Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Friday, 15 September 2005

 2                          [Rule 11 bis Hearing]

 3                          [Open session]

 4                          [The accused entered court]

 5                          [Ms. Popadic participated via videolink]

 6                          --- Upon commencing at 2.20 p.m.

 7            JUDGE ORIE:  Good afternoon.  Madam Registrar, will you call the

 8    case.

 9            THE REGISTRAR:  Good afternoon, Your Honours, case number

10    IT-98-32/I-PT, the Prosecutor versus Milan Lukic and Sredoje Lukic.

11            JUDGE ORIE:  Thank you.  We are here for a Rule 11 bis.

12            I'd like to have the appearances.  Prosecution first.

13            MS. SOMERS:  Good afternoon, Your Honours, counsel.  Susan Somers

14    for the Prosecution, accompanied to my right by Mr. Aleksandar Kontic, to

15    his right Ms. Carmela Javier, case manager, and behind me Mr. Greg

16    Bodulovic.

17            JUDGE ORIE:  Thank you, Ms. Somers.

18            For the Defence.  First the Defence of Sredoje Lukic.

19            MR. CEPIC:  Good afternoon, Your Honours.  I'm Djuro Cepic,

20    Defence counsel for Mr. Sredoje Lukic.  On my left-hand side is Mr. Jens

21    Dieckmann, as a co-counsel on Defence team, and also appearing with us is

22    Mr. Erez Zaionce, legal assistant.

23            JUDGE ORIE:  Thank you, Mr. Cepic.

24            For the Defence of Milan Lukic.

25            MR. YATVIN:  Good afternoon, Your Honours, members of the

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 1    Prosecution, guests from the states of Serbia, Bosnia, and Argentina.  My

 2    name is Alan Yatvin and I represent the accused, Mr. Milan Lukic.  Check.

 3            JUDGE ORIE:  May I have the appearances for Argentina.  Could you

 4    please introduce yourselves?

 5            MR. GONI:  I'm sorry, I was interrupted by my counsellor.  Good

 6    afternoon, Your Honour.  I am the Ambassador of Argentina, Santos Goni,

 7    and I am accompanied by a counsellor to my embassy, Silvia Raiola.

 8            JUDGE ORIE:  Thank you very much.  I think we have representatives

 9    of Serbia as well.  Could they introduce themselves?

10            MR. OBRADOVIC: [Interpretation] Good afternoon, Your Honours,

11    ladies and gentlemen.  On behalf of the Government of the Republic of

12    Serbia, my name is Sasa Obradovic.  I am the first ambassador of the

13    embassy, and with me I have Dusan Knezevic who is the deputy prosecutor

14    for war crimes of the Republic of Serbia.

15            JUDGE ORIE:  Thank you, Mr. Obradovic.

16            We have been in contact with the representatives of

17    Bosnia-Herzegovina.  Could I have the appearances from

18    Bosnia-Herzegovina?

19            MS. POPADIC:  Good afternoon, Your Honour.  This is the delegation

20    of Bosnia-Herzegovina.  To my left, Ms. Biljana Potparic, deputy registrar

21    of the office of the registrar of the divisions 1 and 2 of the state of

22    Bosnia-Herzegovina; Mr. Mirsad Strika of the prosecutor's office of the

23    Bosnia-Herzegovina; Mr. Emir Neradin, and Ms. Metjir Blaud [phoen] from

24    the office of the registrar for departments 1 and 2 of the state of

25    Bosnia-Herzegovina; and Mr. Toby Cadman, prosecutor's office of

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 1    Bosnia-Herzegovina.  And, of course, myself, Miljana Popadic from the

 2    Ministry of Justice of Bosnia-Herzegovina.

 3            JUDGE ORIE:  Thank you, Ms. Popadic.  Then, Mr. Sredoje Lukic, the

 4    parties have introduced themselves.  Were you able to hear them in a

 5    language you understand?

 6            THE ACCUSED SREDOJE LUKIC: [Interpretation] Yes.  Yes, I have.

 7            JUDGE ORIE:  Same question for you, Mr. Milan Lukic.

 8            THE ACCUSED MILAN LUKIC: [Interpretation] Yes, I have understood

 9    everything.

10            JUDGE ORIE:  Yes.  Thank you very much.  Please be seated.

11            We have informed the parties about the order of this meeting.  The

12    Chamber stresses again that we'd like to hear any addition to what's

13    already on paper.  There's no need to repeat whatever you've written down

14    already.

15            I'd like to give first an opportunity to the Prosecution to

16    address the Chamber.  Fifteen minutes are available, and I'll be very

17    strict on time.

18            Ms. Somers.

19            MS. SOMERS:  Thank you very much, Your Honour.

20            First of all, the Prosecution would like to vociferously express

21    its objection to Serbia's intervention at this time.  It was not part of

22    the designation by the Prosecution or by the Trial Referral Bench proprio

23    motu, as is required by the Rule.  We recognise the Chamber did request

24    the presence but we have not had an opportunity formally to object to the

25    actual interjection, given the Rule.

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 1            JUDGE ORIE:  Ms. Somers, this is in line with earlier case law of

 2    this Referral Bench.  Please proceed.

 3            MS. SOMERS:  We stand firmly on our submissions.  The

 4    Prosecution, because it was not asked to comment on any aspect of the

 5    issues concerning Argentina's presence, has reserved any comment, and if

 6    the Chamber would like to hear from us on our view, we would offer it.

 7    But because it was not an official written request, we have simply

 8    hesitated.

 9            Above and beyond, we deem that this case is fully appropriate for

10    referral as for both accused.  The additional submissions that have come

11    in have not persuaded us to advance any further argument above and beyond

12    what was laid out in our response to the submissions, in your order of 30

13    June.  And with the Chamber's permission, if we may be permitted to listen

14    to any further argument that might require comment and return or seek

15    audience if there is something additional after having heard, because I

16    don't know what else might be raised by our colleagues and by our learned

17    and esteemed guests.

18            JUDGE ORIE:  Ms. Somers, to answer your questions and also to

19    inform the parties, whatever time is saved in, I would say, the first

20    round, - you had 50 minutes available, you've used 3 until now - that time

21    is, if not entirely but at least is to some extent available for you to

22    respond to others; and this is true for the other parties as well, the

23    shorter you are in the first round.  But don't start saying, all of you,

24    that you have nothing to add, because then we're already in the second

25    round.  But you'll have an opportunity to respond if any other issue is

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 1    raised and if you have not yet addressed that matter in your written

 2    submissions.

 3            MS. SOMERS:  Thank you, Your Honour.

 4            JUDGE ORIE:  Yes.

 5                          [Trial Chamber confers]

 6            JUDGE ORIE:  Then I'd like to give an opportunity to the

 7    representatives of Argentina to address the specific issue raised.  As you

 8    may be aware of, the Referral Bench has formulated a provisional view on

 9    what the meaning is of the decision of the Argentinian court, and that is

10    the specific reason, very specific reason why we invite you to come.

11    Please proceed.

12            MR. GONI:   Thank you, Your Honour.

13            JUDGE ORIE:  Could you please activate your microphone?

14            MR. GONI:   May I sit?

15            JUDGE ORIE:  Yes.

16            MR. GONI:  I will read in Spanish the opinion of the Argentine

17    government regarding the point before the Bench today.

18            [No Interpretation]

19            JUDGE ORIE:  Your Excellency, at this moment we do not receive the

20    translation.  What channel should we choose to receive English translation

21    on?

22            THE INTERPRETER:  It's on channel 4.

23            JUDGE ORIE:  May I invite you to start again and to read not too

24    quickly because otherwise the interpreters might have difficulties in

25    following your speed of speech.

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 1            MR. GONI:  The full text has been handed to the Registrar in

 2    advance and is therefore available to the Court.

 3            [Interpretation] "In keeping with the request made by the Referral

 4    Bench, an order dated 30th June this year, the opinion of the Argentinian

 5    government is given as regards the relationship between the sentence

 6    handed down on the 10th of January 2006 by the national federal court

 7    number 8 of Argentina, whereby Mr. Lukic was surrendered to the ICTY, and

 8    Rule 11 bis on referral of the indictment to another court, under the

 9    Rules of Procedure and Evidence.

10           "On this point, let me point out clearly that the Argentinian court

11    decided, with the consent given by the defendant, to accede to the request

12    for transfer and surrender submitted by ICTY for the accused to be tried

13    at the seat of the Tribunal, it being clear that he could not be referred

14    to another place in order to be charged, prosecuted or harassed without

15    the prior authorisation of the Argentinian state.

16           "Likewise, the Argentinian court decided to accede and, given the

17    request by the Government of Serbia and Montenegro, and acceded therefore

18    to the -- having Mr. Milan Lukic extradited, it being clear, obviously,

19    that the full process be complied with as requested by the ICTY."

20            As a consequence of which, on the 21st of February, this year,

21    Milan Lukic was surrendered to ICTY for him to be tried by this Tribunal

22    and afterwards by the judicial authorities of Serbia.  This is why a

23    verbal note of the Tribunal was submitted to the Argentinian embassy in

24    The Hague, whereby the Tribunal thanked the Argentinian authorities for

25    all the assistance given.

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 1            Thereafter, the Tribunal made it clear that all the conditions

 2    were met in order to renew procedure in keeping with Rule 11 bis, under

 3    which the Prosecutor asked for the case against Mr. Lukic to be referred

 4    to the authorities of Bosnia-Herzegovina, for it to be tried by the

 5    corresponding court in that state in keeping with Resolutions 1534/04 and

 6    1503/03 of the United Nations Security Council.

 7            The Referral Bench considered, as stated in order dated 30th June

 8    2006, that, in keeping with the previous consideration carried out by

 9    Argentina, this dissension -- Argentina's decision would have a Tribunal

10    for Milan Lukic, at the seat of the Tribunal for the crimes referred to in

11    the official indictment, or that the Tribunal may fully exert its powers

12    in keeping with the Statute of the Tribunal, Rule 11 bis, and resolutions

13    1534 and 1503 of the Security Council of the United Nations to refer Milan

14    Lukic and for him to be tried by a competent authority but not without the

15    prior authorisation given by the Argentinian state.  And this is why the

16    ICTY invited the embassy of the Argentinian Republic to submit its opinion

17    on the relationship between the sentence of the Argentinian Tribunal and

18    the referral procedures of ICTY under Rule 11 bis, specifically ICTY --

19            JUDGE ORIE:  May I ask you to slow down.  It's a common experience

20    that, when reading, speed goes up and the interpreters ask you to slow

21    down.  Please proceed.  I have on my screen -- perhaps you could resume

22    there where you said "This is why we asked" ... Could you resume there,

23    please.

24            MR. GONI: [Interpretation] Consequently, the Tribunal invited the

25    embassy of the Argentinian Republic to submit its opinion on the

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 1    relationship between the sentence handed down by the Argentinian court and

 2    the referral procedures of the International Criminal Tribunal in keeping

 3    with Rule 11 bis.  Specifically, ICTY invited the Argentinian government

 4    to attend the hearing to be held on the 15th of September and to show

 5    whether it shares the provisional opinion mentioned in the previous

 6    paragraph as regards the effects of the Argentinian decision.

 7            If one reads carefully the order given by the Referral Bench on

 8    the 30th of June, it is clear that when you analyse the Argentinian

 9    sentence, in fact, the Tribunal sees two possibilities.

10            The first such possibility:  The sentence handed down by the

11    Argentinian court makes it clear that Milan Lukic must be tried only by

12    the International Criminal Tribunal for former Yugoslavia, it being clear

13    that the case can not be referred to another Tribunal.

14            And the second possibility is that ICTY may invoke Rule 11 bis,

15    referring thereby the case to a competent national Tribunal in

16    Bosnia-Herzegovina, although previously authorisation must be sought from

17    the Argentinian state.

18            In principle, it should be pointed out that the Argentinian

19    decision enabled the transfer and surrender of Lukic to the ICTY for him

20    to be tried there for the crimes mentioned in the formal indictment, in

21    the official indictment.  In the order of transfer and surrender given by

22    the Court, there was absolutely no mention of the motion submitted by the

23    Prosecution to refer the case to a competent national authority under Rule

24    11 bis.  In other words, in the ICTY order, there was no warning given to

25    the Argentinian Republic as to the possible transfer of the case to a

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 1    tribunal of Bosnia-Herzegovina.

 2            Such a possibility arises after Lukic was surrendered, when the

 3    Tribunal informed that the Prosecution gave notification as to the

 4    fulfilment of the conditions, that is to say, the presence of the accused

 5    before the Tribunal, in order to settle the transfer motion that had been

 6    presented, in order to reach a decision on this motion.

 7            Likewise, we should keep in mind that whilst Lukic was detained in

 8    Buenos Aries to be transferred to The Hague, the Government of

 9    Bosnia-Herzegovina did not ask for extradition, nor did it show any

10    interest whatsoever in his detention for him to be extradited.  Moreover,

11    according to the informal information that we have received through the

12    Interpol department of the federal police of Argentina, the authorities of

13    Bosnia-Herzegovina had not issued an order of international capture

14    against Mr. Lukic.  On the contrary, such an interest had indeed been made

15    clear by the Government of Serbia.  The Serbian embassy did ask for the

16    extradition of Mr. Lukic, which afterwards was acceded to, even though

17    surrender to this country was conditioned to the ICTY process being

18    totally complied with first, by virtue of which -- this is a new

19    paragraph.

20            By virtue of the aforesaid, it can be stated without any doubt

21    that the intention and interest of the Argentinian authorities will be

22    fulfilled by the Security Council, giving the widest possible cooperation

23    to the ICTY for the fulfilment of its lofty goals.  And recognising the

24    supremacy of the jurisdiction of this Tribunal faced with the request

25    presented by Serbia.  This is the reason why Lukic was surrendered to the

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 1    International Criminal Tribunal for the former Yugoslavia, and his

 2    extradition was made conditional on the decision taken by ICTY.

 3            Consequently, and as regards the interpretation of the Argentinian

 4    sentence, without prejudice to the fact that our authorities had received

 5    no previous warning as regards the transfer motion that had been presented

 6    so as to transfer the case to the Bosnia-Herzegovina case -- motion that

 7    had been presented by the Prosecution, in no way can this sentence be

 8    interpreted as undermining the exercise of the powers of transfer of this

 9    Tribunal.  All the more so, as such powers, the possibility therefore of

10    transferring a case to a competent national authority is indeed

11    contemplated within the Rules of Procedure and Evidence, and since the

12    authorities of the Republic of Argentina have clearly shown full

13    cooperation from the very beginning of this case.

14            It is thus to be noted, furthermore, that the procedure -- that

15    the procedure for re-extraditing is provided for in domestic legislation

16    in Argentina.  Law 24.767, law 24767, lays down in Article 18 that a

17    person extradited from the Republic of Argentina cannot be - cannot be -

18    re-extradited to another state without the prior authorisation granted by

19    Argentina, unless the person extradited should -- unless the person

20    extradited should freely and expressly forego such possibility.  The

21    procedure to obtain such an authorisation is laid down in Article 54 of

22    the law I have just mentioned.

23            In consideration wherof, and bearing in mind the rules applicable

24    both within ICTY and within Argentinian legislation, as well as the

25    sentence handed down by Argentinian justice and the renewed willingness to

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 1    cooperate shown by this Republic with the International Criminal Tribunal

 2    for the former Yugoslavia, the Government of the Argentinian Republic

 3    would like to see the case of Lukic tried by the Tribunal at its seat, in

 4    keeping with the Argentinian decision.  And without prejudice to this,

 5    should there be an order to transfer the trial to a national competent

 6    court, in keeping with Rule 11 bis, the necessary authorisation should be

 7    sought from the Argentinian state, in keeping with the procedure that has

 8    been laid down to that effect in Argentinian legislation, in the light of

 9    the last part of the 10th, considering of the order of the 30th of June

10    ordered by the Referral Bench; that is to say, the Tribunal may exert its

11    powers to transfer Milan Lukic, for him to be tried by a competent

12    national tribunal, but such transfer should not take place without prior

13    authorisation from the Argentinian state.

14            Thank you very much, indeed, sir.

15            JUDGE ORIE:  Thank you.

16            MR. GONI: [Interpretation] To the translator, the last paragraph

17    is connected to the previous one.  In fact, there should be a comma.

18            JUDGE ORIE:  Thank you.

19            I'd like now to give an opportunity to the representatives of

20    Bosnia-Herzegovina to address the Court on any matter which is not yet

21    part of their written submissions.

22            Ms. Popadic, may I invite you to address the Court?

23            MS. POPADIC: [Interpretation] [Via videolink] Thank you,

24    Your Honours.  I wish to point out that the authorities of

25    Bosnia-Herzegovina abide by all the arguments they have provided and all

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 1    the written responses regarding this particular case, as well as all the

 2    oral and written submissions of the relevant institutions of

 3    Bosnia-Herzegovina provided in other cases which may be of assistance to

 4    the Chamber in issuing the proper decision, bearing in mind the positive

 5    experiences in connection with the cases referred up to now to the

 6    authorities of Bosnia-Herzegovina, such as the Stankovic, Jankovic, and

 7    Meakic at our cases, and the new cases which are expected to be referred

 8    soon, as well as the cases initiated by the prosecutor's office of

 9    Bosnia-Herzegovina which are being conducted without impediment, we

10    believe that the judicial system of Bosnia-Herzegovina is fully ready to

11    take over this case.

12            I also wish to point out that the authorities of

13    Bosnia-Herzegovina, over the previous several months, have undertaken the

14    necessary steps to ensure the necessary funds in order to provide for the

15    unhindered operation of the court of Bosnia-Herzegovina in the forthcoming

16    period.

17            Therefore, I wish to stress that Bosnia-Herzegovina is fully

18    prepared to take the case of Milan and Sredoje Lukic for further

19    proceedings.  And we are willing to answer any questions put by the

20    Chamber or other interested parties.

21            I therefore undertake to submit a written response of any question

22    that may be put to us by the Chamber.  Thank you.

23            JUDGE ORIE:  Thank you very much, Ms. Popadic.

24            Next submission on the agenda is by the representative of Serbia.

25            Mr. Obradovic, may I invite you to address the Court.

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 1            MR. OBRADOVIC: [Interpretation] Your Honours, please allow me to

 2    thank you, first of all, for inviting us to attend this hearing, for

 3    enabling us to present the views of our government in relation to the

 4    referral of the case against Milan Lukic and Sredoje Lukic to domestic

 5    judiciary.

 6            In that respect, we ask that the written submission submitted on

 7    behalf of the Government of Serbia, on the 4th of September, by Mr. Rasim

 8    Lajic, the president of the National Council for Cooperation with the ICTY

 9    be treated by you as an initiative, proprio motu, on behalf of Serbia for

10    referring this case to Serbia in accordance with Rule 11 bis (B).

11            Given your order on scheduling this hearing, I will not be

12    repeating any assurances of goodwill of our country and government to take

13    over this case and thus contribute to the administration of justice and

14    rule of law in the territory of the former Yugoslavia.  This is something

15    that the highest representatives of our government spoke already about to

16    you in other cases.  Instead, I will give you some reasons that would

17    justify the referral of this case to the Serbian judiciary.

18            By doing so, I wish to emphasise that Mr. Knezevic, the deputy

19    prosecutor, and I will be speaking today about the alleged crimes and

20    guilt of the accused only within the framework of this very special

21    procedure and based on the facts contained in the indictment, not wishing

22    to bring into question the presumption of innocence of the two accused,

23    which represents one of the fundamental legal principles of the criminal

24    procedure in Serbia.

25            We already spoke to you in our written submission about the fact

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 1    that there were two trials against Milan Lukic held before the war crimes

 2    chamber of the district court in Belgrade.  He was charged by the

 3    indictment of the ICTY OTP in one case and he was also convicted in

 4    Belgrade in a case where the victims were Muslims from Serbia and

 5    Montenegro, who were kidnapped from a bus and from a train.

 6            This is why we believe that the principle of good administration

 7    of justice makes it mandatory for us to ensure that all of the cases for

 8    which Milan Lukic is charged be tried simultaneously before one court.

 9    This is simultaneously in the interests of the accused but also in the

10    interest of victims and witnesses.  This is the interest of judicial

11    economy.  We unfortunately have to state that this is an interest not

12    recognised by the Prosecution of this Tribunal in their submissions.

13            The same principle, known as good administration of justice, makes

14    it mandatory that the co-accused Sredoje Lukic also be tried

15    simultaneously by this same court.  By conducting a single trial before

16    the war crimes chamber of the district court in Belgrade, there would

17    undoubtedly be a step towards contributing to the further good development

18    of cooperation between the judiciary of Serbia and Bosnia-Herzegovina.

19    And so far this contribution has been assessed as very successful by Mrs.

20    Del Ponte.  She said so when addressing the permanent council of the OSCE

21    recently in Vienna.

22            It seems that the war crimes court in Bosnia-Herzegovina was

23    currently encountering serious financial difficulties --

24            JUDGE ORIE:  I invite you to slow down.  It's common experience

25    that reading always goes quicker than formulating your words not from

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 1    paper.

 2            MR. OBRADOVIC:  I will try.  I will try, Your Honour.

 3            [Interpretation] Especially towards the final comments in the

 4    submission of Bosnia and Herzegovina, we find some indication that the

 5    judiciary of Bosnia-Herzegovina is not able to ensure efficient

 6    proceedings in this case.  We believe that the referral of this case to

 7    Serbia would, in no way, violate the decision of the Argentine court in

 8    relation to the accused Milan Lukic.

 9            Furthermore, I wish to inform you about the interest of the

10    Government of Serbia for holding this trial in our country.  It is certain

11    that the position and international reputation of the war crimes

12    prosecutor as well as the war crimes chamber of the Republic of Serbia

13    would be strengthened by conducting proper proceedings in such cases,

14    which is clearly in the interests of our country.  On the other hand, the

15    citizens of Serbia would be best informed and would best face the terrible

16    crimes committed during the conflict in Bosnia-Herzegovina if the trial

17    were to be held in their presence, in their country.  Any judgement

18    against Serbs for crimes committed against members of other ethnic groups

19    and religions would be best accepted if it were pronounced by a local

20    domestic court.  On the other hand, there is no concern that the court,

21    who in absentia had already convicted Milan Lukic to a 20-year sentence,

22    would all of a sudden decide to spare him in this case.

23            The results received so far by the war crimes prosecutor and the

24    war crimes chamber in Belgrade have been uniformly viewed as very

25    successful.  There is a European Union document that states that the

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 1    Ovcara case held in Belgrade should be used as a model for all other

 2    countries in the region as to how to conduct war crimes trials.

 3            The cooperation between the Belgrade prosecutor and the Tribunal

 4    is excellent.  There is no reason for this Chamber, Your Honours, to

 5    believe that it is not justified to show faith in the Serbian judiciary by

 6    referring this case to Serbia, which hasn't been the case so far.

 7            The OTP seems to give priority to the criteria of the place where

 8    the crimes were committed, and it is undoubtedly in the interest of the

 9    victims and their families.  But, however, this criteria was limited to

10    the state level.  These crimes were committed neither in Sarajevo, nor in

11    Belgrade, but rather in a border region of Visegrad.  Then why should the

12    trial be held in Sarajevo and not in Belgrade?

13            The Prosecution of this Tribunal did something quite the opposite

14    in the case of crimes committed in the vicinity of Zvornik, in

15    Bosnia-Herzegovina.  The case was referred to Serbia in the stage of

16    investigation, and this trial is now in progress successfully before the

17    war crimes chamber of the district court in Belgrade.

18            In relation to all other matters, we stand by the arguments

19    contained in our written submissions, although I do have to point out that

20    paragraph 7 found its way into this written submission by means of an

21    obvious bureaucratic mistake.  Therefore, I urge you to ignore this

22    paragraph, and I apologise for this.

23            My distinguished colleague, Mr. Knezevic, will say a few words

24    about the possibility to have this case tried before a court in Serbia.

25    Since we got involved in this procedure at quite a late stage, we had no

Page 66

 1    opportunity to answer the questions that were addressed by the Government

 2    of Bosnia-Herzegovina.  Therefore, I ask you to yield the floor to

 3    Mr. Knezevic.

 4            JUDGE ORIE:  Yes.

 5            Mr. Knezevic, before I give you an opportunity to add something to

 6    what has been said already by Mr. Obradovic, as I said before, 15 minutes

 7    was the time limit.  I'm a bit concerned that what you might want to bring

 8    to our attention might not fit well within the minutes that remain, and to

 9    inform you that would be five minutes, only.  Could you do it in five

10    minutes?

11            MR. KNEZEVIC: [Interpretation] Your Honours, learned friends,

12    ladies and gentlemen.  I know that my time is limited to five minutes.  I

13    will do my best to respond to the issues raised here within that time.

14            The 11 bis Rule of the Rules of Procedure and Evidence, in 11 bis

15    (A), under (iii), provides for the possibility of referring the case to a

16    country having jurisdiction and being willing and adequately prepared to

17    accept such a case.  The law on the organisation and competence of state

18    organs against perpetrators of war crimes of the Republic of Serbia of

19    2003, which was amended in 2004, establishes the competence of the state

20    organs of Serbia to try all cases of war crimes committed on the territory

21    of the former SFRY --

22            JUDGE ORIE:  Mr. Knezevic, may I just interrupt you?  Isn't it

23    true that in the submissions, that it's already set out that Serbia can

24    exercise jurisdiction and even allows the prosecution of crimes committed

25    by citizens of Serbia, wherever committed.  So the jurisdiction aspect

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 1    seems to be covered by the written submissions.  Please proceed.

 2            MR. KNEZEVIC: [Interpretation] I understand what you have said,

 3    Your Honours.  I won't repeat myself.  But this law provides for the

 4    possibility of trying all cases of war crimes, regardless of the

 5    nationality of the perpetrator and the victim.

 6            I only wish to add to what our Ambassador has said, is that the

 7    willingness of our state to try this case is evident from the fact that we

 8    have already initiated proceedings and that there is a sentence against

 9    Milan Lukic.  He has been sentenced to 20 years in prison for war crimes.

10    We ask the State of Argentina to extradite Milan Lukic to us, or to refer

11    him to us for trial.

12            And I wish to add again - it's very difficult to raise all the

13    important issues in five minutes - but the issue of territorial

14    jurisdiction mentioned in point 2, we are talking about a small area of

15    land, about 7 kilometres wide, between Bosnia-Herzegovina and Serbia.

16            I have to point out that there is a law on the protection of

17    participants in criminal proceedings of January 2006, the 1st of January,

18    2006, and I think it's important to add that everything charged against

19    Sredoje Lukic in the indictment can be tried without any obstacles in the

20    State of Serbia.  And I also wish to add that a unified proceeding could

21    be instituted in our country and carried through for all the crimes he is

22    charged with.

23            We also have an agreement on cooperation with Bosnia and

24    Herzegovina, signed by the war crimes prosecutor in Belgrade and the

25    Sarajevo -- his counter-part in Sarajevo.  The case of Dvornik was

Page 68

 1    referred to our country, and all the witnesses from Bosnia-Herzegovina

 2    travelled to Belgrade without any hinderance and testified with no

 3    obstacle, and all this shows that the agreement is functioning well.

 4            If I can answer any questions of yours, I will be very happy to do

 5    so.  Thank you.

 6            JUDGE ORIE:  Thank you very much, Mr. Knezevic.

 7            On the agenda next is submissions, oral submissions, by the

 8    Defence, and counsel are invited to divide the time in good cooperation.

 9    Were you able to do so?

10            Mr. Yatvin.

11            MR. YATVIN:  Your Honour, we reached a Solomonic decision and

12    split it in half.

13            JUDGE ORIE:  Did you also decide who is going first?

14            MR. YATVIN:  Yes, Your Honour, I drew the short straw.

15            JUDGE ORIE:  Yes.  Mr. Yatvin, then, you have got 20 out of these

16    40 minutes.  Please proceed.

17            MR. YATVIN:  Thank you, Your Honour.  And it is likewise my

18    intention to ask the Bench to reserve part of that time, because I'm

19    assuming that the Prosecution will have argument on the new material

20    that's been here today, and I'd like to be able to respond to that.

21            JUDGE ORIE:  Yes.  That was already our ruling.  Yes, please

22    proceed.

23            MR. YATVIN:  Just when it seemed there was nothing new in the

24    universe of 11 bis, here we are.  I -- in light of the submissions by the

25    Republic of Argentina and their Ambassador today, I think I should

Page 69

 1    probably start with that issue.

 2            I ask the Court to consider the fact of how we got here, how

 3    Mr. Lukic comes to be in this room.  He was taken into custody in

 4    Argentina, and the Federal Court of Argentina considered the request of

 5    the Tribunal to transfer him, and the Republic of Argentina is, of course,

 6    a member of the United Nations, and the Statute of the Tribunal, which is

 7    the hand of the United Nations, compels all member nations to cooperate

 8    with the transfer request to the Tribunal.  And that's how he comes to be

 9    here.

10            But the next step that the Prosecutor asks this Bench to take is

11    not from the Statute of the Tribunal, and it's not necessarily from the

12    Security Council either, because in order to make this next step, this

13    Bench must say that the sovereign nation of Argentina does not have a

14    right to control its extradition process.  And I submit that this Court

15    would be serving as a mere conduit for the nation of Bosnia-Herzegovina

16    which did not see fit to make a request of Argentina to transfer.

17            Now, I know that there have been other cases where this Court has

18    ruled that the so-called u-turn or re-transfer is not barred by the nation

19    surrendering the accused to the Tribunal, but in all those cases, the

20    argument was made by operation of law, because the surrendering nation has

21    this statute on its books, therefore you should not transfer.

22            What makes this situation unique is that the Federal Court of

23    Argentina considered the question, considered an application from Bosnia,

24    considered the transfer to this Court, and made a specific ruling that,

25    complying with our obligation, we will surrender Mr. Lukic to the Tribunal

Page 70

 1    and we contemplate a trial before that Tribunal; but we are not giving up

 2    our rights to control transferring to somewhere else.

 3            Now, of course, the Tribunal has a Rule of Procedure, 11 bis,

 4    which authorises that transfer, but the problem this Bench must wrestle

 5    with is whether the judge-made rule of 11 bis, unlike the Statute of the

 6    Tribunal, trumps the rights and the imperatives of the sovereign nation of

 7    Argentina, and I would submit it does not.

 8            I will move on from the issue of Argentina.  As the Court has

 9    pointed out, we have briefed this rather thoroughly in at least two sets

10    of submissions, and I don't want to go back chapter and verse.  But I feel

11    the need to comment on something that Ms. Somers opened with this

12    afternoon.

13            She stated:  We stand firmly on our submissions.  That's really

14    the point I tried to make in my submissions, that Prosecutor does not

15    stand firmly on their submissions.  What submissions did she stand up

16    firmly on today? Her 11 bis Motion, where they characterised Mr. Lukic as

17    the most individually responsible for killings of anyone in the conflict

18    and the most responsible for conduct throughout the territory at that time

19    of Bosnia and Herzegovina?  No.  They've withdrawn that.  So that

20    admission, they do not stand on.

21            Do they stand on what they said before a member of this Bench

22    sitting at the Trial Chamber -- in the Trial Chamber in the Popovic case

23    in their opening argument?  No, they don't stand on that.  They want this

24    Court to artificially narrow itself to solely the indictment for deciding

25    role and -- I mean offence -- gravity of offence and role in the

Page 71

 1    commission of that offence.

 2            I understand the genesis of the Rule.  Obviously this Court is the

 3    genesis of that Rule.  You've sat on all those arguments.  You've made all

 4    those decisions that compromise -- comprise what we consider is the law

 5    here today.  But I submit that the application of that Rule which this

 6    Court made in good faith at the beginning is no longer logical in this

 7    case; that stare decisis, the rule of precedent is important but it is not

 8    irrevocable.  In this case you have the situation where the Prosecutor

 9    herself has placed information before this Tribunal and that information

10    should not be disregarded in deciding the role of Mr. -- the gravity of

11    the offences and the role of Mr. Lukic in the conflict.  And, again, he's

12    presumed innocent.  I'm only discussing the allegations.  There's

13    obviously no admission of any liability.

14            But it's very important that you look to the language of the

15    President of the Security Counsel which is referenced in the Security

16    Council resolutions which are referenced in Rule 11 bis, which is not

17    limiting to the specific conduct charge, but it talks about the role of

18    the persons in the area under the jurisdiction of the Tribunal, in the

19    conflict.  As I've argued, and I won't go through it again in great

20    detail, that even if you're considering only the crimes charged in this

21    indictment, which was in fact tailored during the time of the Rule 11 bis

22    proceeding itself, you still have to look at Mr. Lukic's alleged role in

23    the conflict, in the broader conflict, not only in the crime charged.

24            Under those circumstances, he, the crimes, and the role in those

25    crimes are not appropriate for referral.

Page 72

 1            I refer the Court to the arguments made by the Government of

 2    Serbia that there are reasons of judicial economy and of unity in

 3    proceedings that the case should be referred to Serbia, which is within

 4    this Court's powers.

 5            And I'm going to reserve the rest of my time, if I may, and I'm

 6    hopeful that the Court will assist me to assist it by asking some

 7    questions at the appropriate time, because I'm sure there are some, and

 8    I'd like to be able to respond to them.

 9            JUDGE ORIE:  Thank you, Mr. Yatvin.

10            Mr. Cepic.

11            MR. CEPIC:  Thank you, Your Honour.  My learned friend, Mr. Jens

12    Dieckmann will raise our altitude and -- on behalf of our Defence team.

13    Thank you.

14            JUDGE ORIE:  Yes.  Mr. Dieckmann, you are invited to make your

15    submissions.

16            MR. DIECKMANN:  Your Honours, my name is Jens Dieckmann, I'm

17    attorney at law from Germany, and I represent the accused, Mr. Lukic, as

18    co-counsel in this procedure.

19            In a statement for the Defence, I would like to focus on the

20    question of their trial and the applicable law, not only repeating and

21    referring to the submissions we've have presented, but going in detail to

22    some case law we prepared, some case law and practice.  And we have looked

23    how this legal frame work is working in Bosnia-Herzegovina.

24            We are well aware of the frame and the formal decisions of the

25    Referral Bench, for example, the decision on the referral in the case from

Page 73

 1    8 July 2005, as the Referral Bench described its jurisdiction regarding

 2    the questions of applicable law as follows.

 3             "The Referral Bench stresses that it is not the competent

 4    authority to decide in any binding way which law is to be applied in this

 5    case if it is referred to Bosnia.  It is a matter which would be in the

 6    competence of the state court of Bosnia if referral is ordered.  The Bench

 7    must be satisfied, however, that if the case against either or both

 8    accused were to be referred, there would exist in Bosnia an adequate legal

 9    framework."

10            The Defence respectfully submits that this Referral Bench must

11    base its decision today on the actual viable facts and circumstances as

12    they currently exist.  To be adequately prepared is not only a question of

13    the legal frame work, but the fair trial principle and every question

14    related to this has to do with court practice.

15            The Referral Bench has expressed in several decisions that trusts

16    that the state court of Bosnia will exercise its power with competent

17    under the rule of law in the system of public international law and in a

18    way compatible with the principles of fair trial.  This is --

19            JUDGE ORIE:  Mr. Dieckmann, if you would allow me to intervene for

20    one second.  The quote you started with, clearly in the case law of this

21    Referral Bench, relates to the application of substantive law and not --

22    is not about procedural law, not about fairness.  It seems to me that

23    you're starting with a consideration on substantive law and then give it a

24    follow-up in terms of procedural law, whereas, as far as I'm concerned,

25    but my learned colleagues will certainly intervene when I'm wrong in

Page 74

 1    understanding our own decisions, that the procedural law is dealt with in

 2    our parts of our decisions.

 3            Please proceed, and keep this in mind.

 4            MR. DIECKMANN:  Thank you, Your Honour.

 5            The Defence refers to three decisions of the war crime chamber of

 6    the state court of Bosnia in order to show that the war crime chamber is

 7    up to now not able to find the applicable law under the rule of law in a

 8    fair trial procedure.

 9            We have to state a relevant lack of competence in the application

10    of the basic rules of public international law, causing dramatic

11    consequences for the accused.

12            The first decision we want to refer to is a decision, 1st July,

13    2005, of the war crime chamber of the state court of Bosnia, sentencing

14    Mr. Abulahim Maktuf [phoen] to imprisonment.  The appeal has been

15    dismissed on the 4th of the April, 2006.  This is not a referral case.

16    But he was found guilty as an accessory in the taking of the three Croat

17    civilians as hostages by the Mujahedin unit in Travnik in 1993.

18            The legal position of the Defence in this case has been that

19    Article 142 of the Criminal Code of the former Yugoslavia should be

20    applied, given that, after the abolition of capital punishment, the

21    sanction referred to in Article 142 of the Criminal Code of former

22    Yugoslavia is a more lenient sanction compared to the criminal sanction

23    stipulated in Article 173(1) of the Criminal Code of Bosnia.  And that it

24    is a legal principle which includes mandatory application of the Criminal

25    Code.

Page 75

 1            The war crime chamber found that such argument is not found, and

 2    that in the concrete case, the provision referred to in Article 173(1) of

 3    the Bosnian Criminal Code has to be applied.  The arguments of the war

 4    crime chamber has been the following:

 5            First, to start with Article 3 of the Bosnian Criminal Code.  It

 6    stipulates the principle of legality, that is said the verdict can only be

 7    founded on the principle which existed at the time when the incriminated

 8    act or failure to act happened.  This is a principle ruling nullum crimen

 9    sine lege.

10            In Article 4 of the Bosnian Criminal Code, it stipulates that the

11    law which was in effect at the time when the criminal offence was

12    perpetrated should apply to the perpetrator of the criminal offence and,

13    Article 4(2), if the law has been amended on one or more occasions, the

14    law that is the more lenient law to be perpetrator shall be applied.  This

15    is the lex mitior principle in the Bosnian Criminal Code.

16            In Article 4(a) of the Bosnian Criminal Code, amended in the year

17    of 2004, it regulates that Article 3 and 4 should not prejudice the trial

18    and punishment of any person for any act or omission which, at the time

19    when it was committed, was criminal offence according to the general

20    principle of international law.

21            The war crime chamber holds the view that this Article 4(a)

22    adopted completely the provision of Article 7(2) on the European

23    Convention on Human Rights, this providing for exceptional departure from

24    application of the principle referred to in Article 4 in the criminal code

25    of Bosnia, as well as for mandatory application of a more lenient law in

Page 76

 1    the proceedings representing criminal offences --

 2            JUDGE ORIE:  Please slow down.

 3            MR. DIECKMANN:  -- because it's exactly the offence which includes

 4    violation of international law.

 5            Therefore, this is the conclusion of the war crime chamber:

 6    Article 4(a) of the Criminal Code is applied to all criminal offences in

 7    war crime cases.

 8            The second decision of the war crime chamber we are referring to

 9    is the case of Mr. Nedzo Samardzic.  He was sentenced to 12 years'

10    imprisonment under Article 172 by the judgement of 7 April 2006.

11            First of all, the war crime chamber repeats exactly the same

12    aforementioned arguments of the Maktuf case complemented by the following

13    points.

14            JUDGE ORIE:  You've resumed but the speed is still the same.

15            MR. DIECKMANN:  I'm sorry.

16            The war crime chamber states in addition, I may quote:

17            "In relation to this, the Court points out that the crimes laid

18    down in the indictment at the time relevant to the indictment constitutes

19    crime under international customary law.  International customary law is

20    part of the general principles of international law as stipulated in

21    Article 4(a) of the Bosnian Criminal Code."

22            And then the war crime chamber gives a short list of some examples

23    why they have the opinion that this is customary international law.  They

24    just give a list of the report of Secretary General of the United Nations,

25    international law commissions draft, and his quotation from international

Page 77

 1    court, ICTR, in Arusha.  No comment, no explanation, no discussion.

 2            And at least the war crime chamber has the opinion that the

 3    jurisprudence of the European Court of Human Rights stresses the

 4    applicability of the provision of Article 7(2) in the judgement of 4th May

 5    2000 in the case Naletilic against Croatia in their point.

 6            These two above-mentioned decisions of the war crime chamber

 7    contain view to the point of the Defence, several substantial legal errors

 8    which consequently lead to unlawful and an absolute exclusion of the lex

 9    mitior principle in war crime cases at the war crime chamber in Bosnia.

10            The first point:  Article 4(a), the Bosnian Criminal Code, is in

11    fact not identical with Article 7(2) of the European Convention on Human

12    Rights.  The war crime chamber ignores the evident difference between

13    general principles of international law - this is the reading in Article

14    4A of the Bosnian Criminal Code - and general principles of law recognised

15    by civilised nations.  This is a reading of Article 7(2) on the European

16    Convention on Human Rights.

17            The words from Article 7(2) have been taken from Article 38(1)(c)

18    from the Statute of the International Court of Justice.  This is

19    undisputed in opinio juris and this is undisputed in court decisions.

20            The second point is more dramatic.  The second point is that the

21    understanding of Article 7(2) of the European Convention on Human Rights

22    is wrong.  This rule is a subsidiary rule.  This can only be applied if

23    there is a loophole or gap to take this.  This comes therefrom, of course,

24    Article 7(2) transfers the Article 38 reading of the International Court

25    of Justice statute.

Page 78

 1            As we can read in the commentary for the ICJ statute of appellant,

 2    I may quote:  "Yet they, the principles, are subsidiary in the sense that

 3    the Court will usually only resort to them for filling a gap in the treaty

 4    or customary rule available to settle a particular dispute, and what is

 5    even more apparent will decline to invoke them when such other rule

 6    exist."

 7            In consequence, only in the time the criminal acts have taken

 8    place, these acts did not constitute crimes under national laws, then

 9    Article 7(2) is applicable.  Here the alleged crimes of the accused has

10    been evidently covered by Article 142 of the Criminal Code of the former

11    Yugoslavia at the time the criminal acts allegedly should have been

12    committed.

13            Therefore, there is no legal gap, no loophole justifying the

14    application of Article 7(2) of the European Convention on Human Rights,

15    and therefore there is no justification for a complete exclusion of

16    Article 4(2) of the Bosnian Criminal Code, it means of the lex mitior

17    principle.

18            Therefore, in consequence of Article 2, paragraph 2, of the

19    constitution of Bosnia which states that the European Convention on Human

20    Rights always overrules contradictory national law.  Article 4(A) of the

21    Bosnian Criminal Code cannot allow the exclusion of Article 4(2).  Article

22    7(2) of the European Convention on Human Rights forbids the exclusion

23    of the lex mitior principle if there is, as here, no case of subsidiarity

24    given.

25            The third decision we refer to is a judgement from 26 May 2006 in

Page 79

 1    the Panovic case who was sentenced to long-term imprisonment for 20 years.

 2    This decision was only six weeks after the last decision of Mr. Omadovic.

 3    In this judgement, the war crime chamber, again, repeated the same

 4    argument from Article 3, Article 4 for (A), and Article 7(2) for the

 5    European Convention on Human Rights.  But then without any explanation,

 6    any justification, any discussion of their former position, the court

 7    states now, six weeks later:  "Article 4(A) of the Bosnian Criminal Code

 8    speaks of general principles of international law.  As neither

 9    international law nor the European Convention on Human Rights are familiar

10    with the identical term, this term actually represents a combination of

11    principles of international law and general principles of law recognised

12    by civilised nations."

13            This understanding is due to the position of the Defence, again,

14    wrong.  But principles of general -- general principles of international

15    law are definitely not the combination of something.  They are part of

16    customary international law.  We don't know if the war crime chamber tries

17    to tell us that the legislature of Bosnia is creating new sources of

18    public international law in their national criminal law.  We do not

19    understand this reading.

20            In the following of this decision, the war crime chamber, in June

21    2006, repeats again the wrong definition of Article 7(2) of the European

22    Convention on Human Rights.  They, again, misinterpret the subsidiary

23    nature of this norm.

24            Our position that Article 7(2) is only a subsidiary norm is

25    supported in fact by the reading and by the decisions of the European

Page 80

 1    Convention on Human Rights in Strasbourg, and we want to quote the single

 2    and the most important decision.  This is the decision of the 22nd March

 3    2001.  It was the decision against Krens, Kursla [phoen], and Strelitz,

 4    the former leaders of the east German -- eastern German republic, and in

 5    this decision, the European court in Strasbourg has said that the crimes

 6    has been correctly decided by the national criminal courts under the

 7    national Criminal Code under force at the time of the commitment.  We do

 8    not understand how the Bosnian government and the war crime chamber repeat

 9    frequent times that the case of Naletilic against Croatia should be a

10    reference for the opposite.

11            JUDGE ORIE:  Mr. Dieckmann, you would not mind if I draw your

12    attention to the fact that you are now speaking for 15 minutes.  Could you

13    please try to sum up.

14            MR. DIECKMANN:  Thank you, Your Honour.

15            So at least, Your Honour, I think -- we think that here the

16    argumentation of the war crime chamber based on a wrong understanding of

17    the basic rules of public international law, a wrong understanding of the

18    human rights convention on human rights which leads to a permanent

19    consequent exclusion of the principle of lex mitior.  This court has

20    expressed trust that this war crime chamber is able to find applicable law

21    under the rule of law in a fair trial.  The court decisions we have

22    presented here think -- could have illustrated that there is a great

23    irritation and a lack of competence, and we are not sure that this is

24    acceptable here for the accused we are defending.

25            Thank you, Your Honour.

Page 81

 1            JUDGE ORIE:  Thank you, Mr. Dieckmann.

 2            MR. CEPIC:  One short correction, in the transcript, page 30, line

 3    16, my learned friend said lex mitior and I see something different is in

 4    the transcript.

 5            JUDGE ORIE:  Yes.  Sometimes the transcript will be corrected

 6    overnight and -- well, of course, since we're speaking some Latin now,

 7    it's not always easy and that the transcribers do an excellent job.

 8            MR. CEPIC:  Thank you, Your Honour.

 9            JUDGE ORIE:  Thank you.  Before I give the opportunity to use the

10    remainder of the time for the parties, I would like to take the

11    opportunity and give the opportunity to the Judges, to the Bench, to put

12    additional questions to the parties and the representatives of states

13    present today.

14            Yes.  Judge Kwon?

15            JUDGE KWON:  My question was triggered by Mr. Yatvin.  My question

16    is to Ms. Somers, to the Prosecution.

17            It is obvious that there are substantial differences between the

18    amended indictment of July -- 12th of July, 2001, and the currently

19    operative indictment, the second amended indictment of November 2005.  The

20    previous indictment, at paragraph 28, charges both the accused, along with

21    Mitar Vasiljevic, with all the forms of responsibility under Article 7(2).

22    It also alleges that the three accused acted in concert with one another

23    in the realisation of the charged crimes which the Prosecution argued in

24    the Vasiljevic case was meant to include participation in a joint criminal

25    enterprise.

Page 82

 1            The Trial Chamber convicted Mr. Vasiljevic on the basis of joint

 2    criminal enterprise in its November 2002 judgement, holding that his

 3    participation in this joint criminal enterprise with Milan Lukic and

 4    Sredoje Lukic.  However, in the current indictment, by contrast, all the

 5    forms of responsibility have been removed, except physical perpetration

 6    and aiding and abetting.  The crime base allegations have also been cut

 7    down to allege a more confined geographic area.  This is, indeed, a very

 8    curious and rare type of amendment I know.  Instead of adding charges

 9    against the accused, the Prosecution took them away.

10            What concerns me about this is that the motion to amend the

11    previous indictment was submitted on 17th November, 2005, subsequent to

12    the referral request which took place on 1st of February last year, and

13    after the Stankovic decision in May.

14            So my question to you is this:  Was the purpose behind this

15    amendment of the indictment to downgrade the responsibility and crime base

16    alleged against these two accused to make the case more suitable for

17    referral under Rule 11 bis?

18            MS. SOMERS:  Your Honour, it was indeed not at all the purpose.

19    The purpose was in response to a Rule 72 motion by an accused in the case

20    by Sredoje Lukic to give greater detail and specificity to existing

21    allegations which with we think, having looked at the original indictment,

22    was very much in order; to clarify the temporal and territorial extent of

23    the indictment; to give greater specificity to the modes of liability

24    alleged; and to replace allegations of violence to life and person with

25    allegations of cruel treatment.  It was to actually implement better

Page 83

 1    pleading practices.  Whether there may be also -- I'm sure both Chambers,

 2    both the Referral Bench and any Trial Chamber, would also look to a

 3    well-pled indictment as a fundamental tool to know where to go with a case

 4    in terms of assessments of trial time, et cetera, et cetera.  But it was

 5    certainly not any type of page-by-page conformity.

 6            However, if it were, which it was not, but if it were, it would

 7    not bar consideration by this Chamber because the appropriate underlying

 8    reasons were based on a Rule 72 motion.  In fact, looking at the evidence,

 9    irrespective of where the case is tried, it should be tried so that it is

10    not a long case, concisely, with adequate notice to the accused as to what

11    the charges are, and to remove things that, in the interests of evidence

12    in time, would not be necessary to go forward on.

13            So, no, Your Honours, there was not the concern or the overlap, as

14    one says.  But had there been, we submit it would only have been good

15    practice in pleading.  We reminded constantly -- we are reminded by the

16    Chambers we must engage in.

17            JUDGE KWON:  Thank you.

18            JUDGE ORIE:  I have a few questions.  First of all, a question for

19    the representatives of Bosnia and Herzegovina.  It has been argued by one

20    of the defendants that the recent OSCE reports in Jankovic and Stankovic

21    would make it appropriate for the -- for Bosnia-Herzegovina to respond to

22    the criticism.  As they said:  "It's incumbent upon the Referral Bench to

23    seek supplemental current submissions from the state of Bosnia-Herzegovina

24    on the concerns raised in the OSCE reports in Jankovic and Stankovic."

25            I'm not asking to you to respond right away, but would you

Page 84

 1    consider, after having read the concerns by the defendant -- by counsel

 2    for Milan Lukic to respond to those concerns and submit, on short notice,

 3    your response to the Chamber?

 4            MS. POPADIC: [Interpretation] Thank you, Your Honour.  I will do

 5    my best to provide a response to your question.  Should my question be

 6    incomplete -- should my answer be incomplete, I would like to ask the

 7    Chamber to set a deadline in the near future for us to provide a written

 8    response.

 9            Looking at the law on referral of cases, and comparing it or

10    analysing it in light of the concerns contained in the OSCE report, I

11    would like to say that Articles 2(1) and 1(2) on the law on referral make

12    it clear that the basic principle applied here is the application of the

13    Law on Criminal Procedure in Bosnia-Herzegovina in all cases, except when

14    the law on referral stipulates that the law on the criminal procedure of

15    Bosnia-Herzegovina are not going to be applied.

16            However, different approaches were used in the two cases that were

17    initially referred, Jankovic and Stankovic, in the light of the complexity

18    of the referral procedure itself.  The referral of the cases is a new

19    phenomena on the application of the Law on Criminal Procedure in

20    Bosnia-Herzegovina, and it was to be expected that the situations which

21    had appeared earlier were not fully foreseeable and not the application of

22    the law itself.  Some lack of clarity in interpretation of the law when

23    applied to a specific situation has now been resolved in the Meakic case,

24    where the Court took a different decision when taking into account the

25    requirements for detention as they existed prior to the referral and

Page 85

 1    comparing them to the current provisions of the Law on Criminal Procedure

 2    in Bosnia-Herzegovina.  The law on referral, Article 2.4, stipulates that

 3    the detention is to be ruled upon in accordance with the procedures --

 4    provisions of the Law on Criminal Procedure of Bosnia-Herzegovina.

 5            Thus, it is clear that there is sufficient legal guarantees in

 6    existence now.  As for certain shortcomings that existed in the initial

 7    few cases, that is not to be seen as something that will continuously be

 8    present in our practice.

 9            There are certain amendments in the law on referral, Article 8 and

10    some other articles, which provide for an urgent procedure in transferring

11    documents and files.  Thus, the criticism contained in the OSCE report was

12    taken into account by the Government of Bosnia-Herzegovina which, as a

13    result of that, now anticipates certain amendments to the law.

14            There was a decision of the Appeals Chamber of the ICTY in the

15    case against Mitar Rasovic and Todovic.  The decision was dated the 4th of

16    September, 2006.  On page 39 of that decision, the Appeals Chamber stated

17    that, despite certain errors committed by the Chambers in previous cases

18    when it came to applying relevant provisions, the Referral Chamber did not

19    overstep its discretion when it found that there is sufficient legal --

20    that there is sufficient legal framework in existence in

21    Bosnia-Herzegovina to guarantee that all of the rights of the accused will

22    be upheld.

23            In addition to that, I would like to quote from another decision

24    of the ICTY Appeals Chamber, of the 4th September 2006, once again, the

25    case against Rasovic and Todovic.

Page 86

 1            There, in the decision, under paragraph 124, the Chamber stated

 2    that:

 3            "The Referral Chamber did not err when it granted the referral

 4    motion by finding that all of the requirements for a fair trial were

 5    met."

 6            If the Chamber is not satisfied with the response provided right

 7    now, I would kindly like to ask you to allow us to submit further written

 8    submissions on this issue.  Thank you.

 9            JUDGE ORIE:  Thank you very much, Ms. Popadic.

10            I have a question for you, Ambassador Obradovic.  You referred to

11    the sentence imposed 20 years in absentia.  Is that an enforceable

12    sentence, or should the accused -- should the convicted and sentenced

13    person be retried if he arrives in the Republic of Serbia?  In some

14    systems, a trial in absentia should be replaced by a -- a judgement in

15    absentia should be replaced by a judgement as a result of a trial in the

16    presence of the accused.  Systems are different.  I'd like to know:

17    What's the situation in Serbia?

18            But I do see that you are perhaps looking to Mr. Knezevic, if he

19    could briefly answer that question.

20            MR. KNEZEVIC: [Interpretation] I will provide a brief answer to

21    that question, Your Honour.

22            When a person was convicted in absentia, as soon as the conditions

23    exist for him to be tried in his presence, there will be a retrial and

24    that person will be tried in his presence.  But all of the evidence

25    adduced so far in the previous proceedings would be taken into account, as

Page 87

 1    is stipulated in the law on the competence of state organs in war crimes

 2    trials.  And this is in accordance with Article 18 of the Law on Criminal

 3    Procedure of the Republic of Serbia, and also the Rules of Procedure and

 4    Evidence of the ICTY would be taken into account.

 5            JUDGE ORIE:  Thank you, Mr. Knezevic.

 6            Mr. Dieckmann, I have two short questions to you.  You have very

 7    much -- well, first of all, you introduced what you said as a fair trial

 8    issue, whereas I now understand that you find that it's a violation of

 9    human rights, not necessarily of a fair trial issue.  If you refer to the

10    European Convention on Human Rights, I would find fair trial guarantees in

11    Article 6, whereas the nulla poena principle is found in Article 7 is not

12    directly linked to fair trial issues.

13            First of all, is that a fair understanding?

14            MR. DIECKMANN:  Your Honour, I think the point we wanted to make

15    is we have to take a look for the concrete situation of the accused in a

16    trial situation and the system governing it.  And so you have understood

17    me right, yes.

18            JUDGE ORIE:  So it might be that they had a fair trial but a wrong

19    decision was taken because the decision was inconsistent with the European

20    Convention on Human Rights Article 7 and the lex mitior principle.

21            May I then ask you, since you so much emphasised the lex mitior

22    principle, as you know, the Referral Bench has left it open what law to

23    apply.  Would it mean that the charges - of course if proven - brought

24    against Sredoje Lukic would be covered by other legislation, the

25    legislation, perhaps, which was in force at the time?  Would that be the

Page 88

 1    case?

 2            MR. DIECKMANN:  Yes, Your Honour.  Due to our point of view, the

 3    alleged crimes against Mr. Sredoje Lukic is covered under Article 142 of

 4    the former Criminal Code of Yugoslavia.

 5            JUDGE ORIE:  Yes.  Now, would that bring a lighter or a heavier

 6    maximum penalty?

 7            MR. DIECKMANN:  Due to our point of view, it is a substantial

 8    difference if you have a Criminal Code to be applied with a maximum

 9    penalty of 20 years or if you have a Criminal Code which opens the door

10    for criminal punishment over 20 years or up to lifetime imprisonment.

11            JUDGE ORIE:  Yes.

12            MR. DIECKMANN:  So if you evaluate the level of penalty, of

13    course, it will be the more lenient penalty if have you a maximum of 20

14    years, yes.

15            JUDGE ORIE:  Is it true that at the time capital punishment - of

16    course it could not be applied - was the maximum penalties for 142?

17            MR. DIECKMANN:  Yes.  Yes, this is our point.  Yes.

18            JUDGE ORIE:  Then another question:  What -- you gave a few

19    examples.  Was any of these sentences imposed above the maximum that would

20    be applicable under the law you think should have been applied?

21            MR. DIECKMANN:  This is a difficult question, Your Honour, because

22    of course these decisions we have quoted have been made in a different law

23    system, with a different maximum of penalty.  And so I think it's

24    difficult to compare.

25            But I think if we impose Article 142, it must be a smaller penalty

Page 89

 1    than is --

 2            JUDGE ORIE:  Yes.  As a matter of fact, the question is quite

 3    simple to answer.  The answer is no.  But you want to draw our attention

 4    to the fact that in the context of maximum penalties, that the actual

 5    penalty imposed should have fit within that other context.

 6            MR. DIECKMANN:  Yes.

 7            JUDGE ORIE:  That's well understood.

 8            MR. DIECKMANN:  Yes.

 9            JUDGE ORIE:  Thank you very much.

10            Then I have one question for the Ambassador of Argentina.

11    Argument very much relied upon rules of extradition, the Argentinian law

12    on extradition.  Do you consider referral to Bosnia and Herzegovina, for

13    example, or to Serbia, extradition, or would you consider it not exactly

14    extradition?  Because just -- I'm sure you are aware of that, that if a

15    case is referred, the Tribunal does not require any previous warrant of

16    arrest, which is usual for extraditions, and the Tribunal keeps an eye, to

17    say, on the proceedings and could take proceedings back if there's reason

18    to do so.

19            So to that extent, referrals are considered by this Referral Bench

20    not to be the same as extradition, and the Referral Bench has considered

21    in that context as well that where states are free to engage in

22    extradition relations and are free to formulate, to legislate their

23    conditions, that -- the duty to cooperate with the Tribunal is, well, to

24    say it briefly, is an unconditional one.

25            To what extent have you considered these specific aspects when you

Page 90

 1    formulated today the position of the Government of Argentina?

 2            MR. GONI:  I understand your question clearly, Your Honour.  I am

 3    nonetheless constrained by my instructions and have not taken part in

 4    drawing them up.  As Ambassador in Holland, I have received instructions

 5    directly from Buenos Aires.  I would, though, be more than happy to take

 6    your question from the record, if you allow, and put it to the authorities

 7    in Argentina, if you feel that's necessary.

 8            JUDGE ORIE:  Yes, you are invited to do so.

 9            Judge Kwon has a question.

10            JUDGE KWON:  I have just one matter to ask about the position of

11    the representative of Bosnia, whether it can be answered by Ms. Popadic or

12    Mr. Strika.  You must have noted from the submission of Ms. Somers that

13    the amendment -- the indictment against these two accused has been cut

14    down in terms of forms of responsibility, as well as crime base.  My

15    question is whether you see a possibility that the -- those charges cut

16    down by the Prosecutor would be added again to the indictment when

17    referred.

18            MS. POPADIC: [Interpretation] Thank you.  I will tell you what the

19    positive legislation is in Bosnia-Herzegovina.  Of course the answer to

20    your question follows:  According to the Law on Criminal Procedure of

21    Bosnia-Herzegovina, there are legal preconditions enabling the amendment

22    of an indictment, adding on the new counts if new information about the

23    facts becomes available.  This can also be done after the proceedings

24    become final.  New proceedings can be instituted for actions or facts not

25    covered by the previous trial.  The positive legislation places no limit

Page 91

 1    on this possibility.  The application of law applies to proceedings

 2    conducted both before domestic judicial organs as well as other

 3    proceedings, including those referred by the Tribunal.

 4            The authorities of Bosnia and Herzegovina consider that in this

 5    particular case, the Bench will issue a decision based on the indictment

 6    which is being considered here, not based on assumptions that the judicial

 7    organs will acquire new facts or new evidence which would enable the

 8    indictment to be amended with new counts.

 9            Thank you.

10            JUDGE ORIE:  Yes.

11            JUDGE KWON:  Thank you.

12            JUDGE ORIE:  The Bench has no further questions.  I've kept a

13    record of who has still some time remaining.  Perhaps, Ms. Somers, you

14    first.  How much time do you think you would need?  I take part of your

15    answer to add to the answers to Judge Kwon as you add to your argument.

16    If you would like to add something, we'll give you a couple of minutes.

17            MS. SOMERS:  I kept that one to Judge Kwon very, very brief.

18            JUDGE ORIE:  Two questions:  One at the beginning and one at the

19    end.

20            MS. SOMERS:  I would like to avail myself of comment and

21    observation.

22            First of all, further to the Benches affirmation above its rulings

23    that 11 bis proceedings do not constitute extradition, affirmed by the

24    Appeals Chamber, we would like to firmly place our position that no

25    condition, no condition, can be put on any action of this Chamber by a

Page 92

 1    member country, responding under Article 29, through its Chapter 7

 2    obligations, as to how business is done with respect to referral or not.

 3    The issue is the country's obligation to this Tribunal as an organ of the

 4    United Nations Security Council.

 5            I was concerned that perhaps the record did not reflect that there

 6    was correspondence to the Government of Argentina about the existence of

 7    11 bis proceedings.  I would like to just -- so that perhaps the Registry

 8    file can be checked, put out to Your Honours, correspondence dated 1st --

 9    2nd December, 2005, addressed to the embassy of Argentina in The Hague,

10    responding to issues whether the Tribunal has resolved their request for

11    referral in the case raised by the Prosecutor, Carla Del Ponte.

12            The Referral Bench -- the Referral Bench has not resumed on the

13    request.  "On 1 December 2005, the Prosecutor filed a motion before the

14    Referral Bench to suspend consideration of the request until Milan Lukic

15    is delivered to The Hague.  The Office of the Prosecutor would highly

16    appreciate the embassy of Argentina transmitting this information to the

17    appropriate authorities."

18            Secondly, there is correspondence from 16 December 2005 to the

19    embassy of Argentina in The Hague.

20            "On 15 December, the Referral Bench of the International Tribunal

21    decided to suspend consideration of the request of the Prosecutor to refer

22    the indictment against Milan Lukic to Bosnia-Herzegovina pursuant to Rule

23    11 bis of the Rules of Procedure and Evidence until Milan Lukic has been

24    transferred to the seat of the Tribunal in The Hague.

25            "The decision of 14 December 2005 and the decision of 15 December

Page 93

 1    2005 are attached hereto."

 2            Further, the Republic of Argentina has, and I read from its

 3    translation of course only, acknowledged, again indicating that

 4    extradition is not a consideration, but has acknowledged nonetheless the

 5    very strong and definitive wording of Rules of Procedure and Evidence 58

 6    which should there have been an issue, which there was not, of

 7    extradition, the obligations laid down in Article 29 of the Statute shall

 8    prevail over any legal impediment to the surrender or transfer of the

 9    accused or of a witness to the Tribunal which may exist under the national

10    law or extradition treaties of the state concerned.

11            The reference to Rule 58 is contained in correspondence which is

12    part of the Registry file, as I understand, dated 10 January 2006.

13    Certainly copies can be provided easily to the Bench should it not be

14    readily available -- should they not be readily available to the --

15    through Registry.

16            Further, there is the acknowledgement that -- I'll take just a

17    moment, because I think the quote is significant:

18            "Therefore, let us remember that Rule 58 of the Rules of Procedure

19    and Evidence of the International Tribunal stipulates that the obligations

20    laid down in Article 29 of the Statute prevails over."

21            Quote from the letter.  Any attempt with respect to opposed

22    conditions or limitations on the powers that are vested in this Tribunal

23    would simply be of no force.  In fact, any country, whether it be

24    Argentina or Brazil or whatever, stands in the same shoes with respect to

25    Article 29 as any republic of the former Yugoslavia in terms of

Page 94

 1    obligations to cooperate with, surrender -- or transfer, rather, use the

 2    term "transfer," of an indictee to The Hague.

 3            Even provisions for -- for notifying the Security Council in the

 4    absence of cooperation, as is required, exist in our Rules.

 5            So I just want to make it very clear that the Prosecution's

 6    position rests firmly in the decisional law of this Tribunal which is

 7    reasoned and based on a full exploration of the reasoning behind the

 8    process of referral.

 9            Moving on to comments by Serbia, this Chamber, affirmed by the

10    Appeals Chamber -- this Bench, excuse me, affirmed by the Appeals Chamber,

11    has employed the test of greater nexus as opposed to any strict

12    hierarchial selection for the venue in which a case may be tried on

13    transfer.  The points of nexus in this case are the victims, who

14    principally reside in Bosnia-Herzegovina, the crimes were committed in

15    Bosnia-Herzegovina, and the well-documented ability and readiness of the

16    Bosnia courts to handle such cases.

17            Serbia, by virtue only of a possible link through citizenship,

18    does not stand up in this particular interest -- in this particular

19    instance to the test that has been principally employed by this Referral

20    Bench.

21            There is nothing -- perhaps in contradiction to my learned counsel

22    opposite to Mr. Yatvin has suggested, unique about this case with respect

23    to referral.

24            JUDGE ORIE:  Isn't it unique that a case still has to be retried

25    and therefore the situation of the exercise of jurisdiction might be a new

Page 95

 1    element which we have not seen before?

 2            MS. SOMERS:  In terms of referral, Your Honour.  Are we not

 3    talking about referral?  I beg your pardon.  Perhaps I didn't make the

 4    transition.

 5            JUDGE ORIE:  Yes.

 6            MS. SOMERS:  Just generally -- again, Serbia would not have been a

 7    country of designation by the Office of the Prosecutor, and as I observed

 8    at the beginning of these proceedings, it was not a country of designation

 9    proprio motu by this Bench.  Indeed, the equities for trial in

10    Bosnia-Herzegovina are strong.

11            In terms of the uniqueness of the indictment, I need not really

12    remind the Bench, which well knows that the Omarska camp, which was

13    described as a joint criminal enterprise in and of itself, reflecting some

14    of the worst horrors on the continent of Europe since the Second World

15    War, nonetheless had its commander referred to Bosnia-Herzegovina for

16    trial in a national court, and that in fact all the circumstances strongly

17    support referral both on gravity and level of both of the accused.  And

18    they should be tried together in a national court.

19            JUDGE ORIE:  Ms. Somers, adding up the time at the beginning and

20    the time you took now ...

21            MS. SOMERS:  I cannot -- I will not be able to respond to my

22    learned counsel opposite, Mr. Dieckmann's comments, in the interest of

23    time, but I think the Chamber has asked many of the questions necessary.

24            JUDGE ORIE:  You're finished?

25            MS. SOMERS:  Yes, I am.

Page 96

 1            JUDGE ORIE:  Mr. Yatvin, you still have some time in reserve.

 2            MR. YATVIN:  Yes, Your Honour.  I think that the Court really

 3    captured it, Your Honour, when you said "not exactly extradition".  That's

 4    the problem; that we have the transfer to the Tribunal, which is not an

 5    extradition because the United Nations has decided that its member

 6    nations, in order to allow this Tribunal to do its job, must transfer

 7    people to the Tribunal, and that is not exactly an -- that is not an

 8    extradition, that is something different.  It is somehow a horse of a

 9    different colour.

10            But the re-transfer by the Tribunal to another nation, I submit

11    that if it walks like a duck, if it quacks like a duck, if it has feathers

12    like a duck, it's probably a duck.  That's what we have here.  We have

13    what is essentially an extradition from the Tribunal to the nation of

14    Bosnia-Herzegovina.  And I think that no verbal prestidigitation will get

15    us away with that.  That's what we're dealing with.

16            That's why I submit that the Prosecutor's reference to Rule 58 is

17    ill-taken, because Rule 58 clearly talks about conditions of transfer to

18    the Tribunal.  To the Tribunal.  It doesn't say anything about transfer

19    away from the Tribunal.  And the government -- the sovereign nation of

20    Argentina had very good reasons to ensure that the mechanism would not be

21    used as a pass-through, as a ruse, to avoid having the opportunity to

22    ensure that its laws are abided with, that the Government of

23    Bosnia-Herzegovina should come to Argentina to petition it.

24            If they want Mr. Lukic there, and they didn't even ask, they're

25    relying on this Referral Bench to do its dirty work, and I think that's

Page 97

 1    inappropriate.  And I think --

 2            MS. SOMERS:  Excuse me, Your Honour, I have to object to the

 3    characteristic and ask that either it be stricken from the record or

 4    counsel cease from that type of characterisation.  The Prosecutor's

 5    actions -- there is no basis, it is offensive, and not part of this

 6    practice.

 7            MR. YATVIN:  Actually, it was describing -- I said the government

 8    of Bosnia, not the Prosecutor.  But I will withdraw the term, Your Honour.

 9    It does not carry the pejorative in my lexicon that I think the Prosecutor

10    assumes, but I apologise, and I mean no disrespect to the nation of

11    Bosnia-Herzegovina.  But perhaps it would be more appropriate to say

12     "carry water" for that nation.

13                          [Trial Chamber confers]

14            JUDGE ORIE:  In view of the last words of Mr. Yatvin, it will stay

15    in the record and the Chamber has taken notice of what you said,

16    Mr. Yatvin, what you first said and what you then said.

17            MR. YATVIN:  Thank you, Your Honour.

18            JUDGE ORIE:  Please proceed.

19            MR. YATVIN:  I'm not going to say any more on that topic.  I think

20    the Bench is quite clear on our position.

21            I do -- I did omit one thing when I was talking about Ms. Somers'

22    assertion that she would stand firm live -- the Prosecution would stand

23    firmly on their submissions.  I forgot one other submission.

24            The Prosecutor's request at paragraph 10, the original request to

25    transfer, quotes from the President of the Security Council's statement

Page 98

 1    which, as this Bench knows, is something that the Security Council

 2    resolutions and 11 bis have incorporated.  And one of the categories of

 3    persons that it talks about not to be transferred, it mentions

 4    paramilitary leaders.  And I have argued that in my submission, but the

 5    additional point I wanted to make about the paramilitary leaders is we

 6    must assume it's -- it's a fundamental tenant of statutory construction,

 7    that we must assume that the words mean something, that they had an

 8    intent.

 9            And as I understand it, there have been no other pure paramilitary

10    leaders since these remarks were made before the Tribunal.  Mr. Lukic is

11    it.  There are people who were police, who may have had some connection

12    with paramilitary, and there are politicians who may have incited

13    paramilitary, but from my canvassing of the indictments before this

14    Tribunal - and obviously there are a lot and they are lengthy - but there

15    are no other paramilitary leaders.

16            So if you say that because Mr. Lukic is only a paramilitary

17    leader, confined to a certain geographic venue and a certain temporal

18    venue, even relying on the indictment, which I certainly don't think you

19    should, he's not appropriate for transfer because he fits exactly into

20    that definition, and you can't say, Well, there are other paramilitary

21    leaders who are more appropriate for the Tribunal because there are no

22    others that I can see that have been charged.

23            JUDGE KWON:  Somebody who died.

24            MR. YATVIN:  Yes, Your Honour, somebody who died in 1998, before

25    the Security Council President made his remarks and before the Security

Page 99

 1    Council resolutions in 2002/2004.

 2            JUDGE ORIE:  Yes.  Anything else, Mr. Yatvin?

 3            MR. YATVIN:  No, unless the Bench had any other questions for me.

 4            JUDGE ORIE:  No, I don't have any other questions for you, nor do

 5    any of my colleagues.

 6            We are close where we have to finish if it were only for the

 7    technical reasons of a tape.

 8            Is there any very urgent matter - and perhaps I'll first address

 9    the representative of Bosnia-Herzegovina - that should be added?  And

10    before you -- if you would like to respond to what Mr. Yatvin said,

11    perhaps I as the Presiding Judge of this Chamber can tell you that the

12    structure of 11 bis is that either the Prosecution or this Bench proprio

13    motu initiates the referral proceedings, and that this Chamber has never,

14    ever experienced that Bosnia-Herzegovina, in whatever way, has implicitly

15    or explicitly expressed in any way that they would rely on this Referral

16    Bench to serve their interests.  I want to be quite clear on that.

17            Is there any further need, Ms. Popadic, to add something to the

18    many things that have been said already?

19            MS. POPADIC: [Interpretation] Thank you, Your Honours.  Indeed, I

20    have nothing further to add, other than to say that, in view of everything

21    that has been said here, that neither in this case or in any other case is

22    there a single argument that would indicate that not all the standards had

23    been met by Bosnia-Herzegovina to have this particular case tried before

24    the state court of Bosnia-Herzegovina.

25            Thank you.

Page 100

 1            JUDGE ORIE:  Thank you, Ms. Popadic.

 2            Is -- would either the Ambassador of Argentina or you,

 3    Mr. Obradovic, would like to add something?  Just to say that you don't

 4    have anything to add takes time from the last two or three minutes of our

 5    tape.  So if there's nothing to be added, that's understood.  If there is

 6    anything urgent to be added, apart perhaps you asked an opportunity to

 7    make further submissions; if possible within a week, that would be highly

 8    appreciated by this Chamber.

 9            Anything further?

10            MR. GONI:  Yes, Your Honour.  Just to request, I'm sure this will

11    take place in any case, but a very careful translation of a very clear and

12    precise statement on the part of my government may be -- and if it may be

13    distributed to all the parties.

14            JUDGE ORIE:  The written translation is prepared and will be filed

15    in the case file of this case.

16            Yes, Mr. Obradovic.

17            MR. OBRADOVIC: [Interpretation] Your Honour, finally I would like

18    to emphasise that the Republic of Serbia is fully prepared to give a

19    written submission on any matters concerning the referral of this case to

20    our state, should the Referral Bench find it necessary.  Thank you for

21    your attention.

22            JUDGE ORIE:  If we need it, we'll ask for it.

23            Ms. Somers.

24            MS. SOMERS:  Thank you, Your Honour.  Just a point in response to

25    Mr. Yatvin's comment that level or description as being in the generic

Page 101

 1    terminology of Security Council resolutions has not been the dominant

 2    factor.  In fact, this Chamber, this Bench, has referred generals, by

 3    level, seemingly out of the range but by virtue of referring to the

 4    indictment and understanding the context in which the allegations are

 5    made, the hierarchial issues, generals have been referred to national

 6    courts.  Leaders such as Jankovic have been referred.  The fact of

 7    commanding others has not been a determinative factor; there are a number

 8    of factors.

 9            Secondly, in terms of the Security Council resolutions which

10    discuss what can be done by this Tribunal generally, we are charged with

11    implementing the measures for completion, among them, of course, is the

12    referral to national jurisdictions and the President of this Tribunal

13    specifically required to implement measures, which includes all the

14    rule-making process.  So the fact that an accused may be out in the field

15    somewhere in the world and is brought before this Tribunal, which must

16    happen by virtue of Article 29, poses no limitation on what happens once

17    they get here.

18            JUDGE ORIE:  Thank you, Ms. Somers.

19            Any further submissions to be made by you, Mr. Cepic?

20            MR. CEPIC:  No, Your Honour.  Your Honour, if you will allow me

21    just to say a small correction.  There are two cases against Milan Lukic

22    before the Serbian justice system.

23            JUDGE ORIE:  Yes.

24            MR. CEPIC:  The first one is a Cvjevarin [phoen].  He is sentenced

25    for 20 years' prison.  And the case number two is the case Strpci [phoen],

Page 102

 1    which is case number 1 before the Special Court for War Crimes, and they

 2    started investigation about that incident.  My learned friend, Mr.

 3    Knezevic, can tell more -- much more details, but I know -- I understand

 4    the time limit.

 5            JUDGE ORIE:  Yes.  There is another case pending.

 6            MR. CEPIC:  Just to support my learned friend, Mr. Yatvin.  Thank

 7    you.

 8            JUDGE ORIE:  Mr. Yatvin, we've got one minute left on the tape.

 9            MR. YATVIN:  Your Honour, I just wanted to say that I hope that my

10    excess hyperbole did not offend the Bench.  The point I was making is that

11    the state of Bosnia did not go to Argentina as Serbia did, perhaps relying

12    on this procedure.  And I meant no assumption of what the response --

13            JUDGE ORIE:  Mr. Yatvin, any other words pending on it would again

14    draw the attention which was at least an unfortunate phrasing of your

15    thoughts.

16            MR. YATVIN:  Thank you, Your Honour.

17            JUDGE ORIE:  Then, Mr. Lukic and Mr. Lukic, it was a very

18    technical hearing.  I hope you have understood everything.  It's of a

19    legal, technical nature.

20            The Chamber will adjourn, and when there's any additional

21    information needed, we'll ask for it.  We stand adjourned sine die.

22                          --- Whereupon the Rule 11 bis hearing adjourned

23                          sine die at 4.22 p.m.