants of the

2 persecutory system and that they did nothing to disengage themselves from

3 the system.

4 Having heard the appellants, Your Honour, their complaints remain

5 devoid of merit and must be dismissed.

6 Your Honour, if I could conclude with some observations from the

7 Trial Chamber. The Trial Chamber correctly concluded that the primary

8 work of the staff individuals working at Omarska camp was to ensure that

9 the prisoners stayed in their miserable conditions and the camp system

10 functioned without disruption or hassle. If we remove the Zigics, the

11 Prcacs, the Kvockas, the Radics, the administrators, the guards, the

12 interrogators, the typists from the camp, the camp would not have run its

13 course effectively and people would not have died needlessly. The Trial

14 Chamber found at paragraph 709 without their guarding function, without

15 the role they played in maintaining the efficient and continuous

16 functioning of the camp there could have been no camp at all.

17 For all these reasons, Your Honour, and reasons which will be

18 highlighted by the Prosecution team, the Trial Chamber correctly

19 concluded on the law and on the facts that the appellants were liable for

20 the crimes committed in Omarska as participants in a joint criminal

21 enterprise. The appellants' common ground of appeal must therefore be

22 rejected.

23 Your Honour, that concludes my submissions on the common ground

24 of appeal. If I'm not able to assist the Court in any way, I will turn

25 to my response to Kvocka's grounds of appeal, Your Honour.

Page 355

1 JUDGE SHAHABUDDEEN: You're not through? You will speak further.

2 MS. RASHID: I have completed my submissions on common ground of

3 appeal and I will respond to grounds of appeal raised by the Appellant

4 Kvocka.

5 [Appeals Chamber confers]

6 JUDGE SHAHABUDDEEN: I think our sense is that you should be

7 allowed to proceed and to conclude your submissions.

8 MS. RASHID: Very well, Your Honour.

9 Your Honour, the Appellant Kvocka has raised a number of alleged

10 errors in his Appeal Brief. I will, however, respond to four, perhaps

11 five points raised in his oral submissions yesterday. The first point

12 relates to the admissibility of an OTP interview statements which Kvocka

13 has given to the OTP. It is marked as Exhibit P3/103 at trial. Kvocka

14 claims, Your Honour, that because he chose to testify in court the

15 transcript of this interview should not have been admitted or relied upon

16 by the Trial Chamber. His only reasoning is a reference to the principle

17 of directness. I don't propose to dwell on this issue long because we do

18 not accept that this issue is unresolved or that there is an ambiguity in

19 the Rules governing admissibility of an accused's statement or that there

20 was an error of law. There is no dispute, Your Honour, that the

21 statement was recorded in accordance with the procedure set out in the

22 Rules, Rules 42, 43, and 63. And most importantly, yesterday Judge

23 Mumba, I believe, clarified with counsel that Kvocka was cautioned that

24 any statement he made may be used in evidence, and that is not disputed

25 either.

Page 356

1 Your Honour, the statement was used in the course of

2 cross-examining Kvocka, and parts were relied by the Prosecution as

3 assertions of truth. The Trial Chamber also referred to the statement in

4 the judgement. In the law and practice of the Tribunal, Your Honour,

5 there is a difference between the use that can be made of a witness

6 statement and that of an accused. I must also point out that the exact

7 same challenge that the appellant has raised today was in fact raised at

8 trial and resolved by the Trial Chamber in its decision dated 16th of

9 March, 2001. The appellant has made no reference to this decision and

10 has not made any submission as to why the Trial Chamber committed an

11 error of law in its decision in admitting the statement.

12 The Trial Chamber admitted the statement because the Rules

13 provided for it, Rule 42, and was satisfied that all the measures

14 protecting the rights of the accused were complied with, and concluded

15 that under the circumstances, omission of the document at issue which is

16 evidently relevant and has probative value cannot be considered contrary

17 to the demands for a fair trial and that the Judges shall assess the

18 weight to be given to this evidence at the appropriate time. In other

19 words, the statement, Your Honour, was treated like any other evidence,

20 regard being given to its probative value and weight, except for the fact

21 that its admissibility was governed by specific provisions in the Rules

22 of Procedure and Evidence.

23 And I have cited in the brief as well, Your Honour, a judgement,

24 the Celebici appeals judgement which specifically rule that a Trial

25 Chamber is entitled to rely on the substance of such statements to

Page 357

1 convict if voluntarily made. That's in the case of Music. That's the

2 Celebici appeals judgement paragraph 564. I should also cite a recent

3 Trial Chamber's judgement in Prosecutor and Simic, where the Trial

4 Chamber did use Zaric's and Tadic's OTP interview statements despite

5 their decision to testify in court.

6 The jurisprudence is clear. The Rules are not unambiguous [sic].

7 The statement was -- the Trial Chamber was entitled to admit and use the

8 statement because it was probative, and the Trial Chamber exercised its

9 discretion in attaching the relevant weight to it. No error has been

10 shown by the appellant. This argument must be rejected.

11 The second legal error, or factual error, that the appellant has

12 raised relates to the Trial Chamber's conclusion that Kvocka had occupied

13 a position similar to a de facto position of authority and influence at

14 Omarska camp. There are basically four points that I wish to make, Your

15 Honour, very briefly, in relation to this argument.

16 First of all, the Trial Chamber found -- did not find that Kvocka

17 was a deputy commander. He found that - excuse me, Your Honour - He

18 found that Kvocka was the functional equivalent of a deputy commander,

19 after having assessed his role and his specific duties at the camp.

20 Second, Your Honour, the liability as a participant and a

21 co-perpetrator is not dependent on formalised titles but rather on the

22 contributions that the participant had made to the system. Kvocka also

23 criticised the evidence of several witnesses yesterday in court. He

24 seems to suggest that it was the impression of witnesses that he was the

25 deputy commander and that was all the evidence that the Trial Chamber had

Page 358

1 relied on. This is clearly not the case. The Trial Chamber had relied

2 on a large number of witnesses who testified that Kvocka occupied a

3 position of authority and influence within the camp. And that's at

4 paragraph 368.

5 Kvocka himself introduced -- he introduced himself as commander

6 and the person in charge to the detainees on at least two occasions.

7 The Trial Chamber also relied on Kvocka's own evidence that he

8 was asked by the commander, Meakic, to help him as senior officer, and

9 that he may have been perceived by junior officers to be one of the

10 superiors because of what he was doing at the camp.

11 Apart from reiterating his defence at trial, the appellant, Your

12 Honour, has not raised any legal error, any factual errors, has not made

13 any references to the Trial Chamber's findings or its reasoning. We

14 submit that this is not sufficient to discharge his obligations, his duty

15 as an appellant. And he has failed to show that the Trial Chamber's

16 conclusions were unreasonable. There is no reason to disturb the Trial

17 Chamber's findings in this regard, Your Honour.

18 The third argument that the appellant has raised relates to his

19 contributions. He argued that his contributions were not significant and

20 therefore he should not be liable as a co-perpetrator. At paragraph 407

21 of the judgement the Trial Chamber concluded that Kvocka actively

22 contributed to the everyday functioning and maintenance of the camp,

23 including that his conduct made him a co-perpetrator in the JCE, the

24 Trial Chamber said that his contribution to the camp functioning was

25 significant. The Trial Chamber found on the facts that he played a part

Page 359

1 in the formation of the camp, and this was because Kvocka was one of the

2 first few individuals to arrive at the camp to help set up the security

3 system, and he activated the reserve police guard to come to the camp to

4 act as guards. He was the link between the commander, Meakic, and the

5 police officers serving as guards at the camp. His duties basically

6 pertained to what Meakic told him to do. Meakic was the camp commander

7 and Kvocka acted in his absences.

8 His formal duties were to supervise the reserve police officers

9 who were acting as guards, to oversee the conduct of the police officers

10 and to forward reports to Meakic. One of Kvocka's more interesting tasks

11 was to dictate who was to survive interrogations at the "white house."

12 Witness AK testified that when he was called out of a room by a soldier,

13 Kvocka told the soldier who was talking to him -- he was taking him and

14 Witness AJ, another witness, to the "white house" and he told the

15 soldier: Bring them back here afterwards.

16 The "white house" is notorious. It is well known that detainees

17 who were interrogated in the "white house" would certainly not survive

18 the experience. Zigic and other individuals were eventually convicted of

19 beating Witness AK and Witness AJ, but as per Kvocka's instructions they

20 survived. They were brought back to the room. But Kvocka allowed them

21 to be beaten.

22 Counsel yesterday also referred to another incident involving

23 Nusret Sivac. This incident has been set out in the judgement at

24 paragraph 370(a). Now, what happened was that Kvocka gave instructions

25 to return Nusret Sivac back to Prijedor and instead to arrest his sister,

Page 360

1 Nusreta Sivac, a woman, a civilian, a judge, a prominent member of the

2 Muslim community. As a result, she was confined in deplorable conditions

3 at the camp, without justification, from 10th of June to 3rd of August.

4 The detention and confinement of a civilian --


6 MS. RASHID: Yes, Your Honours.

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 361

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Prosecution counsel confer]

12 MS. RASHID: Your Honour, could we go into private session for

13 just a minute?

14 JUDGE SHAHABUDDEEN: Yes. Private session is ordered.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 362












12 Page 362 redacted private session.














Page 363












12 Page 363 redacted private session.














Page 364

1 (redacted)

2 (redacted)

3 (redacted)

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 [Open session]

17 THE REGISTRAR: We're in open session.

18 MS. RASHID: Much obliged, Your Honour.

19 Your Honour, Kvocka also testified that reserve police officers

20 bear the same duties as professional policemen and that the duties of the

21 police officers working in Omarska camp were to prevent prisoners from

22 escaping, to prevent outsiders from entering the camp, and also to

23 prevent attacks on the prisoners. Kvocka and the police officers that he

24 was supervising, therefore, bore responsibility to protect the safety and

25 well-being of the detainees.

Page 365

1 The Trial Chamber found that Kvocka's insistence that he could

2 not prevent abuse because he did not have sufficient authority was

3 contradicted by the evidence, and there was plenty of evidence. The

4 Trial Chamber found that he could have done far more than what he was

5 doing to mitigate the terrible conditions at the camp. He could have

6 taken steps to prevent unauthorised persons from entering the camps and

7 abusing the detainees. He could have ensured that more detainees

8 received medical treatment. He could have prevented guards and other

9 subordinates from beating or otherwise abusing detainees on arrival in

10 the dining facility or en route to the toilets. He could have done this,

11 because he did offer assistance, but selectively, preferentially, to

12 people that he knew. He did not do so for a vast number of unknowns.

13 Kvocka admitted that when he was there, there were about 2.000 to

14 2.500 detainees. The Trial Chamber found, Your Honour, that he was a

15 co-perpetrator because, despite having knowledge about the abusive

16 treatment and conditions, he continued to work for at least 17 days at

17 the camp, where the Trial Chamber found he performed his tasks

18 skillfully, efficiently, without complaints.

19 When Kvocka reported for work at the Omarska camp on 29th of May,

20 he saw three to four bodies lying on the grass. He was told that the

21 detainees were shot while attempting to escape during the night. One of

22 them was Muslim policeman Ahid Delic who was quite obviously severely

23 beaten and shot the night before. His only reaction was that, "Well

24 Meakic was with me; he would have seen it. Let him deal with it."

25 Mirsad Alisic testified that about ten days later an elderly

Page 366

1 gentleman by the name of Nasic was shot dead at the cafeteria by a guard.

2 Kvocka was standing right next to the guard when this happened.

3 Afterwards, Kvocka came to the witness and the only thing he said was,

4 "Why didn't you keep him quiet? "

5 Kvocka was present when bodies covered in blood were loaded onto

6 a truck at the camp. He was responsible for the positioning of the

7 guards at various places in the camp. Why? To prevent detainees from

8 escaping.

9 In holding Kvocka liable as a co-perpetrator of the JCE, the

10 Trial Chamber concluded he was fully aware of the criminal nature of the

11 camp. He was willing to continue in a position of authority and

12 influence. His participation enabled the camp to continue unabated its

13 insidious policies and practices. His continued participation at Omarska

14 sent a message of approval to other participants in the camp's operation.

15 It was a condemnation of the abuses and deplorable conditions there.

16 Your Honour, these are all factual findings arrived at by the

17 Trial Chamber after a careful and studied analysis of all the relevant

18 evidence. Kvocka has not demonstrated that the Trial Chamber erred in

19 the evaluation of the evidence and that the conclusion drawn was so

20 unreasonable in the sense that no reasonable Trial Chamber could arrive

21 at them.

22 Your Honour, I would conclude by observing that Kvocka held the

23 highest level of authority than any of the appellants in this case.

24 Although he was not the architect of the persecutions committed at the

25 camp, he played nothing less than a key role in facilitating and

Page 367

1 maintaining the functioning of the camp, which allowed the crimes to

2 occur and to continue. For all the reasons set out in the response

3 brief, and we adopt all the reasons that the Trial Chamber has set out in

4 its judgement, we submit that the Trial Chamber committed no error in

5 holding Kvocka responsible for being a member of a joint criminal

6 enterprise at the Omarska camp.

7 I ask that Your Honour uphold the verdict against him and dismiss

8 his appeal. Thank you, Your Honours.

9 JUDGE SHAHABUDDEEN: Ms. Rashid, I wonder whether you would find

10 it convenient if I invited my colleagues at this point to consider

11 whether they want to ask any questions.

12 MS. RASHID: Yes, Your Honour, it will be convenient.

13 [Appeals Chamber confers]

14 JUDGE SHAHABUDDEEN: Judge Guney will have a question.

15 MS. RASHID: Yes, Your Honour.

16 JUDGE GUNEY: [Interpretation] Ms. Rashid, you attempted to draw

17 attention to the role played by Kvocka in the chain of command that was

18 established in the camp. If I'm not mistaken, you said nothing about the

19 positions held by the other appellants in this chain of command, in view

20 of the fact that Zeljko Meakic was, as you say, the camp commander.

21 Perhaps you could say something more about this point so as to make it

22 fully clear - of course, in your view - what the role and position was of

23 others in this chain of command. Thank you.

24 MS. RASHID: Thank you, Judge Guney. Your Honours, the Trial

25 Chamber found that Meakic was the camp commander and that the authority

Page 368

1 that he had -- that he had authority and control over a limited

2 hierarchical system within the camp. He had no control, for example,

3 over the investigators or the interrogators or the logistics. So he only

4 had control over the security services provided by the Omarska police

5 station. Meakic was the commander of the Omarska police station prior to

6 the camp being set up.

7 The Trial Chamber found that Kvocka was his personal assistant.

8 Kvocka was holding the function equivalent to that of a deputy commander

9 at Omarska police station, and I say a function equivalent to that

10 because it was never formalised, because he was the most senior officer

11 next to Meakic at the Omarska police station. The Trial Chamber found

12 that the hierarchy at the Omarska police station consisted of the

13 commander, the deputy commander; and then you have the sector leaders,

14 was transplanted onto the Omarska camp, but only within the security

15 services. So the hierarchy, Your Honour, is Meakic, camp commander;

16 Kvocka, who was holding the functional equivalent of a deputy commander.

17 That title was not formalised. And eventually the Trial Chamber found

18 that Prcac, who came in later, was the assistant to Meakic. He was --

19 the Trial Chamber called him the administrative aide. But he was still

20 within that hierarchy providing security services. And Radic, Your

21 Honour, was a shift guard leader, also falling within the hierarchy, the

22 command structure of -- that I've just spoken about.

23 I hope I've answered your question, Your Honour.

24 JUDGE SHAHABUDDEEN: Judge Mumba has a question.

25 JUDGE MUMBA: Yes. Thank you, Mr. President.

Page 369

1 Ms. Rashid, I've been following your submissions, especially with

2 regard to the analysis of liability on the part of each of the

3 appellants. I may not have understood you correctly, but what -- from

4 what I understood, the sum of your submission on the activities of each

5 appellant is that in some cases, such as this one, culpability does not

6 rely so much on the titles per se. It is indeed the activities or

7 omissions that may positively determine liability. And I use the

8 word "positively" deliberately. Would you agree with me?

9 MS. RASHID: Yes, Your Honour. That is indeed the position of

10 the Prosecution. It is the acts or the omissions that may determine

11 liability. Yes, that's correct, Your Honour.

12 JUDGE MUMBA: Thank you.

13 JUDGE SHAHABUDDEEN: Just one confirmation that I think --

14 THE INTERPRETER: Microphone, please.

15 JUDGE SHAHABUDDEEN: Just one confirmation that I would seek. I

16 invite you to confirm or deny my understanding of your position. I

17 collect it this way: That if an accused person is shown to be a

18 participant in a joint criminal enterprise, his subsequent absence is not

19 a defence unless it amounts to abandonment or withdrawal from the

20 enterprise. Is that a correct understanding of your position?

21 MS. RASHID: If I may explain, Your Honour. And part of the

22 submissions that I've made pertains to -- well, it's because of the facts

23 of this case. For instance, in Kvocka's case, when I refer to absences,

24 I was referring to the two periods of time when he was on leave from the

25 camp. Now, our submission, of course, is that if -- that those two

Page 370

1 periods of absences were well within the terms of his employment, he was

2 entitled to take time off from work, but the fact of the matter was that

3 he returned to the system, meaning that he still adopted the system and

4 he never withdrew from the system in the sense that -- in the way that,

5 for example, DD/10 did, left the camp, did not return, and did not intend

6 to return to the camp. That, in our submission, is effective withdrawal,

7 or effective disengagement, that if you leave the system completely and

8 you have no intention of returning to the system. The periods of

9 absences that I was referring to were specifically to the two specific

10 periods of absences arising in Kvocka's case, Your Honour.

11 JUDGE SHAHABUDDEEN: I thank you very much. Do I understand,

12 then, from your appreciation of the facts of this case you assent to the

13 legal proposition which I pronounced?

14 MS. RASHID: The legal proposition is that -- could I have the

15 legal proposition again, Your Honour.

16 JUDGE SHAHABUDDEEN: Well, it's there on the screen.

17 MS. RASHID: Let me just try --

18 JUDGE SHAHABUDDEEN: That if an accused person is shown to be a

19 participant in a joint criminal enterprise, his subsequent absence is not

20 a defence unless it amounts to abandonment or withdrawal from the

21 enterprise. Is that a correct or an incorrect legal proposition?

22 MS. RASHID: Absolutely correct legal proposition.


24 MS. RASHID: That's our position.

25 JUDGE SHAHABUDDEEN: So I collected your submissions correctly.

Page 371

1 MS. RASHID: Yes, Your Honour.

2 JUDGE SHAHABUDDEEN: Thank you very much. Well, then, this is a

3 convenient time, I think.

4 Mr. Fila.

5 MR. FILA: [Interpretation] Your Honour, I did not wish to

6 interrupt my learned friend, but either I did not understand this

7 properly or perhaps it's simply an error. On the transcript, it should

8 say that the accused Radic was a policeman in Ljubija, and then he was

9 transferred to the Omarska camp. That's what I understood. If this is

10 what my learned friend said, it's an error. It should be in Omarska;

11 instead of Ljubija, it should say Omarska. He was in the police station

12 in Omarska. I don't know if I saw this.

13 JUDGE SHAHABUDDEEN: Does Ms. Rashid concur with Mr. Fila?

14 MS. RASHID: My learned friend is correct, Your Honour. That is

15 correct.

16 JUDGE SHAHABUDDEEN: Yes, you're right, then, Mr. Fila.

17 MS. RASHID: Yes, Your Honour. I appreciate my learned friend's

18 correction.

19 MR. FILA: [Interpretation] Thank you very much.

20 JUDGE SHAHABUDDEEN: Thank you, Mr. Fila.

21 Well, then, we will suspend now for about 30 minutes, right?

22 Thank you very much.

23 --- Recess taken at 10.29 a.m.

24 --- On resuming at 11.03 a.m.

25 JUDGE SHAHABUDDEEN: Members of the bar, this sitting is resumed.

Page 372

1 Mr. Fila is on the floor.

2 MR. FILA: [Interpretation] Your Honours, I apologise,

3 Mr. Carmona. As the eldest in the Defence team, so I'll take the floor on

4 behalf of everyone.

5 I would like the Chamber to allow us a small change in the

6 schedule for tomorrow, because the Prosecution changed the sequence of

7 their presentations. First they treated Kvocka, then come Prcac and

8 Radic. We would like Kvocka's counsel to be the first to respond

9 tomorrow, to stick to the new sequence. That makes no change in the

10 overall time required. Because you -- we begin tomorrow as we see with

11 Prcac, Radic, and Kvocka in the present schedule, and we propose a new

12 schedule with -- starting with Kvocka, Prcac, and Radic, because that's

13 the sequence that the Prosecution followed.

14 JUDGE SHAHABUDDEEN: Kvocka, Prcac, Radic --

15 MR. FILA: [Interpretation] And Zigic.

16 JUDGE SHAHABUDDEEN: We don't have any problems up here, Mr.

17 Fila.

18 MR. FILA: [Interpretation] And another matter. We have just one

19 more small request.

20 JUDGE SHAHABUDDEEN: Do you have any problems with Mr. Fila's --

21 MR. CARMONA: There's no problem.

22 JUDGE SHAHABUDDEEN: No problem at all.

23 MR. FILA: [Interpretation] Another small request, or caution. As

24 you know, I dealt with my appeal for an hour. You gave an hour and a

25 half to our learned friend for the Prosecution. Then you gave everyone

Page 373












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

13 English transcripts.













Page 374

1 20 minutes to respond, whereas I received 15 minutes. Lest I accuse you

2 of discriminatory intent, I kindly request to be given more time. Thank

3 you very much.

4 [Appeals Chamber and legal officer confer]

5 JUDGE SHAHABUDDEEN: Mr. Fila, you're asking for an additional five

6 minutes? Is that it?

7 MR. FILA: [Interpretation] Well, I ask some time to be taken away

8 from the Prosecution and given to me. It's up to you to decide how much

9 time. Because it's not usual for somebody to speak for twice as long as

10 I do.

11 [Appeals Chamber and legal officer confer]

12 JUDGE SHAHABUDDEEN: He's replying to all of the appellants. The

13 Prosecution is replying to all of the appellants.

14 MR. FILA: [Interpretation] I understand that, but why did I get

15 only 15 minutes? That's what I don't understand.

16 JUDGE SHAHABUDDEEN: Therefore, my question is: Are you seeking

17 an additional five minutes' time?

18 MR. FILA: [Interpretation] Fine. But please take those five

19 minutes out of the Prosecution's time so that we don't stay here any

20 longer than envisaged.

21 [Appeals Chamber confers]

22 JUDGE SHAHABUDDEEN: Well, you know, Mr. Fila, everybody was

23 consulted. We did leave the doors open to everybody to say his piece if

24 he wanted to. What about if we gave you five minutes extra, and we will

25 juggle with the remainder of the time as best as we can. Very good? All

Page 375

1 right?

2 MR. FILA: [Interpretation] Yes, Your Honour. I'm grateful.

3 JUDGE SHAHABUDDEEN: Mr. Carmona, you are now free to proceed.

4 MR. CARMONA: I'm much obliged. Your Honours, I would be

5 responding to arguments, the arguments of the appellants in relation to

6 form of the indictment and also in relation to specific grounds that each

7 particular appellant has raised in relation to form of the indictment.

8 Apart from that, I will also be responding to Kvocka's

9 substantive arguments, both factual and legal. I will be responding to

10 rather Prcac's submissions, both factual and legal.

11 Your Honours, the Prosecution needs to make certain general

12 observations with regard to the submissions by my learned colleague. To

13 the extent that a lot of these submissions have in fact been the

14 creatures of hefty generalisations, lacking specific citations, the

15 Prosecution finds itself a bit hamstrung in responding to some of these

16 claims that are very general and very broad. As much as in fact it

17 creates difficulty, however, it is our intention to respond in according

18 terms.

19 In relation to the form of the indictment, the appellants have

20 submitted that they were denied their right to a fair trial and that they

21 were convicted on the basis of an indictment that was fitly vague and

22 that failed to provide material facts supporting the mode of liability

23 under Article 7(1). Concurrent with that submission is a submission that

24 their ability to prepare and present the defence was materially

25 prejudiced and that they were not availed of the requisite factual

Page 376

1 information to structure the defence in response to the modes of

2 liability under 7(1). And as a corollary of that, that the capacity to

3 cross-examine the Prosecution witnesses regarding the precise charges

4 were either compromised or hampered.

5 Specifically, in relation to Prcac and Kvocka, they submit that

6 the amended indictment was defective and that there was no identity

7 between the indictment and the judgement. Prcac specifically argues that

8 the Trial Chamber has in fact gone into the arena, the proverbial arena,

9 and has taken upon himself the role of Prosecutor. In this defence, he

10 addressed the issue of whether he was -- that whether he was a deputy

11 commander of the camp, which was alleged in the amended indictment,

12 instead of the issue whether he was an administrative aide, which is what

13 the Trial Chamber found.

14 According to him, under Article 21 of the Statute, he claims that

15 the Trial Chamber has only to determine whether allegations contained in

16 the indictment are true and they must not exceed the framework of the

17 said indictment by determining possible criminal responsibility of the

18 accused which he has not been charged with. Radic has specifically

19 raised the issue that joint criminal enterprise is not to be found in the

20 indictment and he said specifically that the Trial Chamber impermissibly

21 expanded the form of the indictment by expanding the form of

22 responsibility in said indictment.

23 Kvocka specifically complains that the Prosecution did not

24 specifically allege in the amended indictment that he had become the

25 deputy commander of the police station department. Zigic, particularly,

Page 377

1 complains about being convicted for offences for which in fact he was not

2 charged. The onus is on the appellants to demonstrate that the Chamber

3 returned convictions on the basis of material facts not pleaded in the

4 amended indictment and that if it is proved that the Trial Chamber did

5 rely on such facts, the trial was rendered unfair.

6 I will now deal with the specific ground in terms of the failure

7 to plead joint criminal enterprise in the indictment, the allegation by

8 the appellants.

9 The first point is that the amended indictment specifically

10 alleged that the accused were responsible for the crimes set out in the

11 amended indictment pursuant to Article 7(1) and 7(3), and in relation to

12 7(1), that it was intended to incorporate any and all forms of individual

13 criminal responsibility as set forth in Article 7(1). The Tadic appeal

14 judgement was quite pellucid in indicating that Article 7(1) incorporated

15 notions of common purpose and joint criminal enterprise. The appellants

16 were therefore on general notice of the Prosecution's intention to rely

17 upon this form of individual criminal responsibility.

18 And if I may say in passing, reference has been made perennially

19 about the Tadic judgement. Reference has been made perennially from the

20 inception of this case, from the time in fact when the indictment was

21 being queried, with regard to forms of liability as found in Tadic. It

22 does not require any type of esoteric or any type of sophisticated

23 analysis to appreciate that this was a camp case, consistent with in fact

24 those -- with that mandate that in fact Tadic outlined in terms of the

25 three types of possible JCE.

Page 378

1 So when my friends speak of the fact that they are lawyers, if in

2 fact you are lawyers, it is so easier to interpret based on the factual

3 scenario, apart from in the indictment, that this must have been a case

4 of joint criminal enterprise. But it goes more than that. No one doubts

5 that Article 24 and 21 -- 21, 4, A, delineates the right of an accused to

6 be informed promptly and in detail in a language which he understands,

7 re: the nature and cause of the charge against him. But the indictment

8 does not stand in isolation. It is one part of a process which includes

9 pre-trial procedures of discovery and trial preparation.

10 This is not to say, however, that the Prosecution is allowed a

11 certain licence to do what it wants. It must in fact at the end of the

12 day maintain the regime and the regimen that is expected of any

13 indictment in terms of setting out what is in fact the nature of the

14 charge and the material particulars. However, the Tribunal jurisprudence

15 has been quite emphatic in stating that we cannot appear to impose

16 national, jurisdictional rules and national rules of procedure on this

17 Tribunal. Many an article has been written about the sui generis quality

18 of this trial, an amalgam, as it were, a coslition of jurisprudential

19 learning, so that we cannot expect the same kind of regimen that would

20 one find in a local jurisdiction where crimes are particularised

21 specifically, as opposed to situation dealing with international war

22 crimes more so in a situation like the Omarska camp, which was deemed to

23 be a criminal entity, a criminal enterprise, as it were.

24 This is not to say, as I said before, and this is the proviso.

25 The Prosecution still has the responsibility to delineate the nature of

Page 379

1 the charge so that in fact the accused person can respond in relevant

2 terms.

3 The Prosecution's pre-trial brief filed in April of 1999 referred

4 to the principle of common criminal purpose or unlawful common enterprise

5 as part of the discussion of 7(1). I wish to remind this learned

6 Tribunal that this case didn't start until 2000, specifically in March of

7 2000, and was further adjourned to May of 2000 to accommodate Prcac's

8 late entry into the case. So this is a case where, for example, the

9 whole common criminal purpose hovered like the proverbial angel over

10 their heads. And they would have been quite aware of what in fact was

11 being put forward by the Prosecution.

12 Furthermore, it is clear to all of the appellants at the time of

13 the Prosecution's opening statement in February 2000 that the Prosecution

14 was relying on the theory of common purpose based on the three categories

15 in Tadic. None of the appellants objected at that stage to a theory of

16 common purpose or joint criminal enterprise.

17 Nor in fact did any of the appellants raise it in their 98 bis

18 application hearing. In this instance, the appellants alleged lack of

19 responsibility under Article 1, that is in the 98 bis hearing, and the

20 Article 7(3) was fully addressed in the context of the evidence but not

21 in the context of any alleged defect in the indictment. The appellants

22 never indicated at the trial that they were in some way hampered in the

23 conduct of their cross-examination of the particular witnesses. If in

24 fact they made that complaint, it was only in relation to the issue of

25 disclosure which has been appropriately marked out by the various motions

Page 380

1 filed and responded to. It was not in relation to the form of the

2 indictment.

3 I refer particularly to T646 and 658, the Prosecution opening

4 statement, that confirm this particular position of the Prosecution.

5 Kvocka, although belatedly raised the issue in his final brief is that

6 the Prosecution was trying to expand the responsibility of the accused

7 and the Trial Chamber reasonably noted that the Prosecution should and be

8 limited to prove the counts from the indictment during the case.

9 The Prosecution submits that the amended indictment did not have

10 any type of lacuna. More particularly, that it did not materially impair

11 the ability of the accused to prepare the defence. It is prudent to

12 consider, for example, that there is an evolving law with regard to the

13 form of the indictment. However, there are certain basic tenets which I

14 will succinctly outline.

15 The Prosecution must be accorded a degree of flexibility in

16 drafting indictments. And it is permissible to charge multiple forms of

17 individual responsibility when the Prosecution intends to rely on each of

18 them. The jurisprudence of the Appeals Chamber of this Tribunal makes it

19 clear, and I refer to the Celebici appeal judgement, if I may quote

20 verbatim, "Although greater specificity in drafting indictment is

21 desirable, failure to identify, expressly the exact mode of participation

22 is not necessarily fatal to an indictment if it nevertheless makes clear

23 to the accused the nature and the cause of the charge against him." The

24 primary question, then, is whether the failure to make express reference

25 to a particular mode of responsibility in the said amended indictment has

Page 381

1 created the type of ambiguity that has unfairly prejudiced the accused in

2 the preparation of his defence.

3 And this does not in fact take away the discretion of a Trial

4 Chamber to choose the most appropriate form of participation under

5 Article 7(1) of the Statute to describe the responsibility of the accused

6 person. However, the Krnojelac appeals judgement has held that the

7 Prosecution's obligation, and I refer to paragraph 139, to draw up a

8 sufficiently precise indictment must be interpreted in the light of

9 Articles 21(2), 21(4)(a) and 21(4)(b) of the Statute which states that:

10 In the determination of charges against the accused, he shall be entitled

11 to a fair hearing and to be informed of the nature and cause of the

12 charge against him and to have adequate time and facilities for the

13 preparation of his defence.

14 And specifically in relation to Prcac, this becomes extremely

15 relevant, because one would remember that he came on board pretty late in

16 the day and he was afforded time, and he did not complain. And I intend

17 to refer later on to specific motions and decisions to specific Status

18 Conferences where he acquiesced to the entire process without complaint.

19 Krnojelac appeal judgement confirms that paragraph 131 translate

20 into an obligation on the part of the Prosecution to state the material

21 facts on the pending charges in the indictment but not the evidence by

22 which such facts are to be proved. And we are saying in fact in relation

23 to JCE that that material fact was in fact there in the indictment and

24 they were quite privy and would have had notice to what was required of

25 them.

Page 382

1 The bottom line is whether an indictment is pleaded with

2 sufficient particularity is dependent on whether it sets out the material

3 facts of the Prosecution's case with enough detail, enough detail, to

4 inform a defendant clearly of the charges.

5 The Kupreskic appeal judgement in paragraph 132 was confirmed

6 that the fundamental rule of thumb as set out in Kupreskic is that the

7 materiality of the particular fact cannot be determined in the abstract.

8 It depends on the objective of the Prosecution's case. A decisive factor

9 in determining the degree of specificity with which the Prosecution is

10 required to particularise the facts of its case is the nature of the

11 alleged criminal conduct of the accused.

12 One would expect, then, that if you have a situation involving a

13 camp case, where you have various sets of crimes being committed, at

14 various times and at various opportunities, if I may so describe it, one

15 cannot expect the same degree of specificity that one would obtain, that

16 one would find in a situation where in fact you're dealing possibly with

17 a case like Vasiljevic, involving one particular incident.

18 No one doubts that the Krnojelac appeal judgement indicates and

19 considers that ambiguity should be avoided and holds that when it arises

20 the Prosecution must identify precisely the form or forms of liability

21 alleged for each count as soon as possible and in any event before the

22 start of the trial.

23 It went on to say, however, that the Appeals Chamber considers

24 that it is preferable for an indictment alleging the accused's

25 responsibility as a participant in a joint criminal enterprise to refer

Page 383

1 to the particular form of joint criminal enterprise envisaged. However,

2 this does not, in principle, prevent the Prosecution from pleading

3 elsewhere than in the indictment. For instance, in a pre-trial brief,

4 the legal theory which it believes best demonstrates that the crime or

5 crimes alleged are imputable to the accused in law in the light of the

6 facts alleged. The option, however, is limited by the need to guarantee

7 the accused a fair trial.

8 Specifically, the amended indictment contained all of the

9 requisite allegations to warn the appellants of the crimes of which they

10 were charged. It set out the factual basis for these charges, including

11 the times, the places, and the nature of the offences. And despite the

12 absence of an express reference to the concept of joint criminal

13 enterprise, the amended indictment in this case set out the basic

14 parameters of the Prosecution's case in this regard.

15 It referred to the unlawful segregation, detention and

16 confinement of non-Serbs in Omarska, Keraterm, and Trnopolje camps, the

17 terrible conditions inflicted upon the detainees. It stated as part of

18 the broader goal of permanently removing non-Serb inhabitants of the

19 territory forming part of the planned Bosnian Serb state. It contained

20 the general time frames of the commission of offences.

21 THE INTERPRETER: Could you slow down please.

22 MR. CARMONA: Sorry. Forming part of the JEC between the 1st of

23 April and the 30th of August. It indicated that there were other

24 participants in the joint criminal enterprise, and they were referred to

25 by general categories in the indictment, namely, the Bosnian Serb

Page 384












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

13 English transcripts.













Page 385

1 authorities, members of the Serbian Democratic Party and camp personnel,

2 both police and military. It disclosed information about the nature of

3 the participation by the accused in the joint criminal enterprise. And

4 it stated very matter of factly that this joint criminal enterprise

5 involved other parties that were not before the Court.

6 The appellants were on notice and accepted - and I refer to in

7 fact the amended indictment paragraphs 28 to 32 - that it knew of the

8 commission of widespread and systematic offences. The amended indictment

9 contains specific allegations of the accused's knowledge and

10 participation in that widespread campaign of persecution and violence.

11 Furthermore, in the light of the nature of the campaign and the position

12 held by the appellants, which are particularised in numerous paragraphs,

13 it notified them that their knowledge and participation could be inferred

14 from these circumstances.

15 And in this regard, we must not go down that narrow path of

16 looking at the indictment in a microscopic fashion. The indictment must

17 be looked at in its entirety. It must be -- the real issue is whether

18 looking at the case as a whole the appellants were given sufficient

19 notice of the transactions upon which the liability rested and

20 specifically a mode of liability.

21 They were provided with witness statements, successive

22 indictments, and the Prosecution's opening statement. The appellants

23 also addressed charges based on alternative theories of responsibility in

24 the opening statements, indicating and understanding of both forms of

25 liability.

Page 386

1 The Prosecution on this particular issue finally submits that for

2 an indictment to be defective in the sense that it rendered the trial

3 unfair, the absence of information must be such as to render the defence

4 of the accused to a mere blanket denial. For example, if he's claiming

5 in fact alibi, he would be in no position to address that charge. Can we

6 say in this case, in the light of all that was made available to the

7 defence, in the light of all the varying submissions that were -- at the

8 beginning of the trial, can we say in the context of the very indictment,

9 coupled with the confidential schedules that were in fact attached to

10 that indictment, and when I say confidential schedules, I refer to

11 schedules that itemise, one, the date of the offence; two, the victims;

12 three, who were the other participants; four, a summary of the offence.

13 Can we really say that in those circumstances, looking at it as lawyers -

14 because in fact they made the point that as lawyers they need to be

15 informed - as lawyers - and I dare say, in fact, I will even go lower

16 than that; I will say as ordinary men - one would recognise that this,

17 what was being pleaded, was that all these appellants were together in a

18 joint criminal enterprise. And this would be further confirmed by any

19 simpliciter reading of Tadic.

20 I now refer to the specific grounds that each individual has

21 raised, and I refer particularly to Prcac. I would begin with Prcac.

22 Prcac is arguing that a material element or fact was not in the

23 indictment. He's saying, for example, that it had not been proven that

24 he was a deputy commander, that he was acquitted of that particular

25 material fact. He said if he was to have been found liable on the basis

Page 387

1 that he was an administrative aide to the commander, an amendment ought

2 to have been forthcoming, because his status in the camp was a material

3 fact.

4 He said in fact he had had no notice of this administrative aide

5 thing, that it just came out of the air, as it were. The Prosecution's

6 submission is that this role, this nomenclature, this categorisation of a

7 deputy commander was immaterial to his liability under Article 7(1) of

8 the Statute. A person doesn't need to be a superior commander to incur

9 liability under Article 7(1). And that -- the allegation that he was a

10 deputy commander was not a material fact in relation to the charges under

11 Article 7(1). Similarly, as a person does not need to be an

12 administrative aide to incur liability under 7(1). The failure to allege

13 in the amended indictment that he was an administrative aide was not a

14 failure to plead a material fact in relation to the charges under 7(1).

15 What was material, though, in the indictment in relation to his

16 liability as a participant in the JCE, the joint criminal enterprise, was

17 his contribution to the enterprise through the function at the exercise

18 in the camp. And Prcac was on notice that the precise nature of his

19 function and duties were in issue in the proceedings, and that in fact

20 his criminal liability would depend on the Trial Chamber's findings made

21 in this respect.

22 He presented evidence and arguments directed to the issue, as did

23 the Prosecution. It was then open to the Trial Chamber, without the need

24 for any amendment, to determine the nature of his functions and duties

25 were different to those in the indictment and to determine his criminal

Page 388

1 liability accordingly.

2 If in fact we go down the road that my friend in fact is

3 proposing, it would mean in fact that many an indictment will fall flat

4 in this Tribunal. And we all know, for example, from when you look at

5 all the cases, the German cases, the World War II cases, when you look at

6 all these cases involving persecution, that people assume titles, people

7 hide behind titles. So at the end of the day are we to determine

8 liability on the basis of a title or on the basis of its perfunctory

9 role?

10 In this regard, it may be convenient to address the specific

11 argument of Kvocka with regard to a similar plea, that the amendment did

12 not plead that he was deputy commander of the Omarska police station or

13 commander of the police station. No one doubts that when looking at, for

14 example, 7(3) liability, that the particular designation of an individual

15 may be some hint in terms of what his responsibilities were. But woe

16 unto us if this is conclusive of what the person did.

17 Kvocka was clearly on notice that in relation to 7(1) the nature

18 of his function and duties at the Omarska camp were in issue at trial,

19 that his criminal liability would depend on the Trial Chamber's findings

20 made in this respect. He also presented evidence and arguments directed

21 to the issue, as did the Prosecution. Again, it was open to the Trial

22 Chamber. And the Trial Chamber is not a horse with blinkers running

23 around a track. It was open to them in the circumstances to determine

24 whether, for example, what his functions were, the nature of these

25 functions and duties, as much as in fact they may be different from what

Page 389

1 is pleaded in the indictment, at the end of the day, it is their

2 prerogative to determine what his liability was, what his function was.

3 Prcac additionally raised the issue of an administrative aide.

4 He has resorted to interpretations that emanate from local or national

5 jurisdictions. I dare say that the Tribunal is an international entity

6 and in the context of its mandate to be just and fair, it is entitled to

7 interpret the perfunctory role of individuals not in the context of local

8 standards but international ones. And just as the Tribunal has

9 recognised the utility of appreciating local conditions, it is not a

10 mandatory requirement that recognition would entail wholesale adoption.

11 The Trial Chamber would have recognised that designations are

12 irrelevant and that people may well hide behind such designations to

13 escape criminal liability. It then would have been artificial for the

14 Chamber to simply look at what an administrative aide does under normal

15 conditions in Yugoslavia and find in favour of the appellant. In the

16 assessive process, it had to determine what the appellant did, not what

17 he was called.

18 The fact that a defence was advanced in a particular fashion,

19 albeit under a mistaken notion, of what had to be rebuffed, and that

20 strategy, although successful in one part, failed in another, cannot be a

21 basis for an appeal. The World War II cases illustrate that liability

22 was not based on designation in the workplace but rather what function

23 was performed in the criminal enterprise. The appellant is splitting

24 hairs when he submits that the camp security was only one segment of the

25 organisation within the Omarska camp. The Prosecution's case was that

Page 390

1 this was one criminal entity with various structures, both de facto and

2 ad hoc, administered in such a way to advance the objective of the

3 criminal enterprise, namely the persecution of non-Serbs and Muslims.

4 I now wish to refer to Zigic's submission -- passing submission

5 with regard to schedules, and also in relation to Radic's. I think I

6 wish to bring to the attention of this Court, of this learned Tribunal,

7 something which in fact may well be moot, and this has to do with the

8 issue of the schedules and the issue of notice.

9 On the 7th of January, 2002, Zigic filed a Prosecution -- filed a

10 motion asking for a binding order to the Prosecution to disclose

11 confidential schedules filed with the amended indictment. This came

12 before the Appeals Chamber. He was basically saying I didn't have notice

13 of these -- of these documents at trial. And I want them now.

14 The Appeals Chamber gave a decision refuting the allegation, and

15 all to the extent where it indicated -- this is of course through the

16 Pre-Appeal judge, indicating where the appeal judge indicated that the

17 motion was frivolous, lacking in substance, in other words. And I do not

18 think in relation to this particular issue that my learned colleagues on

19 the other side have raised any additional argument that would trigger a

20 reconsideration of the decision by this Court. I refer to the decision

21 of the 7th of March, 2002, A128/A126, "Decision and Motion by Zoran Zigic

22 for Issuing of a Binding Order to Prosecution."

23 In relation to Zigic, however, he has indicated that in relation

24 to the schedules, that he was found guilty of offences, for example more

25 specifically, the offence of torture, in relation to AE, Edin Ganic,

Page 391

1 Witness V - yesterday you only mentioned Witness V -- and indicated for

2 example that how could he have been found guilty of torture when he was

3 not charged with the torture of these individuals? There is a very

4 simple answer for that. The Trial Chamber referred to its decision to up

5 the scale, as it were, in footnote 1136 of the trial judgement. Zigic,

6 in fact, had been charged with cruel treatment and with ill-treatment of

7 non-Serbs and Muslims in one particular -- in fact, if I may read the

8 relevant section here. He submits that according to the schedules he was

9 not charged with torture or inhuman acts against AE, Edin Ganic, and

10 Witness V and still the Trial Chamber finds him guilty of these charges

11 in the judgement. In the new public schedules all three witnesses are

12 mentioned under count 1 to 3, persecution, inhuman acts and outrages upon

13 personal dignity. Zigic has not addressed the Trial Chamber with regard

14 to the present complaint, and I refer to footnote 1136. Whereas Schedule

15 D characterised the crimes committed against Witness AE to include

16 confinement in inhumane conditions, beating with a metal rod. The Trial

17 Chamber determines that such characterisation allows to consider the

18 elements of torture. Zigic is saying: Listen, I wasn't aware I was

19 charged with torture of this particular witness, and in the

20 circumstances, in fact, it would have affected my cross-examination. It

21 would have affected my defence. I would have been able to put forward

22 certain things that only now I realise I could have put forward. But I

23 looked at it in practical terms.

24 He was charged with persecution, inhuman acts and outrages upon

25 personal dignity of these particular witnesses. What the Chamber found

Page 392

1 is that the physical facts had been established. The beatings. The

2 witnesses gave evidence that in fact they were tortured, and I use this

3 under inverted commas. When in fact Zigic cross-examined these

4 particular witnesses, when one looks at the record he attacked the

5 factual matrix, the whole scenario, circumstances of in fact the attack,

6 the beatings et cetera.

7 So in other words, he was able to significantly raise queries

8 about the actual incident, the fact. The only difference between that

9 and torture is in fact that initial -- that other legal ingredient called

10 a prohibited purpose. And the bottom line is in fact that the

11 Prosecution had led evidence of discrimination throughout the case,

12 throughout the case. So in no way was he disadvantaged in putting

13 forward his defence. He had the opportunity to cross-examine these

14 witnesses on the very factual issues.

15 Your Honours, the Prosecution submits with regard to the whole

16 issue of the form of the indictment as opposed to the JCE, that the Trial

17 Chamber's approach to the evidence and its reasoning in respect of the

18 crimes alleged in the amended indictment including the schedule, reveals

19 no error or cause for complaint. The Trial Chamber's approach was quite

20 appropriate in a case of this nature in which an accused is found guilty

21 as a co-perpetrator in a JCE.

22 THE INTERPRETER: Please slow down.

23 MR. CARMONA: Sorry. It is significant that the Chamber

24 correctly applied the standard of proof relating to sufficiency of

25 evidence for crime-based elements of the indictment in its 98 bis

Page 393

1 decision. Applying the standard, the Trial Chamber acquitted the

2 appellants of several murders at the Rule 98 bis stage and acquitted

3 Zigic specifically for crimes in relation to six individuals because of

4 insufficient evidence. Their names have appeared as numbers 5 to 10 in

5 the confidential annex 3. It is obvious that the Trial Chamber did not

6 rubber stamp the Prosecution's case but examined it critically, both at

7 the 98 bis stage and when it came to give its judgement.

8 The Prosecution stands by its arguments in its brief on the whole

9 issue with regard to the indictment and the queries about any possible

10 lacuna that it possesses. I invite the Trial Chamber -- the Appeals

11 Chamber to look at in fact the confidential schedules that were filed on

12 the 1st of March, 2001, both publicly and confidentially, as a basis for

13 saying, for example, that if ever you needed notice and if ever you

14 needed information in terms of what charges you had to respond to, that

15 it is reflected in the body of the indictment and in those confidential

16 schedules.

17 I will now move on. I will now move on to the substantive

18 submissions made by my learned friend in relation to Prcac. I dare say

19 that my friend has taken a particular road that the Appeals Chamber has

20 frowned upon. And this particular road I refer to - and I mean no

21 offence to him - is the fact that one cannot simply reiterate submissions

22 at trial without more. Both Kupreskic Appeals Chamber and the Kunarac

23 Appeals Chamber have been quite emphatic on that particular point. But

24 this isn't a court of rehearing, and you cannot simply repeat your

25 arguments at trial here in the hope that in fact you will get a new

Page 394

1 reassessment. In some cases, not in all, my friend in fact has taken

2 that particular road.

3 Apart from that, it would appear that my friend has made -- and

4 all of my friends have in fact made a submission that we are dealing in

5 fact with men from a village, men from a small village, humble men, men

6 of straw, if even you want to put it that way, indicating, for example,

7 how could they know about all these international law issues and

8 international legal responsibilities? How could they? What is quite

9 interesting is these men were police officers at one point in time. So

10 that in fact they had a sense of what is right and what is wrong in the

11 context of the law. And I'm talking about basic law. They would know

12 that, for example, you cannot assault an individual. They would know

13 that you cannot rape an individual. They will know, for example, that

14 you cannot murder an individual. All these offences that were taking

15 place in the Omarska camp. And of course there is the general premise

16 that ignorantia legis non curat, ignorance of the law is no excuse.

17 The bottom line is that in fact we need to appreciate that a lot

18 of these crimes that have been committed were crimes which police

19 officers would need to examine and investigate on the outside in normal

20 times. When I say normal crimes, I'm talking about rape, murder,

21 physical assault, you know. So how is it that these simple men, these

22 uneducated men, would not be privy to responsibilities that would accrue

23 by their presence in the camp, by virtue in terms of what they did and

24 more specifically by their very omissions?

25 Just a second, Your Honour. Your Honours, just give me a second,

Page 395












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

13 English transcripts.













Page 396

1 please. I think, Your Honours, the size of the table has done me an

2 injustice. It seems that in fact my brief has gone missing. Would Your

3 Honours just give me ...

4 So, Your Honours, it is important, then, in the circumstances of

5 what has been alleged in the context of what conceivably are submissions

6 of apparent ignorance with regard to the goings-on in the Omarska camp

7 that I need to refer to some of the personal characteristics that Prcac

8 in fact possessed. Prcac was in fact a police officer of eight years

9 standing. He in fact -- after being a police officer for eight years, he

10 became a crime technician for 15 years. And we have evidence of Gostimir

11 Modic who indicated, for example, what were some of the responsibilities

12 of in fact a crime technician in terms of collating evidence, in terms of

13 gathering evidence and doing crime scenes. As much as in fact the

14 defence tendered a report by Dusan Lakcevic which attempted in some way

15 to delimit the cognoscenti, if I may so describe it, of Prcac. Even in

16 that report it recognised, for example, that one idiosyncratic feature of

17 a crime technician was his capacity for detail. Because isn't that what

18 in fact a crime technician is? A man with a capacity for detail. And it

19 is significant to note that as much as, for example, it has been raised

20 by my learned friend that on his arrival in the camp on the 15th of July,

21 when he saw the two bodies next to the fence, not too far from the

22 dining-room, when he spoke about the stench in the Omarska camp, when he

23 spoke about the putrid air that he breathed, what was his query when he

24 came into that camp? Did he say, "How did those two men die?" No, he

25 didn't. Did he say, "Did they die from natural causes?" No, he didn't.

Page 397

1 He simply said in a very matter of fact fashion, "Why don't you all

2 remove these bodies." Is that an example of someone in fact who is

3 showing signs of disengagement? I think it reflects rather on his part

4 some kind of perceived inconvenience, you know.

5 Apart from that, there were certain telling submissions made by

6 my friend with regard to what I conceive to be the bona fides of this

7 very institution and the role of the Prosecutor. He made reference in

8 fact to a programme by -- some Penny Marshall programme and how Omarska

9 was in fact on all various televisions, as if that -- and indicating in

10 fact that Prcac only got five years, and the Prosecution didn't appeal

11 because they were hoping he wouldn't appeal and things like that. As if

12 there was some kind of predisposition. And fails to recognise that this

13 particular case was treated in the same way as any other case before the

14 Tribunal. There was a confirmation proceeding. There was in fact

15 avenues made available to them in the context of their preparation. The

16 case was adjourned, Prcac was arrested. Three months was given -- two

17 months were given off to Prcac to prepare. So that in fact there was a

18 98 bis application. It was considered by the Trial Chamber. When you

19 look at, for example, the entire tenor of the proceedings in this

20 particular matter, one would see, for example, an attempt by the Trial

21 Chamber to assist the Defence by making available to them, asking them

22 whether in fact they needed adjournments, whether, for example, they got

23 particular statements in time, was there enough time. So that in one

24 case, for example, in relation to Prcac, some ten statements were

25 tendered into evidence against the very strong submissions that -- by the

Page 398

1 Prosecution that in fact they wanted to cross-examine these witnesses.

2 This was rejected.

3 So there was a give and take. It was not a straight road. But

4 the bottom line is in fact that the Court dealt quite fairly with these

5 individuals. And we have to be very careful about lending ourself to

6 suggestions that there is some kind of selective Prosecution. Because

7 there is none. And again in fact when the reference is made, where are

8 the other guards, where are the head people? Everyone knows Simo Drljaca

9 is dead. Do we need to execute a warrant for him upstairs or downstairs,

10 wherever he is?

11 The bottom line is that in fact the Prosecutor has a discretion

12 and a discretion that she exercises in a bona fide manner. And this

13 particular issue was raised more matter of factly, not as real as in this

14 particular case, but more matter of factly in Celebici, by Landzo. I

15 wouldn't go into the law there, but basically they said, for example,

16 that there is a presumption of regularity, omnia presumuntur rite esse

17 acta. That basically the Prosecutor is deemed to perform her duties with

18 equal parity to all, that there is no respecter of persons.

19 I just thought I would raise this particular issue because it

20 continues to be a pegging issue and I think in fact it needs to be picked

21 in the bud, that this is an institution of fairness.

22 In relation to the 98 bis statement, 98 bis decision, one would

23 appreciate that the decision was not a vindication of Prcac's

24 non-participation in the JCE. It was simply a case where the Trial

25 Chamber indicated that there was a particular temporal time frame to

Page 399

1 Prcac's liability in that in fact they said, for example, he would be

2 only liable for offences that begin on his arrival, that took place on

3 his arrival, and my learned friend has already raised that particular

4 point.

5 The Prcac appeal has indicated that when one looks at the

6 decision of the Trial Chamber taken collectively with Rule 98 bis

7 decision that it rejected all of the allegations against Prcac made by

8 the Prosecution in the indictment. When one looks at, for example,

9 paragraph 12, A to K of Prcac's brief, Prcac claims that in fact that the

10 Trial Chamber found for him against the Prosecution. What is noticeable,

11 however, that there are instances where in fact he does not interpret

12 correctly the findings of the Trial Chamber in relation to 98 bis. There

13 is no basis to Prcac's claim that the Trial Chamber accepted his

14 arguments in all aspects or it found that none of the allegations of the

15 Prosecution were true.

16 Any prosecution before a Tribunal would state one or more facts

17 in an indictment, and when the evidence is led it may well establish --

18 it may well not establish that particular fact. If inconsistencies

19 between the facts as alleged in the indictment and facts as found by the

20 Trial Chamber do not go to the essence of the crime charged, it is

21 submitted that such inconsistencies will not invalidate the indictment or

22 require an amendment to the indictment before a conviction is entered.

23 Prcac has outlined that there were certain alleged errors of

24 fact. I think in fact perhaps the most prominent submission on that

25 particular issue had to deal with duress. I think in fact he said -- he

Page 400

1 argued that he went to the Omarska camp under duress, that he was there

2 because of threats to him by Simo Drljaca. He argues that as a result

3 there was no will of the accused to participate in the JCE if it had at

4 all existed. He claims further and refers to a statement in paragraph

5 427 of the trial judgement that Prcac never mentioned any threats when he

6 was interviewed by the Prosecution. He refers, he says -- he claims that

7 this is not true and refers to page 8 of the transcript of his interview

8 with the Prosecution on the 27th of April, 2000 in which he said that he

9 had been informed by Zeljko Meakic --

10 THE INTERPRETER: Slow down, please.

11 MR. CARMONA: My apology. That Simo Drljaca had ordered him to

12 go to work in the Omarska camp under threat that if I didn't do it, I

13 would be served a bullet in the head, in the forehead.

14 Prcac claims that this constitutes a gross error on the part of

15 the Trial Chamber. It is important to note what in fact he's submitting.

16 He says that basically this particular point was raised by him at the

17 interview with the Prosecution. So it was part and parcel of his

18 defence, if I may so describe it, that he was an unwilling participant in

19 the JCE.

20 But what is noticeable, however, about the particular section

21 that he refers to, and if I may, he refers to in fact page 8 of the

22 interview and he basically stated that he heard of a threat against him

23 through Zeljko Meakic. When in fact the Trial Chamber made its comments

24 with regard to the non-existence of anything -- or rather, if I may

25 rephrase it. When they stated that there is no evidence that in fact he

Page 401

1 complained to the Prosecution, it may well have had to do with the level

2 of what I would refer to as vacillation that existed on this particular

3 issue.

4 This issue was extremely ambivalent in regard to what Prcac was

5 in fact submitting. It would appear that he was -- that his comment on

6 duress is more the result of mere personal fear and apprehension as

7 opposed to any specific threats emanating from Simo Drljaca. Because

8 when one looks at the record of the statement, one can see that

9 throughout there is mention that he's afraid of the guards, that he's

10 afraid of this overriding threat that he heard from a third source. And

11 it may well be that the Trial Chamber was indeed focusing on the lack of

12 direct threats by Simo Drljaca, albeit the interpretation at the end of

13 the day may well in fact have been one that ought not to have been made.

14 Be that as it may, it is important to appreciate that the Trial Chamber

15 was quite aware of the nature of that evidence. One would appreciate,

16 for example, that in the very paragraph referred to my friend, 427 in the

17 judgement, that Ljubisa Prcac, the son of Prcac, said that in fact that

18 his father told him that he was threatened, told him of a threat that he

19 heard from -- I may as well refer to the -- yes. Yes. He said basically

20 that. He testified that his father told him, I'm referring to 427, that

21 Simo Drljaca threatened him with the life of his children and the burning

22 of his house. Additionally, Obrad Popovic, who in fact was a porter at

23 the camp, indicated that in fact he saw Prcac speaking to Drljaca and

24 subsequently Drljaca, he was -- he, Prcac, informed him that he was

25 threatened.

Page 402

1 The Court held that it was not convinced that these threats took

2 place and doesn't accept his assertion that he worked at the camp under

3 duress. In other words, what the Court has essentially saying,

4 basically, they said, "Listen. We have heard evidence from independent

5 witnesses apart from Prcac, independent witnesses such as his son and the

6 porter to the effect that he was threatened. Yet we do not believe it."

7 Even if in fact, assuming but not admitting, that the Court was in error,

8 that the Court did not consider the fact that it was said from inception

9 at the point of interview, that just represents one little facet of a

10 consideration that they had placed on all the evidence to determine

11 whether in fact it was credible, whether in fact it was real. And they

12 concluded that it was not.

13 For purposes of economy, I would not in fact delineate further

14 the arguments but I would like the Court to -- I would refer the Court,

15 however, in the interview with Drago Prcac, to page 10, page 13, page 66,

16 page 120, and page 123 of Exhibit P3/167, which refers to all these

17 instances where fear is mentioned. And one would see, for example, at

18 the end of the day that on any reasonable interpretation of the various

19 segments in that interview, would leave any reasonable Trial Chamber with

20 the position that there would have in fact been a real doubt about

21 whether what was generating his action. Apart from that, as much as in

22 fact he is mentioned, for example, that his will was sapped, he had no

23 will, he was impotent, you know, through fear. One would appreciate that

24 there were instances where he roared like a lion, according to his

25 version. One remembered distinctly an incident involving in fact three

Page 403

1 individuals, Edin Karagic and his brother, and another person, Gustav.

2 They were brought into the prison, into the prison, and Prcac was there,

3 and they were beaten, and while they were being beaten, Prcac was going

4 from person to person taking information from them, writing down

5 information on the proverbial lists.

6 Prcac, however, said in his interview that when he saw this

7 beating going on, those two boys were in fact sons of a good friend of

8 his. He took out his gun in the presence of Meakic, pointed it at them,

9 cocked the gun, and said -- and asked them to desist the beating.

10 However, what is passing strange is that the very witness in fact who was

11 being beaten said nothing like this happened that in fact he was quite

12 clinical, very matter of fact. He was very efficient in getting the

13 requisite information.

14 And since we are on this point with regard to lists, I think I

15 should indicate that when one looks at the role that Prcac played, and I

16 think in fact we have delineated what that role was in the context of the

17 JCE, our arguments are pretty much mapped out in our brief and I think in

18 fact it would be an exercise in regurgitation if I simply re-emphasise

19 the nature of his participation in relation to JCE.

20 What I can say, however, that various witnesses indicated, like

21 Sifeta Susic, Zlata Cikota, Omer Mesan, all these -- Nusret Sivac -- they

22 all indicate that in fact that there was a degree of influence displayed

23 by him, that in fact he walked with these proverbial lists. The Court

24 said he handled the lists, that he was responsible for detainees in fact

25 moving within the camp. He was responsible -- by calling all people's

Page 404

1 names, people were transferred to other camps. The bottom line is in

2 fact that my friends have attempted to -- my friends have attempted to

3 say, for example, that this particular list was an innocuous-type list.

4 It was not. This was a list of woe and dereliction. This was a list

5 comprising and consisting of the names of individuals. So when these

6 lists were handed to interrogators, wouldn't the interrogators be in a

7 position to look at this and say who are Muslims who are non-Muslims?

8 The list was like a grocery list. It was a grocery list in terms of who

9 these people were. And their particular designation. In that regard, it

10 created the relevant efficiency in a camp of this nature.

11 Apart from that, in terms of his knowledge, in terms of what is

12 going on in the camp, from inception, his knowledge was established.

13 From inception, in fact, he appreciated in fact that things were not

14 going on as they ought to be. What did he do? He did absolutely

15 nothing. Yes, of course in fact many times in fact, you know, there can

16 be incidents of selective compassion. But does that in fact eradicate

17 liability in a JCE, in a systemic JCE as what obtains in this present

18 situation? I dare say no.

19 The Court in fact made firm findings that he was resolutely

20 efficient, that if in fact there were problems in the list he would solve

21 these problems. If in fact people ace names were missing he would solve

22 these problems. He would, for example, in the case of Smail Duratovic,

23 Mujo wanted him to be moved from the "white house" to his room. This was

24 done with the permission with the guards who consulted with Prcac. So

25 there is in fact stark evidence of a relationship between movements

Page 405

1 within the camp and one must remember the very stark reality that

2 witnesses said once you entered "white house," you -- in fact very few

3 people left there alive. There was the "white house," there was the "red

4 house." There was the interrogation room. Where was Prcac's office? On

5 the same corridor. Yet in fact in his interview he says in fact "I only

6 saw two bodies." Yet there was a witness who came on the 23rd of July

7 who said in fact that there were some nine bodies in the camp spread out

8 for the last week and Prcac had in fact been there about a week and a

9 half. So that in fact not only did he have knowledge but that knowledge

10 was subsumed and became intent because the bottom line is in fact, for

11 example, he was doing particular things to assist the systemic criminal

12 enterprise.

13 I mean, Your Honours, as I said before, it may well be in fact

14 because of economy I would not be able to go into it in detail, but I

15 think our brief basically maps out the role of these lists, the role of

16 Prcac in the JCE. And we stand by these arguments.

17 In relation to the question of the credibility of the witnesses,

18 my friend has made again heavy weather of certain witnesses. Again, we

19 have addressed this, especially Mesan Omer. He speaks about the issue of

20 identification. What is the relevance of identification? You're talking

21 about an incident that took place on the 6th of August, where Prcac is

22 with the list. And some 50 people go into a bus and they just disappear.

23 And you're saying for example that Mesan Omer couldn't identify him in

24 court. And we all know what the law is with regard in Court and

25 identification. And we have the authority of Furundzija, which states

Page 406












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

13 English transcripts.













Page 407

1 very categorically that sometimes a particular individual in those camp

2 scenarios may have some peculiar, idiosyncratic feature. And what was

3 his feature? The list. He was the man handling the list. He was the

4 man moving around.

5 And this particular witness gave a very good physical description

6 of him at that point in time. More importantly, the identification, or I

7 should say the reliability of that identification, is further confirmed

8 by other witnesses who supported this particular witness on material

9 particulars as they relate to identification.

10 So to the extent, for example, you're saying, then -- apart from

11 that, you have the very admission of the appellant saying that he was

12 there on that day. So what is the problem with identification? And we

13 are not saying, for example, that he was the only man with a list.

14 Because on that particular day there were at least two individuals. The

15 bottom line is that he is part of a JCE, you know. And there was a

16 particular structure in place. And there were particular modus operandi

17 taking place by Prcac, that affects the efficient running of the camp.

18 Again I wish to adopt our arguments in relation to Omer Mesan.

19 And I think in fact, if I may say so without raising a flag,

20 basically we have in fact mapped out our responses in relation to the

21 credibility of witnesses in terms of inconsistencies and how they are to

22 be addressed by the Court. And I dare say in fact my friend runs very

23 close to the road of seeking a re-evaluation because, as Kunarac Appeals

24 Chamber has said, an appeal hearing is not an attempt on the part of

25 counsel to superimpose his view of the facts on the Appeals Chamber. You

Page 408

1 have to show the relationship between your submissions and an error of

2 fact resulting in a miscarriage of justice. You have to show some kind

3 of fundamental, erroneous fact that took place. I dare say in his

4 submissions in fact my learned friend has not been able to do this.

5 Your Honours, in fact, if I may, I think, as I said before, on

6 the whole issue with regard to disclosure -- oh, yes. I just wish to

7 refer the Court to some documents that not only indicate in fact that JCE

8 was on board from the inception, but also in the context of disclosure

9 exercised, because in fact I do recall one particular motion where in

10 fact Prcac was invited to cross-examine witnesses and he simply refused.

11 There was no motion and the case went on and the witnesses weren't

12 cross-examined.

13 But the bottom line is and I think it's imperative that I

14 establish this particular point. When you look at the Status Conferences

15 that dealt with the issue of these witnesses, that dealt with the issue

16 of the ten witnesses that they are saying for example were new witnesses,

17 that they were not new witnesses, that the Court requested of them

18 whether in fact they needed adjournments. They indicated very matter of

19 factly: Listen, we can continue, that we [indiscernible].

20 When you look at in fact the initial -- you look at, for example,

21 this is the Prosecution request for leave to file a consolidated

22 indictment and to correct confidential schedules. This is 13th of

23 October, 2000. You look at in fact decision on Zoran Zigic's motion to

24 rescinding confidentiality of schedules attached to the indictment.

25 THE INTERPRETER: Counsel will you please read slower when you

Page 409

1 read.

2 MR. CARMONA: My apology. On the 22nd of February, 2001. When

3 you look at, for example, the decision on judicial notice the 8th of

4 June, 2000. The decision on Defence objections to the amended indictment

5 8th of November, 1999. One would see quite, quite pellucidly that the

6 Trial Chamber was attempting to assist the Defence in as effective a

7 manner as they possibly can.

8 Prcac was part of this joint criminal enterprise. He may not

9 have in fact been a general. He may not have in fact been -- he didn't

10 have to be an administrative aide. What we have to do is look at the

11 functions and the -- in terms of what he did and how he fitted into that

12 puzzle. It's like a veritable relay race. The race has started and he

13 runs his portion of the race, albeit he sometimes dropped the baton and

14 somebody else picked it up, but the bottom line is when he joined the

15 race he knew what he was joining. And when he left the race he knew what

16 he was leaving behind. And what he left behind were in fact, as the

17 Court has delineated, incidents of assaults, of sexual assaults, of

18 murders, of ill-treatment.

19 In the circumstances, the Prosecution is submitting that there is

20 in fact no merit in Prcac's appeal grounds and we seek their dismissal.

21 If you have any questions, in fact, the learned Tribunal seek of me, I am

22 available.

23 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca.

24 JUDGE WEINBERG DE ROCA: Thank you, Mr. President.

25 Mr. Carmona, as to the indictment, am I correct that your

Page 410

1 submission is that in fact there is no identity between the indictment

2 and the judgement, that there are inconsistencies but that the appellants

3 could know what they were charged with, they could learn it from the

4 pre-trial phase, and that it is precluded for them to raise this now?

5 MR. CARMONA: I agree with Your Honour in relation to 99 per cent

6 of what you have said. In relation in terms of raising it now, I think

7 this is a matter that probably has not really been decided.

8 We are of the view, though, we are of the view that since an

9 indictment is in fact to integral to the process, that in fact that

10 submissions or reservations about that indictment should be made in

11 limine. It should be in fact at the beginning of the trial. However,

12 however, I think in fact in the interest of justice, an Appeals Chamber

13 still has the predisposition proprio motu to look into any matter, any

14 matter, that results in unfairness. So I think, for example, that for

15 the purposes of this exercise, I think in fact the proper place for the

16 appellants to raise their submissions would have been at trial in limine.

17 And I dare say, if I may say so, when one looks at some of these

18 motions that were filed, they did raise concerns about the indictment,

19 and these concerns were thrashed out and it never went beyond the Trial

20 Chamber. There is that endemic risk that things that can be thrashed out

21 at trial level, that should be thrashed out at trial level, should not in

22 fact find itself being argued extensively before the Appeals Chamber, you

23 know. Yes.

24 JUDGE WEINBERG DE ROCA: Thank you very much.

25 JUDGE SHAHABUDDEEN: Just one question, to make sure that I'm

Page 411

1 collecting your submissions correctly. On the question of joint criminal

2 enterprise, I would understand you to be saying this - correct me if I'm

3 wrong - that there is no necessity for the indictment to incorporate a

4 pleading of joint criminal enterprise, that it is a theory of liability

5 for the commission of the crime charged, but that there could be

6 circumstances in which a question of fairness could arise, and that would

7 lead to a requirement for the Prosecution to give notice to the Defence

8 that that theory is being relied on. But you go on to say that in the

9 circumstances of this case enough notice was in fact given. Is that a

10 fair representation of what your position is?

11 MR. CARMONA: Indeed, Your Honour.

12 JUDGE SHAHABUDDEEN: Thank you. Do forgive me. I'm not in

13 command of the technology, not fully. But it seems to me the microphone

14 is on, and I was proposing that we now suspend for 90 minutes, in the

15 usual way, and come back when? At 2.00? 2.00? 2.00. Right? Very

16 good.

17 --- Luncheon recess taken at 12.27 p.m.

18 --- On resuming at 2.05 p.m.

19 JUDGE SHAHABUDDEEN: Good. The sitting is resumed. Thank you.

20 Who will speak now for the Prosecution?

21 MS. BRADY: Good afternoon, Your Honours.

22 This afternoon, I'll be addressing you mainly on -- responding to

23 the appellant Radic's appeal, but in doing so I'll also be speaking to

24 you this afternoon about some common grounds of appeal, and in fact, the

25 first ground of appeal that I'll begin this afternoon's submissions with

Page 412

1 is Radic's ground 1B concerning the confidential schedules as it related

2 to the Trial Chamber's reasoned opinion. It's a common ground of appeal

3 raised not just by Radic but also by Kvocka and Zigic especially.

4 The question is this: Did the Trial Chamber err by not setting

5 out in its judgement separate factual findings on each and every one of

6 the hundreds of incidents listed in the schedules A through E? In

7 reality, the question really boils down to this: Did the Trial Chamber

8 render a proper, reasoned decision?

9 My friend, my colleague, Mr. Carmona, has already addressed you

10 this morning on the issues relating to fair notice of charges in the

11 indictment. But this is something different. This is about whether the

12 Trial Chamber rendered a reasoned opinion. And in our view, the only

13 answer to this is yes. The Trial Chamber set out its material findings

14 of fact, the evidence on which those findings were based, and the reasons

15 why, in law, those facts rendered the accused criminally liable for the

16 crimes based on the case, based on the evidence before it.

17 This Appeals Chamber has stressed that the extent of the duty to

18 provide a reasoned opinion will obviously vary depending on the

19 circumstances of the case and the nature of the decision involved. In

20 our submission, in a case of this nature, calling for an assessment of

21 the criminal liability of various participants in a system of

22 ill-treatment - that is, JCE category 2 as it's known in this Tribunal -

23 involving crimes being committed on a daily basis, many crimes being

24 committed simultaneously, some crimes being committed continuously,

25 against thousands of victims detained there, thousands of people detained

Page 413

1 there for a period of three months, it would be near impossible to make

2 factual findings on every single incident. But more importantly, in our

3 submission, nor is it necessary to do so.

4 The Trial Chamber's approach of analysing the overwhelming

5 evidence of killings, of beatings, of physical and mental violence,

6 sexual violence, the degrading conditions of detention, as exemplified by

7 the incidents in the confidential schedules, to find beyond reasonable

8 doubt that it supported a system of ill-treatment to persecute through

9 these, what we could call core acts, and then examining and again finding

10 beyond reasonable doubt each accused's material and mental contributions,

11 that that was an appropriate framework in this context of a joint

12 criminal enterprise category 2, in which to assess their liability.

13 If we look at the judgement, in parts 2 and parts 4, the Trial

14 Chamber has in fact referred to a vast proportion of the incidents or the

15 victims, let's say, in the schedules: the beatings, the murders, the

16 tortures, the rapes, the sexual violence, the inhumane conditions. And

17 on the basis of this evidence, it found beyond reasonable doubt that this

18 persecutory system of ill-treatment existed and was conducted on

19 discriminatory grounds.

20 From this evidence, it was able to conclude beyond reasonable

21 doubt that various crimes were committed within this persecutory system

22 of ill-treatment, with an intensity, a frequency, a regularity, indeed a

23 systematicity, so as to be encompassed in the persecutory system of

24 ill-treatment. And we see then in part 4 again the Trial Chamber refers

25 to a very large proportion of the incidents in the schedules when it

Page 414

1 comes to focus on the individual contributions, the individual

2 involvement, and the mens rea of each accused.

3 Is there an inconsistency between the level of detail given in

4 the schedules but then the Trial Chamber not, as it were, following

5 through in terms of making findings on each and every single item, as Mr.

6 Fila suggested? In our submission, no. Schedules like this can serve a

7 variety of purposes. It can be put forward for a number of reasons. And

8 here, the reason it was put forward, the reason why the schedules came

9 into existence, as it were, were to give the accused more precision. It

10 was a fairness issue. To tell them about the case against them. This

11 doesn't transform them into somehow becoming the indictment or the

12 material facts of the indictment.

13 If we look at the decision on the form of the indictment which

14 was handed down, delivered on the 12th of April, 1994, the Prosecution

15 was ordered to give particulars to the indictment and was ordered to

16 identify, insofar as it could, the names of the victims of the crimes

17 which occurred in Omarska and details and rough dates on when they

18 occurred.

19 The Prosecution, accordingly, filed an amended indictment and the

20 schedules, and this was only fair. If we look at a statement in the

21 Krnojelac Appeals Chamber decision, of course it was rendered afterwards,

22 but the principle still remains the same, at paragraph 117: "An accused

23 must know whether the system he is charged with having contributed to

24 involves all the acts being prosecuted or only some of them."

25 But the Prosecution's case, liability, was never limited to the

Page 415

1 named victims, the named, individualised, itemised incidents. We need

2 only look at the first line of each schedule, which refers to all

3 prisoners confined in Omarska camp during the period, or, for example,

4 all prisoners killed in Omarska camp in the period, before going on to

5 list specific incidents.

6 In our submission, the single itemised incidents listed in the

7 schedules were always only illustrative of a larger pool of crimes for

8 which the accused were to be held liable because they formed part of the

9 system of ill-treatment. What was clear is that the accused were being

10 charged and ultimately held liable on the basis of a system of crimes,

11 comprised of acts to maltreat and subjugate the non-Serb detainees on a

12 discriminatory basis, including murder, torture, beatings, detention, and

13 inhumane conditions and sexual violence - most importantly, for what they

14 did, knowingly and intentionally, to further that system.

15 The only limitation placed on this liability was the one that was

16 placed by the 98 bis decision, the half time decision, which held that

17 each accused would only be responsible for the crimes during the temporal

18 post of his time, and I won't say any more on that. I think my

19 colleagues Ms. Rashid and Mr. Carmona have addressed you quite clearly on

20 our position on that.

21 Many cases in this Tribunal have used similar approaches. For

22 example, we see in cases like Stakic and Tuta Stela. The Trial Chamber

23 there didn't set out in its opinion each and every episode of persecution

24 that occurred, but rather that the persecution was found based on

25 sufficient proof of evidence of some incidents of persecutory acts. It's

Page 416

1 even akin, and I'm not suggesting it was done in the same way, but it is

2 even drawing somewhat closely to the representative-sample approach that

3 we have seen in cases like Galic. In that case, in Galic, the Trial

4 Chamber said there that the schedules served a procedural requirement of

5 proper notice but should not be understood as reducing the Prosecution's

6 case to the scheduled incidents. We suggest that what the Trial Chamber

7 has done here is very similar in some ways to what was done in Galic,

8 where the Trial Chamber saw the scheduled incidents as exemplifying an

9 overall situation, and a wider campaign; in that case, in Sarajevo.

10 And just as here, in the Galic case as well, much evidence was

11 led tending to support the Prosecution's general case which indeed went

12 beyond the scheduled incidents.

13 The final point that I'll make on this ground is that there have

14 been World War II camp cases, such as the Belsen trial and the Dachau

15 trial which show as well evidence being led on a number of single

16 episodes to represent the larger picture of the systematic criminal

17 conduct.

18 In summary, our submission is that the Trial Chamber's reasoned

19 opinion suffers no defect in not having itemised each incident in the

20 schedule, but rather treating the incidents as evidence from which to

21 find beyond reasonable doubt as to the nature of the system, its

22 components, and what each accused's role was in it.

23 I'll turn now to the area upon which Mr. Fila finished his

24 submissions on Tuesday, and now I turn more specifically to grounds

25 raised by the appellant Mr. Radic. And in particular, I'll turn now to

Page 417












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

13 English transcripts.













Page 418

1 his convictions for persecution and torture, based on rape and sexual

2 violence. And I'd like to spend a little bit of time on this area, not

3 only because of the obvious importance that Mr. Fila and his client have

4 placed on them. I think Mr. Fila referred to it as the essential point

5 for Radic. But also because of the importance the Trial Chamber placed

6 on his acts of rape and sexual violence, to find that he contributed

7 significantly to furthering the criminal goals of this camp.

8 The Trial Chamber saw these criminal actions by Radic as one of

9 the key ways -- by no means the only way, but indeed one of the key ways

10 in which Radic contributed to this joint criminal enterprise to persecute

11 and maltreat non-Serbs in Omarska camp. And to begin with, I have to say

12 that I was struck by Mr. Fila's comment when he began the other day and

13 he said, and I quote from him: "In a war, people fight, but people do

14 not rape in a war."

15 Regrettably, people do rape in such a context. And that's

16 exactly why -- well, it's one of the reasons why Mr. Radic is here before

17 you today. That's what he has been convicted of.

18 Turning first to the rape of Witness K. The appellant's

19 submissions really amount to nothing more than his view about why

20 Witness K was not credible, and in his opinion, he said she conjured it

21 all up. His arguments have simply repeated his trial arguments rather

22 than meeting the appellate standard of review of errors of fact and

23 showing that no reasonable Trial Chamber could have done so.

24 But before I come to his direct arguments, I would like to speak

25 about two sets of submissions that Mr. Fila made on Tuesday about

Page 419

1 Witness K, which in our opinion were quite improper and, in fact, I have

2 to ask Your Honours to exclude those from your consideration. In order

3 to do this, I need to go into private session for a couple of minutes. I

4 don't want to compound the problem that arose the other day, the

5 confidentiality issue that may have occurred on Tuesday. So I've

6 foreshadowed this with Madam Registrar and what I say next, in the next

7 few minutes, should remain within private session.

8 JUDGE SHAHABUDDEEN: Any objection? Then it is so ordered.

9 MS. BRADY: Thank you, Your Honour.

10 [Private session]

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 420












12 Page 420 redacted private session.














Page 421

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Open session]

15 THE REGISTRAR: We're in open session now.

16 MS. BRADY: Thank you.

17 Your Honours, there was no unreasonableness in the Trial Chamber

18 having accepted Witness K as a credible witness, notwithstanding some

19 inconsistencies and contradictions in her evidence. Mr. Fila mentioned

20 some of these the other day, some discrepancies between the 1995

21 statement and her trial testimony, her failure to mention this rape to a

22 journalist in 1993, and her failure to mention to the Prosecutor in 1995

23 that she had earlier spoken to a journalist.

24 Our response brief has counted each point, so I don't need to go

25 back into that. But just to give by way of an example as to why it was

Page 422

1 not unreasonable, in terms of not mentioning the incident to the

2 journalist in 1993, in our submission, the appellant has not shown that

3 it was unreasonable, in light of the sexual and intensely personal nature

4 of the crime, for the Trial Chamber to have deemed irrelevant her failure

5 to mention her rape by Radic to the journalist then, even if she had told

6 the journalist about being raped by Sikirica somewhere else.

7 I should also point out that this witness was thoroughly

8 cross-examined about this issue, and in fact Judge Wald had asked her

9 directly: Why did you feel you could talk about this very terrible

10 experience in Keraterm and not about an equally bad experience in

11 Omarska?

12 So no unreasonableness arises by the Trial Chamber being alive to

13 this discrepancy, adjudging her as credible.

14 The appellant also argued strenuously that the Trial Chamber

15 didn't address all the discrepancies between her statement and her trial

16 testimony, and his submissions were that the two accounts were very, very

17 different, very divergent. He said it happened like this, it happened

18 like that. I invite Your Honours to look at these. You'll see the

19 differences. They are relatively inconsequential. But secondly, any

20 discrepancies were explored in cross-examination and canvassed in his

21 final trial brief, and there's no indication, if one looks at the Trial

22 Chamber's judgement that they did not properly take them into account.

23 I'd like to turn to a slightly different point that he made on

24 Tuesday in his brief when he referred to certain findings being made by

25 the Sikirica Trial Chamber about this witness. And if I understand him

Page 423

1 correctly, what he seems to be asking Your Honours, this Bench, is to

2 take note of the Sikirica Trial Chamber's findings on Witness K. The

3 only way, putting aside matters of common knowledge, the only way that a

4 Chamber, one Chamber, can take judicial notice of another Trial Chamber's

5 factual findings is through Rule 94(B) on adjudicated facts. Now, it

6 would be a first, I believe, for this Chamber for you to actually use

7 this Rule in this way, but theoretically it could be possible for you to

8 do so. We don't -- we're not going to explore that question today, but

9 what we are -- what our submission is that even if theoretically you

10 could do so, it's not possible to do so here because the requirements of

11 Rule 94(B) can't be met.

12 For a fact to be capable of admission under this Rule, it has to

13 have been truly adjudicated. It can't have been based on a plea

14 agreement in previous cases. And here, the finding that Mr. Radic has

15 asked you to notice, or note, comes from a plea agreement, and like all

16 plea agreements, its facts are not the outcome of litigation but the

17 consensus of parties.

18 I think it's also worth noting that the Sikirica Trial Chamber

19 didn't actually acquit Sikirica of raping K in its 98 bis decision, the

20 September decision, and in its sentencing decision it made no

21 determination on the credibility of this witness. So there's no basis

22 for saying, as Mr. Fila did, that we can see clearly in Keraterm Trial

23 Chamber that nobody believed her, neither the Prosecution nor the Trial

24 Chamber.

25 Indeed, we would query, the Prosecution would query whether a

Page 424

1 Trial Chamber's assessment in one trial about a witness's credibility

2 could ever conceivably be judicially noticed by another Trial Chamber as

3 an adjudicated fact. Why is this? A Trial Chamber can rely on a

4 witness's testimony on one matter, but not on another, unless, of course,

5 the reason enures to some inherent problem with the witness's

6 credibility, so as to affect the witness's credit on all his or her

7 evidence. And we see, for example, this being mentioned by the Celebici

8 Appeals Chamber in paragraph 479.

9 If we apply this logic, then even if another Trial Chamber, the

10 Sikirica Trial Chamber, or even indeed if this Trial Chamber had not been

11 prepared to rely on her evidence that she was raped by Sikirica in

12 Keraterm, this wouldn't bear upon the Trial Chamber's acceptance of her

13 evidence about being raped by another person, Radic, somewhere else, in

14 Omarska. And we saw this very clearly in the Kunarac Trial Chamber's

15 decision, where certain witnesses, I note in particular FWS 87 and 95,

16 where the Trial Chamber was prepared to accept a rape victim's evidence

17 for some rapes but not for others.

18 The final point I make on this is that it's clear that the Trial

19 Chamber, this Trial Chamber, was fully alive to Witness K's evidence that

20 she had given in that Sikirica trial, because in June of 2001, she was

21 brought back for cross-examination before this Trial Chamber, and she was

22 directly asked about the inconsistencies in her account about that rape,

23 which had arisen during her Sikirica trial evidence.

24 So this Trial Chamber, when I say this one, the Kvocka and others

25 Trial Chamber, therefore would have been privy to see some of the

Page 425

1 differences between Witness K's evidence about being raped by Radic and

2 being raped by Sikirica in Keraterm, and I just note one particular

3 difference and that is an identification difference. She knew in terms

4 of recognised Radic. She had seen him around before the incident had

5 occurred at Omarska, whereas with Sikirica, she only saw him that morning

6 for the first time.

7 In summary, Your Honours, our submission is that this Appeals

8 Chamber should not take judicial notice of any finding by the Sikirica

9 Trial Chamber about this witness, and you actually must exclude it from

10 your consideration.

11 I turn now to deal with the sexual violence on Witness J.

12 Mr. Fila was very brief the other day on this, and so I'll accordingly

13 also be very brief. No error arises in the Trial Chamber having found

14 that he sexually assaulted Witness J. Basically what he's done is

15 re-argued his trial position, which the Trial Chamber addressed, that it

16 was -- I think, to be best explained, his argument is best explained by

17 the word -- he says that it was a coincidence that Witness J was sexually

18 assaulted by the man called Kapitan in a similar way. And simply by

19 putting this forward yet again, it does not establish error of fact.

20 I'll turn to his more generic argument that he made about the

21 sexual violence upon Witness J and Witness F, Sifeta Susic and Zlata

22 Cikota. He has made a generic argument to the effect that his conduct

23 against witness J and F and Susic and Cikota was not serious enough, or

24 sufficiently grave to amount to serious violations of international

25 humanitarian law within the Tribunal's jurisdiction.

Page 426

1 I must confess to not having fully followed or understood

2 properly his argument at the beginning of his submissions about Article 2

3 of the Statute, because, of course, the accused were not convicted under

4 Article 2 but under Articles 3 and 5. And the concept of gravity of the

5 crime for persecution and torture is not tied to any question of what

6 crimes can be considered to be grave breaches of the Geneva Conventions

7 under Article 2. So I'll leave that to one side.

8 The most important point is that I think that he's significantly

9 downplayed the seriousness of this conduct, and I think we need to bring

10 it back into perspective by looking at the criminal conduct.

11 For Witness F, Radic took her into a room, into the room, and he

12 said he could help her if she slept with him and then, to quote her

13 evidence, he touched her female parts.

14 For Sifeta Susic, Radic grabbed her as she was clearing away a

15 table and put her on his knee, saying: It's better for me to rape you

16 than someone else.

17 For Zlata Cikota, one day -- I believe it was in his office, I

18 may not have got that part of the evidence quite in my mind, but one day

19 he had an encounter with her and he grabbed her breasts, and when she

20 said, "I'm just an old woman," he replied, "Well, you're good, it doesn't

21 really matter."

22 And finally for Witness J, and of this group I think one would

23 agree this was the most serious of the conducts, he pushed her roughly

24 against a wall, he pushed up her clothes, he touched her breasts and

25 genitals, and then after unsuccessfully trying to effect sexual

Page 427

1 penetration, he ejaculated on her leg.

2 In effect, Radic by his submissions is contending that this

3 sexual bullying, these threats to rape, these sexual touchings and these

4 sexual assaults on these women held in captivity, in this overwhelmingly

5 threatening environment, by him, who to them was a person in authority

6 let's not forget, he's saying that they're not serious enough for torture

7 and persecution or not serious enough to be grave violations of

8 international humanitarian law.

9 We know that torture for both Article 3 and Article 5 must cause

10 the victim severe pain and suffering. We also know the gravity of harm

11 has both objective and subjective components. Here it was not

12 unreasonable for the Trial Chamber to have found that the pain and

13 suffering inflicted upon the victims was severe. Just to look at the

14 words of Sifeta Susic. She said: "I felt terrible, dreadful. I can't

15 describe it in words."

16 Given the victim's extraordinary vulnerability, their

17 imprisonment in a place where violence against detainees was the rule,

18 not the exception, their knowledge of Radic's position that he could roam

19 around the camp at will and order their presence before them, their

20 knowledge or suspicion that other women were being raped or otherwise

21 sexually assaulted in the camp, and therefore, the threat was very real

22 that they could be subjected to sexual violence at Radic's whim. With

23 this in mind, it was not unreasonable for the Trial Chamber to have

24 assessed the gravity as sufficient for torture, and that's why it's

25 criminalised here.

Page 428












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

13 English transcripts.













Page 429

1 If Your Honours did take the view that the gravity did not meet

2 the sufficiency of gravity for harm for torture at the very least, Your

3 Honours, this conduct amounts to outrages upon personal dignity, at least

4 for the threat-type comments, and I would point Your Honours to cases or

5 examples of incidents of sexual assaults of a similarly we might call it

6 non-penetrative nature; Kunarac, which was naked dancing; Furundzija,

7 which was a girl being forced to stand naked before a group of men; and

8 Tadic, in a male context, by forcing one person to lick the naked bottom

9 of another person. Those were held sufficient to amount to sexual

10 assault, and outrages against personal dignity.

11 Likewise, when we think about persecution, under Article 5, of

12 course, this can -- persecution can require either that the act be an

13 enumerated crime or entail the denial of other fundamental human rights,

14 provided that separately or cumulatively the acts are of the same gravity

15 or severity as the other enumerated crimes in Article 5.

16 THE INTERPRETER: Could the counsel please slow down. Thank you.

17 MS. BRADY: Yes. I apologise to the interpreters.

18 Again, when we see Radic's conduct not in isolation but

19 cumulatively, with all the other persecutory acts that these women

20 endured in Omarska, the Trial Chamber made no error in finding that the

21 women were persecuted by these acts. And again, I make the caveat that

22 at the minimum, I guess you would say, the acts rise to the level of

23 being inhumane acts and therefore to be able to be absorbed into the

24 wider crime of persecution.

25 The final area that I'll turn to in this group of the rape and

Page 430

1 sexual violence crimes was the appellant's arguments concerning the Trial

2 Chamber's use of the evidence that he had raped Witness AT as Rule 93

3 evidence.

4 The legal submissions I make will also be common for the

5 appellant Zigic's arguments. The facts differ because the nature of the

6 evidence differs, but the legal submissions I make are the same.

7 In our submission, the Trial Chamber made no error by taking into

8 account Radic's rape of AT, Witness AT, as evidence of a consist pattern

9 of conduct under Rule 93, in consideration of his charged crimes of rape

10 and sexual violence. And we recall that Witness AT attested that at

11 first Radic helped her, he gave her some food, he moved her husband into

12 the "glass house"; but one night he took her to the conference room with

13 the sponge mattress on the floor, he told her to undress and he forced

14 her to have sexual intercourse.

15 The evidence is that he raped Witness AT is clearly relevant and

16 probative, and in our submission it's not outweighed by its prejudicial

17 value. So we're right within the parameters of the Appeal Chamber's

18 decision in Bagosora on the 19th of December, 2003. What we say is that

19 it was very probative evidence of his what we would call modus operandi,

20 his quid pro quo system of asking women to have sex with him in exchange

21 for assistance, and then, upon their refusal, sexually assaulting them.

22 As such, the Trial Chamber was not in error to use this evidence

23 to corroborate Witness K and J. I don't say for one moment that K and J

24 did need corroboration; their evidence stands as enough to be sufficient

25 to prove the crimes that occurred against them. But basically,

Page 431

1 Witness AT's evidence is further corroboration for their evidence.

2 And if we look at other cases in the Tribunal --

3 THE INTERPRETER: Could the counsel please slow down.

4 MS. BRADY: Yes. I apologise again.

5 Many cases have used Rule 93. I note the Strugar decision, Trial

6 Chamber's decision on the 22nd of January, 2004 and Kupreskic Appeals

7 Chamber decision at 321. I also note that in the Kunarac case for the

8 accused Vukovic, there the Trial Chamber used evidence of uncharged oral

9 rape on Witness 51 as evidence in proof of the charged rape. And we see

10 from these cases that this evidence under Rule 93 is often used for this

11 purpose of corroborating other evidence.

12 Here, Radic used the same quid pro quo system when he raped K and

13 assaulted J. Before sexually assaulting J, he told her, while she was in

14 the serious category of detainees, but he knew an inspector, and in

15 return for his assistance, he'd ask for, in Witness J's words, a

16 counter-service.

17 For Witness K, Radic initially tried to coerce her into having

18 sex with him by saying that if she agreed, her children would not be

19 killed. That's the evidence of those victims.

20 We reject his submissions that he made that this evidence - this

21 evidence - must be proved beyond reasonable doubt. What has to be proved

22 beyond reasonable doubt are the charged crimes, the rape of K, the sexual

23 assault on Witness J. The Krnojelac Trial Chamber noted that Rule 93

24 evidence is similar to circumstantial evidence. Just as each piece of

25 evidence in a circumstantial case doesn't need to be proved beyond

Page 432

1 reasonable doubt, neither does evidence under Rule 93. It's the ultimate

2 fact which must be proved beyond reasonable doubt, not each piece of

3 evidence that goes towards proof of that. And the closest analogy that

4 we can see from national systems would be in the common law use of

5 similar-fact evidence, and similar-fact evidence of strikingly similar

6 evidence, once admitted into court, is treated as one further piece of

7 evidence for the fact-finder to consider in its overall assessment of the

8 evidence in the case.

9 Besides this, there is no indication, in fact, when you look at

10 the judgement, that the Trial Chamber's evaluation of Witness AT's

11 evidence differed from any other way and that they applied some different

12 standard that they applied to the examination of the other witnesses. So

13 the point is possibly even moot.

14 The final point I'll make just concerns his notice or fairness

15 arguments. And Mr. Fila the other day described Witness AT's evidence as

16 like a stone dropping from the sky. And I must say, I like the

17 expression, it's very evocative; but I have to disagree with its use in

18 this context. The Defence received a proffer of this witness's

19 testimony, the proffer of 14 September 2000, before she testified in

20 October 2000, thereby complying with its obligations under 66(A), and

21 most importantly raised no objection when the evidence was led. Out of

22 fairness to the accused, the rape wasn't added to the indictment, but

23 this doesn't mean the Trial Chamber should be precluded from using it as

24 evidence of the charged crimes, especially in view of his waiver.

25 The Prosecution understands that Rule 65 ter may now well require

Page 433

1 a Prosecutor -- the Prosecution to set out in a pre-trial brief each

2 count in the evidence, but the Rule entered into force on the 4th of May,

3 2001, whereas this disclosure was done in October of 2000. And when

4 confronted by a similar issue - identical issue, in fact - in the

5 Kupreskic case, this Chamber didn't hold the Prosecution to the more

6 exacting disclosure obligations unless the interests of justice so

7 compelled. And we submit that in that case, the interests of justice did

8 not so compel the higher standard and therefore, our submission is that

9 he was fully on notice in an appropriate way.

10 In summary, Your Honours, our submission is that Radic's grounds

11 on his crimes of rape and sexual violence must all be dismissed.

12 I'll turn now to look more at his grounds in ground 4 A through C

13 about the findings on his position and duties, the crimes committed by

14 the guards on his shift, and his knowledge of the general camp conditions

15 and abusive treatment. And again, he was brief the other day. Of

16 course, his Appeal Brief is before you. And in the same way, our

17 response brief, which has gone through this in some detail, is before you

18 and I won't be long today on these points.

19 But I think what comes out very clearly is that the appellant

20 Radic is really only proposing his preferred alternative assessment of

21 the evidence, rather than showing the apellable error. On the first

22 issue about his position as guard shift leader, there was no error in the

23 Trial Chamber having found that Radic was a guard shift leader who had

24 and who exercised substantial authority over guards in his shift and that

25 he used his power to prevent crimes selectively, while ignoring the vast

Page 434

1 majority.

2 This is especially so in light of the overwhelming witnesses'

3 testimony about what they saw, what they heard, and what they experienced

4 Mr. Radic do and what Mr. Radic told them himself. Just to name some

5 examples, he was present when new detainees arrived, he would register

6 them, he was present during guard shift change-overs, and he gave

7 assignments to guards, according to Witness J's evidence. They'd report

8 to him when he took up duty for their shift. He walked around the camp

9 with them and he would sit in the duty room with the other shift leaders

10 and deputy commander and commander, whoever was on the shift.

11 Nor in our submission was it an error for the Trial Chamber to

12 have inferred from his selective assistance and his selective protection,

13 such as I've already described in relation to the women detainees or to

14 certain of his old friends from home, that he was able to do so because

15 he had some degree of power or authority in the camp. And there's no way

16 the Trial Chamber's findings could be possibly interpreted or boiled down

17 to being based on people simply calling it Krkan's shift because they

18 knew him from before the war.

19 I want to spend a little bit more time on a question that he

20 called the most important for his appeal or one of the most important and

21 that is the Trial Chamber's finding that he did not have Article 7(3)

22 liability and hence he could not have had sufficient authority over

23 guards for his Article 7(1) liability in a JCE. And this ties in to the

24 question that His Honour Judge Shahabuddeen posed the other day.

25 Not only is the appellant actually misstating the Trial Chamber's

Page 435

1 findings on Radic's Article 7(3) liability but he's confusing two very

2 different modes of liability. The first point: The Trial Chamber did

3 not actually in fact make definitive findings on whether Radic had

4 effective control over the guards in terms of the superior-subordinate

5 relationship that's needed for 7(3) liability. In fact, if you look at

6 paragraph 570, the Trial Chamber expressly declined to rule on this,

7 since his liability for the crimes was already covered. But even if the

8 Trial Chamber had found that Radic had no effective control over the

9 guards for 7(3) - and we do see that there is a certain ambivalence in

10 paragraph 570 - this would not be inconsistent with the finding that he

11 was a guard shift leader who exercised significant authority and power

12 over the guards. A person can exercise significant authority over others

13 without being necessarily their superior for the purposes of 7(3). And

14 nor is liability under 7(1), as a co-perpetrator of a JCE dependent upon

15 a finding of superiority in the sense of 7(3).

16 Turning to the Trial Chamber's findings about the crimes

17 committed on the -- by the guards on Radic's shift, and in particular,

18 the finding that the guards on his shift committed numerous serious and

19 brutal crimes, and as his -- as their shift leader, he never exercised

20 any authority to stop them, and this sort of air of permissiveness, this

21 tolerance, further encouraged their continuance.

22 Witnesses were pretty much all united on one thing, that this

23 shift, Radic's shift, was the worst of the three. You had guards like

24 Predojevic, Popovic, Paspalj, Zivko Marmat, a character by the name of

25 the karate kid, and outsiders who came in, Knezevic and Tadic and Zigic,

Page 436

1 who came in to do their deeds. In fact, as found by the Trial Chamber,

2 some of the most memorable beatings happened on this shift, such as

3 Zigic's beating of Kapetanovic and Kiki. And another memorable beating

4 done by guards on Radic's shift, the murder of Rizah Hadzalic on the

5 pista.

6 Radic seems to say: I couldn't stop these guys. No one listened

7 to my orders. It was absolute mayhem. So how could I be responsible?

8 The first thing is that the evidence doesn't actually point --

9 doesn't actually bear that particular line out. He did stop some crimes

10 and prevent others. In fact, in evidence, he said so himself. He gave

11 an example of where he'd stopped and spoken to a guard in the restaurant

12 who had been beating somebody. He also referred to allowing Witness J to

13 have -- receive a visitor who would bring her food and the like.

14 But the more important point is that to say that he should not be

15 responsible for their crimes actually misunderstands the basis for his

16 liability. His liability is not under 7(3) for failing to prevent or

17 failing to pressure the crimes of these guards. Sure, his failure to

18 exercise authority to stop the guards did form part of his contribution

19 to the system by tacitly encouraging and condoning the guards' behaviour

20 and generally adding to this air of permissiveness, but his liability is

21 in fact based on his contribution to furthering this system of

22 ill-treatment, knowingly and intentionally.

23 Finally, turning to the appellant's argument that the Trial

24 Chamber erred in rejecting his claim that he didn't see or hear or notice

25 evidence of abuses in the entire three months, and rather, finding that

Page 437

1 he was, in his position, exposed on a daily basis to killings and

2 tortures and other abuses. Your Honours, we'd ask what other conclusion

3 could have been drawn. The horrors on the pista were seen by all, but

4 not by him, even though he was standing often, on his own words, at the

5 glass circular window in the administration building, looking out. Dead

6 bodies could be seen by all, or many in the camp on a daily basis, but

7 not by him, despite walking around and freely roaming around for three

8 months? Screams and cries and groans and moans could be heard coming

9 from the interrogation room by people in the restaurant, the floor below.

10 And although Radic was in the room next door, he heard only "the sound of

11 furniture falling." Even the typist in that room, DD/10, agreed you

12 could hear the abuses.

13 The women detainees often saw blood and beating instruments in

14 the interrogation rooms, but he never did? He never saw the beatings of

15 new detainees upon arrival when they were made to run through a gauntlet

16 of people beating them? And although he frequently took detainees to the

17 interrogations and then would a accompany them back, he only noticed, on

18 his words, some sort of long faces and red eyes? Not to mention his own

19 participation in the crimes. No other reasonable conclusion could have

20 been drawn.

21 The final area that I'll address you on concerns the Trial

22 Chamber's findings that Radic was responsible as a co-perpetrator in the

23 joint criminal enterprise. And on Tuesday, Mr. Fila said he couldn't see

24 anything in the judgement which explained why Radic is a co-perpetrator

25 of this JCE. In our submission, to accept his argument that Radic's

Page 438

1 contribution is not enough and would make a cook or a janitor or some

2 person like this liable actually would ignore all the findings made by

3 the Trial Chamber in paragraphs 506 to 561. These were the core factors

4 which enabled the Trial Chamber to reasonably conclude that Radic knew of

5 the criminal system, shared its criminal goals, and participated

6 significantly in it.

7 I can't summarise an entire judgement, obviously, but I guess if

8 I was going to put it into a nutshell, his position as guard shift

9 leader, his authority over other guards; his direct knowledge of abuses

10 in the camp, what he did, and what he didn't do; his personal involvement

11 in rape and sexual violence; these are his contributions which make him

12 liable as a co-perpetrator in the systemic joint criminal enterprise to

13 persecute the non-Serb detainees in the camp through inhumane conditions,

14 murder, torture, beatings and rape. And I invite Your Honours to look at

15 a better summary than I've just tried to do in paragraphs 566 and 571.

16 Regarding his mens rea, I think it's also important to note that

17 the Krnojelac Appeals Chamber highlighted that in the case of a joint

18 criminal enterprise, it's less important to prove that there was this

19 more or less formal agreement between all the participants than to

20 approve their involvement in the system, and in particular, in

21 paragraph 97, the Krnojelac appeals judgement, of course, which you're

22 familiar with, it said: "Since the Trial Chamber's finding showed that

23 the system in place in KP Dom sought to subject non-Serb detainees to

24 inhumane living conditions and ill-treatment on discriminatory grounds,

25 the Trial Chamber should have examined whether or not Krnojelac knew of

Page 439












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

13 English transcripts.













Page 440

1 the system and agreed to it, without it being necessary to establish that

2 he had entered into an agreement with the guards and soldiers - the

3 principal perpetrators of the crimes committed under the system - to

4 commit those crimes."

5 In other words, in that case, in Krnojelac, the Appeals Chamber

6 has acknowledged that the determination of his intent is based on an

7 accused's knowledge of the system and the fact that he agreed to it. And

8 this is exactly the case we have here for Radic. He would have to show

9 that no reasonable Trial Chamber could have concluded that he shared the

10 intent. And if we apply the criteria most aptly summarised in Krnojelac

11 Appeals Chamber paragraph 111, if you look at the duties, the time

12 committed, the time over which they were exercised, the knowledge of the

13 system in place, the crimes committed therein, and the discriminatory

14 nature, that same conclusion must be the only one for Mr. Radic, both

15 that he shared the intent to further the system and shared its

16 persecutory goal.

17 So in summary, in our submission, the Trial Chamber was not

18 unreasonable to find him liable for the crimes committed in the camp

19 during its existence as a co-perpetrator in a joint criminal enterprise

20 to persecute, kill, murder, torture, detain in inhumane conditions and

21 generally mistreat non-Serbs. When the facts establish that he

22 personally knew of the system of ill-treatment in the camp and he

23 intended to further that criminal enterprise and contributed

24 significantly in that JCE to persecute and abuse the non-Serbs detained

25 in the camp by furthering the system of ill-treatment.

Page 441

1 Finally, what I'd like to do is just to turn to some of the

2 specific arguments that he raised. And I'd like to try and think of them

3 in term of colloquial arguments and to group them into I think five or

4 six different categories.

5 The first argument he seems to make in terms of why he shouldn't

6 be a co-perpetrator to this JCE is, he says, "Without the sexual-violence

7 crimes, the only finding left is that I stayed." Your Honours, this is a

8 gross simplification, obviously, of the Trial Chamber's findings. But

9 besides, why would we leave out this integral part of his participation?

10 This was one of the key factors that the Trial Chamber looked at. This

11 was how he directly contributed to the system, by committing further

12 egregious acts.

13 The second argument he seems to make is "I tried to leave

14 Omarska. I had no choice to stay. It was my job."

15 In our submission, when his weak protest that he made to Drljaca

16 is seen against his other testimony that there were no repercussions for

17 guards who didn't turn up for work and his own evidence as to never

18 having missed a shift, the Trial Chamber cannot have been unreasonable to

19 reject his argument but that he had no option but to stay in the camp,

20 and in fact, on the overwhelming evidence, to find, as it did at 565,

21 paragraph 565, that he didn't remain in his post reluctantly. And in

22 fact, the camp provided a forum and a power in which to commit the

23 abuses, and by every indication, he participated in crimes without

24 hesitation.

25 The third argument or line of argument that I read in his

Page 442

1 submissions is to the effect that "well, I was obedient, I had a

2 conformist personality. I was sent to Omarska as my workplace by my

3 superiors and I didn't confront them because I feared for my family."

4 There's a lot of different issues that that concept raises in one

5 package.

6 I'm not clear whether the argument Mr. Fila made about Article

7 7(4) the other day at the very beginning of his submissions related to

8 this, but to the Prosecution, Article 7(4) clearly states that superior

9 orders are not a defence. But more importantly, neither superior orders

10 or duress are borne out by the evidence. Far from being a reluctant or a

11 sort of begrudging worker who carried out his job, the evidence actually

12 showed that the camp provided that -- the very place for him to commit

13 further abuses.

14 As for the fears that he held for his family, Mr. Fila mentioned

15 in his submissions that Radic had raised the spectre of threats, that his

16 sons would be sent to the army and then killed, the evidence was not

17 quite that direct. And I turn your attention to transcript of the 6th of

18 March transcript of Radic's testimony, page 1069 to 1070. And he said,

19 in answer to a question by Mr. Fila: And I know that if I had

20 surrendered, that it would probably have been to the detriment of my

21 family.

22 And Mr. Fila asked him: Why didn't you run away? Why didn't you

23 throw away your uniform and simply flee? And he said: But, Mr. Fila, I

24 would be signing a death sentence for my family had I done such a thing.

25 I haven't been able to see from his evidence or the interview

Page 443

1 evidence of some exact, some threat that he's mentioned in submissions

2 about how his sons would be sent to the army and killed. And in any

3 event, in his own words during the trial, he agreed very carefully, very

4 firmly, with a submission put to him, a question by the Prosecution, that

5 no one who left the camp was -- I think the words in the trial -- the

6 evidence at trial was were no one who left the camp was swallowed up by

7 the darkness.

8 The next argument, or the next line that he seems to raise is --

9 I neither establish the camp nor did I initially know of its nature. I

10 wasn't an essential person. And look, when I took up the post, I wasn't

11 aware that the camp would be like this.

12 My colleague Ms. Rashid's submissions this morning have very much

13 dealt with this. But a co-perpetrator in this sort of systemic JCE

14 doesn't need to know every single last detail of the system, nor every

15 single individual crime committed in it. Once he agrees and he commits

16 to the system, he's responsible for the crimes falling within it. He

17 doesn't need to be a planner, nor in fact does he even need to be

18 essential.

19 Besides, how long would it have taken to get the full picture of

20 what was going on there? I think the Trial Chamber put this very

21 succinctly in paragraph 324 by saying: Evidence of abuses could be seen,

22 heard, and smelled.

23 The three months that he was there must have made it plainly

24 apparent what was going on, and yet he assiduously attended to the camp's

25 functioning and making sure it was running, to the extent that it was his

Page 444

1 position to do so, in an efficient way. And he basically looked the

2 other way, except when it suited him to offer assistance, not to mention

3 using it as a forum for his own crimes. And it's been mentioned in the

4 briefs, and I believe the other day, that, well, when Radic got there he

5 said: Look, this affair will all be over in two to three days. Well, it

6 wasn't, and he stayed for three months, and he came back shift after

7 shift in that three months.

8 The final argument or line of argument that I can discern in his

9 submission is to the effect that: Well, even if I'd known of some of

10 these abuses, how could I be responsible when I couldn't change the

11 conditions or influence the commission or non-commission of the crimes by

12 these guards, let alone the interrogators? And even if I had protested,

13 the guards would have kept committing their crimes.

14 Firstly, as I've said, this is factually quite incorrect, because

15 he did actually change conditions and he did protect people on a

16 selective basis. And actually, there's evidence on the record that some

17 guards were able to prevent certain bad things happening in the camp

18 during its existence. But most importantly, the line of defence, this

19 line of defence ignores that he actively furthered the camp's awful

20 conditions, in the face of this knowledge. So even if he couldn't stop

21 some crimes or he had no material ability to prevent some, or some guards

22 were truly these unstoppable forces, which seems apparent that some of

23 these people were indeed these sort of wild forces that couldn't be

24 stopped, his liability stems from his knowingly and intentionally making

25 significant contributions in the face of all that knowledge, doing his

Page 445

1 bit to this system of mistreatment.

2 He never missed a shift, not once in three months.

3 In conclusion, Your Honours, the appellant cannot show and has

4 not shown that the Trial Chamber was unreasonable to have found that

5 Radic, through his material and mental contributions to the joint

6 criminal enterprise, is responsible as a co-perpetrator and is thereby

7 liable for the crimes committed in the camp during the entirety of its

8 existence.

9 And that concludes my submissions, unless, of course, Your

10 Honours have some questions.


12 JUDGE MUMBA: Thank you, Mr. President.

13 Ms. Brady, I just want to be clear in my mind as to the

14 Prosecution's submission regarding maybe one of the factors,

15 differentiating liability under the provisions of Article 7(1) and

16 Article 7(3). My understanding of your submission, especially when

17 discussing the activities of appellant Radic, my understanding was that

18 for liability under Article 7(1), in a joint criminal enterprise, type 2,

19 the one the Prosecution is submitting, it is not necessary for the

20 Prosecution to prove a superior/subordinate relationship among those

21 found to be participants. Am I correct in my understanding?

22 MS. BRADY: Yes, that's exactly correct in your understanding.

23 JUDGE MUMBA: Thank you.

24 JUDGE SHAHABUDDEEN: Ms. Brady, I was interested in your last --

25 oh, sorry. Sorry. No, no, no. I didn't realise Judge Weinberg de Roca

Page 446

1 wanted to speak.

2 JUDGE WEINBERG DE ROCA: Thank you. Ms. Brady, just a short

3 question, because it sounds very effectus, but what does the meaning the

4 Prosecution gives to "swallowed up by the darkness"?

5 MS. BRADY: Your Honours, when I read the transcript and saw this

6 word, these words, I didn't myself know exactly what was meant. But the

7 question was meant that as in nothing terribly catastrophic, nothing bad

8 happened, right, when people left the camp. So it was in that term. It

9 was a rather ambiguous, strange term to use. We could agree on that.

10 But it seems that the clear impression of the question and the answer is

11 that nothing awful would happen to people who left.


13 JUDGE SHAHABUDDEEN: Yes, Ms. Brady. I was interested in your

14 submission to the effect that it hasn't been shown that the Trial Chamber

15 was not reasonable, and so on. Well, now, everybody, I take it, is

16 familiar with the concept that an Appeals Chamber does not reverse a

17 finding of fact by the Trial Chamber, mainly because, if it were the

18 Trial Chamber, it would have concluded otherwise. The Appeals Chamber

19 would have to go on to find that no reasonable tribunal of fact could

20 have found as the Trial Chamber did. Now, do we have to take into

21 account Mr. Fila's very interesting submission to the effect that, well,

22 he couldn't really look the Presiding Judge in the eye and say: You are

23 not reasonable. That's a very interesting submission. What do you say

24 about that?

25 MS. BRADY: I actually think that it might come down to an

Page 447

1 interpretation of the word "reasonableness." From Mr. Fila's response to

2 your question, I got the understanding that perhaps in the way it has

3 been translated, perhaps in Serbian, B/C/S, that to say that something is

4 unreasonable is sort of like to say that it's shockingly absurd and one

5 that sort of calls on the very integrity or character of the person who

6 made the finding. And I don't think that that is by any means the

7 standard which this Appeals Chamber implies. Indeed, it would be very

8 uncomfortable for Your Honours in overturning the decisions made by your

9 brother and sister Judges at the Trial Chamber level if that was going to

10 be the case. It doesn't mean that. It's not sort of derogatory. It

11 basically means that no reasonable Trial Chamber on the facts could have

12 come to that conclusion that there is something inherently wrong about

13 the reliability of the evidence upon which they relied or their judgement

14 of the credibility of a witness, which is something that no fact-finder

15 could have found.

16 And I think I'll leave it at that and ponder it more. A very

17 philosophical question.

18 JUDGE SHAHABUDDEEN: Yes. Mr. Fila has raised a very interesting

19 point, I thought. So I understand you to be saying that such a remark is

20 not directed personally to the Judge in question, but merely to the

21 discharge of his functions.

22 MS. BRADY: Absolutely, Your Honour.


24 MS. BRADY: Absolutely.

25 JUDGE SHAHABUDDEEN: Ms. Brady, while you're on your legs, may I

Page 448

1 ask you another question. I have myself gone backwards and forwards on

2 this, I'm sure. So what I'm going to raise with you is a question. I'm

3 not putting a proposition to you. And I speak subject to the control of

4 my colleagues who are versed in the civil law system, both on the Bench

5 and the bar.

6 I'm talking about your reference to Rule 94(B), I think it was,

7 and to the way the Judge notices, judicially notices, a finding of fact

8 made by another Chamber. You mentioned a plea agreement, and I think the

9 proposition was that that facility is inapplicable to cases involving a

10 plea agreement because there's really no adjudication in those instances.

11 But do we not have to bear in mind the injunction of one of your

12 colleagues today, I think Mr. Carmona, that this Tribunal is really of a

13 hybrid nature; we collect within the jurisprudence of the Tribunal all

14 the trends that we see to be relevant, and more particularly, those of

15 the civil law and the common law. Is that not something to be borne in

16 mind when we talk of a plea agreement?

17 My understanding is this: Sure, even in the common law system, a

18 plea agreement doesn't result in a finding of guilt. There has to be an

19 adjudication. The court has to find that the plea was voluntary and

20 understood by the accused, and so on. And maybe that is the same in the

21 case of the civil law system. But am I not right that the civil law

22 system goes a little further in that it says: Look, a guilty plea

23 doesn't have the kind of conclusiveness and finality that it has in the

24 common law system. It's merely evidence upon which the court needs to

25 make a finding. Now, if that is so, if that is so, and I speak subject

Page 449

1 to the control of more learned colleagues in the civil law system - do we

2 not have to bear in mind this: That it seems to me that, procedurally,

3 the Tribunal has, in this matter, followed more in the direction of the

4 civil law system than in the common law system so that you end up with a

5 plea agreement, which is only evidence, to be followed by a determination

6 made by the court. Is that not an adjudication which has to be

7 judicially noticed by another Chamber under 94(B)? I may be totally

8 wrong.

9 MS. BRADY: Your Honour, of course you're correct about the

10 hybrid nature of this Tribunal, and I also understand the differences

11 that a civil law approach would take to a plea agreement in contradiction

12 to a common law approach which basically accepts the plea and -- well, it

13 doesn't follow it blindly, of course not; but there's less of an

14 inquisition or real study of the evidence to make sure that everything is

15 proven, still, with the plea of guilty just being one further fact.

16 But I think that notwithstanding that, there is still a real

17 issue -- no. Let me put it this way: When it comes to positive

18 determinations or positive findings in a judgement based on a plea

19 agreement, the Trial Chamber, of course, has to be satisfied, whether you

20 adopt a civil or a common law approach, has to be satisfied that that

21 murder occurred or that rape occurred, even despite -- even with the plea

22 of guilty. It would still have to be satisfied on its own merits of the

23 case. But I think there's a distinction when something's left out of a

24 sentencing judgement based on a plea agreement, because there you have a

25 lot of different factors which could have gone into the decision by the

Page 450












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

13 English transcripts.













Page 451

1 Prosecution as to what -- with the Defence, different factors influencing

2 what's going to be part of the plea agreement. The point is that we just

3 don't know.

4 And this is the danger of relying on the plea agreement as a

5 source of adjudicated facts. We don't know exactly why something, for

6 example, was not included. All we know is that something was included,

7 not why it was not there. And I gave the example, bringing it back to

8 this case, that the Trial Chamber in Sikirica, we don't know why they

9 didn't include this rape. And I think that it would be second guessing

10 what the Trial Chamber in Sikirica was doing. What was its problem with

11 Witness K, to put it very colloquially? Why did it reject it? Because

12 it because of a problem with reliability of this person's evidence? And

13 there, there were identification issues that differentiated? Or was it a

14 substantial problem with an underlying issue related to this witness? We

15 just don't know. And I think the dangers of relying, then, on plea

16 agreements whether it's a civil or common law approach, I think the

17 dangers are still there, nonetheless.

18 And I would also say that I don't know whether the first part of

19 Your Honour's question was also getting to another slightly different

20 point, but that can't you, as an Appeals Chamber, why not, if this is a

21 sort of more hybrid system, why can't you as an Appeals Chamber absorb

22 findings made from different Trial Chambers just to take note of them?

23 And our submission on that is: No, you have to actually go through the

24 94 bis procedure. Otherwise, in effect, you have an appellate structure

25 which is a corrective procedure, in which we have one way of bringing

Page 452

1 forward new facts, additional evidence on appeal, and then all of a

2 sudden Your Honours would be sort of saying: Well, there's a trial

3 judgement in so-and-so which found this against this witness or there's a

4 trial judgement in that case which found another point. So I think we

5 have to be very careful. I don't exclude that you couldn't use

6 adjudicated facts, but I think you'd have to adopt an equally cautious

7 approach. Thank you.

8 JUDGE SHAHABUDDEEN: Do your very interesting remarks take us in

9 the direction of saying that such a case isn't really excluded on

10 principle under 94(B), but it's admissible subject to a careful

11 evaluation of the weight to be attributed to the matter? In other words,

12 a plea agreement in our case may be taken to be more evidential than in

13 the common law system, where it's more conclusive.

14 MS. BRADY: Possibly, Your Honour, but I don't see how you would

15 overcome the basic question of how you would conduct that evaluation of

16 the evidence. Thank you.

17 JUDGE SHAHABUDDEEN: You may well be right. I don't know. Thank

18 you very much.

19 Yes, Mr. Fila.

20 MR. FILA: [Interpretation] Thank you, Your Honour. I do not wish

21 to take up too much of your time. I will respond tomorrow. But I would

22 like to clarify something else now. I don't know where my learned friend

23 found that Radic was afraid of his children being drafted into the army,

24 because one of his children was 5 and the other was 10 at the time. So I

25 don't know. This must have been some kind of mistake. This is not

Page 453

1 something that is claimed by the accused Radic, because his children were

2 too small at the time for him to be concerned about that.

3 The second intervention is the term "to be swallowed by the

4 dark." In B/C/S it means to die. And when you tell somebody you will be

5 swallowed up by the darkness, it means you will be killed, you will

6 disappear without a trace. That is the meaning. So with all due

7 respect, I don't know where my colleague found the interpretation that

8 she did. And if you did find such an interpretation, then it must be

9 either my mistake or somebody else's mistake.

10 Because also it's impossible -- when you look at the case file

11 you will see the years of birth of his children so you will see that at

12 the age of 5 or 10 the Serbs even do not send such young children into

13 the army. They're definitely too young.

14 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Fila. May we now

15 suspend for 30 minutes.

16 --- Recess taken at 3.31 p.m.

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


19 MS. BRADY: Yes. Just briefly. Just briefly, Your Honours.

20 I need just to make a page -- a reference to the transcript, a

21 correction to some transcript references that I gave. I was mentioning

22 the draft pages that I mentioned in my submissions were from the draft

23 copy of the transcript rather than from the official transcripts. So to

24 avoid a sort of series of memorandums going back and forth, I'd like to

25 correct it now. Essentially, there were four submissions made by Mr. Fila

Page 454

1 which I incorporated in my submissions today, this afternoon, and those

2 four submissions that I made, the submissions regarding Mr. Fila's

3 comments about the threats to go to the army and be killed, the

4 generalised comment about rape in war, and the two comments about

5 Witness K, all of those references can be found from pages 209 to 211 of

6 the official transcript. So just for the record, Your Honour.

7 JUDGE SHAHABUDDEEN: Thank you very much, Ms. Brady.

8 Now who will speak for the Prosecution?

9 MR. RE: I will. Thank you, Your Honours.

10 I turn to deal with mainly the factual grounds of the appellant

11 Mr. Zigic's submissions. I say at the outset that my colleagues have

12 dealt with the common grounds, the so-called common grounds of the four

13 appellants so comprehensively and thoroughly that there is very little if

14 anything I can add to the appellant Mr. Zigic's common grounds.

15 It is important when dealing with Mr. Zigic's appeal to set out,

16 or to remind the parties, and again, of course, the Appeals Chamber, of

17 the standard of an appeal and what the Appeals Chamber is actually doing

18 in hearing Mr. Zigic's appeal. And we remind the Appeals Chamber that --

19 and Mr. Zigic's counsel, that mere dissatisfaction with the factual

20 findings of a Trial Chamber is just not a valid basis for an appeal. An

21 appellant -- and here Mr. Zigic must identify the error of fact of which

22 they complain. And the appellant must establish that this error was

23 critical, vital, to the verdict.

24 And the error of fact has to be such that it occasions a

25 miscarriage of justice, such to attract the Appeals Chamber's

Page 455

1 intervention to overturn a finding and a verdict. That, of course, as

2 Your Honours are aware, comes from the Kunarac Appeals Chamber at

3 paragraph 39. And it goes without saying that this, of course, isn't a

4 retrial, and repetition of arguments and submissions made and lost at

5 trial doesn't constitute an appeal.

6 Repetition of those arguments, or asking for a reconsideration of

7 the evidence, is what we call a de novo hearing, in this case would be on

8 the depositions, on the papers, on the evidence before the Trial Chamber.

9 But it's not an appeal.

10 Of course, the Trial Chamber, as the trier of facts, is in the

11 best position to assess and weigh the evidence. The evidence is

12 extensively heard. And I quote here from Kunarac, at paragraph 39,

13 adopting the Kupreskic Appeals Chamber's decision at paragraph 30, and I

14 quote it in full: "The Appeals Chamber therefore gives a margin of

15 deference to the findings of facts reached by a Trial Chamber. It is

16 only where the evidence relied upon by the Trial Chamber would not have

17 been accepted by any reasonable tribunal of fact or where the evaluation

18 of the evidence is 'wholly erroneous' may the Appeals Chamber substitute

19 its own finding for that of the Trial Chamber."

20 Now, I quote this in full because having heard the appellant's

21 submissions, and especially the oral ones yesterday, it appears to the

22 Prosecution that an attempt is being made to re-ventilate most of the

23 issues or many of the issues which were argued and lost at trial. And of

24 course, that is impermissible before this Chamber. The Trial Chamber, of

25 course, heard all the witnesses, heard the questioning from all parties

Page 456

1 and all parties had an extensive opportunity to cross-examine. And in

2 fact the record reveals that the Trial Chamber itself enthusiastically

3 stepped in on many occasions and conducted quite extensive questioning of

4 many of the witnesses.

5 The Trial Chamber of course evaluated the evidence it heard and

6 then it came to a lengthy and well-reasoned decision, a decision, in our

7 submission, which must stand.

8 In submissions yesterday, Mr. Stojanovic, counsel for Mr. Zigic,

9 made what we could only describe, or as it seems to be, some political

10 arguments. Now, we of course - and we understand the Appeals Chamber

11 will of course disregard these - but he seemed to be saying basically, or

12 implying, that the Croats and the Muslims brought on themselves what

13 happened at Omarska, Keraterm, and Trnopolje by failing to vote to stay

14 in Yugoslavia. The reason for this apparent submission seems to be some

15 attempt to redefine persecution away from Article 5 of the Statute,

16 because Mr. Stojanovic then went on to say, basically, that persecution

17 on a political basis is a milder form of persecution and seemed to be

18 implying that, well, it may be okay afterwards; and after all, this is

19 what you get for not voting to remain in Yugoslavia.

20 Of course, I remind the Appeals Chamber that Article 5 forbids

21 persecution on grounds of race, religion, and politics, and there's no

22 argument about any of them having a higher or lesser role in the calendar

23 of persecution. And in any event, the persecution in the Prijedor

24 region, and specifically in Omarska, Keraterm, and Trnopolje, was, of

25 course, based upon all three. And in the Prosecution's submission, it is

Page 457

1 neither possible nor desirable to attempt to separate them out.

2 Now, the appellant Mr. Zigic was of course convicted of his

3 significant contribution to the horrific crimes committed at Omarska

4 detention camp in Prijedor in 1992. The complaint yesterday in oral

5 submissions appeared to be, at one point, that the indictment contained

6 allegations over this three-month period. Well, yes, it did. And the

7 Trial Chamber made well-reasoned, specific findings relating to crimes

8 committed on different days during the period between the 24th of May and

9 the 30th of August, 1992.

10 The findings the Trial Chamber made related to various incidents

11 which occurred between the end of May and early April - sorry - early

12 August 1992. There is nothing impermissible about this charging

13 practice. It is completely normal. And if you were charging a joint

14 criminal enterprise, we see no other way in which you can do it other

15 than to name the closed period in which the Prosecution alleges that it

16 occurred.

17 Ms. Rashid earlier today submitted, very, very comprehensively on

18 the meaning of joint criminal enterprise, and in particular, the second

19 variation from the Tadic Appeals decision. Yesterday, Mr. Stojanovic's

20 submissions on behalf of the appellant Mr. Zigic -- I did have some

21 difficulty understanding exactly where he was going. He made a complaint

22 about the judgement. He said elucidating the concept of a joint criminal

23 enterprise in "an extremely incoherent and contradictory and inadmissible

24 way. It is our firm impression that the Trial Chamber understood this

25 concept as a separate act which we must point out does not exist in the

Page 458

1 Statute or the Tribunal." Though I won't trespass over the grounds

2 Ms. Brady and Ms. Rashid have already comprehensively dealt with, I just

3 raise that because, as with most of the grounds which the appellant

4 Mr. Zigic puts forward before this Chamber, he doesn't really state

5 coherently what the alleged error was that the Trial Chamber made. It

6 seems to be -- the interpretation we make of this, it appears to be on

7 the Defence case, they say Mr. Zigic was in Omarska for only half an hour

8 on one day. Therefore, the Trial Chamber's error must have been in

9 finding a separate act which doesn't exist in the Statute of the

10 Tribunal. That's what we think it means.

11 However, if the Trial Chamber found against Mr. Zigic on this

12 most important part, that is, when he was in Omarska, for how long and

13 what he did there, as it did, the appellant Mr. Zigic must lose on this

14 point unless he can demonstrate error.

15 Moving to his specific role in the joint criminal enterprise.

16 This was a systematic joint criminal enterprise, as the Trial Chamber

17 found at paragraph 323(c) of its judgement: A joint criminal enterprise,

18 a facility to ... discriminate against and otherwise abuse non-Serbs from

19 Prijedor, which functioned as a means to rid the territory of or

20 subjugate non-Serbs."

21 The Trial Chamber went on at paragraph 324, specifically in

22 relation to Mr. Zigic's knowledge and hence the mens rea in his

23 contribution: "Anyone regularly working in or visiting Omarska camp would

24 have had to know that the crimes were widespread throughout the camp."

25 Now, once the Trial Chamber has found that Mr. Zigic was in that

Page 459

1 category, that is, a person who was regularly working in or visiting

2 Omarska camp. Here, of course, it is regularly visiting. The issue then

3 moves to the significance of that person's contribution to the system.

4 That is the basis of liability, as Ms. Rashid emphasised in her learned

5 submissions this morning.

6 And of course, this is particularly so in a systematic form of

7 joint criminal enterprise, such as in a persecutory detention camp. In

8 this system, the crimes are of course relevant to establish the existence

9 of a system of persecution. And here, in this particular case, the Trial

10 Chamber was entitled to use and did in fact use Mr. Zigic's crimes that

11 he committed in Omarska to find that this system of persecution existed.

12 Now, this, of course -- the appellant's argument all falls down,

13 of course, if the Trial Chamber found, as it was perfectly entitled to

14 do, that he was there for more than half an hour on one particular day.

15 And, as Ms. Rashid emphasised this morning, the duration of a person's

16 contributions does not necessarily determine the significance of their

17 contribution.

18 The crimes which the Trial Chamber found that Mr. Zigic committed

19 at Omarska were significant within that particular joint criminal

20 enterprise to persecute. The crimes were such and so significant that

21 they would have been significant in any similar joint criminal

22 enterprise. As Ms. Rashid pointed out and as I emphasise here, such a

23 joint criminal enterprise relies upon people like Mr. Zigic. It relies

24 upon murderers, it relies upon torturers. A joint criminal enterprise to

25 persecute, operating as a means to rid the territory, rid the territory,

Page 460

1 as the Trial Chamber found, or subjugate non-Serbs relies on that level

2 of fear and oppression and people like Mr. Zigic perpetrating it.

3 But again, Ms. Rashid touched on this this morning, as in any

4 joint criminal enterprise to persecute, the participant does not need to

5 know of each crime committed. Indeed, in a system, or systematic form of

6 joint criminal enterprise, such as in a detention camp, they could not -

7 sorry. I said systematic. I meant systemic. I've been corrected by my

8 colleagues. In a systemic system of joint criminal enterprise, a

9 participant could not know of every possible crime committed, such as the

10 nature of a 24-hour camp. The participant only requires the knowledge

11 that a wide variety of crimes were being committed, and that was

12 knowledge which Mr. Zigic had to have, based upon his regular visits to

13 and activities in Omarska and, importantly, what he did there.

14 And of course, we must not lose sight of the fact that at the

15 same time he was doing this in Omarska he was also doing identical things

16 to sometimes the same victims in Keraterm, just up the road.

17 If we go to the level of his participation or the visits, and if

18 we go to the complaint that he was only there for half an hour one day,

19 and look at the Trial Chamber's findings, apart from the specific

20 findings regarding Becir Medjunjanin and Witness T, which occurred on

21 about the 11th or 12th of June, 1992, the Trial Chamber also found that

22 he committed torture on the 10th of June against AJ, Asef Kapetanovic,

23 and AK. But in addition to that evidence of those witnesses and the

24 corroborating witnesses as to his activities on those particular days,

25 the Trial Chamber also heard evidence from a witness Azedin Oklopcic.

Page 461












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

13 English transcripts.













Page 462

1 And this was at page 1900 of the transcript, and it was indeed in answer

2 to a question by my learned colleague Mr. Stojanovic asking how often

3 Mr. Zigic would come to Omarska, to which the answer was: Mr. Zigic,

4 Timarac and Dusko Knezevic would come to the Omarska camp and stay in the

5 Omarska camp together.

6 Mr. Stojanovic persisted: How many times did you see Zigic in

7 the Omarska camp, he asked. The answer on the following page, 1901, was:

8 "At least ten times, and two or three times at Trnopolje."

9 The witness went on: "Let me tell you. It was an attraction

10 when Zigic, Timarac, and Dusko turned up, because they knew at the time

11 when they turned up they would see something they wouldn't even see on

12 film. And when it happened that Zigic beat Rezak or Began or anyone

13 else, all the other guards from the surrounding points would come up to

14 watch, to experience those incidents."

15 The Trial Chamber had clear and compelling and cogent evidence

16 before it of Mr. Zigic's regular and repeated and eager visits to the

17 Omarska detention camp.

18 Still on JCE, physical or direct perpetration of a serious crime

19 that advances the goal of a criminal enterprise would constitute a

20 significant contribution. Now, that's what the Trial Chamber found at

21 paragraph 309. The respondent here says the Trial Chamber made no error

22 after hearing all the evidence in coming to that finding, and the

23 appellant has demonstrated no error. Zigic's contributions were

24 significant, because he contributed directly to the core crimes in the

25 common design, that was to persecute the non-Serbs. And this goes

Page 463

1 directly to the mens rea, the requisite discriminatory intention, and as

2 to whether he's an aider and abettor or a co-perpetrator.

3 The example Ms. Rashid gave this morning of an individual walking

4 into Omarska, acquainting himself with the climate of impunity, and on

5 one occasion perhaps maliciously and deliberately killing someone, her

6 submission was that the contribution could be so direct and significant

7 to furthering the joint criminal enterprise that the only inference

8 available would be that the person agreed with the system. With Mr.

9 Zigic, of course, it goes much further. You have murder, you have

10 torture, you have beatings, and you have repeated visits.

11 The Trial Chamber was entitled to find, as it did at

12 paragraph 610, that Zigic made a significant contribution and was a

13 significant participant in his -- and that he, "Aggressively and eagerly

14 participated in the persecution of non-Serbs in Omarska."

15 The Prosecution emphasises that this degree of participation was

16 eager, it was regular, it was voluntary; indeed, enthusiastic. And

17 further, on the issue of mens rea, and although the Trial Chamber didn't

18 do this, there's no reason, in principle, why it could not have used the

19 evidence of his persecutory crimes at Keraterm or Trnopolje in the same

20 period pleaded in the indictment to corroborate the significance of his

21 contribution to the joint criminal enterprise to persecute at Omarska.

22 The Trial Chamber made no error in finding his discriminatory

23 intent based upon his abuse of the non-Serbs, the ethnic slurs which were

24 accompanied by extreme violence, and the repetition of them shows mens

25 rea and discriminatory intention.

Page 464

1 THE INTERPRETER: Could you please slow down.

2 MR. RE: [Previous translation continues]... that he was a

3 significant participant in a joint criminal enterprise to persecute.

4 Moving from the general to the more specific. I will deal with

5 some of the grounds which my learned colleague Mr. Stojanovic touched

6 upon yesterday. The first one is the murder -- we'll do it in the same

7 order that he did, for ease of analysis later.

8 The first one is the murder of Becir Medunjanin. The

9 Prosecution, or the respondent, canvassed the evidence led at trial by

10 both sides, the Trial Chamber's analysis of it, and the reasons why the

11 appellant has demonstrated no errors of fact or law such as disturb the

12 verdict, and I will not go any further into them at the moment, for the

13 reason that the issue of an additional witness is still outstanding and

14 the Prosecution would prefer to defer any further submissions on this

15 particular point until that issue is resolved; and if it is, the

16 Prosecution would be quite happy to file further written submissions as

17 to the impact any further evidence may have on the verdict.

18 The next one was the murder of Emsud Bahonjic. Again, we very

19 thoroughly covered this in the respondent's Appeal Brief, paragraph 749

20 through 770. However, the complaint in oral argument yesterday was " --

21 sorry, the appellant "does not accept that the charge of murder of Emsud

22 Bahonjic, that there was a trial at all"; and further, "we are now

23 basically in a situation where we have the first real trial for the

24 murder of Emsud Bahonjic."

25 This, as I raised at the very outset, is illustrative of what the

Page 465

1 Prosecution feels is a misunderstanding of the nature of an appeal. It's

2 not a retrial or a trial. This isn't the first chance for there to be a

3 trial for the murder of Emsud Bahonjic, whether this is said rhetorically

4 or not. The test is whether a reasonable person or a reasonable Trial

5 Chamber or tribunal could have reached that decision.

6 The evidence was clearly of Bahonjic dying after his return from

7 hospital, after a severe beating in which the appellant Mr. Zigic

8 participated. The Trial Chamber heard evidence from which it could

9 find - and did find, beyond reasonable doubt - that Mr. Zigic had

10 participated in beatings which resulted in this man's death. There was

11 evidence from three witnesses, and the Trial Chamber heard their

12 evidence, evaluated their evidence, and preferred their evidence, and

13 found him guilty on that basis. The submission the appellant is

14 constantly making appears to be that there were X number on one side and

15 Y on the other. Therefore, if we brought more witnesses, we should have

16 won, or the Trial Chamber should not have convicted us. I remind the

17 Appeals Chamber - and the Appeals Chamber knows this - that it is not a

18 numbers game. It's a question of the sufficiency of evidence, not how

19 many witnesses you bring.

20 The next one was the -- the next one I wish to deal with is the

21 murder of Drago Tokmadzic, the matter upon which the Trial Chamber heard

22 Witness KV1 on Tuesday. The test, of course, from the Kupreskic appeals

23 judgement of paragraph 75 is, after hearing the additional evidence, "has

24 the appellant established that no reasonable tribunal of fact could have

25 reached a conclusion of guilt, based upon the evidence before the Trial

Page 466

1 Chamber, together with the additional evidence admitted during the

2 appellant proceedings?"

3 To make my submissions, I have to take Your Honours to the

4 additional evidence and how it fits in with the evidence heard at trial.

5 The evidence that Witness KV1 gave the other day and was demonstrated on

6 the Exhibit PA1. The photograph was of a beating occurring outside the

7 door of room 4. At trial, Mr. Edin Ganic gave evidence in which he

8 described a beating of the deceased, Drago Tokmadzic. But the

9 Prosecution says that it is clear if you look at -- if you examine the

10 transcript of Mr. Ganic's evidence, that he is referring to a beating of

11 Drago Tokmadzic, we say on the same night, but at a slightly different

12 geographical location. He describes an area towards the end of the camp

13 near the garbage dump. Now, out of fairness to the appellant, I asked

14 Witness KV1 about this specifically on Tuesday. Witness KV1 said that

15 area is some 30 to 40 metres away.

16 The Prosecution -- or the respondent submits that there is a

17 possibility that there were two beatings of Drago Tokmadzic that night;

18 one outside the door of room 4, and the other one, as described by

19 Mr. Ganic, who said he walked from room 1, past rooms 1, 2, 3, and 4, to

20 the area of the camp where Mr. Zigic was waiting. And the beating -- the

21 second -- or another beating of Mr. Tokmadzic occurred there. The

22 Prosecution -- or the respondent says the Appeals Chamber must balance

23 the two versions against each other, and if the Appeals Chamber is

24 satisfied that the two are indeed compatible and that the Trial Chamber

25 could have reached the same conclusion after having heard the evidence of

Page 467

1 KV1, which basically corroborates Witness Y, whether you could still

2 convict.

3 We also, out of fairness, direct the Appeals Chamber to the

4 evidence of the issue of the person Jovo, and Witness Y's evidence that

5 the person Jovo was killed the night before. That evidence was, of

6 course, before the Trial Chamber, and again it's a matter whether the

7 Appeals Chamber is satisfied examining what Mr. KV1 said about Jovo being

8 beaten on that night or dying on that night, and Ganic saying he died on

9 that night but Witness Y saying he died on another night. If you're

10 still satisfied at the end that the conviction may stand, the test will

11 have been established, will have been satisfied.

12 The Prosecution also adds that in relation to the words - and

13 Your Honour Judge Shahabuddeen questioned KV1 on this - if Your Honours

14 are satisfied that the Trial Chamber correctly evaluated the words

15 "finish him off," meaning Drago Tokmadzic, that those words were used in

16 a situation where he was being beaten, if Your Honours were satisfied

17 that that is indeed correct and the Trial Chamber correctly evaluated it.

18 We can only add that the only inference available in the circumstances of

19 a severe beating and someone saying "finish him off," it can only mean

20 continue the beating, meaning kill the person or alternatively to

21 continue beating a person who was in such a state, that it was obvious to

22 -- that a continued beating would in fact finish him off. Those are my

23 submissions on that particular point.

24 The next ground I turn to is grounds 20 and 21, which is aiding

25 and abetting the torture of Abdulah Brkic. Yesterday, Mr. Stojanovic

Page 468

1 told the Appeals Chamber, told Your Honours, that "the conviction stands

2 only on the basis of the testimony of one single witness, Abdulah Brkic

3 himself. There is no other corroborating evidence. However, Brkic

4 himself, and I'm quoting: "But Zigic never did me any harm. He never

5 touched me." And we can read it on page 4882 of the transcript.

6 Those were Mr. Stojanovic's submissions before this Appeals

7 Chamber yesterday.

8 The difficulty with the submission is that -- well, apart -- I

9 mean -- the quotation is actually from page 4486. But the difficulty

10 with that particular submission, if you look at the transcript, is that

11 it describes Mr. Zigic going into room 1, which was a room full of

12 imprisoned non-Serbs with Knezevic and Timarac, looking for Fajzo and

13 threatening to "kill us all if we didn't tell him where he was." Mr.

14 Brkic then describes an incident of torturing Fajzo with Zigic standing

15 over Fajzo as Knezevic was beating him. But that was at Keraterm. The

16 incident of which he was convicted occurred at Omarska, at pages 4489 to

17 4491. So when Mr. Stojanovic says, "Zigic never did me any harm, he

18 never touched me," he's actually referring to a different camp, Keraterm,

19 but he's convicted of a crime at Omarska. And I add that Mr. Stojanovic

20 never challenged in cross-examination Mr. Brkic's account of what

21 happened, the account of which he now complains. In the Prosecution's

22 submission, this particular ground is totally devoid of any merit.

23 The next grounds, those relating to AK, AJ, Asef Kapetanovic, and

24 Emir Beganovic. Specifically 24 in relation to Asef Kapetanovic, the

25 Defence in the oral submissions yesterday say: There is no evidence that

Page 469

1 he did what he did in order to discriminate against AK as a Muslim as an

2 element of torture. On the contrary; he committed this act for personal

3 reasons, as he said himself. Why would he otherwise pass up on hundreds

4 of other Muslims in Omarska without harming any of them before he reached

5 AK?

6 Now, that was Mr. Stojanovic's submission to Your Honours

7 yesterday. The problem with this submission is, again, it was

8 unchallenged evidence. No one challenged Mr. AK when he gave his

9 evidence of what happened. Mr. Stojanovic makes it sound like it was a

10 frolic, like Mr. Zigic waltzed into the room looking for Mr. AK and

11 singling him out. But the evidence was that -- unchallenged evidence was

12 that Mr. Zigic took at least three imprisoned Muslims into a room at the

13 "white house." That's AK, Asef Kapetanovic, and AJ. Not one, but three.

14 And they were all beaten. The submission just does not accord with the

15 evidence.

16 The only challenge made at trial, in Mr. Stojanovic's

17 cross-examination was to whether or not the witness noticed whether

18 Mr. Zigic was wearing a bandage. Noticed. To which the witness

19 responded, "I don't remember." Which is not positive evidence that he

20 was or wasn't. And of course he's asking him some eight or nine years

21 after the event. But that's the main complaint. Because he said he

22 didn't remember, somehow the Trial Chamber has made this egregious error

23 of fact in finding that the incident occurred, when there were three

24 unchallenged witnesses who said it did occur. Again another, in the

25 Prosecution's submission, completely unmeritorious ground of appeal.

Page 470

1 That, of course, applies to the grounds 25, 26, and 27 in the

2 same incident, which was relating to Asef Kapetanovic and Emir Beganovic.

3 Mr. Stojanovic submits that the evidence was -- yesterday that the

4 evidence was "unreliable." But there was no challenge to Mr. Zigic's

5 identification at trial. There was no challenge that it wasn't him, that

6 he wasn't there. It was not contested. The Trial Chamber had

7 uncontested evidence before it which it found to be reliable. The

8 appellant just cannot show that no reasonable Trial Chamber, having heard

9 this uncontested evidence, would have reached this decision, which is the

10 test.

11 This one fails to even get to first base.

12 The next one was the -- related to Fajzo Mujkanovic. The oral

13 submissions yesterday were that they were based upon one single piece of

14 evidence provided by Abdulah Brkic and four other witness, two proposed

15 by the Prosecution and two proposed by the Defence, were completely

16 ignored by the Trial Chamber for the reason that they are only favourable

17 to the Defence. At least that is our opinion. Again, I remind the Trial

18 Chamber -- the Appeals Chamber, as you know, that this is not a numbers

19 game that the number of witnesses for or against on either side. The

20 point is the evidence again was not contested at trial. The evidence was

21 of Mr. Zigic arriving with his accomplice in crime, Knezevic, looking for

22 this man. And Abdulah Brkic's evidence, even on the Defence submission

23 that it was contrary, wasn't contrary. If you read what he says and read

24 what the other witnesses say, it was not -- it simply wasn't contrary to

25 what the other witnesses said. They actually fit together.

Page 471

1 And it was evidence of -- again it was evidence of Zigic's active

2 participation and his "tacit approval in providing support for the

3 crime." So again in the Prosecution's submission there is no basis for

4 the challenge brought in relation to that particular incident.

5 In relation to appeal grounds 29 and 30, which was Redzep Grabic

6 and Witness AE, Mr. Stojanovic basically repeated his submission in his

7 final trial brief and his filed Appeal Brief that, "We're not really

8 aware of a case anywhere in the world where someone was convicted of a

9 serious crime on the basis of a single witness who could not recognise

10 the perpetrator."

11 This submission, which seems to be in two parts, firstly -- and

12 it's an attack which has been made before. The single uncorroborated

13 witness is, of course, contrary to the jurisprudence of this Tribunal,

14 and I remind Your Honours of the Appeals Chamber's decision in Kupreskic

15 at paragraph 33, repeated at paragraph 7.195 of the Prosecution's

16 response brief, that the testimony of a single witness, even as a

17 material fact, may be accepted without the need for corroboration.

18 The difficulty with the second part is that the Trial Chamber

19 analysed the identity, the identification process. The Trial Chamber was

20 active at all stages of the identification of the four accused, the four

21 appellants, and took mind of the fact that the problems with courtroom

22 identification, and the length of time that had elapsed, and the

23 descriptions provided, and the familiarity with the -- of the witnesses

24 with the accused before trial, and came to a reasoned decision that there

25 was -- the identification was safe, based upon what happened at the camp,

Page 472












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

13 English transcripts.













Page 473

1 rather than what happened when the witness was asked to identify an

2 accused person in court many years later. In our submission, there is no

3 error that has been identified, and that ground of appeal likewise must

4 fail.

5 In relation to grounds 31 and 32, which was the torture of one

6 Jasmin Ramadanovic, also called Sengin. I just wish to address, as we

7 have comprehensively addressed this in our written submissions,

8 Mr. Stojanovic's oral submissions yesterday. The implication, from what

9 Mr. Stojanovic said, that "the Trial Chamber, from testimony to the

10 effect that Zigic beat Ramadanovic because he allegedly belonged to the

11 Green Berets draws the conclusion that he did this on the basis of

12 ethnic, religious, and political discrimination. However, the Green

13 Berets were an illegal paramilitary group."

14 Well, two points arise from that. Firstly, is Mr. Stojanovic

15 suggesting that beating someone who was a member of the Green Berets,

16 incarcerated extrajudicially in a camp based on ethnicity was okay? And

17 if not, the second point is what were the Green Berets? The Green

18 Berets, as I think everyone knows, were a Bosniak or a Muslim outfit, and

19 the person that he happened to beat just happened to be a Muslim who was

20 imprisoned, held in inhumane conditions, in a Serb Detention Centre for

21 non-Serbs.

22 I turn to appeal ground 33, which was the incident involving

23 Hasan Karabasic, described as Mr. Zigic's kum. The complaint in oral

24 argument was "this is a truly trivial event, as the Prosecution itself

25 states in its consolidated response to the appeals of the accused."

Page 474

1 But the problem with that submission is that it's a complete

2 misrepresentation of what the Prosecution actually said in its response

3 at paragraph 7.217. The Prosecution said this, and I remind the Appeals

4 Chamber: "In cross-examination Zigic did not contest the evidence of

5 witnesses. In his statement to the Trial Chamber, he described it as a

6 trivial alteration involving Hasan Karabasic and him meeting in the

7 street and falling down together."

8 That's what we said. We were quoting -- we were paraphrasing

9 what Mr. Zigic said. We weren't agreeing that it was a trivial incident.

10 But Mr. Stojanovic went on with a flourish: "We are not aware that in

11 the tangible, substantial history of this Tribunal, anyone has been

12 convicted of a more trivial offence." This was the evidence. The

13 evidence of Witness N at page 3900 was, "that same day I saw Zoran Zigic.

14 He came and said, 'Good day to you, balijas.' And we, we being the

15 unfortunate Muslim detainees, answered, 'God help you too, hero.' This

16 is something he taught us in Keraterm to say."

17 At that point he was looking for his kum, Hasan Karabasic.

18 Again, three witnesses gave uncontested evidence. Mr. Stojanovic did not

19 challenge their account in cross-examination.

20 This is the trivial event in which AD gave his evidence at page

21 3038. "Zigic found Hasan and threw him on the ground ... He beat him.

22 He started to choke and strangle him. And might have strangled him had

23 he not been stopped by the other guards."

24 Witness N, at page 3900: "He was looking kum Hasan Karabasic.

25 When he found him, he started kicking him like he was a ball. Then he

Page 475

1 caught him by the neck and two Serb guards came up and dragged Zoran

2 away, and Hasan got lost among the other people."

3 The third uncontested or unchallenged account given by a

4 Prosecution witness was that of Witness V, at page 3714, where he said:

5 "We were lying or sitting on the grass area, and he came by. He came to

6 Hasan Karabasic and told him, 'It seems you're still alive, pal.' What

7 did Zigic do? Well, he grabbed him by the neck and started to strangle

8 him. Mr. Karabasic started to moan, and two Serb soldiers came by and

9 they took Zigic away and Hasan Karabasic remained lying down."

10 That is a trivial event? That isn't a serious violation of

11 international humanitarian law, what on one account could be an attempted

12 murder and may well have been had not the Serbs guards on the evidence,

13 uncontested evidence, pulled Zigic away from his so-called best friend?

14 In his submissions, Mr. Stojanovic of course goes on and claims a

15 deliberate misrepresentation by the Prosecution by saying that the

16 Prosecution alleged that took place within the camp, based upon the

17 evidence of one witness who was saying that we were sitting or lying on

18 the grass area. Now, how that is a deliberate misrepresentation of where

19 it occurred is beyond the Prosecution. It was in cross-examination that

20 Mr. Stojanovic clarified from the witness that he saw it outside the camp

21 area and as we know Trnopolje was not an enclosed area. It was a number

22 of buildings.

23 In relation to Witness V, the Prosecution -- that's grounds

24 number 35 and 36 -- does not wish to add anything to it, other than to

25 say that, as with all the other grounds, the Defence has not demonstrated

Page 476

1 an error by the Trial Chamber such as to justify appellate intervention.

2 I turn now to another ground which is more of a general one which

3 I would describe as quality of justice argument, and the appellant

4 Mr. Zigic's constant argument about the fact that he was convict after

5 many witnesses gave evidence that his counsel did not presumably on his

6 instructions challenge the accounts of as to what Mr. Zigic was doing in

7 Omarska, Keraterm, and Trnopolje.

8 Mr. Stojanovic made extensive complaint, and yesterday, of

9 course, in his oral arguments, about the Trial Chamber not analysing the

10 evidence of every witness called. He also complained that the Trial

11 Chamber used the evidence of Defence witnesses to corroborate or convict

12 his client.

13 Well, unfortunately for Mr. Zigic, this just -- it shows a basic

14 misunderstanding or misappreciation of the realities of an oral trial.

15 Evidence of Defence witnesses can, of course, be used in any way a Trial

16 Chamber sees fit. They can be used to convict, they can be used to

17 acquit, they can be used to corroborate. Their evidence can be accepted,

18 it can be disregarded, just as it can with the Prosecution witness.

19 Mr. Zigic was legally advised, he was ably represented; he chose his

20 witnesses, he chose his counsel, he chose his exhibits; he made strategic

21 decisions on how to run his case, to give a statement rather than to

22 testify; he made strategic decisions on the questions to be asked.

23 At the end of the day, the Trial Chamber carefully considered the

24 evidence against Mr. Zigic. The evidence came from his side, his own

25 witnesses, and it came from the Prosecution witnesses. Some were

Page 477

1 favourable to him, some were unfavourable to him. And on the basis of

2 that evidence, it came to a reasoned decision of his guilt.

3 Yesterday, Mr. Stojanovic made complaint in oral submissions

4 about an incident involved Rizah Hadzalic, which is at paragraph 445 of

5 the Trial Chamber's judgement. His complaint in oral submission

6 yesterday was that "the Trial Chamber wrongly was under the impression

7 that Zigic partook in this."

8 Now, I searched through the trial record, and the judgement

9 leaves the Prosecution bewildered as to where this complaint comes from,

10 apart from the fact that it establishes no error anyway, the Trial

11 Chamber seems not to have made the mistake which it is being alleged to

12 have made, but happily, the matter was solved on the 20th of March, two

13 years ago, 2002, by the filing jointly by both parties, of a document

14 called "notice of agreement between Prosecution and the appellant Zoran

15 Zigic as to the portions of the transcript at trial to be reviewed by the

16 conference and language services section." There is no issue. The

17 Prosecution doesn't understand why it was raised in oral submissions.

18 If there are some incidents I haven't gone into, I haven't

19 detailed, because I haven't done so, doesn't mean the Prosecution isn't

20 confident of the judgement or its case or the Trial Chamber's reasoning.

21 It's just that we say we have so comprehensively canvassed each of the

22 incidents on which Mr. Zigic was convicted and so comprehensively done so

23 in the response brief that we don't wish to burden the Appeals Chamber

24 with added argument on those points.

25 So my final submission is as to the argument, the quality of

Page 478

1 justice argument. As Mr. Carmona ably raised this morning, the Trial

2 Chamber actually acquitted Mr. Zigic of two of six murders at the Rule 98

3 bis stage. And in the judgement it acquitted him of two others,

4 including the most serious one, which was the massacre in room 3. It

5 also acquitted him of the beating of AD and declined to use the evidence

6 under Rule 93 in relation to Hase Icic's brother and a person called

7 Alic. Now that of itself must demonstrate that the Trial Chamber

8 carefully evaluated all the evidence before it, listened to all the

9 witnesses, and made reasoned determinations and came to decisions which

10 must stand.

11 Those are my submissions.

12 JUDGE SHAHABUDDEEN: Vice-president Pocar has a question.

13 JUDGE POCAR: Mr. Re, I'm grateful to you for your submissions.

14 If I may ask for your assistance to understand better one point you made

15 during your presentation.

16 In concluding your statement on the -- your arguments on the

17 joint criminal enterprise, you said that there is no reason why the Trial

18 Chamber could not have used the evidence of the persecutory crimes at

19 Keraterm and Trnopolje in the same period pleaded in the indictment to

20 corroborate the significance of Zigic's contribution to the joint

21 criminal enterprise to persecute at Omarska.

22 I'm interested in having your position clarified as to the

23 expression "significant contribution to the joint criminal enterprise."

24 In that sense, were you suggesting when you made your proposition that

25 the crimes committed in the other camps come within the same unique joint

Page 479

1 criminal enterprise as pleaded in Omarska? Is that your position? Or,

2 otherwise, I would like to -- if it is not, I would like to understand

3 better how crimes committed in different locations add to the

4 significance of the participation in the joint criminal enterprise in

5 Omarska. I understand the Trial Chamber did not -- came to the

6 conclusion that there was a unique, a single joint criminal enterprise,

7 but only found -- concluded for a joint criminal enterprise at Omarska,

8 not in the other camps. So I would like to have your position clear as

9 to the link between the crimes committed in other camps and the Omarska

10 camp.

11 MR. RE: It goes mainly to the mens rea, that is, the -- when I

12 used the word "significance," I meant it in the sense of contribution,

13 shows persecutory intention. Discriminatory intention, meaning

14 persecution. The Trial Chamber could have used the evidence of what he

15 did at Keraterm, the discriminatory nature of what he did at Keraterm,

16 the ethnic slurs, the racial abuse, entering the camp to beat and

17 mistreat Muslim or non-Serb prisoners, to show that he had the mens rea,

18 the requisite discriminatory intention to do so at a similar camp not so

19 far away, whether or not those two camps were found to be part of the

20 same joint criminal enterprise, at least in this particular case before

21 the Tribunal.

22 JUDGE POCAR: So it's on the subjective element, the mens rea

23 element that you are pointing. And in pleading, as you pleaded, are you

24 suggesting that the Trial Chamber in not drawing that inference made an

25 error, erred, made an error that should be corrected on appeal? Is that

Page 480

1 your position?

2 MR. RE: Certainly not. The Prosecution, as I understand it,

3 didn't use that argument. I'm saying that on a theoretical basis the

4 evidence was such that had the Prosecution made that submission at trial,

5 the appeals -- sorry, the Trial Chamber could have favourably received it

6 and used that evidence as corroborative of mens rea. I'm certainly not

7 suggesting error, no.

8 JUDGE POCAR: So it was just a theoretical proposition you made,

9 in theory?

10 MR. RE: For the purposes of argument before the Appeals Chamber,

11 yes.

12 JUDGE POCAR: I thank you for your assistance.

13 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca.

14 JUDGE WEINBERG DE ROCA: Thank you very much, Mr. President.

15 I have, Mr. Re, one question in a part of your submission which I

16 did not quite understand, relating to the testimony of Brkic. You

17 submitted that he did not -- he said that in Keraterm, Zigic did not

18 touch him, but I do not know if you -- from that, how you infer from that

19 that the treatment of Zigic with relation to this witness was different

20 in Omarska. That part of your submission is not clear to me.

21 MR. RE: If Your Honours can just excuse me for one moment while

22 I go back to the evidence. If I haven't been clear, I apologise.

23 The point -- or the submission I was making was that Abdulah

24 Brkic gave evidence of two separate incidents involving -- or encounters

25 with Mr. Zigic at both Keraterm and Omarska. The one in which he was

Page 481

1 convicted was at Omarska. That was the group involving AK, AJ, Asef

2 Kapetanovic, and Emir Beganovic, the insufficiency of evidence. But the

3 evidence Mr. Stojanovic was referring to related to Keraterm, and

4 Mr. Brkic saying that he did not touch him at Keraterm.

5 JUDGE WEINBERG DE ROCA: Thank you very much.

6 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Re, for your very

7 careful and lucid analysis.

8 May I ask you one question which is of a theoretical nature, to

9 borrow the language of my good friend on my right. I was struck by your

10 submissions to the effect that a number of witnesses had been led by the

11 Prosecution, and they were not cross-examined by Mr. Stojanovic, and

12 presumably, you added, that Mr. Stojanovic would have acted in that way

13 on instructions of his client. Now, we know that in the common law

14 world, a certain significance is to be attached to that.

15 Now, the question which occurs to me, and I would greatly value

16 your opinion on this, is this: We are an international tribunal yet we

17 have to take account of principal trends in main jurisdictions. Now,

18 does an institution of cross-examination exist in the same way in the

19 civil law world, from which I think we may judicially notice that Mr.

20 Stojanovic comes; and if it does not exist in the same way, does that

21 have an implication for the weight we should attach to Mr. Stojanovic's

22 failure to ask questions in cross-examination?

23 MR. RE: Can Your Honour just excuse me for one moment. I just

24 wish to consult with my colleague.

25 [Prosecution counsel confer]

Page 482

1 MR. RE: It's certainly an interesting theoretical, philosophical

2 question, especially in terms of the way Rule 90(H) is framed, which

3 requires a party to put its case to the other party. And it is, of

4 course, an adversarial system which we have here. It's more adversarial

5 than inquisitorial. And in civil law systems accused have a right to

6 question or confront witnesses against them. That is of course a concept

7 going back to Roman times.

8 But if you confine it to what happened in this particular case,

9 and the strategy that was adopted and employed, some witnesses were

10 cross-examined as to whether basically telling the truth and a contrary

11 version was put to them, whereas others weren't. It would appear that

12 counsel was alert to the requirements of the Rules, and the strategy must

13 have been deliberate. And there is no reason, in principle, we submit,

14 that the principle of unity of counsel and client should not apply in

15 this Tribunal as it applies in other systems. And of course, we also

16 recognise that in some common law systems, such as the United States, the

17 requirement under Rule 90(H) is not there in some state -- particular

18 state jurisdictions.

19 JUDGE SHAHABUDDEEN: That is the Rule which requires a party to

20 put its case in cross-examination.

21 MR. RE: That's right. Rule 90(H). Yes.

22 JUDGE SHAHABUDDEEN: Yes. Vice-President Pocar wants to say

23 something.

24 JUDGE POCAR: May I, in this context, put an additional question.

25 Mr. Re, you said also that many -- several witness were

Page 483

1 extensively examined or asked questions by the members of the Bench. Is

2 that correct?

3 MR. RE: Yes.

4 JUDGE POCAR: And is that the same witnesses that were not

5 cross-examined, or other witnesses? Do you have any recollection about

6 it?

7 MR. RE: I could take that on notice. Off the top of my head, I

8 couldn't answer it.

9 JUDGE POCAR: Because this may be -- have an implication in the

10 question that the Presiding Judge put to you earlier, don't you think so.

11 MR. RE: It would require one to go back and look at every

12 witness and compare the cross-examination with the Bench's questions.

13 JUDGE SHAHABUDDEEN: Mr. Re, I am much obliged to you for your

14 consideration of the various questions and for your submissions on them.

15 Thank you very much.

16 Well, then, there being no other business today, we adjourn until

17 tomorrow, at 9.30. 9.30 in the morning.

18 --- Whereupon the hearing adjourned at 5.14 pm,

19 to be reconvened on Friday, the 26th day of

20 March, 2004, at 9.30 a.m.