Tribunal Criminal Tribunal for the Former Yugoslavia

Page 269

1 Tuesday, 6 June 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 10.34 a.m.

5 JUDGE HUNT: Call the case, please.

6 THE REGISTRAR: This is case IT-96-21-A, the

7 Prosecutor versus Delalic and others.

8 JUDGE HUNT: The late start was a result of

9 some problems out of the unit, and the commander out

10 there has apologised for the delay.

11 Mr. Farrell, there was a matter which we

12 discussed briefly yesterday. That was the

13 confidentiality of the motion which the Prosecution

14 filed and of course of the order that we made on it.

15 Do I correctly understand you that you no longer seek

16 confidentiality for that motion?

17 MR. FARRELL: It's not a great concern of the

18 Prosecution --

19 THE INTERPRETER: Microphone for the counsel,

20 please.

21 MR. FARRELL: It was not a great concern to

22 the Prosecution. It was done as a matter of caution.

23 So at this point in time we don't have grave concerns

24 in that regard, no.

25 JUDGE HUNT: Well, then, I think we'll make

Page 270

1 an order lifting the confidentiality of the motion and

2 of the order.

3 MR. FARRELL: Thank you, sir.

4 JUDGE HUNT: Now, who is going to

5 re-examine?

6 MR. FARRELL: In terms of the order of this

7 morning?


9 MR. FARRELL: I think that Mr. Ackerman, if I

10 understand, had about five or ten minutes left.

11 JUDGE HUNT: Oh, I am sorry, Mr. Ackerman.

12 Yes, that's right. We did prevent you from going on.

13 Yes, Mr. Ackerman.

14 MR. ACKERMAN: Good morning, Your Honours. I

15 couldn't help but notice that we managed yesterday

16 apparently to bore the public gallery absolutely to

17 death, since they've not returned today. I hope we

18 didn't do the same thing to all of you.

19 I have two matters left to discuss, and I

20 think I'll be quite brief with regard to both of them.

21 The first has to do with the Prosecution's contention

22 that the Trial Court erred in not permitting them to

23 put on rebuttal evidence or to put on that same

24 evidence by reopening their case.

25 The Trial Chamber with regard to that issue

Page 271

1 basically found that the Prosecution had not exercised

2 due diligence in acquiring that material at the

3 appropriate time and presenting it to the Trial Chamber

4 at an appropriate time. As you all know, the Tadic

5 case, that issue was discussed, that issue of due

6 diligence, and in the Tadic case it was found that the

7 requirement of due diligence is not satisfied where

8 there is insufficient attempt to invoke such coercive

9 measures as were at the disposal of the International

10 Tribunal, and that was a position urged by the

11 Prosecution in that case.

12 The other thing that I want to mention very

13 briefly with regard to those materials. Very much like

14 the materials that were presented to you yesterday with

15 regard to the Prosecutor's most recent motion, the

16 materials that the Prosecutor sought to introduce by

17 way of rebuttal or reopening of the case were presented

18 to the Trial Chamber, so the Trial Chamber was privy to

19 the content of those materials. The Trial Chamber was

20 in a, of course, very unique position to consider the

21 force of those materials and whether it would have made

22 any difference to their consideration of the case

23 whether witnesses were brought to prove up the

24 reliability of those documents. The Celebici case had

25 at that point gone on for many, many months, beyond

Page 272

1 what anybody had predicted, and the Trial Chamber

2 basically concluded that the documents were simply

3 cumulative of information that had already been brought

4 to them.

5 So I think that this ground should be

6 rejected by the Appeals Chamber. In our brief you will

7 find a very detailed account regarding the factual

8 background and our argument regarding that issue.

9 I will now move to the issue of count 48 and

10 the Prosecution's contention that the trial court erred

11 by not convicting Mr. Delalic [Realtime transcript read

12 in error "Delic"] of illegal confinement pursuant to

13 count 48 as an aider and abetter.

14 As I point out in some detail in the brief,

15 it is our contention in that Mr. Delalic [Realtime

16 transcript read in error "Delic"] was not charged in

17 the indictment as an aider and abetter in count 48. If

18 you look at count 48, what it did does is charge him

19 only under Article 2(g). There is no mention in count

20 48 of either 7(1) or 7(3). I point out in the brief a

21 number of indictments, both prior to and subsequent

22 to--

23 MR. MORAN: Excuse me, Your Honour. There

24 seems to be a little problem with the transcript. It's

25 just been pointed out to me that the transcript keeps

Page 273

1 saying "Delic" when it should be saying "Delalic." If

2 that could be just corrected in the final version.

3 Your Honour, it's not the first time this kind of thing

4 has happened, and we just watch for it.

5 JUDGE HUNT: Well, I can't imagine what

6 Mr. Ackerman's interest in Mr. Delic's situation would

7 be, and the fact that he's speaking would make it

8 fairly clear, I think, but I'm sure the typist will see

9 that.

10 MR. ACKERMAN: We have outlined for the

11 Appeals Chamber a number other indictments in this

12 Tribunal regarding charges of aiding and abetting, and

13 all of those indictments where the Prosecutor intended

14 to charge someone with aiding and abetting, they did so

15 specifically, if not in direct language, at least by

16 reference to Article 7(1). The Delalic indictment only

17 makes reference to Article 2(G).

18 It is clear, however, from reading

19 Article 48, that it's the intention of the Prosecutor

20 to charge him under 7(3) as a superior because that's

21 contained within the language of the charge itself.

22 Even though 7(3) is not cited as a basis for it, it's

23 clear that's what the intent was. But there's no

24 indication from reading Count 48 of the indictment that

25 he's being charged as an aider and abettor for direct

Page 274

1 responsibility for the illegal confinement of civilians

2 at the Celebici camp.

3 Even if it could be determined that he was so

4 charged, the evidence would not support a conviction of

5 aiding and abetting. As is pointed out in the brief,

6 the Furundzija Trial Court did a significantly long

7 analysis of what the elements are of aiding and

8 abetting and concluded that the accused has to have

9 committed acts that had a substantial effect on the

10 perpetration of the crime and knew that these acts

11 assisted in the commission of the offence.

12 The Tadic appeal decision, at paragraph 229,

13 has since adopted that reasoning. Also since that time

14 and since the Prosecutor's brief was filed, the

15 Prosecutor has, in fact, conceded the point where in

16 the Kvocka case, in the Prosecution's submission of the

17 updated version of the pre-trial brief, the Prosecutor

18 concluded that in respect of aiders and abettors, it's

19 required to prove that the accused committed acts that

20 had a substantial effect on the perpetration of the

21 crime and knew that these acts assisted the commission

22 of the offence, which is different from the contentions

23 made in the brief.

24 We suggest, therefore, that this issue has

25 been firmly settled in the Tribunal and that there's no

Page 275

1 reason for this Appeals Chamber to revisit that issue.

2 I want to conclude by speaking briefly about

3 what appears to me to be a glaring inconsistency in the

4 Trial Chamber's judgement regarding the status of the

5 persons confined in Celebici.

6 For Count 48 purposes and others, they were

7 deemed by the Trial Chamber to be civilians illegally

8 held and illegally confined. The Prosecutor has

9 admitted, in their pre-trial brief in the Celebici case

10 and even in their arguments here yesterday, that if

11 civilians confined are a security risk to the

12 government of Bosnia-Herzegovina, then the confinement

13 is not illegal.

14 On the other hand, the Trial Chamber, to

15 bring the Celebici detainees within the protection of

16 the Geneva Convention and define them as protected

17 persons found that: "The Bosnian Serbs had clearly

18 expressed their wish not to be nationals of Bosnia and

19 Herzegovina by proclaiming a constitution rendering

20 them part of Yugoslavia and engaging in this armed

21 conflict in order to achieve that aim." In other

22 words, to make them protected persons, the Trial

23 Chamber concluded that they were basically rebels who

24 were opposing the lawful government of

25 Bosnia-Herzegovina.

Page 276

1 I submit to you that they can't be both.

2 They can either be innocent, illegally detained

3 civilians or they can be rebels taking up arms against

4 their legitimate government, but they can't be both.

5 It seems that these positions are clearly

6 inconsistent and that the Trial Chamber essentially

7 arrived at a result which was based upon those

8 inconsistencies, on the one hand defining them as

9 persons who had rejected the government of

10 Bosnia-Herzegovina and, therefore, making themselves

11 security risks, even if they were not in the process of

12 taking up arms if they were part of this new

13 constitution and in part of this process of engaging in

14 armed conflict against their legitimate government,

15 even if they were available to provide information to

16 enemy forces, available to act as spies, subversive, or

17 anything like that, they clearly were, according to the

18 Trial Chamber, had demonstrated their allegiance to a

19 foreign power, and I think under any analysis, it was

20 appropriate to detain them under those conditions. So

21 that inconsistency, it seems to me, is difficult to

22 resolve.

23 That concludes my argument regarding

24 Count 48, and I think all of the matters that were on

25 my plate under group 1. Thank you.

Page 277

1 JUDGE HUNT: Can I just ask you this question

2 in relation to the last point: If all they were doing

3 was proclaiming themselves independent and part of what

4 became Republika Srpska, that justified their

5 detention, did it?

6 MR. ACKERMAN: If all they did was say, "Gee,

7 I think it's a good idea to have an independent

8 Republika Srpska or make ourselves part of Yugoslavia,"

9 no.

10 JUDGE HUNT: If they had signed a document

11 saying they regard themselves as being independent,

12 does that justify detention?

13 MR. ACKERMAN: No, I don't think so. I

14 think -- the problem is, Your Honour, it's the

15 Prosecution's job to prove these things beyond a

16 reasonable doubt, and the Prosecution offered no proof

17 whatsoever. Each of the witnesses who came, the

18 Prosecution never asked them what their status was

19 regarding the uprising against the legitimate

20 government, and it's the Prosecution's job to prove

21 these things beyond a reasonable doubt.

22 JUDGE HUNT: Thank you, Mr. Ackerman.

23 MR. ACKERMAN: Thank you.

24 JUDGE HUNT: Who is starting from the

25 Prosecution?

Page 278

1 MR. STAKER: I do apologise, Your Honour. I

2 just wanted to indicate that Mr. Fenrick proposed first

3 to reply to the submissions that have been made on the

4 legal aspects of superior responsibility. I would then

5 propose to reply to Mr. Ackerman and to Mr. Moran on

6 the factual aspects and to respond to Mr. Kuzmanovic in

7 relation to Mr. Mucic's ground of appeal relating to

8 superior authority. If my understanding is correct,

9 Mr. Kuzmanovic would then reply to us after our

10 response.

11 There were just a couple of housekeeping

12 matters which I thought might be convenient to get out

13 of the way here and now before we proceed.

14 The first matter is that Mr. Fenrick is here

15 as part of the Prosecution team in relation to the

16 command responsibility issues, and with the leave of

17 the Court, we would request that he be excused at the

18 end of this hearing on group 1 issues.

19 The second matter relates to the Spanish

20 translations of certain documents that have been agreed

21 to between the Prosecution and counsel for Mr. Landzo.

22 Yesterday, the translations of the Spanish press

23 articles were provided by my colleague Mr. Murphy. I

24 did want to indicate that the translation that was

25 provided is mutually agreed to by the Prosecution and

Page 279

1 counsel for Mr. Landzo.

2 As also was indicated yesterday, we now have

3 translations of the presidential decrees that have been

4 referred to in documents filed before that have been

5 published in the Official Gazette of Costa Rica, and I

6 would now like to provide those translations to the

7 Court as well. I have one copy. If I could provide

8 that to the usher.

9 JUDGE HUNT: And this is the subject of an

10 application for them to be admitted, is it?

11 MR. STAKER: I think it's by agreement.

12 JUDGE HUNT: That they will be admitted.

13 MR. STAKER: We have an agreement filed

14 already that the Official Gazette is a publication, the

15 Official Gazette. The translation that's now being

16 provided is mutually agreed between the parties.

17 What I would just indicate in relation to

18 that translation, because of the time limits that we

19 were acting under, it was not possible for us to

20 translate the entirety of both decrees, so we have

21 provided with the translation a copy of the original in

22 which we have highlighted the relevant parts of the

23 decrees that have been translated.

24 JUDGE HUNT: Have you only the one copy for

25 us?

Page 280

1 MR. STAKER: We can provide more copies.

2 JUDGE HUNT: It might be an idea, and someone

3 can mark out the blue outlining too in the copies.

4 MR. STAKER: Yes, Your Honour. The other two

5 things simply to mention in relation to this

6 translation, we notice that because of the quality of

7 the original, the translators weren't able to read some

8 of the text. You'll see question marks have been

9 inserted where it wasn't legible. We think those

10 portions make no material difference. We think the

11 translation's quite clear as to what the purport and

12 the content of the document is, and we notice that

13 there does happen to be one typographical error which,

14 unfortunately, is in Elizabeth Odio-Benito's name,

15 but --

16 MR. MURPHY: Your Honour, if I could

17 indicate. I have had the advantage of seeing these

18 translations. They are acceptable. The one

19 typographical error simply accredits the Judge with a

20 more Nordic background than we would have suspected,

21 but, Your Honour, Mr. Staker is entirely right. There

22 is nothing relevant to the appeal in the passages which

23 the translator was unable to read and we're perfectly

24 happy with those translations.

25 JUDGE HUNT: Thank you, Mr. Murphy.

Page 281

1 MR. STAKER: In that case, Mr. Fenrick would

2 begin presenting the submissions in reply.

3 MR. FENRICK: Your Honours, in our reply we

4 would like to begin by emphasising that at no time does

5 the Prosecution submit that the requirement for a

6 superior/subordinate relationship is not an essential

7 element of the doctrine of command responsibility. Our

8 submission has to do with the scope of the

9 superior/subordinate relationship, not with whether or

10 not it is a legal requirement.

11 If I may, since my learned colleague

12 yesterday quoted from an article which I had written,

13 if I may read part of the following paragraph. The

14 particular article is one called "Some International

15 Law Problems Related to Prosecutions Before the

16 International Criminal Tribunal for the Former

17 Yugoslavia." It was published in the fall 1995 issue

18 of the Duke Journal of Comparative and International

19 Law. And the paragraph following the one that was

20 cited states, in part:

21 "Despite the problem of extrapolating an

22 analogous doctrine of command responsibility for

23 civilian leaders, the Tokyo decision can be used as a

24 guide for establishing that civilian leaders can be

25 held culpable for certain acts of subordinates."

Page 282

1 THE INTERPRETER: Could the counsel please

2 slow down when reading, for the interpreter's benefit.

3 Thank you.

4 MR. FENRICK: I apologise.

5 "The Tokyo decision provides support for the

6 following propositions." And then there are a list of

7 propositions, the fourth of which is:

8 "Political and bureaucratic leaders may be

9 held responsible for the acts of subordinates when the

10 leaders have a duty established either directly, by

11 international law, or indirectly, by domestic law or

12 practice, to ensure that their subordinates comply with

13 the law and the leaders fail to fulfill that duty."

14 In connection with the superior/subordinate

15 relationship, Your Honours, we would submit once again

16 that commanders or superiors can be of virtually any

17 military rank. In a military context in particular, we

18 can have a commander at the rank of corporal, we can

19 have a commander at the rank of general. The rank is

20 insignificant as long as it is, in fact, superior to

21 the subordinates.

22 Secondly, we would submit very clearly that a

23 superior position can be rooted in de facto authority.

24 In fact, what we would submit is an example of a lot of

25 the points we would like to make is the Aleksovski

Page 283

1 case.

2 Aleksovski is perhaps after a fashion an

3 example of de facto authority. It's also an example of

4 influence, because Mr. Aleksovski was a civilian who

5 was appointed to be the warden of a prison. The prison

6 staff consisted of military police. In a normal

7 military hierarchical context, a civilian would not

8 exercise any -- would not be in a direct chain of

9 command over military police. Military police would be

10 in a chain of command going up a strictly military

11 hierarchy.

12 But nevertheless, in the Aleksovski case, the

13 Court held that in addition to the normal military

14 chain of command, Mr. Aleksovski, perhaps by as a

15 result of de facto authority or influence, exercised a

16 degree of command authority over the guards at the

17 prison camp. And indeed both the Appeals Chamber and

18 the Trials Chamber went on to note that Mr. Aleksovski

19 had no legal authority to punish the guards in the

20 camp. The most that he could do was report infractions

21 to military superiors and then the military superiors

22 would be expected to take the disciplinary action.

23 It is our submission that influence, as an

24 aspect of the superior/subordinate relationship, is

25 something which requires that the influence holder, or

Page 284

1 that particular kind of superior, exercises effective

2 control over perpetrators in the sense that he or she

3 has the material ability to prevent and punish; the

4 powers of influence must be substantial, immediate,

5 sufficiently related to the violations, and capable of

6 permitting steps to be taken to prevent or punish the

7 violation.

8 We were asked yesterday for examples. We

9 would suggest that examples would include

10 Mr. Aleksovski, who's not in a direct chain of command;

11 the numerous cases, particularly the high command and

12 hostages cases arising out of the Second World War war

13 crimes trials, where you had occupation zone commanders

14 who were not in a direct chain of command, nevertheless

15 being held responsible for an Article 7(3) type of

16 command responsibility. There is also the military

17 advisor, as referred to in paragraphs 3.26 to 3.28 of

18 our brief, the initial appellant's brief.

19 Concerning the knowledge standard, the

20 meaning of "had reason to know," more specifically, we

21 most certainly do agree with Mr. Moran's comment that

22 the nullem crimen principle applies to forms of

23 criminal participation as well as to the designation of

24 offences. That being said, however, we would say that

25 the assessment put forward in our brief and in the

Page 285

1 Blaskic trial decision provides a more accurate picture

2 of the meaning of "had reason to know" than that

3 provided in the Tadic appeal -- or excuse me -- in the

4 Celebici trial decision.

5 Indeed, if I might quote from the Blaskic

6 trial decision, which in turn quotes the United States

7 field manual, 27-10, on the law of land warfare, and

8 this is a 1956 document. In paragraph 323, the

9 quotation from the US army manual is:

10 "The commander is responsible if he had

11 actual knowledge, or should have had knowledge, through

12 reports received by him or through other means, that

13 troops or other persons subject to his control are

14 about to commit or have committed a war crime and he

15 fails to use the means at his disposal to ensure

16 compliance with the law of war."

17 With respect to Mr. Ackerman's observation

18 that the Aleksovski judgement agrees with the Celebici

19 trial decision concerning the meaning of "had reason to

20 know," I could only suggest that the Court read

21 paragraph 80 of that judgement, which was the one

22 referred to by Mr. Ackerman, and I would suggest that

23 it certainly does not agree with the Celebici

24 judgement. It's quite ambiguous. It's simply not

25 clear on what its version of the knowledge standard

Page 286

1 is.

2 Concerning failure to punish, Mr. Moran

3 referred to his experience with the American military

4 system. It would be our submission that military

5 justice systems do vary widely concerning who has a

6 responsibility for punishment, and we would submit that

7 if one looks at the commentaries, the ICRC commentaries

8 to the additional protocols, that relatively

9 authoritative source certainly indicates that the power

10 to punish may be very limited in certain circumstances

11 and may, in fact, be limited to a reporting

12 obligation. And indeed in the Aleksovski decision,

13 this Chamber accepted that Mr. Aleksovski could be held

14 responsible on the basis of Article 7(3), when it was

15 quite clear that he had no immediate power to punish

16 the military police who were the prison guards, and all

17 he could do in that case was to report.

18 As one last observation, the Prosecution has

19 submitted that there are three essential elements to

20 the doctrine of command responsibility: the

21 superior/subordinate relationship, the knowledge

22 standard, and the failure to take necessary and

23 appropriate measures to prevent or punish. There is no

24 fourth criterion. The fourth criterion of causation to

25 which Mr. Moran has suggested exists does not exist.

Page 287

1 That's all, Your Honours.

2 JUDGE HUNT: Mr. Fenrick, I'm just looking at

3 the terms of the Article 7(3), which, after all, does

4 give us our jurisdiction, whatever it may do about

5 stating the law, and the knowledge factor, as you

6 describe it, is if he knew or had reason to know. The

7 words "had reason to know" would, of course,

8 include "had knowledge of certain facts" from which he

9 should have known.

10 Are you asserting that "reason to know there"

11 would also include "by reason of his command position

12 and the duties which it entailed"?

13 MR. FENRICK: Yes, with the emphasis on the

14 "and duties it entailed." As I said before, we're not

15 suggesting that there is a strict liability standard,

16 but we are suggesting that interpretation of that

17 provision and interpretation of the doctrine of command

18 responsibility requires that due regard be made to the

19 duties that are imposed on a superior.

20 JUDGE HUNT: And you say those duties are

21 imposed by customary law and this picks it up.

22 MR. FENRICK: Yes, Your Honour. We would say

23 it's imposed by the range of legal obligations which

24 exist applicable to the particular individuals we are

25 talking about. That would include customary law. It

Page 288

1 may, if treaty law is applicable in the circumstances,

2 also include treaty law. It may, for that matter, also

3 include domestic legal obligations, and, frankly, to go

4 beyond that, it may, as a result of practice, be a

5 de facto obligation, but all of these things can be

6 taken into account in determining the extent of a

7 duty.

8 JUDGE BENNOUNA: [Interpretation] Mr. Fenrick,

9 could you clarify something for me? If I have quoted

10 you correctly about the superior authority [In English]

11 measures to prevent or punish. [Interpretation] You

12 talked about a fourth criterion. This criterion you

13 called the criterion of causality.

14 What I'm interested in is whether these three

15 criterion are applicable to what you called

16 "influence." I don't know how we would translate it.

17 That is, exercise certain influence. It seems to me

18 that this is a concept which is a little bit vague, but

19 is this necessary if we are referring to these three

20 criterion?

21 There are persons who exercise influence and

22 people who act under someone's influence. Does this

23 only refer to the superior/subordinate relationship?

24 If I understood you correctly, this person may not be a

25 military person, does not make part of the chain of

Page 289

1 command. They have a de facto control and they de

2 facto control their subordinates.

3 So my question to you is: What does this

4 concept of influence -- how does it relate to the three

5 criteria which you have mentioned?

6 MR. FENRICK: Your Honour, it would be the

7 submission of the Prosecution that whenever the

8 doctrine of command responsibility applies, all three

9 of those criteria must be applicable. It may be that

10 the duty to determine or to "establish" a system to

11 report violations and the requirement to monitor that

12 system may be very loosely interpreted, but there still

13 must be more -- the person who is held responsible on

14 the basis of Article 7(3) must be someone to whom one

15 can legitimately impute all three of these

16 responsibilities.

17 If you do not perceive that, at any rate, a

18 de facto duty to determine whether or not offences have

19 been committed exists, then it would be our submission

20 that the criteria for 7(3) are not met.

21 JUDGE BENNOUNA: [Interpretation] You have not

22 answered my question on the influence. What is the

23 significance of the concept of influence on all of

24 this? Because at one point you mentioned persons who

25 exercise influence.

Page 290

1 MR. FENRICK: That's correct, Your Honour.

2 It would be our submission that perhaps that influence

3 is almost a form of de facto command. There has got to

4 be -- it's a special form of de facto superiority.

5 JUDGE BENNOUNA: [Interpretation] Thank you.

6 JUDGE POCAR: Mr. Fenrick, if I may just come

7 back a moment to the question that was earlier put by

8 the Presiding Judge about knowledge. Just to be clear

9 on your position, you mentioned that -- if I understood

10 correctly, Article 7(3), has to be interpreted in the

11 light of various sources, customary law, treaty law,

12 national law.

13 May I know exactly which is the place you

14 give to the Additional Protocol, to Article 86?

15 Because yesterday you mentioned that it's not part of

16 customary law, it's not in accordance with customary

17 law. May I know exactly which is the place you put

18 it? Because one has to take into account that

19 provision is a treaty, on the one hand, and on the

20 other hand, it's a piece of practice that can be used

21 to establish customary law as well, especially taking

22 into account that it has been ratified by quite a large

23 number of states.

24 What would be your position exactly on that

25 point?

Page 291

1 MR. FENRICK: Your Honour, our position would

2 be that, first of all, separate and apart from the

3 customary law status Additional Protocol 1,

4 certainly Additional Protocol 1 was applicable to the

5 conflict as a matter of treaty law.

6 Going beyond that, our view would be:

7 Depending on the scope of interpretation one gives to

8 Additional Protocol 1 or, excuse me, to Articles 86 and

9 87, those Articles may be regarded as a partial

10 codification of customary law or they may reflect

11 virtually all of customary law.

12 Our argument is that the proper

13 interpretation of Protocol 1 is the interpretation

14 found by the Blaskic Trial Chamber, which is more or

15 less in line with the submission that we have been

16 making concerning the knowledge standard.

17 If, however, that interpretation of the

18 meaning of Articles 86 and 87 is regarded as inaccurate

19 and there is a preference for the interpretation given

20 by the Trial Chamber in this case or at the trial level

21 in this case, it would then be our submission that

22 Articles 86 and 87 are not a complete codification of

23 customary law concerning the knowledge standard.

24 JUDGE POCAR: Thank you.

25 JUDGE RIAD: Mr. Fenrick, good morning.

Page 292

1 MR. FENRICK: Good morning, sir.

2 JUDGE RIAD: With regard to an issue raised

3 yesterday, a very interesting one, by Mr. Ackerman, to

4 which you seem to be more or less opposed, he sticks to

5 the fact that the superior has to have a de jure

6 authority, and in this de jure authority is inherent

7 the duty to prevent or punish. Now, you try to

8 maintain the fact that de facto authority is

9 important.

10 Without going into some type of hypothetical

11 details, suppose in case there is some kind of

12 contradiction between the de jure authority and the

13 de facto authority, which one is your favourite?

14 MR. FENRICK: One would hope they would both

15 coincide, Your Honour, but in the event that they do

16 not, I think one would have to have regard to the full

17 range of actual circumstances.

18 For example -- or an example that I used

19 yesterday was the Queen of England is probably the

20 commander-in-chief of the British armed forces as a

21 matter of strict law.

22 JUDGE RIAD: That's a very good example,

23 yes.

24 MR. FENRICK: But I would think de facto she

25 certainly does not have that kind of authority, and in

Page 293

1 that case, I would think one would rely entirely on the

2 de facto authority.

3 On the other hand, if what we were talking

4 about was a military commander in the field who clearly

5 had a legal obligation to control his troops, I think

6 we would have to have a very, very high burden indeed

7 before one could ever say, "Ah, well, this general had

8 a legal obligation to control his troops but it just

9 wasn't practical in the circumstances."

10 If I may refer, and I believe one of my

11 learned colleagues did on one occasion to the Sabra and

12 Shatila incident, which was the-- these were massacres

13 in Palestinian refugee camps back in 1981 or 1982, and

14 following those massacres, the Israelis established a

15 commission, the Kahan Commission, to look into what had

16 happened, and that commission certainly did not claim

17 to have legal authority to establish legal norms, but

18 it's certainly something which has been paid regard to

19 since that point in time. And one of the points that

20 was made in that report was that if you have a degree

21 of control over troops who you know are going to commit

22 offences, you then have an obligation not to put them

23 into combat if you know that they are going to commit a

24 substantial number of offences. You can't say, "Well,

25 they were completely uncontrollable and I didn't have

Page 294

1 anybody else around so I used those troops, and they

2 went off and committed a whole bunch of offences, and

3 because I couldn't control them, I'm not responsible

4 for them."

5 JUDGE RIAD: Thank you. Your answer is quite

6 satisfactory, Mr. Fenrick. Thank you.

7 JUDGE HUNT: Thank you, Mr. Fenrick. You're

8 free to leave whenever you wish, and thank you for your

9 assistance.

10 MR. FENRICK: Thank you, Your Honour.

11 JUDGE HUNT: Yes, Mr. Staker.

12 MR. STAKER: May it please the Chamber. I

13 have two points in reply to the factual aspects of the

14 submissions put by Mr. Ackerman on behalf of

15 Mr. Delalic relating to the unlawful confinement of

16 civilians, count 48.

17 The first was the issue of aiding and

18 abetting which was raised. We submit this was fully

19 covered in our briefs, particularly the Prosecution

20 reply brief. At paragraph 4.15 and following, we deal

21 with the point that aiding and abetting was validly

22 charged in the indictment. And at paragraph 4.22 and

23 following, we deal with the legal elements of aiding

24 and abetting as a form of participation under Article

25 7(1).

Page 295

1 JUDGE HUNT: Can you just indicate where in

2 the indictment there is a general charge? Because

3 looking at it, you haven't followed what has now become

4 the somewhat imprecise practice of the Prosecution to

5 just quoting Article 7(1). It's not referred to

6 anywhere except in relation to Mr. Delic.

7 MR. STAKER: The argument is dealt with in

8 our brief. Our main submission is that there is no --

9 there are no legal procedural forms of an indictment.

10 There are general requirements that an indictment must

11 meet. If an accused feels that the indictment doesn't

12 meet those minimum requirements, it's possible to bring

13 a preliminary motion seeking greater specificity. But

14 as set out in our brief, we say that the way the

15 indictment was worded, it makes it clear that there is

16 first an allegation of participation and then there is

17 an allegation of superior responsibility. And the word

18 "participation," we submit -- I have a copy here of

19 count 48. It begins, paragraph 36 of the indictment:

20 "Between May and October... Zejnil Delalic,

21 Zdravko Mucic, and Hazim Delic participated in the

22 unlawful confinement of numerous civilians."

23 The word "participated" doesn't appear in

24 Article 7(1), but "participated" is a word which we

25 submit is commonly used to refer generically to all

Page 296

1 forms of participation under Article 7(1).

2 JUDGE HUNT: That it's imprecision, you see.

3 This is not the occasion to debate it, but really the

4 Prosecution's pleading styles do need a little

5 revision.

6 MR. STAKER: The pleading style has evolved

7 over time as well, Your Honour. Our point is simply -- I

8 think it is a matter of ordinary legal parlance that

9 one would refer to the different modes of participation

10 referred to in Article 7(1) as forms of participation",

11 and if one says that one participated in a crime, that

12 means that the person, by one of the various means

13 specified in Article 7(1), is criminally liable under

14 that provision. And then the wording of paragraph 36

15 goes on to allege superior responsibility. So

16 basically it's Article 7(1) and Article 7(3) that are

17 both alleged.

18 The Prosecution -- the main thrust of the

19 Prosecution argument in relation to that ground of

20 appeal wasn't that the Trial Chamber applied the wrong

21 legal test in relation to aiding and abetting in

22 relation to Mr. Delalic; it was simply that it didn't

23 apply it at all.

24 I can refer the Chamber to paragraph 1144 of

25 the judgement, where the Trial Chamber reaches the

Page 297

1 ultimate conclusion that Mr. Delalic was not liable

2 under count 48 because he was not in a position to

3 affect the continuing detention of the detainees. And

4 I made the argument yesterday in relation to Mr. Mucic

5 that that is not an element of the crime of unlawful

6 confinement of civilians, and we say the Trial Chamber

7 simply failed to address its mind at all to the issue

8 of aiding and abetting.

9 The next point in reply in relation to count

10 48 was the issue of civilians as a security risk to the

11 state. This also is dealt with, we submit, fully in

12 our briefs, but I make the point again that merely

13 because even if it can be said the Serb population

14 generally had taken up arms against the government,

15 this does not provide a justification for rounding up

16 every single member of the Serb population. There is a

17 difference between civilians who may present a security

18 risk and those who do not.

19 Mr. Ackerman said that the burden was on the

20 Prosecution to prove that beyond a reasonable doubt.

21 That is of course true, but that obligation is on the

22 Prosecution before the Trial Chamber, and the Trial

23 Chamber made very express findings that the Prosecution

24 had discharged that burden.

25 There I would refer to paragraph 1134 of the

Page 298

1 Trial Chamber's judgement, where it said:

2 "...the Trial Chamber is convinced that a

3 significant number of civilians were detained in the

4 Celebici prison-camp, although there existed no serious

5 and legitimate reason to conclude that they seriously

6 prejudiced the security of the detaining power."

7 Now, the Trial Chamber made that factual

8 finding on the basis of the evidence before it, and now

9 before the Appeals Chamber the burden is on the

10 appellant to show that that conclusion was so

11 unreasonable that no reasonable trier of fact could

12 have reached it, and our submission is that in this

13 appeal that burden has not been discharged.

14 If I then turn in reply to the submission of

15 Mr. Moran, unless there are any further questions in

16 relation to that, Your Honour.

17 The submissions of Mr. Moran in relation to

18 Mr. Mucic's -- sorry -- Mr. Delic's response to the

19 Prosecution appeal. I'm sorry, Your Honour.

20 Mr. Moran said that the fact that Mr. Delic

21 was perceived by the detainees as the commander of the

22 guards was absolutely irrelevant to anything, and he

23 also said it made no difference that the guards called

24 him "boss." In reply, we would simply concede that

25 these two facts aren't necessarily of themselves

Page 299

1 conclusive, but we'd certainly say they're relevant

2 and, depending on the evidence, may be of considerable

3 significance.

4 Mr. Moran said that the fact that Mr. Delic

5 could give orders to the guards does not necessarily

6 show that he was the commander, since he might have

7 been exercising delegated authority like a chief of

8 staff.

9 Our reply is that even if it were the case

10 that a direct chain of command is required, and we've

11 presented submissions on that, it would still be open

12 to the Trial Chamber to conclude from all of the

13 evidence that Mr. Delic in the circumstances wasn't

14 exercising that kind of authority but was exercising a

15 form of direct command. That might be inferred from

16 the evidence of the manner in which orders were given.

17 And in that respect, we note that on the evidence,

18 Mr. Delic was physically present amongst the guards,

19 shouting at them and so forth, and we argue that on the

20 evidence, the only reasonable inference is that he was

21 exercising de facto the function of the commander of

22 the guards.

23 In relation to count 48, the unlawful

24 confinement of civilians, Mr. Moran said there was no

25 system in the world where prison staff make the

Page 300

1 decisions about who is detained and who is not, and

2 that camp personnel can't be found -- or prison

3 personnel can't be found liable if it turns out that

4 the authority committing a person to prison has made a

5 mistake.

6 Our reply to that is that this is simply not

7 true if the prison staff have actual knowledge that the

8 detention is unlawful. And to give an example, suppose

9 that a local corrupt police chief and several corrupt

10 local police officers went out and simply dragged a

11 person off the street in order to settle an old

12 personal score, basically kidnapped them, took them

13 around to the local prison and said to the commander,

14 "Keep this person locked up here," and the prison

15 commander knew all of the circumstances. We would

16 submit that in those circumstances in any civilised

17 system that the prison commander would be liable for

18 the unlawful detention of the victim, and that if the

19 prison commander gave an order to one of the prison

20 guards to keep the person under guard and to prevent

21 them from leaving, and that the prison guard also had

22 complete knowledge of the circumstances, that the guard

23 would also be personally liable.

24 And we submit that the issue here is not

25 whether the prison staff in Celebici had a duty to

Page 301

1 inquire into the circumstances of the detainees,

2 whether they ought to have known; our submission is

3 that they had actual knowledge. And certainly in the

4 case of Mr. Delic, it's the Prosecution [sic] that he

5 did have actual knowledge. If it could be shown that

6 he didn't have any knowledge, then some issue of

7 whether he ought to have known might arise, but that's

8 simply not the circumstance here and that's not the

9 Prosecution's submission.

10 Mr. Moran also talked about the legitimate

11 security forces of Bosnia and Herzegovina having the

12 right to take people into custody in the middle of a

13 long war pending a determination of their status, and

14 my reply to Mr. Ackerman applies equally to that

15 submission.

16 Unless the Chamber has any further questions,

17 I'd then move to my response to Mr. Kuzmanovic's

18 submissions.

19 MR. ACKERMAN: Just a moment, Your Honour.

20 May I just have a moment to correct what I think is a

21 misstatement by Mr. Staker and remind him that I agree

22 the burden is on the appellant with respect to count

23 48. He is the appellant.

24 MR. STAKER: Yes, I thank my friend.

25 In response to Mr. Kuzmanovic's submissions,

Page 302

1 if I understand correctly, there's no dispute between

2 Mr. Kuzmanovic and the Prosecution on the standard of

3 review on appeal where an error of fact is alleged.

4 The standard is that of unreasonableness, and

5 submissions have been made on this. On this particular

6 issue, the burden is on Mr. Mucic to establish that on

7 the evidence before it, no reasonable trier of fact

8 could have reached the conclusion that the Trial

9 Chamber did.

10 Secondly, if I understand Mr. Kuzmanovic

11 correctly, he doesn't take issue with the Trial

12 Chamber's legal finding that a person can be found

13 liable under Article 7(3) on the basis of de facto

14 authority.

15 Thirdly, I do not understand Mr. Kuzmanovic

16 to be denying that there may have been sufficient

17 evidence from which it could reasonably have been

18 concluded that Mr. Mucic was the commander of the camp

19 for some of the periods material to the indictment. At

20 least for the sake of argument, he appeared willing to

21 accept that there was reasonable and credible evidence

22 that Mr. Mucic's command began in late July or early

23 August 1992. He didn't specify precisely what this

24 evidence might have been.

25 We note that in paragraph 737 of the Trial

Page 303

1 Chamber's judgement, the Trial Chamber said that in his

2 interview with the Prosecution, Mr. Mucic admitted that

3 he had authority over the camp, at least from the 27th

4 of July, 1992, and on the basis of that, presumably

5 it's not disputed that, on behalf of Mr. Mucic, that

6 the Trial Chamber might have reasonably concluded that

7 he was the commander of the prison from that date.

8 What is complained of by Mr. Delic is the so-called

9 backdating of his de facto authority to May 1992.

10 Now, there's no real dispute that it was open

11 to the Trial Chamber to conclude that he was the

12 commander from the 27th of July, 1992. It would follow

13 that even if he was successful in relation to this

14 ground of appeal, his liability would be unaffected in

15 relation to all relevant crimes committed after that

16 date. This would include liability for inhumane

17 conditions under counts 46 and 47, and unlawful

18 confinement of civilians under count 48, in respect of

19 the period that he was the commander.

20 Furthermore, even if successful in relation

21 to this ground of appeal in respect of the period prior

22 to the 27th of July, 1992, his liability would not

23 necessarily be excluded in relation to crimes committed

24 before that date. Our submission is that the

25 responsibility of a commander is not just to punish

Page 304

1 [sic] crimes before they're committed, but to -- it's

2 not just to prevent crimes before they're committed,

3 but to punish them after they're committed. And it's

4 true that a commander cannot prevent crimes that were

5 committed before he or she became the commander, but a

6 commander can punish crimes that were committed before

7 he or she became the commander.

8 And we submit that if the doctrine of

9 superior responsibility did not take account of this,

10 liability for superior responsibility in cases where

11 the commander had no prior knowledge, and therefore no

12 means of preventing, could be avoided simply by

13 changing commanders after a serious crime is

14 committed.

15 One could imagine the case, for instance, of

16 a very large-scale massacre. If commanders could be

17 immediately switched after it occurred, the old

18 commander could plead that he or she never had

19 sufficient time to take steps to punish before he or

20 she was removed, and the new commander could say that

21 "The crimes were committed before I was made the

22 commander."

23 In our submission, if the commander knows

24 that crimes were committed by subordinates prior to the

25 time that he or she took up command and knows they've

Page 305

1 not been punished, he or she still has a responsibility

2 as the commander to take the necessary measures,

3 although we would concede that it may be relevant to

4 sentencing that the crimes were not committed during

5 the commander's command.

6 The issue here is then if it's possible for

7 any trier of fact to have concluded on the evidence

8 that Mr. Mucic was the de facto command of the camp

9 prior to late July 1992.

10 The first witness whose testimony

11 Mr. Kuzmanovic referred to --

12 JUDGE HUNT: You'll be a little while, will

13 you? I'm just looking at the time, that's all.

14 MR. STAKER: Yes, a little longer, Your

15 Honour.

16 JUDGE RIAD: May I have a clarification?

17 Perhaps I heard you wrongly. You said the

18 responsibility of a commander is not to prevent crimes

19 before they are committed but to punish them.

20 MR. STAKER: Sorry, Your Honour. I meant to

21 say was there is a duty to prevent crimes before

22 they're committed and punish them after they are. And

23 it's conceded that a commander cannot prevent a crime

24 that was committed before the commander became the

25 commander.

Page 306

1 JUDGE RIAD: Okay. That's what you meant.

2 Before he was.

3 MR. STAKER: Yes.

4 JUDGE RIAD: But if he was a commander, his

5 responsibility extends.

6 MR. STAKER: Can still exist to punish the

7 crimes.

8 JUDGE RIAD: But to prevent before it's

9 committed. I quoted you here. You said, "The

10 responsibility of a commander is not to prevent crimes

11 before they are committed but to punish them."

12 MR. STAKER: Sorry. If there was a slip of

13 the tongue, I would like to correct it.

14 JUDGE RIAD: That's not what you meant.

15 MR. STAKER: That's not what I meant, Your

16 Honour. There is an obligation to prevent before the

17 crime is committed.

18 JUDGE RIAD: There is.

19 MR. STAKER: There is. And an obligation to

20 punish afterwards.

21 JUDGE RIAD: Yes it's very clear in

22 Article 7, paragraph 3.

23 MR. STAKER: Yes. The point I was trying to

24 make is that if the crime was committed before the

25 commander became the commander, there's nothing the

Page 307

1 commander could have done to prevent the crime.

2 JUDGE RIAD: Only in that case.

3 MR. STAKER: Yes. In that case the commander

4 couldn't have prevented the crime because it was

5 committed before --

6 JUDGE RIAD: You review your previous

7 statement.

8 MR. STAKER: Yes, yes, yes.

9 JUDGE HUNT: We'll adjourn now until 12.00.

10 --- Recess taken at 11.37 a.m.

11 --- On resuming at 12.03 p.m.

12 JUDGE HUNT: Yes, Mr. Staker.

13 MR. STAKER: Your Honour, before resuming my

14 submissions, I'd just like to clarify one point.

15 Earlier, when replying to the submissions by

16 Mr. Ackerman, I was referring to the burden that was on

17 Mr. Delalic in establishing errors of fact, and my

18 learned friend was good enough to remind me that we're

19 the appellant in relation to that ground of appeal.

20 I want to the clarify that of course the

21 Prosecution accepts as the appellant in relation to

22 that ground of appeal we bear all relevant burdens of

23 an appellant, and to the extent that we allege errors

24 of fact by a Trial Chamber, the burden is on us to

25 establish unreasonableness. But conversely, it's also

Page 308

1 our submission that we are entitled to rely on facts

2 that have been found by the Trial Chamber in its

3 judgement, and that if in response to a ground of

4 appeal Mr. Delalic wants to advance an argument which

5 involves a contention that a finding of fact by the

6 Trial Chamber was incorrect, then even as respondent

7 the burden is on him to establish unreasonableness.

8 I think it's clear that if he had been

9 convicted and were now cross-appealing in this matter

10 and part of the cross-appeal was an allegation of the

11 error of fact, the relevant burden in that respect

12 wouldn't be subject to any ambiguity at all. To the

13 extent that he was alleging errors of fact, the burden

14 would be on him.

15 Indeed, originally in these proceedings he

16 filed a notice of cross-appeal. It's since been

17 clarified. Technically that wasn't a cross-appeal,

18 they're really grounds of contention rather than

19 grounds of appeal, but we submit that the principle is

20 the same, that both parties are entitled to rely on and

21 are subject to, in their submissions, the facts as

22 found by the Trial Chamber and that either party,

23 whether appellant or respondent, to the extent that

24 they seek to advance arguments that rely on errors of

25 fact in the Trial Chamber's judgement, the party

Page 309

1 advancing that argument bears of burden of establishing

2 unreasonableness.

3 I'll then resume my response to

4 Mr. Kuzmanovic's submissions.

5 The first witness whose testimony

6 Mr. Kuzmanovic referred to is that of Witness P. In

7 paragraph 746 of the Trial Chamber's judgement, the

8 Trial Chamber says: "Evidence of the actual exercise

9 of authority over the Celebici prison-camp by Zdravko

10 Mucic was given in the testimony of Witness P, who

11 stated that he was transferred early in June 1992 to

12 the prison camp from the 3rd of March school

13 by Mr. Mucic." And there's a reference in the

14 judgement to transcript page 4518.

15 Mr. Kuzmanovic states that when one looks at

16 that transcript reference, the transcript never reveals

17 that Witness P was transferred from Celebici in

18 June 1992. The Prosecution submits that this is not

19 what the Trial Chamber says.

20 On that page of the transcript, Witness P

21 describes how Mr. Mucic arrived at the 3rd of March

22 school and told him, Witness P, that for security

23 reasons Witness P and others had to be moved. The

24 testimony was that Mr. Mucic read out the names of some

25 people who were to be taken to the Musala sports hall

Page 310

1 and the name of Witness P and others who were taken to

2 Celebici.

3 In answer to questions in the following three

4 pages of the transcript, the witness explains that on

5 about the 10th of June, a few days before this

6 transfer, Mr. Mucic had met him at the 3rd of March

7 school and told him that he, Mr. Mucic, would soon

8 being taking over the command of the Celebici camp.

9 The inference which the Trial Chamber appears

10 to have drawn from this is that by the time Mr. Mucic

11 returned a few days later to collect Witness P and the

12 others, he had by then become the de facto commander of

13 Celebici. And it's submitted that the -- this reading

14 of the Trial Chamber's judgement is confirmed by the

15 fact that the Trial Chamber refers also to the

16 testimony of Mirko Dordic, at transcript page 4795, as

17 evidence of Mr. Mucic's status, and this witness there

18 also saw Mr. Mucic arranging for the transfer of

19 prisoners from the 3rd of March school and also

20 testified that he first saw Mr. Mucic in June.

21 Then there is a further reference to witness

22 Dr. Grubac, who at transcript pages 5965 to 5968,

23 similarly reported that Mr. Mucic transferred him from

24 the school to the Celebici camp in early June.

25 At paragraph 748 of its judgement, the Trial

Page 311

1 Chamber then refers to the testimony of Witness D, whom

2 the Trial Chamber said testified that Mr. Mucic was the

3 commander and that he had an office in the prison

4 camp.

5 What is most significant in relation to this

6 witness is that the Trial Chamber said, at paragraph

7 762 of the judgement, by that paragraph it made express

8 findings that the evidence of this witness was reliable

9 and credible and that this witness was in a position to

10 know the exact status of Mr. Mucic. This witness,

11 Witness D, was a member of the Military Investigative

12 Commission and testified that Mr. Mucic was the camp

13 commander, that he had an office at the camp, and that

14 when the commission met in early June to discuss how

15 they would go about their work, Mr. Mucic was present.

16 And I'd refer to transcript pages 5174, in particular

17 to line 19; to page 5175, lines 18 to 21.

18 Witness D further testified that when he

19 began working with the commission in June, Mr. Mucic

20 supplied the commission with the initial lists of the

21 prisoners. That is transcript page 5183. And he also

22 testified that the written documentation from the field

23 which the commission required in order to go about its

24 work was also kept by Mr. Mucic. That's transcript

25 page 5188 to 5189.

Page 312

1 In addition to the evidence specifically

2 referred to in its judgement, there was also other

3 evidence before the Trial Chamber, not all of which

4 were cited in detail, in relation to the finding of

5 superior responsibility.

6 Now, we submit that while the Trial Chamber

7 is required to give a reasoned judgement, it's not

8 necessarily required to refer to every item of evidence

9 in support of a particular conclusion, and that in

10 determining whether a reasonable Trial Chamber could

11 reach a particular conclusion on the evidence, it's

12 permissible to look at the evidence before it as a

13 whole and not just the specific parts of the evidence

14 referred to in the judgement in relation to that

15 specific issue.

16 There was evidence in the testimony of

17 Witness T, who said that he was first assigned to

18 Celebici immediately after the capture of Donje Selo.

19 That's transcript page 6671, lines 19 to 12. And by

20 that time frame was meant May 1992, which is clear from

21 transcript page 6814. And he testified that a very

22 short time after that, he was assigned duties as a

23 driver. Again, transcript page 6657, line 25, to

24 6858.

25 When he was asked who was the commander of

Page 313

1 the camp during the period he worked as a driver, he

2 answer that Zdravko Mucic was. Transcript page 6673.

3 Mr. Mucic's co-accused Mr. Landzo also

4 testified that when he and a number of other soldiers

5 were assigned to Celebici, which was in mid-June - on

6 that I refer to transcript page 15027, lines 14 to 15 -

7 they were met by Mr. Mucic, who then selected certain

8 persons to become guards and explained their duties and

9 obligations, transcript pages 15029 to 15030.

10 And then the witness Gordana Grubac testified

11 about a week or ten days before Dr. Grubac was released

12 on the 22nd of July, 1992, she visited the camp,

13 transcript page 5996. She testified that on arrival,

14 she met a guard called Hondo, and that the guard told

15 her that the commander Pavo was calling her and that

16 then Pavo sent the guard to get her husband.

17 Mr. Kuzmanovic referred to some of the

18 witness testimony referred to in the Trial Chamber's

19 judgement and sought to show that reliance on it was

20 unreasonable. He argues that the testimony of

21 particular witnesses did not prove that Mr. Mucic

22 exercised effective control over the camp, in

23 particular because the relevant witness concerned

24 either placed Mr. Mucic in the camp at the relevant

25 time but didn't identify him as the commander, or

Page 314

1 identified him as the commander but without being

2 specific as to the relevant time.

3 Now, our submission is that it must be

4 evident that witness testimony of this kind can be

5 weighed in determining the issue even if in itself it

6 doesn't give details of every element that has to be

7 proved. Witness testimony can be cumulative, and there

8 was testimony of many witnesses that was relevant to

9 this particular issue. Various witnesses, without

10 being specific as to time, testified that Mr. Mucic was

11 the commander of the prison. There wasn't a suggestion

12 in this witness testimony that there was a particular

13 time that he wasn't the commander or a particular time

14 when he arrived and took up duties as commander. The

15 general testimony was just that he was the commander.

16 This general testimony, taken together with

17 the testimony of other witnesses that place him in the

18 camp at various times prior to the 27th of July, 1992,

19 taken together with the other evidence I've referred to

20 earlier, that he was the commander at an earlier

21 period, on the basis of all this evidence, the

22 Prosecution submits that it was open to a reasonable

23 Trial Chamber to conclude from all of the evidence as a

24 whole that he was the commander of the prison

25 throughout the period.

Page 315

1 Mr. Kuzmanovic said yesterday that the Trial

2 Chamber boasted that there was a plethora of evidence

3 on this issue. In fact, as I read the judgement, the

4 word "plethora" was used in paragraph 769 of the

5 judgement in relation to the evidence of the knowledge

6 of Mr. Mucic that guards in the camp were committing

7 crimes against the detainees. Whether or not one

8 describes the evidence of his de facto status as a

9 superior earlier than July 1992 as a plethora, the

10 Prosecution does submit that the evidence taken as a

11 whole is sufficient, that it was possible for a

12 reasonable Trial Chamber to have reached the conclusion

13 on this issue that it did.

14 The Prosecution therefore submits that this

15 ground of appeal should be rejected, and unless the

16 Chamber has any questions, that is the Prosecution

17 response to their ground of appeal.

18 JUDGE HUNT: Thank you, Mr. Staker. Does

19 that conclude the Prosecution's reply and response?

20 MR. STAKER: I believe those are the

21 Prosecution's submissions in relation to group 1 of the

22 issues.

23 JUDGE HUNT: Thank you very much.

24 Mr. Kuzmanovic, do you wish to reply to the

25 response?

Page 316

1 MR. KUZMANOVIC: Yes, very briefly, Your

2 Honour. Mr. Morrison and I will split some very short

3 argument on the response. And since Mr. Morrison is

4 next to the mike, I'll let him go first.

5 MR. MORRISON: I'm grateful to my learned

6 friend for taking me completely by surprise.

7 My response is short and simple. It's the

8 quality of evidence that matters, not the number of

9 people who say it. And my learned friend,

10 Mr. Kuzmanovic, referred to the inconsistencies

11 yesterday. Those determine the quality of evidence.

12 And you can have as many witnesses as you like coming

13 along and giving partial evidence, and all that

14 partiality does not up to quality. And it's a matter

15 for determination by this learned Appeal Chamber as to

16 whether or not looking at that testimony in the round,

17 it is evidence which on the face of it is quality

18 evidence, and our submission is that it is not. And if

19 one looks in particular at the evidence that we hope --

20 I jump a large gun -- if one looks at the evidence

21 which we hope, or the information which we hope that

22 will be before the Appellate Chamber in due course as

23 to the de jure date of appointment, that will cast even

24 greater doubt upon the veracity and quality of that

25 evidence.

Page 317

1 JUDGE HUNT: Thank you, Mr. Morrison.

2 Yes, Mr. Kuzmanovic.

3 MR. KUZMANOVIC: Thank you, Your Honour.

4 My colleague, Mr. Staker, framed the issue

5 that whether it's possible for any trier of fact to

6 have concluded on the evidence that Mr. Mucic was de

7 facto commander prior to the date of July 1992. It's

8 my submission that possibility does not rise to the

9 standard of beyond a reasonable doubt. It's not

10 sufficient to rise to that standard. Anything is

11 possible, as you all well know, but the standard is

12 beyond a reasonable doubt.

13 The other issue is the reasonableness, as I

14 discussed yesterday, and as Mr. Staker and I have

15 debated what that reasonableness or unreasonableness

16 is. When there are competing inferences to be made

17 from testimony, we submit that it is unreasonable, and

18 may, in fact, be a miscarriage of justice, to make

19 every single one of those inferences against the

20 accused. And that's what it seems the judgement does

21 in those sections relating to Mr. Mucic on the issue of

22 command responsibility, specifically backdating, as

23 Mr. Staker framed it and as I think is an accurate

24 statement, the backdating of de facto command back to

25 May of 1992. Thank you very much, Your Honours.

Page 318

1 JUDGE HUNT: Thank you, Mr. Kuzmanovic.

2 Well, that disposes of the first group of grounds of

3 appeal somewhat later than we expected, and we now turn

4 to group 2.

5 Mr. Ackerman.

6 MR. ACKERMAN: It's obvious, Your Honours,

7 that we are running significantly behind the schedule.

8 JUDGE HUNT: That's not an invitation for you

9 to speak any more quickly, though, Mr. Ackerman.

10 MR. ACKERMAN: I understand that. However, I

11 intend to do my part to assist us in getting caught up

12 by being quite brief on this issue, and at the same

13 time encouraging all my colleagues to join me in an

14 effort to try and get us caught up. We haven't even

15 finished the first day yet, according to the schedule.

16 The point that's raised with regard to Common

17 Article 3 is very extensively set out in the brief that

18 we have filed with the Chamber. This is only relevant

19 as regards Mr. Delalic if this Chamber decides that

20 there should be a retrial or some other disposition

21 that would implicate his criminal liability under

22 Article 3 of the Statute. Co-defendants Delic and

23 Mucic, however, have adopted that portion of

24 Mr. Delalic's brief, and as a result it is important to

25 them whether or not there is a retrial.

Page 319

1 What you're clearly being asked to do, Your

2 Honours, is revisit the decision of a prior Appeals

3 Chamber, that being the decision arrived at in the

4 Tadic jurisdictional decision.

5 Recently in the Aleksovski appeals judgement,

6 the Appeals Chamber discussed at some length this issue

7 of when, if ever, it might be appropriate to depart

8 from its own precedent. As it was made clear in that

9 decision, departure from precedent should only occur in

10 the interests of justice. I submit that it's clearly

11 without question an injustice when individuals are

12 convicted for violating a law which does not exist in

13 international criminal jurisprudence, and I suggest to

14 you that that's the case with Common Article 3.

15 In my brief -- and I rely on my brief for the

16 argument regarding the statutory interpretation that

17 somehow allowed Common Article 3 to find its way into

18 Article 3 of the Statute. As you all know, it is not

19 specifically mentioned in Article 3; it's not even

20 alluded to in any way in Article 3.

21 It seems to me that it's virtually conclusive

22 that it was not intended by the Security Council to be

23 within the jurisdiction of this Tribunal, in Article 3

24 or anywhere else, when one looks at the statement of

25 the Secretary-General of the United Nations upon the

Page 320

1 adoption of the Rwanda Statute, where he said that

2 Common Article 3 was being criminalised for the very

3 first time. He wouldn't have said that had he believed

4 that it was part of this Tribunal's Statute.

5 So the question becomes: Was the Tadic

6 Appeals Chamber wrong? Was that wrongly decided by the

7 Tadic Appeals Chamber? And I suggest to you that the

8 answer is clearly yes. It was a decision that I

9 suggest to you was given in per curiam. You do not see

10 in that decision anything like the rigorous analysis

11 required for establishing that a principle has entered

12 into customary international law, nor do you see that

13 kind of a rigorous analysis in the dicta that appears

14 in the Nicaragua decision that was relied upon to some

15 extent in the Tadic jurisdictional decision.

16 Very simplified, but I think to the point,

17 customary international law is that which the nations

18 of the world at any given moment believe to be the law

19 and consider themselves to be bound by. The difficulty

20 is deriving what that sense of the International

21 Community is, or was, with regard to Common Article 3

22 in 1992.

23 This Chamber, or any Chamber, must not guess

24 at that, but may only conclude that a principle is

25 customary international law if they find that to be so

Page 321

1 beyond doubt.

2 The very last time that the International

3 Community prior to 1992 had an opportunity to express

4 their position with regard to Common Article 3 was upon

5 its adoption in 1949, and it's very clear that in 1949,

6 when the nations of the world had that opportunity to

7 express their view about it, that that view was that it

8 was not a matter of international criminal law. The

9 grave breaches scheme was adopted as a matter of

10 international criminal law, and individual criminal

11 responsibility was provided for that. But because

12 there was a large concern regarding sovereignty, none

13 of those nations were willing to have that same grave

14 breaches scheme applied to themselves in internal armed

15 conflicts, and therefore there was no grave breaches

16 scheme adopted with regard to internal armed

17 conflicts. There was simply a statement of principle,

18 and that statement of principle is what became Common

19 Article 3.

20 The Tadic interlocutory appeal decision came

21 about very early on in the life of this Tribunal.

22 There is no indication that that issue was properly and

23 fully briefed for that court, or properly and fully

24 presented to that Tribunal. It was really only decided

25 in an interlocutory fashion to guide the Trial Chamber

Page 322

1 in Tadic through the Tadic trial. There is no

2 indication that the Chamber was even made aware of the

3 many matters contained in our brief, including the

4 statement of the Secretary-General upon the adoption of

5 the Rwanda Statute. We recognise that departing from

6 that decision by the Tadic interlocutory appeal Chamber

7 is a very difficult step to take, since so much of what

8 has gone before in this Tribunal has relied upon that

9 decision.

10 It is tempting, I know, to consider the

11 result of a decision you might make, the impact that

12 that might have, but a result-oriented Tribunal is

13 destined to make bad law. The post World War II

14 tribunals were justifiably criticised for fashioning

15 the law to fit the facts.

16 All we can ask with regard to this issue is

17 that you give it very careful consideration and ignore,

18 as Judges must ignore, the impact that decision may

19 have, but make the decision based upon whether your

20 analysis, your own analysis of this matter, will

21 justify in your own minds that Common Article 3 really

22 is part of customary international law. I think our

23 brief shows that it is not.

24 That concludes my remarks on that section,

25 Your Honour, and let me suggest to you that as we move

Page 323

1 to the next group, where I am scheduled to talk about

2 the protected persons issue, I will not, in the

3 interests of time and for other reasons. I have spoken

4 very briefly about it in my remarks regarding count 48,

5 and I believe that's sufficient.

6 JUDGE HUNT: Thank you, Mr. Ackerman.

7 Actually, we're moving on to group 4 after this, but

8 we'll bear in mind you don't want to say anything in

9 support, anything orally, in support of the protected

10 persons point.

11 MR. ACKERMAN: That's correct, Your Honour.

12 JUDGE HUNT: Thank you very much. Yes,

13 Mr. Staker.

14 MR. STAKER: Your Honour, I hope that I can

15 be even briefer and refer principally simply to our

16 written submissions. Our position is that we rely on

17 the principles of precedent as have now been set out in

18 the Aleksovski appeal judgement. Our response brief

19 also contains a section dealing with principles of

20 precedent in this Tribunal. It would be our submission

21 that the findings made in the Aleksovski appeal

22 judgement are basically in accord with the submissions

23 we make, and that remains our position.

24 Our submission would be that the Tadic

25 jurisdiction appeal was not a decision that was given

Page 324

1 in per incuriam, as I understand that expression. The

2 Appeals Chamber did focus specifically on this issue.

3 The arguments were extensive and many authorities were

4 referred to.

5 Mr. Ackerman argues that the reasoning in

6 that decision was not sufficiently rigorous and invites

7 the Appeals Chamber to decide if in its own analysis

8 Common Article 3 is really customary international law,

9 and in our submission, that's precisely what the

10 Aleksovski appeal judgement says that an Appeals

11 Chamber should not do in relation to precedent.

12 It may be that in the case of decisions of

13 many supreme courts in jurisdictions there may be

14 commentators who take the view that the reasoning of

15 the Court may not have been as rigorous as it might

16 have been, but that's not a reason for that same

17 appellate jurisdiction to depart from its own previous

18 decision in subsequent cases. We submit that something

19 more compelling than that is needed.

20 As Mr. Ackerman pointed out, the Tadic

21 jurisdiction decision was given early on the Tribunal's

22 history, which means it's relatively long standing as a

23 precedent in the history of this Tribunal, and that

24 there have been numerous subsequent cases that have

25 relied on it, not only final judgements but also

Page 325

1 interlocutory decisions relating to defects in the form

2 of the indictment, and trials do proceed on the basis

3 that the Tadic jurisdiction appeal is correct. It's

4 also our submission that the more long standing a

5 precedent is, the more reliance that has been placed on

6 it, the more reluctant the Appeals Chamber should be to

7 depart from what has now become the settled law of this

8 Tribunal.

9 Those are my submissions, if the Chamber

10 pleases.

11 JUDGE BENNOUNA: [Interpretation] [No

12 translation]

13 JUDGE HUNT: Could we have a translation of

14 this by somebody?

15 JUDGE BENNOUNA: [Interpretation] Okay. I

16 will try to ask my question again. I'll try again

17 to --

18 I see that we have a translation, so I'll ask

19 my question. I have two questions. One question I

20 want to ask to the Prosecution and the other one to the

21 Defence counsel. It's about Article 3.

22 First my question to the Prosecutor, since

23 he's standing.

24 I would like to know, you are relying on the

25 Tadic decision in the interlocutory appeal. I would

Page 326

1 like to know how you justify that Article 3, Common

2 Article 3 to the Geneva Conventions. How do you

3 justify that this Article can be the basis for

4 individual criminal responsibility?

5 MR. STAKER: Your Honour, the answer may not

6 sound intellectually satisfying, but it's genuinely put

7 that the Appeals Chamber, in its earlier decision, so

8 found and that is now the settled law of the Tribunal.

9 To give a substantive answer to the question,

10 in my submission, would amount to a reopening of that

11 decision and an examining of the merits, and that is

12 precisely what, in our submission, the Appeals Chamber

13 should not be willing to do in the absence of more

14 compelling reason.

15 We would simply, as we said in our brief,

16 adopt the reasoning that was put forward by the Appeals

17 Chamber in that case and rely on that.

18 JUDGE BENNOUNA: [Interpretation] Yes, but

19 still you can answer my question without hiding behind

20 the Tadic case. My question is: What are the

21 arguments that push you to -- that lead you to base

22 individual criminal responsibility on Common

23 Article 3?

24 MR. STAKER: If I could take a minute, Your

25 Honour.

Page 327

1 [Prosecution counsel confer]

2 MR. STAKER: Your Honour, as it has been our

3 submission that we do rely on precedent, if Your Honour

4 would want an answer on the substance of this question,

5 we'd request leave to perhaps address this after the

6 next break briefly.

7 JUDGE BENNOUNA: [Interpretation] Very well.

8 Yes, you can, if you like, answer later on. I'd like

9 to make my question very specific. It's about a case

10 when you have an armed conflict that is an

11 international armed conflict, when it is characterised

12 as an international armed conflict, because when you

13 have internal conflicts, the situation is slightly

14 simpler, because in that case, we can rely on the

15 Statute of the Rwanda Tribunal.

16 Now I'm going to turn to Defence counsels. I

17 believe it's Mr. Ackerman I should ask this question

18 to.

19 Okay. First question about stare decisis.

20 You said that an Appeals Chamber can modify its

21 decision in the interests of justice in quoting

22 Aleksovski. Well, in Aleksovski it is said, but you

23 went a bit fast. You said that the interests of

24 justice in Aleksovski is seen as the end result. You

25 said it can change its decision -- since we don't have

Page 328

1 the translation in English, I'm going to quote: [In

2 English] Cogent reasons in the interests of justice.

3 [Interpretation] So what's important, it's

4 not the interests of justice but cogent reasons. And

5 the objective, of course, is the interests of justice,

6 according to you. And that's my first question.

7 According to you, what are the cogent reasons, these

8 imperative reasons that should lead us to change our

9 opinion about the Tadic case as an Appeals Chamber?

10 MR. ACKERMAN: Your Honour, you're correct

11 that that's exactly what the Aleksovski case provides.

12 And when you begin to look at what is in the interest

13 of justice, what is a cogent reason in the interest of

14 justice, what you look for is whether the Tadic

15 decision is creating a manifest injustice, and I

16 suggest to you that it is a manifest injustice if

17 persons are being convicted of serious crimes and

18 sentenced to serve serious time in gaol pursuant to an

19 analysis that is flawed and which gives this Tribunal

20 apparent jurisdiction under Common Article 3.

21 If this Tribunal does not have that

22 jurisdiction, and I think it's fairly clear in the

23 brief that I've filed and in any kind of a rigorous

24 analysis that one makes under the principles that one

25 normally uses to arrive at what is customary

Page 329

1 international law, I think it's clear that Common

2 Article 3 does not meet that test. There simply is

3 no -- there is no opinio juris. There is nothing out

4 there. The best the Tadic Trial Chamber could do was

5 come up with a couple of newspaper reports of a couple

6 of cases in Nigeria where some people had been

7 prosecuted for murder, but even then it wasn't clear

8 that Common Article 3 had nothing to do with those

9 prosecutions.

10 The only other thing they came up with was

11 there were a couple of military manuals which indicated

12 that Common Article 3 could play a role in court

13 martials, but that's a long way from the community of

14 nations considering themselves to be bound by the

15 provisions of Common Article 3 in the sense that

16 individual criminal responsibility could result from

17 violation of them. And that's where it all really

18 breaks down, is where you start looking at the issue of

19 individual criminal responsibility.

20 It seems to me that it is a cogent reason, in

21 the interest of justice, to re-examine that when people

22 are being convicted and sentenced to prison under a

23 theory that doesn't hold any water.

24 JUDGE BENNOUNA: [Interpretation] Thank you,

25 Mr. Ackerman. My second question is the following:

Page 330

1 You're telling us that Common Article 3 is not part of

2 customary international law and about customary law as

3 such. We have a great deal of case law, international

4 case law about that that we can rely on, and you're

5 perfectly familiar with that. So that's my question.

6 What about this international case law that considers

7 that Common Article 3 is part of the basis of that?

8 You have a number of case law to rely on about that.

9 Now, about Geneva Conventions and the

10 incrimination under the Geneva Conventions. You tell

11 us it's only valid for grave breaches that are a matter

12 of customary international law.

13 As you know, grave violations in the Geneva

14 Convention, that's a notion that is normally to be used

15 in international conflicts in order to grant a

16 universal judicial jurisdiction to all Tribunals on any

17 person who has committed such violations, but it does

18 not mean that beyond that universal jurisdiction, based

19 on grave breaches, grave violation, it does not mean

20 that the states have not set up other things. And this

21 has been recognised in the case law of the Tribunal for

22 violations of the laws and customs of war, and it's

23 Article 3 of the Statute of the Tribunal.

24 So my question is: What do you make then of

25 Article 3 of the Statute of the Tribunal?

Page 331

1 MR. ACKERMAN: Your Honour, when you --

2 JUDGE BENNOUNA: [Interpretation] What I'm

3 saying is Article 3, about breaches of the laws or

4 customs of war, and you are perfectly aware of that

5 Article. You have Article 2 with grave breaches, but

6 Article 3 of the Statute. I'm not talking about Common

7 Article 3, I'm talking about Article 3 of the Statute

8 of the Tribunal.

9 So what do you make of Article 3?

10 MR. ACKERMAN: Your Honour, if one looks at

11 the report of the secretary general upon the

12 establishment of this Tribunal, the Secretary-General

13 first points out that this Tribunal should only deal

14 with matters that are, without question, parts of

15 customary international law or treaty law, and in that

16 context, the Secretary-General mentions, I believe,

17 three or four things. One of those is the Geneva

18 Conventions of 1949 and its grave breaches scheme; one

19 of those is the Hague law; one of those is the charter

20 of the Nuremberg Tribunal, suggesting that each of

21 those has arrived at the status of customary

22 international law.

23 So if you look at the Articles that resulted

24 from that analysis, you find, in Article 2, the law of

25 Geneva, and you find in Article 3 the law of The

Page 332

1 Hague. And if you look at what is specifically set out

2 in Article 3 as what are violations of that Article,

3 those things all derive from the 1907 Hague

4 Convention.

5 To suggest, Your Honour, it seems to me that

6 somehow it was the intention of the Security Council

7 and the Secretary-General that that Article also pick

8 up a number of other matters that this Tribunal might

9 decide is within its jurisdiction is improper I think

10 all it meant in the residual clause in Article 3 was

11 other provisions of the 1907 Hague Convention that

12 weren't specifically stated there.

13 It is, in my mind --

14 JUDGE BENNOUNA: [Interpretation] Excuse me

15 for interrupting you. So you mean that Article 3 has

16 nothing to do with the competence, the jurisdiction of

17 the Tribunal?

18 MR. ACKERMAN: Article 3 limits that

19 jurisdiction, I think, Your Honour, to Hague law,

20 what's generally referred to as Hague law. It is --

21 let me take just a moment on the issue of statutory

22 construction, where you have a criminal Statute which

23 says: "It shall be unlawful to do the following",

24 among other things, "do the following." That leads one

25 to conclude that maybe there are some other things that

Page 333

1 could be criminalised by that, but that is not a way a

2 criminal statute should be drafted for it to be valid.

3 A criminal statute which says, "You shall not

4 do a following thing and a few others that we haven't

5 thought about yet" is not a statute that should

6 survive, and especially when, if you look at a statute

7 like Article 3, which has some very specific things in

8 it, there is nothing in there, in the specific part of

9 that Statute that even approaches the seriousness of

10 the offence of murder, and it seems bizarre to me that

11 the Security Council would write you a statute that

12 basically contains a listing of certain things that

13 should not be done in a conflict and would leave out

14 something as serious as murder.

15 So I just don't know how you take a statute

16 with that kind of limited coverage and limited nature

17 of the offences covered in there and put an even more

18 severe -- and then graft an even more severe offence on

19 top of it like murder and not violate the principle of

20 nullem crimen sine lege, if nothing else.

21 JUDGE BENNOUNA: [Interpretation] Thank you

22 very much, Mr. Ackerman.

23 JUDGE HUNT: Mr. Ackerman, my recollection of

24 the charter annexed to the London agreement included

25 imposing personal responsibility upon those who acted

Page 334

1 in breach of a treaty. You don't think that that might

2 be some sort of a clue as to how we could interpret

3 Article 3, which, after all, does say such violations

4 shall include but not be limited to The Hague matters.

5 MR. ACKERMAN: The way I read that is, "Such

6 violations may include but not be limited to The Hague

7 matters that we have set out in this Article."

8 JUDGE HUNT: You see, the Geneva Conventions,

9 I suppose, can be regarded as a treaty, can't they?

10 MR. ACKERMAN: Yes, they can.

11 JUDGE HUNT: And if back in 1945 it was

12 thought to be part of the customary law that you could

13 have personal responsibility imposed for a breach of a

14 treaty, why can't there be a breach of Common

15 Article 3?

16 MR. ACKERMAN: For breach of the grave

17 breaches.

18 JUDGE HUNT: No, no. No, of Common

19 Article 3.

20 MR. ACKERMAN: Your Honour, this Tribunal,

21 like anyone else, must analyse its jurisdiction in

22 terms of what is customary international law, and there

23 is a rigorous procedure that must go through to get to

24 that point. What I'm suggesting is Common Article 3 is

25 not customary international law and never has been. I

Page 335

1 do understand your point, that it was part of the

2 Nuremberg thing, but that's not where this Tribunal has

3 said it is; it's said it's in Article 3.

4 JUDGE HUNT: You're asking us, however, to

5 revisit it, and I just put that up for your

6 consideration.

7 MR. ACKERMAN: Yes. I'm asking you to

8 revisit it, and I've answered you as best I can at this

9 point.

10 JUDGE HUNT: Thank you.

11 JUDGE RIAD: Mr. Ackerman, you showed some

12 surprise as to the -- let us say the non-serious crimes

13 which Article 3 refers to, and where it says "but not

14 be limited to," and you are astonished that it did not

15 mention war crimes, like murder or that sort. Did I

16 understand you rightly?


18 JUDGE RIAD: Do you think if the word "but

19 not be limited to," don't you think that could extend

20 to the more serious crimes?

21 MR. ACKERMAN: It's my contention, Your

22 Honour, that when you put a catch-all phrase like that

23 in, it certainly can't be intended that it reach out

24 and catch more serious crimes than those already set

25 out in the Statute.

Page 336

1 JUDGE RIAD: I would rather conclude that it

2 should not be extended to catch lighter crimes. But

3 serious crimes, you know, they say in French, "qui peut

4 le plus peur le moins." So if I really can punish

5 light crimes, my hand can't reach more serious crimes.

6 MR. ACKERMAN: I think, unless you run afoul

7 of the principle of nullem crimen sine lege, and that's

8 what I think this tends to run afoul of.

9 JUDGE RIAD: The principle of nullem crimen

10 sine lege would not apply here, because if wounding a

11 person is a crime, killing him is definitely a crime,

12 even without having to -- you can't oppose the

13 principle of nullem crimen for a more serious crime.

14 You can oppose it to a lighter crime, don't you?

15 MR. ACKERMAN: Then, Your Honour, we get into

16 what is a really kind of sticky wicket, and that is:

17 Clearly, killing someone is a crime in every national

18 jurisdiction. There's no question about that. Murder

19 is a malum in se offence. So it's not a question of

20 whether murder is an offence; the question is whether

21 that murder, committed in that international conflict,

22 is subject to Prosecution in this Tribunal as an

23 offence against international criminal law or only

24 subject to Prosecution by the authorities in the

25 country in which that murder was committed.

Page 337

1 I would never suggest to you that a murderer

2 go free; only that the jurisdiction of this Tribunal is

3 limited, and it's limited to the extent that it is not

4 international law to prosecute someone for what is a

5 murder committed in an international armed conflict

6 aside from the grave breaches of the Geneva

7 Conventions.

8 JUDGE RIAD: Thank you.

9 JUDGE POCAR: Just a small question following

10 on what has been said up to now on this matter.

11 What will be your position as to considering

12 that Article 3, Common Article 3, would be applicable

13 to international conflicts in substance, in light of

14 Article 75 of the Additional Protocol 1?

15 MR. ACKERMAN: Your Honour --

16 JUDGE POCAR: That more or less is based on

17 the same provision that Common Article 3.

18 MR. ACKERMAN: Your Honour, the Geneva

19 Conventions very clearly set up a scheme for

20 prosecuting murder and similar offences in

21 international armed conflicts, so that Common Article

22 3, it's not necessary to even consider whether it might

23 apply to an international armed conflict or not,

24 because that already exists within the grave breaches

25 provisions of the Geneva Convention to cover

Page 338

1 international armed conflicts. It's only in the

2 internal armed conflict that there is that issue, it

3 seems to me. Have I answered your question or did I

4 misinterpret it?

5 JUDGE POCAR: My question was that later on,

6 after the Geneva Conventions, when the Additional

7 Protocol was adopted, Article 75 of that protocol is

8 based exactly on Common Article 3 and it applies to

9 international armed conflicts. The wording itself is

10 the same.

11 MR. ACKERMAN: I find myself in Mr. Staker's

12 position. I'll have to do a little bit of looking

13 before I can legitimately answer that question. I'm

14 sorry.

15 JUDGE POCAR: Thank you.

16 JUDGE HUNT: Thank you, Mr. Ackerman. We'll

17 look forward to hearing from you about that one later.

18 Mr. Moran, you've got issue 3 to deal with,

19 which is an associated ground here.

20 MR. MORAN: May it please the Court, Your

21 Honour. This issue is basically whether or not the

22 four Geneva Conventions applied into Bosnia-Herzegovina

23 prior to 31 December 1992, when the Republic of

24 Bosnia-Herzegovina became parties to these treaties.

25 I think we can all agree in this room that a

Page 339

1 government, any government, has the right to join a

2 treaty, join an international convention, or not join

3 an international convention. We can also all in this

4 room agree that the government, when it joins an

5 international convention or a bilateral treaty, can

6 make it binding upon itself retroactively for state

7 responsibility.

8 The question is: Can that government, or can

9 anyone, make an act criminal under an international

10 convention prior to the time that international

11 convention became effective? My position would be that

12 would be a violation of nullem crimen and what we in

13 the United States would call ex post facto laws.

14 An ex post facto law is any kind of law that

15 makes an action done before the passage of the law, and

16 which was innocent before it was done, criminal and

17 punishes it, or every law that aggravates a crime or

18 makes it greater than it was when the act was

19 committed, every law that increases the punishment, and

20 every law that changes the legal rules of evidence and

21 receives less or different testimony than the law

22 required at the time of the commission in order to

23 convict.

24 Your Honour, I propose that those principles

25 are common throughout the world. In our brief we

Page 340

1 cited, courtesy of Professor Bassiouni, dozens and

2 dozens of legal systems and constitutions.

3 Applying it to this case, every act alleged

4 in the indictment occurred prior to 31 December 1992,

5 at the time that Bosnia-Herzegovina became parties to

6 the Conventions. The Prosecutor alleges in his brief,

7 asserts, that the four Geneva Conventions are customary

8 international law. My response to that is: Prove it.

9 The International Court of Justice in the North Sea

10 Continental Shelf cases, and others which I've cited in

11 my brief, say that a party asserting that something is

12 customary international law has the obligation to show

13 that it is. They haven't.

14 Also, if it's customary international law,

15 even if they have proven it, this Tribunal would have

16 jurisdiction under Article 3, not Article 2, to punish

17 and hear violations of customary international law. I

18 think we've all agreed to that.

19 And there's one other factor that I think is

20 very important related to the date that

21 Bosnia-Herzegovina became a party to the Conventions,

22 and that is -- Yes, Your Honour.

23 JUDGE BENNOUNA: [Interpretation] Yes. I'm

24 going to stop you to make something clear. It's a very

25 straightforward point. You said on the 31st of

Page 341

1 December, 1992, Bosnia-Herzegovina became party to the

2 Geneva Conventions. Do you know how Bosnia-Herzegovina

3 became party to the Geneva Conventions on the 31st of

4 December?

5 MR. MORAN: Your Honours, as I understand it,

6 they filed with the -- I believe it's with the Swiss

7 government, articles that they were to become a party.

8 JUDGE BENNOUNA: [Interpretation] You know,

9 there are many ways of becoming party to conventions.

10 You can ratify a convention after signing it, you can

11 become -- adhere to a convention if you have not signed

12 it before. But there's another way to be party of a

13 convention. It's using the principle of succession. I

14 suppose you're aware of that, of that way of becoming

15 party to a convention. You succeed to another state, a

16 state you were a part of, Bosnia-Herzegovina. And I've

17 asked for the text, the document related to that in the

18 report of the Red Cross -- or sorry, the Swiss Federal

19 Council, rather.

20 Bosnia-Herzegovina became party to the

21 Conventions on the 31st of December based on the

22 principle of succession. Does it not mean something

23 when you become part of a convention as part of a

24 succession principle? You simply declare that you

25 secede the state of Yugoslavia when it comes to the

Page 342

1 duties and obligations, legal duties and obligations

2 enshrined in the Geneva Conventions. Don't you think

3 that this fact is important and to be taken into

4 account?

5 MR. MORAN: Your Honour, I think it's an

6 important fact as to the state responsibilities of the

7 Republic of Bosnia-Herzegovina, not just

8 Bosnia-Herzegovina, but --

9 JUDGE BENNOUNA: [Interpretation] Well, we are

10 not going to dwell on that much further. I'm not doing

11 an exam here about that. But I think it has a

12 consequence in terms of international law. The

13 seceding country is considered as having become part of

14 the Convention from the time it has become a state, so

15 there is no break in the membership, in the fact of

16 being part to this Convention. There is no break in

17 the duties you have under the Conventions. That's what

18 it means when you secede another state. It's a sort of

19 inheritance. You inherit what comes to you from the

20 previous state. There used to be a state before. In

21 that particular case, there has been a number of states

22 that have been created, that have become independent

23 and separated themselves from one state, but there is

24 no break in terms of the duties you have under the

25 Convention. There is a continuity. And as a

Page 343

1 consequence, Bosnia, at the time of the facts we are

2 interested in, was binded by the Conventions.

3 So that alters slightly your argumentation,

4 because this argument as such is not very important

5 because it's part of the customary law. But if you

6 look at the conventional argument, since we are talking

7 about the notion of succession here, I don't think it

8 has any weight here. But I'm finished with that.

9 MR. MORAN: Your Honour, if I could just, I

10 think, answer that a little bit. First, there is some

11 confusion -- or not confusion so much as disagreement

12 as to state succession involving the Former Socialist

13 Federal Republic of Yugoslavia. For instance, the

14 nations, the seceding states, the successor states, the

15 parts of the SFRY that broke off, either have been

16 admitted to the United Nations General Assembly as new

17 states or they have not been admitted at all. The

18 Federal Republic of Yugoslavia, that's Serbian

19 Montenegro, takes the position that they are the

20 successor state to the SFRY, and the Security Council

21 has consistently rejected that.

22 Setting that aside, this question still

23 remains: Can the government of Bosnia-Herzegovina, by

24 taking a position on December 31st, 1992 with the Swiss

25 Federal Council that we are the successor to the SFRY

Page 344

1 and we are becoming parties to the Conventions, as

2 successor to the SFRY, create criminal liability on

3 individual persons in international law for grave

4 breaches of the Conventions for the period between the

5 time that Bosnia became an independent state and it

6 became party to the conventions. There is that period

7 of time where Bosnia-Herzegovina was silent as to its

8 status under the conventions, and that's the period of

9 time we're focussing on in this trial.

10 Your Honour, there is one other issue that

11 this immediately brings to mind of whether or not

12 Bosnia was a party, and that is this: Article 4 of the

13 Geneva Convention relative to civilians, among its

14 other definitions and exclusions, specifically says

15 that nationals of a state which are not parties to this

16 convention are not protected by it.

17 If there is no criminal liability imposed

18 during this period between April and December 1992,

19 when Bosnia-Herzegovina had not become a party to the

20 Conventions, at least during that period, the nationals

21 of Bosnia were not nationals of a state which was a

22 party to the Convention, can you retroactively make

23 them protected persons? And my suggestion to you is:

24 Again you run into a nullem crimen problem. You're

25 making an act illegal that occurred prior to the time

Page 345

1 of the Statute, and I don't think you can do that.

2 Your Honour, unless there is further

3 questions from the bench, I'm going to give some time

4 back.

5 JUDGE HUNT: We'll take the lunch break now

6 and resume at 2.30.

7 --- Luncheon recess taken at 1.06 p.m.



















Page 346

1 --- On resuming at 2.35 p.m.

2 JUDGE HUNT: I'm sorry for the delay. One of

3 our members is also the duty Judge.

4 Mr. Farrell, your turn?

5 MR. FARRELL: You'll be happy to know it is,

6 I'm sure, but in the meantime, I understand that

7 Mr. Staker would like to attempt to address Judge

8 Bennouna's question if he may at this point.

9 JUDGE HUNT: On the previous appeal point.

10 MR. FARRELL: Yes. Thank you.

11 MR. STAKER: May it please the Chamber, prior

12 to the last break, Judge Bennouna asked me a question

13 raising a matter of substantive law in relation to

14 Common Article 3. Our original intention had been to

15 rely on the doctrine of precedent. As we said, this

16 avoids reopening issues that have already been decided

17 and going into matters of substance, but having asked

18 the question, we do wish to assist the bench to the

19 best of our ability.

20 Like any issue of substantive law though,

21 questions such as these are no doubt capable of a short

22 answer or a long answer, and not knowing quite how long

23 an answer might be required, I thought that Chamber

24 might best be assisted if I called on my colleague,

25 Ms. Sonja Boelaert-Suominen, to answer this question,

Page 347

1 who would then be in a position to answer any follow-up

2 questions that might arise.

3 So with the leave of the Chamber, I would

4 call on my colleague to address you.


6 MS. BOELAERT-SUOMINEN: Mr. President, Your

7 Honours, this is the first time for me to appear before

8 the Appeals Chamber. I'd like to say it's an honour.

9 If I may address your question, Judge

10 Bennouna. The question you asked this morning, if I

11 understand it correctly, is the following: Why is it

12 that the Prosecution believes that the Tadic

13 jurisdiction decision regarding the scope of Article 3

14 of the Statute and its inclusion of Common Article 3 of

15 the Geneva Conventions should be followed?

16 Now, as my colleague Christopher Staker told,

17 it is not an answer that can be given in a few minutes,

18 so I will quickly run down through the points which

19 were discussed by the Appeals Chamber in the Tadic

20 jurisdiction decision, and if there's any point in time

21 a reason for you to ask a question, you can interrupt

22 me and I will try to answer the question.

23 Now, when you look at the Tadic jurisdiction

24 decision, the Appeals Chamber examined various

25 questions. There's a question of substance; namely, is

Page 348

1 there conduct, for instance, an act or omission, which

2 is prohibited under international law? Secondly, there

3 is the question of criminality. If a certain conduct

4 is prohibited, does that lead to individual criminal

5 responsibility? Thirdly, there is a question of

6 jurisdiction. Is there any court, for instance, this

7 court, which has jurisdiction over that offence?

8 Now, as we all know, the Appeals Chamber in

9 the Tadic jurisdiction decision examined at length the

10 scope of the various Articles of the Statute, but the

11 Articles which we are concerned with today are

12 Articles 2 and 3 the Statute.

13 If you look at the Statute, Article 3, on the

14 face of it, only deals with grave breaches of the

15 Geneva Conventions. Sorry, Article 2. Article 3, on

16 the face of it, only deals with the violations of laws

17 or customs of war.

18 Now, to most observers that would be a

19 reference to the violations of The Hague conventions of

20 1907, but in the Tadic jurisdiction decision, the

21 Appeals Chamber decided that for various reasons,

22 Article 2 should be interpreted restrictively but

23 Article 3 should be given a broad scope. It has

24 decided that it should not only cover violations of the

25 1907 Hague Conventions but also a host of other

Page 349

1 treaties and customary rules of international law.

2 If you allow me, I'll quickly run through the

3 list.

4 So the Appeals Chamber decided that Article 3

5 of the Statute covers not only violations of The Hague

6 convention but also infringements of the Geneva

7 Conventions not mentioned in Article 2, which refers to

8 grave breaches.

9 The Appeals Chamber also decided that

10 Article 3 of the Statute also covers violations of

11 Common Article 3 of the Geneva Conventions and also

12 violations of other agreements binding on the parties

13 to the conflict by reasons of treaty law.

14 Now, the Appeals Chamber decided that

15 Article 3 should be given a broad scope for the reason

16 that, in its opinion, Article 3 was aimed at making the

17 provisions of the Statute watertight, so that no serious

18 violation of international law would escape the

19 jurisdiction of the Tribunal.

20 So that is for the question of scope, the

21 relationship between Article 2 and Article 3.

22 For us, we have been using Article 3 as

23 indicated by the Appeals Chamber as a residual

24 provision. We can use it as indicated by the Appeals

25 Chamber, every time we have conduct that doesn't fall

Page 350

1 under Article 2, Article 4, or Article 5 of the

2 Statute.

3 Now, as regards for the question which Judge

4 Bennouna posed this morning: Why is it that the

5 Prosecutor believes that Common Article 3 can be used

6 in situations such as we have today in the Celebici

7 case, where there is, in the Prosecutor's submission,

8 an international armed conflict?

9 Now, that is not only a question of substance

10 but also a question of criminality.

11 Now, in the Tadic jurisdiction decision in

12 1995, the Appeals Chamber stated that, as has been held

13 before by the International Court of Justice, Common

14 Article 3 of the Geneva Conventions does not only apply

15 in internal armed conflict. It is true when the Geneva

16 Conventions were enacted in 1949 that the drafters

17 thought of Common Article 3 as a provision specifically

18 enacted to deal with internal armed conflict.

19 But in 1984, in the Nicaragua case, the

20 International Court of Justice reasoned that if Common

21 Article 3 applies to internal conflict and gives

22 expression to the elementary considerations of humanity

23 that apply in internal armed conflict, they surely

24 should also apply in international armed conflict. It

25 cannot be that something which is prohibited in

Page 351

1 internal armed conflict would be allowed in

2 international armed conflict. And from then onwards it

3 has been generally accepted that Common Article 3 of

4 the Geneva Conventions gives expression to elementary

5 considerations of humanity that apply across the

6 board, regardless of the character of the conflict.

7 This is why the Prosecution believes that

8 even in a situation as in the Celebici case, where we

9 think that the conflict is an international one, that

10 we can rely on violations of Common Article 3 of the

11 Geneva Conventions. Briefly put, it is because it is

12 now generally accepted that Common Article 3 gives

13 expression to elementary considerations of humanity

14 that apply regardless of the character of the

15 conflict.

16 Now, finally, I would briefly like to state

17 something about the question of criminality. Before

18 the Tadic jurisdiction decision, there had not been any

19 decision rendered by an International Tribunal stating

20 clearly that persons could be prosecuted for violations

21 of Common Article 3. But that in itself does not raise

22 any question of the principle of legality. Because as

23 one noted commentator stated, if violations of the

24 international laws of war have traditionally been

25 regarded as criminal under international law, there is

Page 352

1 no reason of principle why once those laws came to be

2 extended to the context of internal armed conflicts,

3 their violation in that context should not have been

4 criminal, at least in the absence of clear indications

5 to the contrary.

6 Finally, I would like to make a reference to

7 the case of Regina versus R, which was decided in 1991

8 by the House of Lords in the case of marital rape. It

9 is in that case which was dealt with by the European Court

10 of Human Rights in 1995, where the principle was

11 clearly stated that the principle of legality does not

12 preclude development of criminal law, for instance, through

13 jurisprudence, so long as those developments do not

14 criminalise conduct which at the time it was committed

15 could reasonably have been regarded as legitimate.

16 So the reasoning which should be applied in

17 this case is that there was no doubt that when the

18 Appeals Chamber rendered its decision in 1995, in the

19 Tadic jurisdiction decision, that conduct prescribed by

20 Common Article 3 was illegitimate, regardless of the

21 character of the conflict. The fact that the Appeals

22 Chamber in 1995 clearly stated that persons who

23 perpetrate violations of Common Article 3 can be

24 prosecuted before this Tribunal does not raise the

25 question of the principle of legality.

Page 353

1 That would be the substance of what the

2 Prosecution would like to submit in trying to answer

3 the question posed by Mr. Bennouna this morning. Judge

4 Bennouna, does it answer your question?

5 JUDGE BENNOUNA: [Interpretation] You have

6 indeed. Thank you very much. But there is one

7 additional piece of information that you have not

8 mentioned.

9 The fact that we find ourselves within the

10 framework of an International Tribunal, and the fact

11 that these kinds of violations are being prosecuted by

12 an international tribunal, do these facts have any

13 impact or any influence on individual criminal

14 responsibility as defined by Common Article 3? Let me

15 make this a bit clearer, if I can. The Geneva

16 Conventions do not -- did not at the time think about

17 the possibility of the establishment of an

18 international tribunal. They could only foresee grave

19 breaches of Geneva Conventions within the framework of

20 which people belonging to a particular country could be

21 judged in a country that they were not a citizen of,

22 and that's the reason why the jurisdiction was very

23 limited.

24 Common Article 3 was meant to apply in cases

25 of armed internal conflict but by the jurisdictions of

Page 354

1 the country that was at cause. But when we find

2 ourselves in the context of an international tribunal

3 such as this one, a tribunal which was created by the

4 International Community via a decision that is binding

5 on all states, is there a difference that then

6 appears? Is there a change that must be then taken

7 into account as far as individual criminal

8 responsibility is concerned?

9 MS. BOELAERT-SUOMINEN: In answering your

10 question, Your Honour, I would like to point out the

11 following: When in 1949 the Geneva Conventions were

12 enacted, you are quite correct in stating that the

13 States enacting the Geneva Conventions only thought

14 that in the case of grave breaches there would be some

15 sort of universal jurisdiction. Now, when you look at

16 the grave breaches provision, actually they are the

17 most, I think, concise statement of what we know as

18 universal jurisdiction today. It obligates States,

19 parties to the Geneva Conventions, to either prosecute the

20 perpetrator of the grave breach violation or to extradite

21 him to any other State that makes a prima facie case.

22 Now, we are now in the year 2000 and

23 public opinion and customary law have developed to such

24 an extent that we can no longer accept that other

25 serious violations of international humanitarian law

Page 355

1 would not be subject to the same principles, and that

2 is the way I would put the exercise of jurisdiction

3 which we are doing here before the Tribunal today.

4 By enacting the Statute in 1993, the drafters

5 of the Statute clearly intended to convey the message

6 that the world can no longer accept these types of

7 serious violations of international humanitarian law.

8 And to answer your question of jurisdiction, as you

9 know, under our Statute the Tribunal does not have

10 exclusive jurisdiction; it has primary jurisdiction.

11 And we are only here today because when the Security

12 Council enacted the Statute, it thought it was

13 necessary to send the message to the fighting parties

14 that if they do not do their duties and do not

15 prosecute perpetrators of serious violations of

16 international humanitarian law, then it's the duty of

17 the international public opinion to take up that duty.

18 So our jurisdiction is not exclusive.

19 So to summarise my answer, it is really true

20 that since 1949, customary law and international

21 humanitarian law have developed to such an extent that

22 we can now state today that universal jurisdiction does

23 not only exist when you are dealing with grave breaches

24 of the Geneva Conventions but also with all kinds of

25 other types of serious violations of international

Page 356

1 humanitarian law. And that is why the Appeals Chamber,

2 in 1995, in the Tadic jurisdiction decision, could

3 confidently state that actions prohibited by Common

4 Article 3 of the Geneva Conventions constitute

5 a serious violation of international

6 humanitarian law. It leads to individual criminal

7 responsibility and this Tribunal has jurisdiction. Not

8 exclusive -- sorry, not primary -- it has primary

9 jurisdiction but not exclusive.

10 So eventually, is the States where the acts

11 have been perpetrated do their duties and prosecute

12 perpetrators of serious violations of International

13 Humanitarian Law, there might be a time when this

14 Tribunal is going to say, "We have done our task." But

15 that is the way I would answer your question, Your

16 Honour.

17 JUDGE BENNOUNA: [Interpretation] I thank you

18 very much.

19 One last thing, since you are standing. It

20 seems to me that a moment ago, your colleague said that

21 the line of reasoning followed in the Tadic decision in

22 the interlocutory appeal was not rigorous enough. Do

23 you share that opinion that was voiced by your

24 colleague?

25 MS. BOELAERT-SOUMINEN: Your Honour, I'm bit

Page 357

1 confused. You're referring to the submission by

2 counsel for the Defence?

3 JUDGE BENNOUNA: [Interpretation] No. I am

4 referring to something by -- that was said by a member

5 of the Prosecution team, if I'm not mistaken, who said

6 that the findings were quite legitimate but the

7 reasoning behind them was not rigorous enough. I'm

8 referring again to the Tadic appeal.

9 Now, what is your view on the question?

10 MS. BOELAERT-SOUMINEN: Your Honour, with

11 your permission, I would like to let my colleague Chris

12 Staker answer the question.

13 JUDGE BENNOUNA: [Interpretation] Thank you.

14 MR. STAKER: Your Honour, I should perhaps

15 simply clarify what I was intending to convey by that

16 comment. I wasn't intending to suggest that the

17 decision in the Tadic decision was not rigourus

18 enough. I was simply trying to convey that under the

19 doctrine of precedent as pronounced in the Aleksovski

20 decision, it wouldn't be a sufficient reason to

21 reconsider an earlier decision that some people felt

22 perhaps, even individual Judges personally might feel,

23 that the reasoning could have been more rigorous. We

24 submit that under the doctrine of precedent in

25 Aleksovski, there must be a much more compelling

Page 358

1 reason.

2 We don't suggest that we consider the

3 reasoning is not rigorous enough, and we're not

4 suggesting that others don't consider it rigorous

5 enough, although, obviously my colleagues for the

6 Defence have made that submission.

7 JUDGE HUNT: Yes, Mr. Ackerman.

8 MR. ACKERMAN: Your Honour, I have a response

9 to Judge Pocar.

10 JUDGE HUNT: Can we just deal with one thing

11 at a time.

12 MR. ACKERMAN: I thought we were finished

13 with this. I'm sorry.

14 JUDGE HUNT: No, no, no. I'm not sure.

15 Let's find out.

16 Is that the final part from the Prosecution

17 in answer to Judge Bennouna's comments?

18 MS. BOELAERT-SOUMINEN: Yes. These are the

19 final submissions of the Prosecution in response to the

20 question posed by Judge Bennouna.

21 JUDGE HUNT: Thank you very much. We're very

22 grateful to you for your help.


24 JUDGE HUNT: Yes, Mr. Ackerman. We'll deal

25 with you and then we'll come back to -- Mr. Farrell,

Page 359

1 was it? Yes, we'll come back to Mr. Farrell then.

2 MR. ACKERMAN: First of all, I want to

3 respond just very, very briefly to what we just heard,

4 if I may.

5 JUDGE HUNT: Well, we can't have these

6 submissions going on forever.

7 MR. ACKERMAN: That's fine.

8 JUDGE HUNT: If you want to put something to

9 us which is brief, I suppose put so seductively, we'll

10 listen to you, but if it isn't going to be brief, I

11 think we're going to stop you. It was a matter raised

12 in reply.

13 MR. ACKERMAN: Extraordinarily brief. The

14 Prosecutor just said that the reason for applying

15 Common Article 3 was that it would not make sense to

16 have something that applies in an internal conflict not

17 also apply in an international conflict, and clearly in

18 an international conflict, with regard to murder, you

19 have the grave breaches, so there's not a void in an

20 international conflict that can be filled by internal

21 conflict law, and in this case, the Tribunal found that

22 this was an international armed conflict, so the grave

23 breaches should be sufficient.

24 With regard to Judge Pocar's question. As I

25 understand the question, it was: What was the effect,

Page 360

1 Mr. Ackerman, of Article 75 of Protocol 1?

2 I think it is this -- I have not had a great

3 deal of time to consider it, but I think the answer is

4 this, Your Honour: The defendants in the Celebici case

5 were charged under and pursuant to the language of

6 Common Article 3. In the process of determining

7 whether or not Common Article 3 is customary

8 international law, one may consult a number of sources,

9 and one of those sources that may be consulted is

10 Article 75 of Protocol 1. That may aid someone trying

11 to analyse whether or not it has become part of

12 customary international law.

13 Secondly, one must not [Realtime translation

14 omitted the word "not"] read a provision like

15 Article 75 out of its context.

16 Protocol 1 is specifically directed to

17 international armed conflicts. Protocol 2 was

18 specifically directed to internal armed conflicts. And

19 what is revealed when you read both of them and in

20 their context is that between 1974 and 1977, when these

21 Protocols were considered, it was suggested that

22 Protocol 2 extend the reach of Common Article 3. There

23 were 47 Articles proposed, which would have extended

24 the reach of Common Article 3.

25 The nations considering Protocol 2 were

Page 361

1 extraordinarily uncomfortable with that, on the same

2 basis that they had been uncomfortable with that whole

3 proposition back when the 1949 conventions were

4 adopted, and that had to do with sovereignty. So only

5 28 of the Articles were, in fact, adopted that were

6 proposed at that time, and in the process, the reach of

7 Common Article 3 was made more restrictive than it had

8 been up to that point.

9 The Protocol 2 makes certain that removed

10 from the coverage of Common Article 3 are situations of

11 internal disturbances and tensions such as riots,

12 isolated and sporadic acts of violence, and other acts

13 of a similar nature as being not armed conflicts, which

14 was not a limitation at the time of Common Article 3

15 but now is as a result of Protocol 2.

16 In the short time that I've had to consider

17 your question, that's the best I can do. If you would

18 like a more extensive response and you would permit it,

19 I would be happy to file something within a short time

20 in writing.

21 I would refer the Chamber to our brief in

22 this regard. This whole issue is discussed at some

23 length on pages 26 and 27.

24 JUDGE HUNT: Well, Mr. Farrell, you are going

25 to respond to Mr. Moran's submissions.

Page 362

1 MR. FARRELL: That's correct.

2 JUDGE RIAD: Excuse me, Mr. Ackerman. Please

3 check the transcript there they have I think missed the

4 word "not." You say: It should be -- it should "not"

5 be read out of its context. It should "not" be read.

6 They said it should be read out of its context.

7 MR. ACKERMAN: It should not be read out of

8 its context. So --

9 JUDGE RIAD: You better check it and put in

10 the word "not." It changes the whole sense. You

11 should check. Thank you.

12 MR. ACKERMAN: I think we have now cleared it

13 up with the subsequent reference that what I meant was

14 it should not be read out of its context.

15 Thank you, Your Honour, very much.

16 MR. FARRELL: Thank you, Your Honour. I will

17 be making a few brief comments to attempt to assist the

18 Court.

19 In response to the Defence ground of appeal

20 regarding Mr. Delic's issue 3 regarding the application

21 of the Geneva Conventions.

22 His position, as I understand it, is that the

23 Geneva Conventions are not customary international law

24 and, therefore, do not bind either the State of

25 Bosnia-Herzegovina or its nationals from the time of

Page 363

1 independence until the time of the actual depositing of

2 an instrument of secession, which was the 31st of

3 December.

4 It's the position of the Prosecution that

5 Bosnia-Herzegovina was bound both by customary

6 international law and as a result of their instrument

7 of secession deposited on the 31st of December, 1992

8 with the depository state Switzerland, with the impact

9 that the application of the Geneva Conventions took

10 effect on the date of independence, which was March the

11 6th.

12 With respect to the submission by my learned

13 colleague that the Geneva Conventions are either not

14 customary international law or have not been proved to

15 be customary international law, I would simply indicate

16 that the Prosecution relies on, first of all, the

17 report of the Secretary-General pursuant to

18 paragraph 2 of the Security Council Resolution 808 for

19 the establishment of the Tribunal, which finds that

20 there are, beyond any doubt, certain rules of

21 International Humanitarian Law that are part of

22 customary law. So that the problem of adherence of

23 some but not all states to specific conventions does not

24 arise. And one of the conventions that is referred to

25 in the report of the Secretary-General is the Geneva

Page 364

1 Convention of August 12, 1949 and the Geneva

2 Conventions.

3 Secondly, support for the proposition that

4 the Geneva Conventions are a part of customary law,

5 which the Prosecution submits is quite evident, can

6 also be found in the International Court of Justice's

7 case, the nuclear weapons case, at paragraph 81,

8 wherein the International Court of Justice indicates

9 that there are fundamental rules that are observed by

10 all states whether or not they have ratified the

11 conventions that contain them because they constitute

12 intransgressible principles of international customary

13 law. The International Court of Justice, in fact,

14 relies on the report of the Secretary-General, which

15 I've just submitted to you, and concludes as well that

16 the Geneva Conventions are part of conventional

17 international law which have, beyond a doubt, become

18 part of customary law.

19 A few other references from the Tribunal

20 itself, although they are not the Appeals Chamber in

21 form. The Tadic decision of 7th of May, 1997,

22 paragraph 577. In referring to the Tadic Appeals

23 Chamber's decision, the jurisdictional decision,

24 states: "Implicit in the Appeals Chamber decision is

25 the conclusion that the Geneva Conventions are part of

Page 365

1 customary international law and as such their

2 application in the present case does not violate the

3 principle of nullem crimen sine lege."

4 In Trial Chamber III, in the Prosecutor

5 versus Simic et al., on a decision on a Prosecution

6 motion dated the 27th of July, 1999, at paragraph 48,

7 concludes that:

8 "The Geneva Conventions enjoy nearly

9 universal participation, as virtually all states are

10 parties to the four Geneva Conventions. It is also

11 generally accepted that most of their provisions are

12 regarded as declaratory as customary international

13 law."

14 And lastly I would point, in terms of the

15 jurisprudence of this Tribunal, to the Kupreskic Trial

16 Chamber's decision at paragraphs 519 to 520, where the

17 Court finds, and I quote:

18 "Further, most norms of international

19 humanitarian law, in particular those prohibiting war

20 crimes, crimes against humanity and genocide, are also

21 peremptory norms of international law or jus cogens;

22 i.e., of a non-derogable and overriding character."

23 The second point relates to when the

24 conventions are applicable from, if you accept the

25 proposition that they're customary international law.

Page 366

1 The date of independence is March 6th, 1992, and as

2 they're applicable from the date of independence, there

3 is no difficulty in this case, as the indictment starts

4 from May 1992. Even if the Court was to determine that

5 it wasn't until they were recognised as a state, and

6 that's not the Prosecution's position, that's in April

7 1992, still long before the scope of the time frame of

8 the indictment.

9 I would note when we're speaking about the

10 intention of Bosnia-Herzegovina to be bound, that

11 during the time frame that we're speaking about of the

12 indictment, nationals of Bosnia-Herzegovina were bound

13 by the grave breaches of the Geneva Conventions as part

14 of their domestic law in Bosnia-Herzegovina. Mr. Delic

15 should have been fully aware that he was committing a

16 violation of the grave breaches of the Geneva

17 Conventions as implemented in Bosnia-Herzegovina by a

18 decree of law on the 11th of April, 1992, when

19 Bosnia-Herzegovina adopted implementing legislation in

20 relation to the former Criminal Code, Penal Code, of

21 the SFRY, which implements the Geneva Conventions and

22 Additional Protocols.

23 That was noted in the Tadic jurisdiction

24 decision at paragraph 132. And the Appeals Chamber in

25 the Jurisdiction Decisions notes the effect of this

Page 367

1 decree on April 11th, 1992, and states, and I quote:

2 "Hence, nationals of the former Yugoslavia,

3 as well, at present, those of Bosnia-Herzegovina, were

4 therefore aware, or should have been aware, that they

5 were amenable to the jurisdiction of their national

6 criminal courts in cases of violation of international

7 humanitarian law."

8 I'm sure you're aware of the fact that this

9 was also noted by the Trial Chamber in this case in

10 paragraph 312.

11 And the last point simply is just to follow

12 up on a point that was forwarded by Judge Bennouna,

13 which is the concept of state succession. It wasn't,

14 as appears to be before it in the brief of the

15 appellant in this regard, it wasn't an accession to the

16 treaty; it was a secession, and the deposit of the

17 instrument of succession in the depository state of

18 Switzerland was on the 31st of December, 1992. The

19 result, in the Prosecution's submission, is that the

20 application of the Geneva Conventions takes place on

21 the date of independence. And in support of not only

22 that general principle in terms of the law of state

23 secession, it wasn't in our brief, and I apologise that

24 it wasn't. We addressed in our brief only the issue of

25 the application of customary international law.

Page 368

1 But since it was raised, there are two

2 decisions, and I have them simply to hand them out.

3 They're very short decisions of trial chambers, but

4 simply for your assistance, Your Honours. I apologise

5 that I didn't have them earlier, both for the Court and

6 for the Defence counsel. I'll just explain them as I

7 go.

8 The first one is in the Kovacevic case. It's

9 of the 12th of May, 1998. It's an order on the

10 Prosecution request for judicial notice.

11 The Prosecution, in a motion, asked for

12 judicial notice of a number of things. Two of them

13 were that Bosnia-Herzegovina seceded to the Geneva

14 Conventions -- sorry, to the Genocide Convention of

15 1949, with an effective date of 6th of March, 1992, and

16 that it declared its independence from the Socialist

17 Federal Republic of Yugoslavia on March 3, 1992.

18 That's a typographical error. It should be the 6th of

19 March.

20 What is important, in the Prosecution's

21 submission, is not necessarily the fact that there's a

22 request that they seceded to the Genocide Convention,

23 the fact that the Trial Chamber admitted these two

24 facts, paragraphs 3 and 4 of the Prosecutor's request,

25 through the means of judicial notice. They took

Page 369

1 judicial notice that the depositing of the Genocide

2 Convention by Bosnia-Herzegovina as an instrument of

3 secession had the effective date of March 6th, and that

4 was taken as judicial notice.

5 The other decision, which is in the Kordic

6 case of the 2nd of March, 1999, dealt with the -- one

7 of the issues was command responsibility, in Article 7,

8 which had charged them as superiors, including

9 civilians. As you know, Mr. Kordic was a civilian.

10 In paragraph 12, the Trial Chamber concludes

11 that the principle of individual criminal

12 responsibility of superiors for failure to prevent or

13 repress the crimes committed by subordinates can be

14 considered a part of customary international law. The

15 same conclusion has also been reached by another Trial

16 Chamber in the Blaskic decision. I just bring this out

17 in support of my first proposition that the Geneva

18 Conventions and the components of it are part of

19 international customary law.

20 At the end of paragraph 13, under the quote,

21 it notes in the -- it says:

22 "As noted in the Blaskic decision, both the

23 Republic of Croatia and Bosnia and Herzegovina are

24 bound by Additional Protocol 1 in this case as

25 successor states of the Socialist Federal Republic of

Page 370

1 Yugoslavia, which has ratified the Protocol on the 11th

2 of June, 1979."

3 Now, it doesn't state the principle that as a

4 successor state it then has an application that goes

5 back to the point of independence, but it does

6 recognise that it is bound as a result of the deposit

7 of the instrument of succession.

8 Those are essentially the points I wanted to

9 make in response to the submissions on the application

10 of the Geneva Conventions.

11 JUDGE HUNT: Thank you.

12 Mr. Moran.

13 MR. MORAN: Yes, Your Honour. A couple of

14 quick things. One, as to the status of the conventions

15 as customary international law, I would first note that

16 the more states that become parties to any

17 international convention, the harder it is to tell

18 whether states accept and follow these conventions,

19 because they're treaties that bind the states or

20 because customary international law requires it. It's

21 a bit of a paradox, and I don't know that the

22 Prosecution has overcome that paradox.

23 Clearly, I think that the Secretary-General's

24 decision, or report, while it is good legislative

25 history as to the Statute of the Tribunal, I'm not sure

Page 371

1 that it's binding on the Tribunal as to what is

2 customary international law.

3 Mr. Farrell said that the citizens of

4 Bosnia-Herzegovina were bound by the same kinds of

5 provisions as the grave breaches provisions as a matter

6 of domestic law. That's fine. I don't disagree with

7 that. And if the Courts in Sarajevo, the domestic

8 municipal courts, choose to prosecute for violations of

9 domestic law, that's their privilege. International

10 courts don't try people for violations of national

11 law.

12 And if we are going to look to that national

13 law, I think, and this may be relevant to an issue that

14 will probably come up tomorrow, the maximum punishment

15 that can be assessed probably should be gauged against

16 that national law also. If we're going to try

17 violations of domestic law in this Tribunal, this

18 Tribunal should have to apply that domestic law,

19 including the maximum punishments.

20 JUDGE BENNOUNA: [Interpretation] Just one

21 second, Mr. Moran, before I let you go on. Because

22 it's not at all what the Prosecutor said. You are

23 building a logic based on a concept that is not right.

24 Bosnia-Herzegovina, it was told to you, and that's

25 repeated in the Tadic case that I have in front of me.

Page 372

1 So Bosnia-Herzegovina said that some of its Tribunals

2 would be competent for some of the crimes based on the

3 1949 Geneva Conventions and the additional protocol.

4 This was introduced in its legislation, national

5 legislation. But the fact that this is included in the

6 national law, it does not mean that this is not done in

7 the name of international treaties if the aim of

8 international treaties is to be applied within the

9 states. It's not something theoretical, abstract, so I

10 don't really follow you. International treaties do --

11 are applied in the states that have signed them, and

12 they are applied when the state in question is party to

13 this treaty, and these treaties are applied,

14 implemented by the tribunals of the states in

15 question. That's what has been told to you. So it's

16 possible that you have a national Tribunal, an

17 International Tribunal that applied the same

18 convention. That's possible. International

19 convention.

20 MR. MORAN: Your Honour, maybe I

21 misunderstood Mr. Farrell, but I thought that one of

22 the things he said was that Bosnia-Herzegovina adopted,

23 as a matter of domestic law, the SFRY Penal Code

24 provisions, which essentially mirror the grave breaches

25 provision as a matter that these defendants should not

Page 373

1 be surprised that they're bound by the grave breaches

2 provision, because they knew they were bound by

3 domestic law. And my -- and what I was just arguing

4 was not that treaties do not apply within states, but

5 that the argument seemed to have been that you knew

6 that you were bound by domestic law that mirror the

7 grave breaches, and therefore, you should not be

8 surprised at some later date if you are charged with

9 exactly the same thing for violations of the grave

10 breaches. I hope I'm not mangling Mr. Farrell's

11 argument too badly, but I think that was the essence of

12 it. I stand to be corrected, but it seems to be a fair

13 assessment.

14 And if we're going to do that, then I think

15 that you can't take parts of the domestic law. You

16 have to take it all. If you're saying he's not going

17 to be surprised by an issue. But in any case, that's

18 something I was going to talk about later on,

19 tomorrow. It's more relevant to tomorrow.

20 Finally, and I think this is the actual

21 bottom-line position that I take is that pick a date

22 relevant to the indictment, July 1st, 1992. If someone

23 picked up the phone on July 1st, 1992 and called the

24 Swiss council, the Swiss government, and said, "Hey, is

25 Bosnia-Herzegovina a party to the Geneva Conventions?

Page 374

1 Are they bound by the grave breaches provisions?" The

2 answer from the Swiss government probably would have

3 been no, for the simple reason that the instrument of

4 succession had not been filed and Bosnia-Herzegovina

5 had not joined the conventions at that time. Now, is

6 it fundamentally fair to prosecute an individual for a

7 violation of a law, be it a national law or an

8 international law, which at the time the act was

9 committed, he could not tell was a violation of that

10 law? And I just don't think it is fundamentally fair

11 to do that.

12 And unless there's some other questions from

13 the bench, that's all I have on that issue.

14 JUDGE HUNT: Thank you very much indeed, Mr.

15 Moran. You can stay standing, because we move now to

16 group 4 and you are carrying the burden of that one.

17 MR. MORAN: Yes, Your Honour. I'm in the hot

18 seat again. I understand this is the difference

19 between internal and international armed conflict and

20 this one I understand I have a hard row to hoe on this

21 one.

22 JUDGE HUNT: Well, I don't know, but you did

23 tell us you were not going to be very long.

24 MR. MORAN: No. I promise you I will not be

25 very long. It is a hard row to hoe. And let me just

Page 375

1 suggest this. We were just told by the Prosecutor that

2 customary international law -- or Common Article 3 is

3 customary international law, and we know that because

4 we were told that by the ICJ in Nicaragua versus the

5 United States. And, in fact, in the Tadic decision,

6 the Appeals Chamber cites that as authoritative. Well,

7 either Nicaragua versus United States is authoritative

8 and binding on this Tribunal or it's not. And my

9 suggestion to you is that it may very well be under the

10 charter, the ICJ is the primary judicial organ of the

11 organisation of the United Nations. Where this

12 Tribunal is an organ of another principal organ, the

13 Security Council.

14 In two cases the Appeals Chamber, in Tadic

15 and Aleksovski, the Appeals Chamber specifically

16 rejected the United States versus Nicaragua test for

17 international and internal armed conflict. In fact, in

18 the Aleksovski decision, the Appeals Chamber just came

19 right out and said that the test used by the Tribunal

20 is, "not as rigorous" as the Nicaragua versus United

21 States test, and that's paragraph 145 of the decision.

22 In Aleksovski, the Appeals Chamber discussed

23 at great length, and there was a concurring opinion

24 from Judge Hunt, which I've read, about precedent, but

25 you never discussed the effect of precedent from cases

Page 376

1 and decisions outside of the International Tribunal.

2 I would suggest that because the ICJ --

3 sometime earlier today, I can't remember, maybe it was

4 Judge Hunt, said something about Supreme Courts in

5 various jurisdictions may change their minds. It may

6 not have been you, Your Honour.

7 JUDGE HUNT: It wasn't me, but I was going to

8 ask you this question later anyway. Where in the Tadic

9 jurisdiction case did they say they were bound by the

10 ICJ?

11 MR. MORAN: Your Honour what they said was

12 was it was authoritative.

13 JUDGE HUNT: That's right. But where do they

14 say this Tribunal was bound by the decision.

15 MR. MORAN: They did not.

16 JUDGE HUNT: That may have been quite

17 deliberate, don't you think?

18 MR. MORAN: Yes, Your Honour, and I am

19 presenting the issue to you for decision whether you

20 are bound by it. Obviously I had nothing to do with

21 the Tadic case, Your Honours. But the question is: If

22 the International Court of Justice is the principal

23 judicial organ of the United Nations, essentially the

24 Supreme Court of the United Nations, can another court

25 that is part of the United Nations system abandon or

Page 377

1 use different legal tests than those enunciated by the

2 Supreme Court, if you would? And I would suggest that

3 they can't.

4 Where the ICJ has spoken that this is

5 customary law or this is a legal test we will use for a

6 matter, that this Tribunal should follow it, and it

7 should follow it for a whole lot of reasons. (1) the

8 ICJ's position within the charter itself; (2) the value

9 of precedent.

10 Remember that in the Kupreskic Trial Chamber,

11 there was some talk about precedent, and as I recall,

12 the Trial Chamber indicated that it was bound by

13 nothing except the decisions from this Chamber. Now, I

14 may be misreading that, I may be misremembering it, but

15 that's what I recall they said. I don't think that's

16 correct unless we're opening every issue up to

17 relitigation every time.

18 If, for instance, the hostages case and the

19 High Command case do not show us what is customary

20 international law as regards to command responsibility,

21 if that is not binding on the Tribunal, then every time

22 the Prosecutor says "customary international law," or,

23 excuse me, "command responsibility," they bear the

24 burden of coming here and showing you that that is

25 customary international law. I don't think that's what

Page 378

1 this Court has to do. I think that this Court, on

2 issues like that, is bound by the ICJ, the decisions of

3 the ICJ and the decisions of other courts that are

4 widely accepted saying what is customary international

5 law.

6 Having said that, the Trial Chamber used an

7 improper test to determine what is an international

8 armed conflict. They applied the facts that they found

9 to the wrong legal test. Now, the Appeals Chamber can

10 use the proper legal test.

11 Just having quickly read over the evidence,

12 without going into it in any detail because that's not

13 necessary, I would submit that the evidence shows that

14 the officials of the Federal Republic of Yugoslavia

15 read Nicaragua versus United States or at least knew

16 that it existed and limited their involvement in the

17 Bosnia war, at least their public involvement, the

18 involvement that could be pinned to them, to that kind

19 of thing, that kind of area where the United States

20 paid the salaries of the Contra officers. FRY paid the

21 salary of officers in the RS army, that type of thing.

22 And that is something that people are allowed to rely

23 on.

24 Finally, just as almost an afterthought, even

25 if the ICJ's decisions are not binding on this Court,

Page 379

1 it just seems to be unseemly to have two courts -- and

2 undesirable to have two courts, basically a kilometre

3 from each other or a kilometre and a half from each

4 other, having conflicting decisions on the same issue.

5 And with that, unless there are some

6 questions from the Bench, I'll sit down and let the

7 Prosecutor -- and let the Prosecutor respond.

8 JUDGE HUNT: Thank you very much.

9 Mr. Farrell again.

10 MR. FARRELL: Thank you, Your Honour.

11 Just firstly the concept argument that this

12 court is somehow bound by the ICJ. Despite its close

13 proximity, it's obvious that this court and the ICJ

14 have different jurisdictions. The ICJ has jurisdiction

15 over states, and as I'm sure you're aware, by its

16 Statute it actually doesn't have the concept of

17 precedent. It's only -- the judgements in the ICJ are

18 only binding on the state parties. Though the

19 decisions, of course, are persuasive, I would submit

20 that it would be rather odd that the decisions of the

21 ICJ are not strictly binding on themselves but they

22 would be binding on this Court which has a different

23 jurisdiction.

24 Secondly, the Appeals Chamber in Tadic, of

25 the 15th of July, 1999, specifically states, at

Page 380

1 paragraph 115: "The Appeals Chamber, with respect,

2 does not hold the Nicaragua test to be persuasive." In

3 my submission, clearly the Court was fully aware and

4 alive to the issue of the relevance of ICJ decisions.

5 Thirdly, I would note that His Honour

6 Judge Shahabuddeen, in a dissenting opinion, I would

7 note, on another issue in Kanyabashi, as a member of

8 the Appeals Chamber and as in a case of Nsengiyumva,

9 and I'll spell that N-s-e-n-g-i-y-u-m-v-a, has

10 commented on the differences between the International

11 Court of Justice and the Tribunal, and that counsel

12 obviously use care when they use the jurisprudence of

13 the former, being the International Court of Justice,

14 but equally obviously, those differences do not

15 prohibit resource to that jurisprudence on relevant

16 matters, more particularly having regard to the fact

17 that both institutions are international judicial

18 bodies. This in relation to the fact that reference

19 can be made to it, and, obviously, this Court can draw

20 some persuasive value from it but is not, in the

21 Prosecution's submission, bound.

22 It doesn't appear that my friend is arguing

23 too strenuously, although he takes the position that

24 the effective control test was the correct test in the

25 Tadic and Aleksovski judgements. I don't think I need

Page 381

1 to point out to you that both of those have been

2 overturned by this Chamber.

3 I would note two things though. The first

4 thing is that there are three general scenarios which

5 are recognised in the Tadic decision for the proof of

6 the existence of international armed conflict.

7 The first is the traditional concept of an

8 international conflict between two or more states. The

9 second is where there is an internal armed conflict but

10 it becomes internationalised when a third state

11 intervenes by sending its troops. The third, as

12 recognised by the Appeals Chamber, is that an internal

13 armed conflict becomes internationalised in the

14 situation where at least one of the participants acts

15 on behalf of a foreign state.

16 It's that third scenario, when it's an

17 organised military group that's acting on behalf of a

18 foreign state that is being challenged here. That's

19 where the claim that the effective control test fits

20 in, and that's the third element or third possibility

21 for proving the existence of armed conflict. That's

22 where the Court has held that you would, in those

23 circumstances, apply the overall control test.

24 I would simply bring to your attention that

25 the Trial Chamber in this case considered all three

Page 382

1 scenarios. They found that there was, under the first

2 scenario, an international conflict between two or more

3 states up until May 19th, when the apparent though, as

4 found by the Trial Chamber, the facade of the removal

5 of the JNA forces from Bosnia-Herzegovina.

6 As the indictment says from May until

7 October, the Trial Chamber made a finding of fact up

8 until at least May 19th that on the first scenario

9 there was an international conflict because the state

10 of the SFRY was in Bosnia-Herzegovina.

11 Secondly, if you look at the findings of fact

12 by the Trial Chamber, they make specific findings of

13 fact that there was an intervention by forces of the

14 JNA after May 19th in Bosnia-Herzegovina. That

15 satisfies the second criteria without ever getting to

16 the overall control test or effective control test.

17 I would note the acknowledgement, the factual

18 acknowledgement in the Delic appeal brief on this issue

19 at paragraph 200, and I note that it is written in the

20 appeal brief: "The appellant also agrees, in general

21 terms, with the Trial Chamber that the VJ troops, at

22 various times and in various places in the conflict

23 aided the VRS with special forces," these are armed

24 forces, "logistics, and even in 1994, air support."

25 So on the admission by counsel for

Page 383

1 Mr. Delic, he's acknowledged the presence, in my

2 submission, of the VJ troops in the conflict in

3 Bosnia-Herzegovina, and on that test alone, we don't

4 have to go to the third test of overall control.

5 In speaking about the issue of the test for

6 overall control and the fact that he raises the

7 question of the application of test to the facts of

8 this case, two points.

9 The first is that the test applied by the

10 Trial Chamber in this case was equally consistent with

11 the overall control test. Though it didn't use the

12 word "overall control," clearly it was long before that

13 decision came out. It applied the same approach as

14 found by the Tadic Appeals Chamber decision and as

15 found in the Appeals Chamber's decision in Aleksovski.

16 The Appeals Chamber decision in Aleksovski

17 states that the overall control test calls for an

18 assessment of all the elements of control taken as a

19 whole and a determination to be made on that basis as

20 to whether there was the required degree of control.

21 The judgement goes through, interestingly

22 enough, the exact same facts, almost as we found in the

23 Tadic decision. It looks at all the elements of

24 control as is indicated as required in the Aleksovski

25 decision, and it concludes that the government of the

Page 384

1 Federal Republic of Yugoslavia was the, in the language

2 it uses, the controlling force behind the VRS, which we

3 know is the Bosnian Serb army, in Bosnia. In that

4 regard, it can't be disputed that the test is at least

5 consistent.

6 The last submission I would make is that the

7 elements and facts as found by the Trial Chamber are

8 almost identical but at least very similar to the facts

9 relied on in the Tadic appeal decision.

10 Now, I'll bring to your attention the

11 original position of the appellants in their appeal

12 brief. They originally said that the facts were

13 similar to Tadic. In fact, in the Landzo appeal brief,

14 counsel used the words that the facts in this case were

15 remarkably similar to the facts in the Tadic case. Of

16 course, that was at a time when the Tadic case applied

17 the effective control test. And their legal argument

18 was that as the effective control test was the correct

19 test and the facts are remarkably similar, you should

20 reach the same result.

21 Well, I'd simply bring to your attention that

22 now the test as found in Tadic on remarkably similar

23 facts came to the conclusion that this Trial Chamber

24 did. Thank you.

25 JUDGE HUNT: Mr. Moran, do you want to rely

Page 385

1 to that?

2 MR. MORAN: Your Honour, we're asking the

3 Court to apply the correct legal test, and along those

4 lines, we must recall that everyone agrees that at some

5 points in time, the conflict in Bosnia-Herzegovina was

6 considered to be internal and at other times external

7 or international. An example is a report given to his

8 government by the -- by a member of the commission of

9 experts where he said that activities in BH prior to

10 April 6, 1992 should be considered as internal,

11 activities between 6 April 1992 and May 1992 should be

12 considered as international, and those after 19 May

13 should be considered as internal. That's on page 102

14 and paragraph 225 of my brief, and it's quoting out of

15 a book, L.C. Green, "The Contemporary Law of Armed

16 Conflict" in 1996. By the way, it quotes Bill

17 Fenrick.

18 And we just ask the Court to apply the proper

19 legal test to the facts that were found by the Trial

20 Chamber, that the improper test was used and that we

21 would like the proper test used. And having done that,

22 I think you'll find it was an internal armed conflict.

23 JUDGE HUNT: Don't sit down, because you're

24 going to be first up in relation to group 3, protected

25 persons, because Mr. Ackerman said he did not wish to

Page 386

1 add to anything that was in his written submissions and

2 what he'd said earlier in relation to Count 48.

3 MR. MORAN: Yes, Your Honour. I'll move down

4 to the podium. Excuse me.

5 JUDGE BENNOUNA: [Interpretation] Mr. Moran,

6 while you're standing, one question about the

7 international aspect of the conflict. My question is

8 the following: You tell us -- to sum up, you're

9 telling us that the Chamber, in this particular case,

10 has not applied the proper legal test that should be

11 the one of Nicaragua, and you tell us that this

12 Tribunal is bound by the ICJ.

13 In Tadic, in the appeal in 1999, I'd like to

14 point to the fact that the Chamber did not move from

15 the Nicaragua test. What they did for the Nicaragua

16 case is that they interpreted it in a different way,

17 and here I would be very much interested in your

18 opinion, because then the Chamber said: [In English]

19 "This criterion will be used in practice," the

20 criterion is the criterion of effective control, "would

21 be used in practice only with regard to individuals or

22 unorganised groups of individuals acting on behalf of

23 the state."

24 [Intepretation] So that's way the Chamber has

25 limited or restricted the Nicaragua test of effective

Page 387

1 control for groups of individuals, because then this --

2 the behaviour of these individuals is then put to the

3 credit of a state.

4 [In English] It has applied a different test,

5 that is the test of overall control, with regard to

6 military or paramilitary groups, which the Appeals

7 Chamber termed overall control.

8 THE INTERPRETER: Your microphone is off.

9 JUDGE BENNOUNA: [Interpretation] So the real

10 question is that in Tadic in 1999, the test of

11 effective control was limited to the actions of

12 individuals and groups of -- disorganised groups of

13 individuals, because then we are -- for attributing the

14 behaviour to a state, whereas when we have paramilitary

15 groups, and that's what we're interested in, then we

16 apply the test of overall control that should be used

17 to attribute the behaviour of these paramilitary groups

18 to a particular state. And then to lead to the

19 internationalisation of the conflict because you would

20 say that a specific state intervenes in another state

21 through a paramilitary group.

22 Do you have this distinction in mind, this

23 difference in mind, in terms of the legal test used to

24 assess the international nature of a conflict? That's

25 my question.

Page 388

1 MR. MORAN: I don't know, Your Honour, if I'm

2 going to give you a good answer, but I'll give you the

3 best one I can, which is this: The contras in

4 Nicaragua versus United States were a pretty

5 well-organised paramilitary organisation. They were

6 funded when congress decided to fund them, pretty well,

7 they were supported by various organs of the United

8 States government, and they carried on a pretty

9 organised campaign against the elected government of

10 Nicaragua.

11 At a minimum, I think one would have to call

12 them a paramilitary group. The ICJ talked about them

13 having officers and commanders and organisations. I

14 don't think that they should be treated, for purposes

15 of international versus internal armed conflict,

16 different from --

17 JUDGE BENNOUNA: [Interpretation] I don't want

18 to enter into a reanalysis of the Nicaragua and contra

19 case, Mr. Moran. The Appeals Chamber of our Tribunal,

20 International Criminal Tribunal, has criticised the ICJ

21 for the way in which it applied international law in

22 terms of responsibility, and there was a test of

23 responsibility in the Nicaragua case. The Tribunal

24 said that the ICJ had not applied the appropriate test;

25 i.e., that for a paramilitary group, the overall

Page 389

1 control test is the one which is applicable.

2 We said that the ICJ had applied an erroneous

3 test, one which was not adapted. It was the effective

4 control test, which, according to the Appeals Chamber,

5 only applies to individuals or groups of non-organised

6 individuals. So this is the situation we find

7 ourselves in.

8 The Appeals Chamber has indeed criticised the

9 manner in which the ICJ had implemented customary

10 international law in terms of international liability,

11 so that a paramilitary group now can be said to be

12 linked to a state, thanks to the application of the

13 overall control test, without it being necessary for

14 the state to be responsible for the conduct of this

15 group in any situation. And this, of course, leaves

16 the problem of individual criminal responsibility

17 untouched, as it does with the problem of the command

18 responsibility.

19 So this is the problem that was put. The

20 Appeals Chamber of this Tribunal did criticise the ICJ

21 on this particular issue because it thought that the

22 ICJ had applied an inappropriate test and had applied

23 inappropriately international humanitarian law.

24 MR. MORAN: Okay, Your Honour. Now I

25 understand your question. I did not want to re-fight

Page 390

1 the contra war, and I'm glad I don't have to.

2 The Appeals Chamber here has taken the

3 position -- I think it is best put in Aleksovski, where

4 it says that the test that should be used, the test

5 that this Appeal Chamber should use, is "not as

6 rigorous" as the ICJ test, and this Tribunal and the

7 Appeals Chamber has been critical of the ICJ.

8 I have no problem with this Chamber being

9 critical of the ICJ. The suggestion that I put before

10 the Court is, and I guess it's more of a question

11 than -- as much as a proposition of law, is whether, on

12 the same issue of law, whether a conflict is an

13 international armed conflict or an internal armed

14 conflict, whether the two courts, as a matter of

15 policy, should have different legal tests; and if not,

16 who prevails? And my submission was that under the

17 Charter, as the primary judicial organ of the United

18 Nations, when it comes to that kind of conflict, that

19 the ICJ should prevail, whether I like what the ICJ

20 holds or not, just because of their position under the

21 Charter.

22 Did I answer your question, Your Honour?

23 JUDGE BENNOUNA: [Interpretation] I think that

24 on this particular issue, you are assuming that the ICJ

25 should prevail, or its decisions should prevail, on the

Page 391

1 decisions rendered by the ICTY. But that's not what

2 we're looking at. You see, the idea is that the ICJ

3 has a completely different mission, a completely

4 different competence. There is nothing similar between

5 what the ICTY has to do, what the ICJ has to do. The

6 ICJ does not deal with similar types of problems as we

7 do.

8 MR. MORAN: I understand, Your Honour, but

9 the question is: Can you have two separate rules of

10 law on the same issue from two courts, one applicable

11 to states and one applicable to individuals? I happen

12 to be from a jurisdiction that has two supreme courts.

13 In my state, unlike virtually every other state in the

14 United States, we have a Supreme Court that does civil

15 cases and a court of criminal appeals that does nothing

16 but criminal cases. They will sometimes interpret the

17 same Statute, and they do everything they can to make

18 sure that they interpret it the same way. And when

19 they don't, and I think there have been two or three

20 occasions when they have not, the second court to

21 decide is usually pretty well criticised, and they're

22 criticised for not having a consistent body of

23 jurisprudence. And I would suggest that that is not

24 too different from the situation between the ICJ and

25 the ICTY.

Page 392

1 JUDGE HUNT: Surely, Mr. Moran, that is

2 because each of them stands at the pinnacle of the

3 appellate procedures in that particular state, so that

4 the courts below them would be somewhat confused if

5 they had two appellate courts telling them different

6 things about the same Statute. That's not the

7 situation here at all. We do not bind anybody else by

8 our decisions, except the Trial Chamber's, and the ICJ

9 doesn't bind anybody, doesn't even bind itself by its

10 decisions.

11 MR. MORAN: Well, Your Honour, as I

12 understand it, the ICJ generally, although they say

13 that the Statute says it's not precedential, as we

14 would have in the common-law world, they do, when they

15 find that something is customary international law,

16 they tend to keep applying that standard.

17 And while you say that no one else is bound

18 by the holdings of this Court, or the ICJ, for that

19 matter, except the states involved or the Trial

20 Chambers here, the fact of the matter is that people

21 and states are bound by the decisions of this Court;

22 people and states are bound by the holdings of the ICJ;

23 that somewhere in most countries where there is a

24 military, there are people in uniforms, lawyers, who

25 are reading the decisions from this trial, from this

Page 393

1 Court, and determining what constitutes customary

2 international law, what do we have to do to follow

3 international law, what does the Geneva Convention

4 mean, those kinds of issues.

5 This Court stands in a very similar situation

6 to the Control Counsel 10 cases to the courts or the

7 Nuremberg Tribunal. You are enunciating international

8 law, just as there is someone in a foreign ministry

9 someplace who is reading the decisions of the ICJ,

10 saying, "Here's what our government can do or cannot

11 do." They pay lawyers lots of money to do that. And

12 "Here is what is customary international law binding

13 upon our state." And when those two groups of lawyers

14 get together, they ought to have the same law. There

15 should not be one set of customary international law

16 binding individuals and another set of customary

17 international law applying to states. It should be the

18 same.

19 JUDGE BENNOUNA: [Interpretation] Mr. Moran, I

20 think maybe we should swiftly go on to the next point,

21 because we are now hearing you launch an analysis or a

22 transposition of international law which might lead us

23 way beyond what we are gathered here to discuss. I'm

24 speaking under the control of Judge Hunt, of course.

25 MR. MORAN: And I understand, and I will

Page 394

1 defer to Judge Hunt's request to go on, the request

2 made through you, Your Honour.

3 The next thing up is the effect of

4 nationality on protected persons, and we're going to

5 break this into two areas basically. The first thing

6 I'm going to do is talk about the Trial Chamber's

7 holdings, this Appeals Chamber's holdings in Tadic and

8 Aleksovski, and treaty interpretation. And then

9 Mr. Karabdic is going to talk about the citizenship law

10 of Bosnia-Herzegovina, for the simple reason that he

11 knows it a lot better than I do.

12 Part of the element of the offence for a

13 violation, a grave breach of the Geneva Convention

14 relative to civilians, is that that person be a

15 protected person within the definition of Article 4 of

16 the Convention. It's a treaty interpretation case.

17 It's pretty well settled, at least by the ICJ, that

18 when you're interpreting a treaty, a court should

19 interpret the words according to their natural and

20 ordinary meanings in the context in which they occur.

21 And the case cite on that, the cite in my brief, is

22 Cambodia versus Thailand. It's a 1961 case.

23 When we're interpreting treaties, when courts

24 interpret treaties, they're not writing treaties;

25 they're interpreting agreements that have been made by

Page 395

1 sovereign states, where sovereign states have agreed to

2 be bound by certain provisions of these treaties.

3 I think if you look at the plain wording of a

4 treaty and it says something, it shouldn't be

5 broadened, it shouldn't be narrowed. The agreement of

6 the parties should be followed. Now, having said that,

7 there are two cases from the Appeals Chamber,

8 obviously, Tadic and Aleksovski, that I want to talk

9 about, because I have to -- because they set a test for

10 what is a protected person.

11 Yesterday we were discussing a matter having

12 to do with knowledge, and somebody said, "Is this an

13 academic exercise?" Well, in Tadic and Aleksovski,

14 given the facts that were found by the Trial Chambers

15 and this Chamber, any discussion on nationality and

16 protected persons was an academic exercise. It was

17 dicta. It was not necessary to the decision of the

18 Appeals Chamber. And here's why: In both of those

19 cases, the Trial Chamber -- or the Appeals Chamber,

20 rather, held that given the facts of the case, there

21 was, one, an international armed conflict, in one case

22 involving the Federal Republic of Yugoslavia, and the

23 other, Croatia and Bosnia-Herzegovina. And it further

24 held that the, in one case Bosnian Serbs, the other

25 case Croatian, Bosnian Croatians, were agents of the

Page 396

1 other power; in one case FRY and the other case

2 Croatia. So that citizens of Bosnia-Herzegovina who

3 were in the hands of the Bosnian Serbs, Bosnian Croats,

4 were in the hands of a party to the conflict of which

5 they were not nationals, Croatia or FRY.

6 Then the Court went on to hold that when we

7 look at the definition of protected persons and we talk

8 about nationals of a country, that in this era the

9 proper thing to do is to look at which side of the

10 conflict that a party is on or identified with, so

11 that, for instance, a Bosnian Muslim who is in the

12 hands of the Bosnian Serbs would be a protected

13 person. That is what I consider to be dicta, because

14 it is unnecessary for the decision of the case. Now,

15 if it's not dicta, if it's binding on you, I would

16 suggest that it's wrongly decided and that you should

17 consider revisiting those issues, and here are the

18 reasons.

19 As we said earlier, the general rule of

20 treaty interpretation is one interprets the words of

21 the treaty, and Article 4 of Geneva Convention talks

22 about protected persons being those who are in the

23 hands of a party to the conflict of which they are not

24 nationals. It doesn't say anything about being

25 identified with one side of a conflict or another; it

Page 397

1 says what it says.

2 As Mr. Karabdic will show you in a few

3 minutes, or at least attempt to show you, based on the

4 evidence that was presented by experts and evidence

5 that was presented at the trial level, everybody

6 involved in this case was a national of the Republic of

7 Bosnia-Herzegovina at all relevant times to this

8 conflict. The inmates in the prison were residents of

9 Bosnia-Herzegovina, the people holding -- or were,

10 excuse me, nationals of Bosnia-Herzegovina, not just

11 residents. The people who were the guards were

12 nationals of Bosnia-Herzegovina and they were part of

13 the army, or the armed forces of the Republic of

14 Bosnia-Herzegovina, part of the normal governmental

15 function of that republic.

16 Now, when you examine the history of the

17 Geneva Convention relative to civilians, you have to do

18 a couple of things, I think. Remembering that it was

19 passed in -- or it was adopted by the Diplomatic

20 Convention in 1949 and then ratified by various states

21 over a period of years. The Pictet's commentaries to

22 the convention talk about the definition of protected

23 persons being in a negative form so as to -- they're

24 intended to cover anyone who's not a national, but not

25 interfere with the relations of a state with its own

Page 398

1 nationals.

2 A couple of courts have construed other

3 portions of the conventions, or of the other

4 conventions. Two that I cited involved the

5 construction of the convention on prisoners of war, Koi

6 and Lee Hoo Boon, both of which involved people who

7 claimed prisoner of war status when they were being

8 held by the state of which they were nationals. In

9 both cases, one, the privy counsel, House of Lords

10 acting as privy counsel, and the other the Malaysia

11 Supreme Court, held that no, they were not in the hands

12 of the enemy. They were not protected under customary

13 law. And we discussed these at some length in our

14 brief.

15 It is general international law, in my

16 opinion and my submission to the Court, that

17 international law does not get involved or interfere

18 with a state's relations with its own nationals, short

19 of genocide and crimes against humanity. The highest

20 protection any individual can have under international

21 law is that of a diplomat, and yet the Vienna

22 Convention on Diplomatic Relations excludes diplomats

23 credited to their own state, if you would.

24 And with the help of the usher --

25 JUDGE HUNT: It is an hour and a half since

Page 399

1 we started. We'll take a break now until 4.30.

2 MR. MORAN: Yes, Your Honour.

3 --- Recess taken at 4.05 p.m.

4 --- On resuming at 4.33 p.m.

5 JUDGE HUNT: Yes, Mr. Moran.

6 MR. MORAN: May it please, the Court, Your

7 Honour. As I was saying before the break, the highest

8 protection under international law given to any

9 individual is that to diplomatic agents under the

10 Vienna Convention on diplomatic relations.

11 The general rule is that a diplomat can do

12 anything he wants, commit any crime he wants in the

13 nation to which he's accredited, and he cannot be tried

14 for an allegation unless his own state waives

15 immunity. There is one exception to that, and that

16 exception is for diplomats who are nationals of the

17 state to which they are accredited. That's

18 Article 38(1) of the Vienna Convention on Diplomatic

19 Relations.

20 During the break we handed out a news

21 magazine article to show how that works. It's the top

22 article. Basically it talks about the Ambassador of

23 Bosnia-Herzegovina to the United Nations, who was

24 arrested in New Orleans, Louisiana for cheating in a

25 casino. He claimed diplomatic immunity, and at first

Page 400

1 blush, the United Nations people that were in charge of

2 that agreed that he had diplomatic immunity, and later

3 called back and said that no, they were wrong. Because

4 he's a United States national, he does not have

5 diplomatic immunity vis-a-vis the United States except

6 for his official position.

7 Now, if nationality, citizenship in a state

8 is the determining factor on whether or not one has

9 diplomatic immunity, clearly it can be a determining

10 factor on whether or not a person is a protected person

11 under the definition in Article 4 of the Geneva

12 Convention relative to civilians.

13 The basic holding of the Trial Chamber and

14 the dicta in Tadic and Aleksovski seems to be that

15 given the change in how wars are fought, the 1949

16 conventions may be obsolete and may need to be updated

17 to take into account a so-called new reality. Maybe

18 that's true. I'm not going to disagree, as a matter of

19 public policy, that possibly the conventions are

20 obsolete. If they are, maybe we should convene a new

21 diplomatic conference in Geneva, just like was convened

22 in 1949, and look at rewriting or replacing the

23 conventions, possibly passing Protocols 3 and 4, if

24 that's required, and at that point, the states of the

25 world can determine whether they want to ratify and be

Page 401

1 bound by the new conventions and the new holdings.

2 But if those conventions are to be rewritten,

3 if protections under those conventions to be extended

4 to people that are not protected by the plain language

5 of the 1949 conventions, I know it's not my job to do

6 that, and I don't think it's the job of the Prosecutor,

7 and I don't think it's the job of the Security

8 Council. It's the right of states, through

9 negotiations, to arrive at major changes in the Geneva

10 Conventions. By their very nature, international

11 conventions are the subject of negotiation among

12 multiple state parties, and they're the result of

13 compromise by those parties.

14 There's no question in my mind that the

15 Tribunal has the power to construe the Geneva

16 Conventions pretty much anyway the Tribunal so

17 chooses. The question in my mind is: Should it do so

18 or should apply the traditional rules of treaty

19 interpretation to read the plain language of the treaty

20 as ratified by virtually every state in the world, with

21 the possible exception of Burma, and apply that treaty

22 as it's written or should the Tribunal decide that the

23 treaty is obsolete and should be rewritten? I think it

24 should do the former, apply the traditional rules.

25 The evidence in this case has been all along,

Page 402

1 from the witnesses that testified, that they testified

2 in such a way to show that they were citizens of

3 Bosnia-Herzegovina. Nobody ever tried to give up that

4 citizenship, renounce it, accept citizenship in another

5 state. They were all residents of Bosnia-Herzegovina,

6 most of them from the time of their birth. We

7 introduced evidence that they had been born there,

8 educated there, married there, voted there. They had

9 all the indicia -- they lived there. They had all the

10 indicia of citizenship.

11 If we're going to start giving citizens

12 rights and liabilities and dividing citizens up under

13 the law based on their ethnicity, I would suggest that

14 that is an awfully slippery slope, that my country has

15 a history of doing that, and whenever we've done it

16 we've been, in the long run, very sorry.

17 Just over a little over 24 hours ago, the

18 United States, in a case called Saldano versus

19 Texas -- and I will provide a copy to the Court, I only

20 have one copy -- vacated a death sentence because the

21 Prosecution, at the punishment phase, presented

22 evidence that Mr. Saldano, who is an Argentinian

23 national, was more likely to commit future crimes

24 because his Hispanic background. Now, I'm his lawyer,

25 and I found that offensive. I found it very offensive

Page 403

1 that his ethnic background would have anything to do

2 with his status under the law, and the Supreme Court

3 agreed with me.

4 Your Honour, unless there are some questions

5 about what I've talked about, I'll sit down and let

6 Mr. Karabdic tell you about what the Bosnian

7 citizenship law was.

8 JUDGE HUNT: Thank you very much, Mr. Moran.

9 MR. MORAN: Thank you, Your Honour.

10 JUDGE HUNT: Yes, Mr. Karabdic.

11 MR. KARABDIC: [Interpretation] Your Honours,

12 I'm Salih Karabdic, attorney from Sarajevo. I am going

13 to address the topic of the BiH citizenship.

14 In paragraph 225 of the judgement, it is said

15 that the analysis of the citizenship of the BiH is not

16 fully clear. Also, in paragraph 252, it says that even

17 though Bosnia and Herzegovina proclaimed its

18 independence in March 1992, it was only in October 1992

19 that the first decision regulating the issue of

20 citizenship was passed and which was later supplemented

21 with others.

22 I have to say that these -- that the Trial

23 Chamber has erred in its ruling, and the citizenship of

24 Bosnia and Herzegovina was, as a result,

25 misinterpreted, especially in its application of

Page 404

1 Article 4 of the Geneva Conventions Relative to the

2 Protection of Civilian Persons in Time of War, and it

3 was prejudicial to my client.

4 Such judgement would not have been possible

5 had the citizenship of Bosnia-Herzegovina been treated

6 as citizenship of an independent sovereign state.

7 Bosnia and Herzegovina was immediately

8 recognised as a sovereign state and became a state

9 among the other internationally recognised states.

10 Further, in paragraph 168 of the Tadic

11 appeal, the Appeal Chamber allows for a possibility

12 that prior to 6 October 1992, when the law of the

13 citizenship of BiH was passed, that the citizens of FRY

14 had the same rights as the BiH citizens. Now, that too

15 is not true.

16 The analysis of this issue needs to start

17 with the constitutions of SFRY and the Socialist

18 Republic of Bosnia and Herzegovina, that is, the

19 constitution of the federal state and its constituent

20 republics, which were then socialist. The constitution

21 of 1974 says that SFRY is a federal state, a union of

22 its constituent republics. The constitution of the

23 Socialist Republic of BiH states that BiH is a

24 sovereign state of its constituent people, including

25 Serbs, Croats, Muslims and other groups who live

Page 405

1 there.

2 The citizens of Socialist Republic of Bosnia

3 and Herzegovina exercised their rights in Bosnia and

4 Herzegovina, and also in the SFRY, when it is in their

5 interest. This same applies for the Socialist Republic

6 of Bosnia and Herzegovina. Serbs, Croats, and Muslims,

7 and members of other ethnic groups, shall exercise

8 their rights in Bosnia-Herzegovina, except for their

9 rights which are of common interest, for which it is

10 provided that they should be exercised within the

11 SFRY.

12 SFRY, pursuant to the constitution of 1974,

13 was a federal state with many elements of

14 confederation. Some of this also applies to the issue

15 of citizenship. There was a citizenship of the federal

16 state, that is, SFRY, and the citizenship of individual

17 republics, such as SR BiH.

18 Every citizen of any of its constituent

19 republics was simultaneously a citizen of SFRY. This

20 is paragraph 249.2. And also it is reflected in the --

21 Socialist Republic of Bosnia-Herzegovina constitution

22 has the same provision. There were two laws: the law

23 of citizenship of SFRY adopted in 1976 and the law of

24 citizenship of the Socialist Republic of Bosnia and

25 Herzegovina adopted in 1977. Both laws had almost

Page 406

1 identical legal and material provisions.

2 Only the SFRY citizenship law provided for

3 the annulment of citizenship. It also contained

4 colliding provisions. In both of these laws, the SFRY

5 and the BiH laws, all issues relating to the

6 citizenship was left to the republican organs, and it

7 was the republican organs which would register its

8 citizens.

9 Until the proclamation of independence, the

10 BiH citizens held two citizenships: one SFRY and the

11 other SR BiH. The primary citizenship was the BiH

12 citizenship, whereas the SFRY was derived -- it could

13 not exist on its own -- it was just derived from the

14 republican citizenship. This was the situation until

15 the beginning of the war.

16 A referendum was held on 29 February and 1

17 March of 1992, and two thirds of those who came out to

18 vote voted for independence. The independence was

19 proclaimed on 6 March 1992, and Socialist Republic of

20 Bosnia and Herzegovina became Republic of Bosnia and

21 Herzegovina; however, the new state was immediately

22 attacked and the war broke out.

23 By the recognition of its independence, the

24 citizenship of SR BiH became the citizenship of the

25 Independent Republic of Bosnia and Herzegovina.

Page 407

1 Republic of Bosnia and Herzegovina was no longer part

2 of the Federal Republic of Yugoslavia. And so

3 citizenship of SFRY could not be derived from the BiH

4 citizenship.

5 The law of SR BiH was fully adopted by the

6 Republic of Bosnia and Herzegovina, and in the first

7 days of its independence the citizenship of BiH was

8 fully regulated.

9 The presidency of Republic of Bosnia and

10 Herzegovina adopted a decree with a force of law of 11

11 April 1992, adopting the laws of the previous state as

12 new republican laws, and through this decree, over 200

13 federal laws were adopted and were put into force as

14 the republican laws, including the law on citizenship

15 with the necessary changes.

16 According to the constitution of Socialist

17 Republic of Bosnia and Herzegovina, the presidency of

18 the republic, in case of the immediate threat of war

19 and inability to convene the parliament, had the right

20 it adopt decrees with the force of law. Later on, the

21 decree with the force of law of SR BiH were further

22 clarified. It was adopted in October 1992 and it

23 represents only the codification of the previous

24 regulations rather than a belated regulating of the

25 issue of the citizenship of BiH as was found by the

Page 408

1 Trial Chamber.

2 According to paragraph 252 of the Trial

3 Chamber's judgement, all citizens of BiH were also

4 citizens of the SFRY until this state was dissolved.

5 Dr. Gow, who was a Prosecution expert, presented his

6 views on this issue and said that the SFRY was

7 dissolved in April 1992, at the latest, and ceased to

8 exist as a state.

9 On 27 April 1992, the Federal Republic of

10 Yugoslavia was proclaimed with its new -- and the new

11 constitution was adopted, and formally this is the

12 moment when all Yugoslavia ceased to exist.

13 Based on this -- with these new laws, the

14 citizens of Bosnia and Herzegovina can no longer be

15 treated as citizens of this new state. Provisions were

16 also made for citizens in succession when a state

17 ceased to exist. The citizens can only get the

18 citizenship of the successor state. Professor

19 Economides, another Prosecution expert witness,

20 testified to that.

21 The citizens of Bosnia and Herzegovina,

22 including those of Serbian ethnic origin, had only one

23 citizenship as of April 1992, which was the citizenship

24 of Bosnia and Herzegovina. The citizens of Bosnia and

25 Herzegovina of Serb ethnic background could not become

Page 409

1 citizens of the new Federal Republic of Yugoslavia

2 because the citizenship of the new state was limited

3 only to people living in its constituent parts, which

4 was the Republic of Serbia and the Republic of

5 Montenegro, and the reference are paragraphs 17 and

6 21.

7 The Trial Chamber further says even though

8 the Badinter Commission, states successor states must

9 allow a possibility for its citizens to opt for other

10 citizenships, Federal Republic of Yugoslavia never

11 exercised this right.

12 I have to make a point here that the Badinter

13 Commission never provided for the minority groups to

14 exercise the right but only recommended it. It said it

15 would be very appropriate.

16 The BH citizen law does not provide a

17 possibility for its citizens of Serb ethnic background

18 to opt for a Federal Republic of Yugoslavia

19 citizenship, and it requires that the state of whose

20 citizenship an applicant may apply for has to first

21 provide proof of the approval of this state to grant

22 such a request, which is not the case.

23 Dayton Accords further provides that all

24 citizens living in the territory of Bosnia-Herzegovina

25 are granted the citizenship of Bosnia and Herzegovina,

Page 410

1 and the citizens naturalised after 6th of April 1992

2 shall be regulated subsequently. The Dayton Accord,

3 therefore, makes it clear that the citizenship of

4 Bosnia and Herzegovina existed as early as 6th of

5 April, 1992.

6 These are my submissions, and if there are

7 any questions, I'm open to that.

8 JUDGE BENNOUNA: [Interpretation] Thank you,

9 Mr. Karabdic, for the all the information you have

10 forwarded to us. It has been an extremely interesting

11 introduction to practices that you know, because you

12 come from the inside of the system and you have told us

13 a lot about the evolution of the concept of nationality

14 since the existence of the Federal Republic of Bosnia

15 and Herzegovina to the SFRY.

16 I have a question that relates to Article 4

17 of the Geneva Convention, an Article which implies

18 that -- maybe my question also goes to Mr. Moran, who

19 also spoke at length on this particular issue, Article

20 4, which defines what is a protected person.

21 What I am interested in is the situations in

22 which this Article applies. They apply normally in

23 cases of international conflict. If we assume that the

24 conflict of an international character, the victims

25 must also be proven to be protected persons as defined

Page 411

1 by Article 4 of the Geneva Convention.

2 This Article 4, I have it before me in

3 English, and it says, I quote: [In English] "At a

4 given moment and in any manner whatsoever, find

5 themselves in case of a conflict or occupation in the

6 hands of a party to the conflict." "Find themselves in

7 the hands of a party to the conflict."

8 [Interpretation] So this is where the notion

9 of protected persons arises from. These persons are

10 individuals who, at a particular moment in time, find

11 themselves in between the hands of one of the parties

12 who are at war. And the text adds, "Or of an occupying

13 power, [In English] they are not nationals."

14 [Interpretation] That means they are not citizens of

15 that particular country. So we are speaking of

16 individuals who are in between the hands of a

17 belligerent party and a party of which they are not a

18 citizen.

19 Mr. Moran told us that this text, sorry,

20 should be read in the light of what it actually says,

21 that only the words matter here. We have to look at

22 the words as they have been written.

23 In the Tadic case, it was added by Mr. Moran

24 that the Vienna Convention was quoted, that what was to

25 be looked at was the natural meaning of the words, but

Page 412

1 what was also to be taken into account was the more

2 general aim of the treaty.

3 So this is what one calls theological

4 interpretation.

5 If we try to look, as you said, Mr. Moran, at

6 the meaning of the words and the words only, we notice

7 that the persons who find themselves in between the

8 hands of a state of which they are not a citizen, in a

9 situation where there is a conflict between two states,

10 then it is quite clearly persons who have the

11 nationality of the enemy state.

12 So the question I have is the following:

13 What about a conflict such as the one that we are

14 discussing here, a conflict that has taken place in

15 Bosnia which is qualified as being an international

16 conflict? It's an internal conflict that has become

17 internationalised, and this conflict involves Bosnia

18 and Herzegovina and another party in this

19 internationalised conflict. In that case, the Bosnian

20 Serbs, who it may appear may have the same formal

21 nationality as the Muslim Bosnians but who are, in

22 fact, individuals who belong to the other party in the

23 conflict.

24 So in such a situation, how does the

25 Article 4 of the Geneva Convention apply? How does it

Page 413

1 apply?

2 Really, this is what interests me. The

3 interpretation which was given to us beforehand was

4 that this convention, contrary to what Mr. Moran has

5 said, this 1949 convention, as all international

6 conventions, has a life of its own and an evolution of

7 its own. This was the decision made by the Appeals

8 Chamber of our Tribunal. And it appears that some

9 conventions have even been enriched by the behaviour of

10 the parties of the conventions, behaviours that have a

11 customary law value, so to speak.

12 We are speaking of a text that was written in

13 1949. It is well understood that from 1949 to 1992

14 things have developed and changed, a lot of time has

15 gone by, so that this Article has to be interpreted

16 bearing in mind the general aim of the convention and

17 not in the context of the way conflicts have developed,

18 because these conflicts, more and more, are interethnic

19 conflicts, and I am speaking here of conflicts in the

20 former Yugoslavia. In those cases, foreign states are

21 not involved. We are speaking of conflicts between

22 different ethnicities.

23 So this is the situation in which we find

24 ourselves. What can you answer to that question,

25 Mr. Moran, Mr. Karabdic? Whoever wishes to speak is

Page 414

1 welcome to do so.

2 MR. MORAN: I'd like to speak to that if I

3 could.

4 MR. KARABDIC: [Interpretation] We'll let

5 Mr. Moran answer this.

6 MR. MORAN: Your Honour, the convention is

7 agreement among states. Absent the agreement among

8 states to the terms of this convention, nothing

9 exists. I've provided the Trial Chamber and this

10 Chamber with various authorities from some governments

11 on their interpretations of Article 4 of the Geneva

12 Conventions. The one that comes to mind is the one

13 produced by the US Judge Advocate General School, their

14 law of war desk book from 1997.

15 They all agree, everything I've seen from a

16 government, agrees that when the convention says "in

17 the hands to the party of a conflict of which he is not

18 a national," it means being in the hands of a party to

19 a conflict of which he is not a national.

20 As I said, it's possible that the Geneva

21 Conventions are obsolete. In 1949, there was a

22 diplomatic conference to rewrite the 1920 Geneva

23 Conventions in light of the experience of World War II,

24 and they produced what we have today.

25 It is possible that we need a 2001 diplomatic

Page 415

1 meeting to write conventions for the world as it exists

2 in this new millennium. However, until that is done,

3 we are faced with a law, a treaty, that is written in

4 very specific terms, aimed at very specific things,

5 protecting very specific types of people. And what we

6 have is a situation where in an international armed

7 conflict -- remember, Your Honour, that in an internal

8 armed conflict, with the exception of Common Article 3,

9 nothing applies from the Geneva Convention. You're

10 talking about a conflict which has been

11 internationalised; that is, a foreign state has taken

12 part, taken over, has control over one side of a

13 conflict within the borders of the sovereign State of

14 Bosnia-Herzegovina, a state that has all the rights of

15 my state, your state, everybody else's state.

16 People -- the question then becomes: How

17 much protection does international law give to persons

18 who are citizens of a state within that state, owing

19 loyalty to that state, who take part in an

20 international armed conflict on the other side? I

21 think we can all agree that's the bottom line.

22 In this day and age, under the law as it is

23 written today, those people have the protections of

24 their national law. They have the rights that are

25 given to them under their constitution to fair trials

Page 416

1 and whatever else they have. There is a question, and

2 we've discussed it and it's not -- I don't know whether

3 it's relevant here or not, on the application of Common

4 Article 3 to international armed conflict, because it's

5 clearly -- by its very terms only applies to internal.

6 If it's applicable, then they would have the

7 protections of Common Article 3. They would not be

8 protected from their own state by the IV Geneva

9 Convention. There would be some protection, in an

10 international armed conflict, to the entire population,

11 regardless of their nationality and citizenship. That

12 would be part II of the convention.

13 Judge, it's just -- I think the bottom line

14 is we're faced with a law, and it's not the prerogative

15 of anyone, I think, in this room to change that law,

16 that convention. It's open to criticism, and I'll

17 stand here and criticise it with you. But as a matter

18 of law, that clearly-written document should be applied

19 by its own terms. It's unambiguous in its terms, it

20 does not lead to an absurd result to apply its

21 unambiguous words, it clearly reflects the intent of

22 the parties to the convention, and it clearly reflects

23 the intent of the parties who ratified that

24 convention.

25 Your Honour, have I answered your question to

Page 417

1 your satisfaction?

2 JUDGE BENNOUNA: [Interpretation] No, I don't

3 think you have.

4 Without going back to what you have said in

5 your former presentation, I would like to put to you

6 this question: How do you apply the concept of a

7 protected person in the context where you have a

8 conflict that has been internationalised, a conflict

9 that is of an international character and in which both

10 parties, in essence, are members of the same state and

11 yet they are enemies, and they want to protect the

12 civilians of the opposite party?

13 Does that mean that these civilians who find

14 themselves in this international conflict do not

15 benefit from the protection allowed to them by

16 international law?

17 MR. MORAN: Your Honour, they have

18 protections. They're protections that apply to all

19 persons in all states for crimes against humanity and

20 genocide. It doesn't make any difference the

21 nationality of the victim of the genocide or crimes

22 against humanity. When German Jews were murdered --

23 JUDGE BENNOUNA: [Interpretation] No, no.

24 Sorry. We are talking about grave breaches of the

25 Geneva Conventions. That is all we're talking about.

Page 418

1 MR. MORAN: Your Honour, they have no

2 protections under the words of the treaty as it is

3 written.

4 Now, they can -- what they can do is cease to

5 be a citizen or a national of the state that they're

6 in, through whatever procedures there are. Yes, Your

7 Honour.

8 JUDGE RIAD: Mr. Moran, you've just been

9 talking to us previously about the supremacy of the

10 International Court of Justice decisions, and perhaps

11 you are acquainted with the Nottebohm case.

12 MR. ACKERMAN: Yes, Your Honour.

13 JUDGE RIAD: Yes. Now, you have said the

14 only outlet is that they should be citizens of another

15 country.

16 MR. ACKERMAN: Or stateless.

17 JUDGE RIAD: Or stateless. All right. Now,

18 in fact, Mr. Karabdic mentioned that until after the

19 proclamation of independence, the SFRY nationality

20 could not be derived from the BiH citizenship. Now,

21 this is the official nationality.

22 Now, if you know, according to the Nottebohm

23 case, there is the notion of genuine link. Now, these

24 people, if they are kept to the genuine link with the

25 SFRY, which was designed by the International Court of

Page 419

1 Justice, the said elements, including some of these

2 elements were the -- I think they mentioned the

3 emotional allegiance, the sense of belonging. So could

4 you -- could you just submit it to your imagination;

5 could you consider that although the nationality of the

6 SFRY could not be derived anymore from the nationality

7 of BiH, it could exist, in fact, on the basis of the

8 general link, and in that case they are still -- they

9 are not citizens of Bosnia.

10 MR. ACKERMAN: Your Honour Your Honours, the

11 expert witness for the Prosecution witnesses testified

12 that after April -- I keep wanting to say 29th, and I

13 think it's 27th --

14 JUDGE RIAD: I'm just mentioning to you --

15 I'm just returning your argument that the decisions of

16 the International Court of Justice should be supreme.

17 MR. ACKERMAN: Yes, Your Honour. After the

18 founding of the FRY in April of 1992, the -- everyone

19 agrees that the SFRY ceased to exist. When the SFRY

20 ceased to exist, its nationality ceased to exist with

21 it.

22 JUDGE RIAD: There was another state called

23 Serbia.

24 MR. ACKERMAN: There was another state called

25 the Federal Republic of --

Page 420

1 JUDGE RIAD: And this is the genuine link?

2 MR. ACKERMAN: Your Honour, what is a genuine

3 link? I mean, the Court talks about a lot --

4 JUDGE RIAD: That's what I'm just submitting

5 to you.

6 MR. ACKERMAN: I would submit to you that if

7 someone is born in a state, lives in a state, votes in

8 a state, is educated in that state, is married in that

9 state and is physically present within that state, and

10 his relatives were born within that state, died within

11 that state, were educated within that state, and those

12 that are still alive are physically present within the

13 state, that's genuine links, by anybody's standards.

14 And also, the Nottebohm case, recall, Your Honour, had

15 to do with whether Guatemala -- I believe it was

16 Guatemala -- could -- excuse me -- Leichtenstein could

17 exercise its diplomatic protection vis-a-vis

18 Guatemala. And what the Court held was: No, Nottebohm

19 citizenship was basically a fraud.

20 JUDGE RIAD: It's the essence, the notion of

21 genuine link.

22 MR. ACKERMAN: But what the Court did not

23 rule on is: Could Leichtenstein exercise its

24 sovereignty over Nottebohm? And I submit to you that

25 it could have, that it had the authority to do so.

Page 421

1 In any case, every -- and if you look at the

2 documents that we introduced in evidence as to each one

3 of the persons named in the indictment and each one of

4 the witnesses for the Prosecution, and the numbers are

5 in my brief somewhere, we have their birth

6 certificates, their voter registration certificates,

7 their marriage certificates, their citizenship

8 certificates, and they all testified that they were

9 living there. Nobody testified they wanted to be --

10 that they tried to somehow divest themselves of Bosnian

11 nationality, they had taken any official action. They

12 testified fairly consistently that although they didn't

13 vote in the early 1992 referendum, they could have if

14 they had wanted to. They had the option of doing

15 that.

16 With all of those factors, clearly

17 Bosnia-Herzegovina had the right to confer its

18 nationality on those people when it became an

19 independent state in 1992.

20 JUDGE RIAD: Thank you. I think I have --

21 MR. MORAN: Thank you, Your Honour.

22 JUDGE RIAD: I understood the thrust of your

23 argument, and it's very powerful. Thank you.

24 MR. ACKERMAN: Thank you, Your Honour.

25 JUDGE HUNT: Mr. Farrell.

Page 422

1 MR. FARRELL: Thank you, Your Honour. I will

2 actually try and be as concise as possible, in light of

3 the time.

4 There's one matter that the Prosecution would

5 like to raise at the beginning, not to take away from

6 anything stated by my learned colleagues but just to

7 state that to the extent that some of the references to

8 laws in Bosnia-Herzegovina and the expression of

9 explanation of what the laws are and how they're

10 brought into effect and what implication they have in

11 Bosnia-Herzegovina, some of that evidence, as far as

12 I'm aware, and I stand to be corrected, was not in

13 evidence.

14 As I understand the reference to the law of

15 the citizenship of the SFRY in 1976, reference to the

16 law of the citizenship of Bosnia-Herzegovina in 1977,

17 presidential decree dated the 11th of April, 1992,

18 adopting over 200 laws, it's my understanding that

19 these aren't in evidence, and I just bring it to your

20 attention that the Prosecution, at least, will attempt

21 to limit its submissions with respect to the findings

22 of the Trial Chamber and the findings of fact, not the

23 evidence before the Trial Chamber. That's my

24 understanding. I may be incorrect.

25 If I can just make a few points immediately

Page 423

1 about the -- not the issue that was just discussed now,

2 but the first issue, which is: Has this issue been

3 decided? And it's my respectful submission that though

4 it's been an interesting debate, I think the debate, in

5 fact, by my learned colleague on the Defence side is

6 more of the academic one. This matter has been decided

7 by the Appeals Chamber in both Tadic and Aleksovski.

8 The explanation given, at least one of them,

9 by my learned colleague as to why it should be

10 revisited at this stage is that it was not necessary to

11 decide the matter in those cases. As sort of an obiter

12 dictum type of approach, a common-law approach, that

13 you're only bound by the ratio or the decision as it

14 stands in relation to the facts in that case.

15 Accepting that that's the case, accepting

16 that that's the position, I would state just two

17 propositions in that regard. When the Tadic Appeals

18 Chamber decision itself had to deal with two matters

19 which were -- excuse me.

20 If I may, Your Honour, Judge Riad, I'd just

21 ask that if you -- thank you. My apologies. I'm just

22 having a hard time hearing myself, because I speak

23 aloud when I think. Thank you.

24 The first point is that the Tadic Appeals

25 Chamber's decision made particular legal determinations

Page 424

1 with respect to issues that were before it which did

2 not affect the verdict. That was the determination.

3 For example, one of the issues related to the Trial

4 Chamber's findings on--

5 THE INTERPRETER: Could Mr. Farrell please

6 slow down. Thank you.

7 MR. FARRELL: -- purely personal motives.

8 I'm sorry.

9 The Appeals Chamber noted that this finding did

10 not affect the verdict, but concluded that it was a

11 matter of general significance for the Tribunal's

12 jurisprudence and therefore set forth its views. I

13 find it hard to say that the Prosecution could argue

14 that that's an erroneous or a wrong interpretation of

15 the law and that we're in no way bound to at least

16 apply that law in the lower courts in our prosecutions

17 simply because it wasn't specifically a matter that

18 needed to be addressed.

19 Secondly, the -- and the second point I

20 wanted to make was at paragraph 168 of the Tadic

21 decision, in fact the issue was addressed, and it was

22 addressed specifically because of the potential

23 proposition that the October 6, 1992 Citizenship Act in

24 Bosnia-Herzegovina may have resulted in the nationals

25 of the FRY having the same nationality as the citizens

Page 425

1 of Bosnia and Herzegovina. Whether that was the case

2 or not in fact is not the issue. The issue is that

3 this was a potentiality that the Court felt was

4 something that they were required to speak about in

5 case it might be argued that that was the case. So

6 regardless of my friend's argument that because the

7 victims found themselves, in effect, in the hands of

8 the FRY, by being in the hands of the VRS, which were

9 under their overall control, they put forward the

10 proposition that it might be argued that, in fact,

11 they're both citizens -- they're all the same

12 citizens, and that the FRY citizens and

13 Bosnia-Herzegovina citizens were citizens underneath

14 the Socialist Federal Republic of Yugoslavia. That

15 being the case, then there would be no difference in

16 citizenship, because they would all be under the SFRY.

17 The Court dealt with that and dealt with the

18 possibility that we face today, which was in Celebici,

19 which is: What do you do in those circumstances? And

20 that's the circumstance we have today. And in my

21 submission, the Court addressed the issue, and

22 specifically addressed it.

23 As the Court held in Aleksovski, before this

24 Appeals Chamber should redetermine a matter, they

25 should look to see whether or not there are cogent

Page 426

1 reasons. The decision in Aleksovski specifically took

2 careful consideration of the decisions in Tadic and

3 adopted them. I hesitate to say that the Appeals

4 Chamber in Aleksovski -- I hesitate that the submission

5 could be made, and I'm not making it, that the Appeals

6 Chamber in Aleksovski didn't consider the matter very

7 clearly but simply adopted it because it was said by an

8 Appeals Chamber previously. In fact, in relation to

9 the international armed conflict, from which the

10 protected persons issue flowed, the Court in Aleksovski

11 said that they gave careful consideration to it.

12 For those reasons, there are no cogent

13 reasons for this matter to be revisited and that this

14 Court is bound.

15 Just to make a couple of points, if I may,

16 with respect to the comments on treaty interpretation.

17 The Vienna Convention, in the language, says

18 that the treaty is to be interpreted in good faith in

19 accordance with the ordinary meaning, but that ordinary

20 meaning is clarified as that meaning to be given in the

21 terms of the treaty in their context and in light of

22 their object and purpose. You just don't simply read

23 the word, and because it is a word that you can

24 understand and is something that seems to make sense

25 based on the normal interpretation, that that, in and

Page 427

1 of itself, is the end of the interpretation of the

2 word. In fact, it seems that the more logical approach

3 would be that it's the starting point, it's the prima

4 facie guide, and this rule of interpretation cannot be

5 allowed to obstruct the essential quest in the

6 application of treaties, namely, to search for the real

7 intention of the contracting parties.

8 Now, as Tadic held in the Appeals Chamber

9 decision, in looking at the decision itself, it looked

10 at -- the Geneva Conventions since 1949, it looked at

11 the legal bond of nationality. And in the decision, at

12 paragraph 165, it said that the legal bond of

13 nationality was not regarded in 1949 as crucial.

14 When we're looking at the interpretation of

15 the Geneva Conventions today, it's not that we're

16 changing the law, as my learned colleague has said, and

17 we're trying to apply a different law. The Court

18 noted, the Appeals Chamber noted in Tadic, that there

19 was allowance made in the Geneva Conventions for

20 special cases, for example, stateless persons. It also

21 spoke about civilians in occupied territory. Clearly,

22 civilians in occupied territory have the nationality of

23 the party in which they are in the hands of, and the

24 example was the German Jew refugees in France. So

25 clearly there wasn't an intention to determine that

Page 428

1 nationality was the sole criteria.

2 When you look at the Tadic decision as well,

3 there is, in addition to as I've just mentioned,

4 there's also recognition of the types of conflict that

5 the law operates within, and in my submission this is

6 relevant to the terms of the treaty and their

7 interpretation and the fact it is to be read in the

8 context in which the treaty was made, which is that it

9 made special allowance for these types of

10 circumstances.

11 It also, as has been expressed by Judge

12 Bennouna, that you might take a more teleological

13 approach, which is to interpret based on the function

14 of the treaty. And in this case, the function, as

15 indicated by Tadic, which is the true object and

16 purpose is the protection of civilians to the maximum

17 extent.

18 And it would be my submission that to adopt

19 some type of interpretation as advocated by my learned

20 colleague, in situations where you would have an

21 international armed conflict, where you would have the

22 prima facie application of the Geneva Conventions,

23 where you would have citizens who have allegiance to a

24 foreign state, where you have a breakdown of the state

25 so it's not clear how the state is composed, and where

Page 429

1 you have those citizens detained as the civilian enemy,

2 but then you don't apply the Geneva Convention because

3 you don't apply an approach which attempts to abide by

4 the object and purpose of that very convention, in my

5 submission, that would be illogical and would actually

6 result in the removal of protections from the Geneva

7 Convention, contrary to its very object and purpose.

8 Subject to any questions, those are my

9 submissions, Your Honours.

10 JUDGE HUNT: Mr. Ackerman, I know you said

11 nothing in chief, as it were, but you do have the right

12 of reply.

13 MR. ACKERMAN: I have nothing, Your Honour.

14 Thank you.

15 JUDGE HUNT: Thank you very much.

16 Mr. Moran?

17 MR. MORAN: Your Honour, I can be very quick

18 about it, and with that, I'll sit down. But quickly

19 going over this, treaty interpretations.

20 The words of the treaty are the prima facie

21 guide. The words of the treaty are the treaty. That

22 is the intent of the parties to the treaty, what they

23 wrote down, what they wrote there. The Prosecution

24 says that "How about citizens of occupied territories,"

25 and uses the example of the German Jews. That's real

Page 430

1 easy to take care of. The authors of the convention

2 took that into consideration, and there's a special

3 provision -- and I want to say that it's Article 68,

4 but just as sure as I say that, it will be some other

5 article -- that provides that a refugee who left his

6 state prior to the outbreak of the conflict has a

7 special status under the convention, that the authors

8 took that into consideration.

9 Whether this court should revisit it, revisit

10 Tadic and Aleksovski. The first thing I would say is

11 that this Appeals Chamber has, in fact, overruled its

12 own precedent in the past when it thought it was wrong,

13 and that was in the Tadic sentencing appeal, where this

14 Appeals Chamber overruled Erdemovic without even

15 bothering to cite it. Your Honours, I suggest that the

16 treaty should be interpreted as pursuant to the intent

17 of the parties that entered into it. If it's obsolete,

18 this Court can say so and can call for a new

19 convention.

20 And that, Your Honours, is all I have on

21 that.

22 JUDGE HUNT: Thank you very much. We'll

23 resume tomorrow at 10.00.

24 --- Whereupon the hearing adjourned

25 at 5.31 p.m., to be reconvened on

Page 431

1 Wednesday the 7th day of June, 2000,

2 at 10 a.m.