Tribunal Criminal Tribunal for the Former Yugoslavia

Page 432

1 Wednesday, 7 June 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 10.02 a.m.

5 JUDGE HUNT: Call the case, please.

6 THE REGISTRAR: This is case number

7 IT-96-21-A, the Prosecutor versus Delalic and others.

8 JUDGE HUNT: We're up to group 5 and,

9 Mr. Kuzmanovic, you're first off the rank here.

10 MR. KUZMANOVIC: Good morning, Your Honours.

11 This section of the argument deals with the

12 principle of double jeopardy, and it was filed in a

13 supplementary brief that Mr. Moran and I did about two

14 or three months ago, and it came about as a result of

15 the Kupreskic trial judgement. This issue revolves

16 around convictions that Mr. Mucic and Mr. Delic had,

17 and sentences for grave breaches of the Geneva

18 Conventions and for violations of the laws and customs

19 of war based upon the same acts.

20 It is our position that the Kupreskic trial

21 judgement, in section 5(D) paragraphs 637 to 748 is

22 applicable, and we believe that the Appeals Chamber

23 should adopt that section and vacate the -- one of the

24 two convictions, either for grave breaches of the

25 Geneva Conventions and for -- or for violations of the

Page 433

1 laws or customs of war when the elements of each

2 offence are the same.

3 The Kupreskic Trial Chamber adopted the

4 double jeopardy test announced by the United States

5 Supreme Court in Blockburger versus United States. I

6 have supplied, through Mr. Hocking, copies of the

7 Blockburger case for you, Your Honours, as well as a

8 more recent pronouncement in which this principle has

9 been upheld, and the same circumstance even if

10 sentences are concurrent, which is what we have in this

11 case, and that Supreme Court is Ball versus United

12 States, which is a case decided in 1995.

13 Incidentally, these cases are available for

14 free on the Internet at a site called

15 The reason behind -- by the way, the

16 Prosecution has also received copies of the two cases

17 as well.

18 The reasoning behind the United States

19 Supreme Court's decision in Ball, which followed the

20 court's holding in Blockburger, was that the

21 appropriate inquiry is whether each provision requires

22 proof of a fact which the other does not. And the only

23 remedy the United States enumerated was that court

24 within which sentencing responsibility resides must

25 exercise its discretion and vacate one of the

Page 434

1 underlying convictions.

2 One of the convictions as well as its

3 concurrent sentence was considered by the Ball Court to

4 be unauthorised punishment for a separate offence. And

5 significantly, the United States Supreme Court reasoned

6 that a second conviction, whose concomitant sentence is

7 served concurrently, doesn't evaporate because of the

8 concurrence of the sentence.

9 Page 865 of Ball -- a little factual

10 background on Ball. In the Ball case, the person was

11 arrested. The police found him in possession of

12 another person's firearm that was reported missing.

13 This person threatened a neighbour with the firearm and

14 he tried unsuccessfully to sell it.

15 The person was then indicted on charges of

16 receiving a firearm and possessing a firearm in

17 violation of two federal statutes. He was convicted at

18 the Trial-Court level on both counts and he was

19 sentenced to consecutive terms of imprisonment on each

20 count.

21 The Court of Appeals then remanded the case

22 to the district court saying it was violative of

23 Blockburger and instructed the Trial Court to modify

24 the sentences not to have them consecutive but to have

25 them concurrent. And the United States Supreme Court

Page 435

1 held that that violated the principle of double

2 jeopardy, despite the fact that these sentences were

3 concurrent, because the elements of each act were

4 essentially one in the same.

5 In our argument in this case, for purposes of

6 the double jeopardy principle here and how it applies

7 is based upon the Kupreskic trial judgement and its

8 adoption of the Blockburger test. Mucic, and for that

9 matter any accused, in our opinion, cannot be convicted

10 of both a grave breach and a violation based upon the

11 same acts.

12 For example, in the indictment, Mr. Mucic,

13 under Article 7(3), was held to be responsible under

14 Count 13, for example, with wilful killing, which is a

15 grave breach under Article 2(A) of the Statute. Under

16 Count 14, he was held to be responsible of a violation

17 of the laws or customs of war, punishable under

18 Article 3 of the Statute. Both of the violations were

19 for acts and omissions as a superior.

20 Because wilful killing and murder, in our

21 opinion, and I believe in the opinion of the -- even

22 the trial judgement in Celebici, are essentially one in

23 the same, we believe the Appeals Chamber should vacate

24 one of the convictions in each instance where he or

25 Mr. Delic were convicted of both a grave breach and

Page 436

1 violations of the laws or customs of war based upon the

2 same conduct.

3 In fact, the Celebici Trial Chamber itself,

4 in paragraph 433, stated, and I quote: "The ordinary

5 meaning of the English term 'murder' is also understood

6 as something more than manslaughter and thus, as stated

7 above, no difference of consequence flows from the use

8 of wilful killing in place of murder."

9 That same trial judgement also stated in

10 paragraph 439 that the mens rea required to establish

11 crimes of wilful killing and murder is present where

12 there is demonstrated an intention on the part of the

13 accused to kill, inflict serious injury, in reckless

14 regard of human life. For all intents and purposes, we

15 submit, the Celebici Trial Chamber's definition of

16 "wilful killing" and "murder" is one and the same.

17 The Trial Chamber's judgement also defines

18 two categories of "wilfully causing great suffering,"

19 et cetera, and "cruel treatment" almost identically in

20 the judgement in paragraphs 511 and 552.

21 Mr. Mucic was found guilty of a grave breach,

22 wilfully causing great suffering or serious injury to

23 body or health, and a violation of the laws or customs

24 of war in respect to Slavko Susic, for example.

25 Because the definitions of those two crimes under

Page 437

1 Article 2 and Article 3, at least in the Trial

2 Chamber's judgement, are one and the same, we believe

3 that that is violative of the principle of double

4 jeopardy, and one of the two, either the grave breach

5 or the violation of the laws or customs of war, should

6 be vacated, again based upon the Trial Court's, in

7 Kupreskic's, adoption of the Blockburger test.

8 Other counts with respect to Mr. Mucic are 33

9 and 34. Thirty-three and thirty-four are both findings

10 of guilt as a superior on a grave breach for torture

11 and a violation of the laws or customs of war for

12 torture. One of the two, we believe, should be vacated

13 pursuant to the Blockburger test. It also applies in

14 counts 38 and 39, counts 44 and 45, and 46 and 47 of

15 the indictment.

16 All of these categories are defined

17 essentially the same way by the Trial Chamber in its

18 judgement. "Wilfully causing," that phrase, and "cruel

19 treatment," at paragraphs 511 and 552 of the Trial

20 Chamber's judgement, and "inhuman treatment," at

21 paragraph 543 of the Trial Court Chamber's judgement,

22 are essentially defined in the same way.

23 For those reasons, Your Honours, we believe

24 this Appeal Chamber should accept the Kupreskic

25 adoption of the Blockburger test with respect to double

Page 438

1 jeopardy and vacate one of each of the double

2 convictions for Mr. Mucic and Mr. Delic based upon the

3 same acts.

4 We also believe that the Appeals Chamber

5 should adopt paragraphs 742 to 748 of the Kupreskic

6 judgement, which demonstrates the methodology to deal

7 with this issue at the Trial Chamber level. It is

8 essentially a pleadings and practice section of the

9 Kupreskic judgement which discusses cumulative

10 charging: when it is appropriate for a prosecutor to

11 add a charge with the leave of court, without leave of

12 court, and what some of the results of those decisions

13 could be.

14 And with that, Your Honours, I will, unless

15 there are any questions, I will pass to my colleague on

16 the Prosecution.

17 JUDGE HUNT: Before you sit down, you would

18 agree, I suppose, that it's a very separate issue in

19 relation to separate charging. Even if all of your

20 arguments are correct about separate convicting,

21 separate charging seems to throw out completely

22 different issues. It's certainly not something we have

23 to determine here.

24 MR. KUZMANOVIC: I agree with you, Your

25 Honour. I believe the Kupreskic decision does talk

Page 439

1 about separate charging, the Trial Chamber's decision,

2 and I think that the approach elucidated in the

3 Kupreskic judgement in those paragraphs which I cited

4 is appropriate. The Court does or does not have to

5 adopt that, as an Appeals Chamber, as a practice for

6 the Tribunal.

7 JUDGE HUNT: My point was: We don't have to

8 decide it in this appeal.

9 MR. KUZMANOVIC: I agree with you, Your

10 Honour.

11 JUDGE HUNT: The second question which I

12 would like to ask you: Has any other country adopted

13 the United States' view that double jeopardy can arise

14 within the one case rather than successive cases?

15 MR. KUZMANOVIC: I can't tell you off the top

16 of my head, Your Honour, but I know that at least in

17 England the double jeopardy principle does apply with

18 respect to what happens shortly after sentence. And

19 Mr. Morrison can address that issue specifically if

20 you'd like, but the Trial Chamber's judgement in the

21 Kupreskic case does go over several --

22 JUDGE HUNT: We've read the Kupreskic

23 judgement. But I was asking whether any other

24 country -- and I don't think the United Kingdom has --

25 adopted the United States' view that double jeopardy

Page 440

1 can arise in the same case.

2 MR. KUZMANOVIC: I don't know of any country,

3 Your Honour.

4 JUDGE HUNT: And the third question: What do

5 you suggest is the approach that the Court should take

6 in determining which conviction to keep? Is it the

7 most serious offence, and if so, how do you work that

8 out? Is it the one which is the most specific? Is it

9 the one which in relation to which there is the most

10 evidence or the most offences that have been committed,

11 which are all within the one charge?

12 MR. KUZMANOVIC: I would think, Your Honour,

13 it would be the one where there is the most evidence.

14 And the reason I say that is the way the Chamber

15 defined "murder" and "wilful killing," if you read them

16 side by side or look at them side by side, they're

17 essentially the same, so my estimation would be it

18 would be the evidence and the amount of evidence that's

19 there that would be dispositive.

20 JUDGE HUNT: Would you agree that it would be

21 the offence which leads to the most appropriate

22 sentence, in other words, which encompasses the

23 greatest amount of conduct on the part of the

24 particular accused?

25 MR. KUZMANOVIC: Yes, I would, Your Honour.

Page 441

1 JUDGE HUNT: Thank you. Yes, thank you,

2 Mr. Kuzmanovic.

3 MR. KUZMANOVIC: Your Honour, excuse me.

4 Mr. Morrison would like to add just a comment in answer

5 to one of your questions, if you'd like.

6 JUDGE HUNT: Yes. Very well.

7 MR. KUZMANOVIC: Thank you.

8 MR. MORRISON: Your Honour, it's simply to

9 assist on the question you posed to Mr. Kuzmanovic as

10 to whether any other country had adopted the question

11 of double jeopardy in a single case.

12 All I can speak of is as to the practice in

13 the United Kingdom, where you have, for instance, a

14 Prosecution, and I prosecute more than I defend, for,

15 say, conspiracy, where within the facts of the case

16 there are also substantive offences which are

17 identifiable. And if an indictment is placed before

18 the Court which contains counts of conspiracy and also

19 counts of substantive offences, the practice has grown

20 up now and is followed rigorously that counsel for the

21 Crown are obliged to indicate before trial whether they

22 wish to proceed on the conspiracy or the substantive

23 counts, and they are only in rare occasions allowed to

24 proceed upon both.

25 JUDGE HUNT: Yes. That's certainly the

Page 442

1 practice in other countries as well, but that isn't

2 really double jeopardy. It relies on a completely

3 different issue, at least as explained by other

4 superior courts of appeal.

5 MR. MORRISON: It is, but there is an

6 analogy. As far as the defendant is concerned, from

7 the defendant's point of view, he would see it as a

8 double jeopardy point.

9 JUDGE HUNT: Thank you very much.

10 Mr. Moran.

11 MR. MORAN: Your Honour, it may shock the

12 Court, but I don't have anything to say.

13 JUDGE HUNT: Thank you very much.

14 Mr. Staker?

15 MR. STAKER: May it please the Chamber. The

16 brief filed by Mr. Mucic and Mr. Delic on this ground

17 of appeal on the 14th of February this year contained

18 only three pages of submissions in relation to this

19 ground of appeal, and those three pages contained

20 essentially only one single argument, which was that

21 cumulative convictions under Article 2 and Article 3

22 were inconsistent with the Kupreskic judgement.

23 We concede that the Appeals Chamber has a

24 power of de novo review on issues of law, but

25 nevertheless, where an error of law is alleged, it

Page 443

1 remains the case that the Trial Chamber's judgement

2 will stand unless the error is established, so the

3 appellant still has a burden of persuasion.

4 The invocation of the Kupreskic judgement by

5 the appellants is capable of a very short answer. The

6 Kupreskic judgement is a decision of the Trial

7 Chamber. It's not binding even on other Trial

8 Chambers, and it's certainly not binding on the Appeals

9 Chamber. That judgement establishes a legal test for

10 cumulative convictions, which has not been applied in

11 any other decision of any Chamber of this Tribunal or

12 the International Criminal Tribunal for Rwanda, and in

13 certain respects it's directly contradicted by the

14 practice of other Trial Chambers, and even of the

15 Appeals Chamber itself in the Tadic appeal judgement.

16 The Kupreskic judgement itself doesn't even

17 address the possibility of cumulative convictions under

18 Article 2 and Article 3, and there was no express

19 finding in relation to that issue in the Kupreskic

20 judgement. I'd refer to paragraph 4.80 of the

21 Prosecution brief in relation to the cumulative

22 conviction issue that sets out further difficulties

23 with the Kupreskic judgement. And the Prosecution

24 submits that for that reason alone, the brief filed by

25 the appellants doesn't discharge the burden of

Page 444

1 persuasion in establishing an error by the Trial

2 Chamber in this case.

3 But despite the availability of such a short

4 answer, the Prosecution brief that was filed on this

5 issue contains some 50 pages of submissions on this

6 issue. The reason for such detail was that the issue

7 of cumulative convictions is one of general importance

8 in the practice of this Tribunal. It's arisen on

9 numerous occasions in both tribunals and it's never

10 been the subject of a definitive pronouncement by the

11 Appeals Chamber. Therefore, in an effort to assist the

12 Appeals Chamber, we've sought to address the issue in a

13 more comprehensive way.

14 I should point out materially similar

15 submissions are also before the Appeals Chamber in the

16 Prosecution appeal brief in the Kayishema and Ruzindena

17 case and similar submissions may be put by the

18 Prosecution in other appeals.

19 The brief, I submit, speaks for itself. I

20 needn't go through a 50-page brief in any detail, but I

21 would mention a few points.

22 My first point is one of terminology. For

23 the purposes of these proceedings, the issue has been

24 given the label "cumulative convictions," but that's

25 not really a term of art in any legal system that

Page 445

1 I'm --

2 THE INTERPRETER: Could Mr. Staker please

3 slow down.

4 JUDGE HUNT: Could you please slow down.

5 MR. STAKER: In civil-law systems, on the

6 other hand, there is an established terminology. In

7 French, this is an issue which would be referred to as

8 "concours d'infractions," which might be more

9 accurately translated into English as "concurrence of

10 offences" or "concurrence of crimes." Similar

11 terminology is used in other civil-law systems.

12 Civil-law systems generally also distinguish

13 between what is called "real concurrence" and what is

14 called "ideal concurrence", ideal concurrence being

15 the situation where a single act of an accused violates

16 more than one provision of the criminal law, which is

17 the situation before us now.

18 In our brief, we have, to a degree, adopted

19 the civil-law terminology. One reason is convenience.

20 The expression "ideal concurrence" is much shorter and

21 simpler than the expression "situations in which a

22 single act of the accused violates more than one

23 provision of the criminal law." Another reason is that

24 this civil-law terminology is found in some of the

25 decisions of this Tribunal and the Rwanda Tribunal

Page 446

1 which deal with the issue.

2 The convenience might also be highlighted by

3 Mr. Kuzmanovic's reference to the issue of double

4 jeopardy. I would submit that the issue of double

5 jeopardy is one which is well established in civil-law

6 systems also, but there is as well a concept of ideal

7 concurrence. So the use of this expression

8 distinguishes between the two.

9 At the same time, we're conscious that the

10 use of this sort of terminology may cause confusion in

11 the extent -- to the extent that it may suggest that

12 the rules applicable in this Tribunal are the same as

13 the rules that apply in any particular national

14 system. In fact, our submission is that the rules

15 governing ideal concurrence differ significantly, even

16 within civil-law systems.

17 For instance, my understanding is that in

18 France, the general rule of ideal concurrence, and I

19 understand this is also subject to exceptions, but the

20 general rule is that an accused cannot be convicted of

21 more than one crime for a single act.

22 In Germany, on the other hand, the general

23 rule of ideal concurrence, which is set out in

24 paragraph 4.92 of our brief, is that the Court will

25 make findings in respect of every crime that has been

Page 447

1 committed by the one act. However, in Germany, under

2 paragraph 52 subparagraph (2) of the Criminal Code,

3 only a single sentence is imposed, which is determined

4 by reference to the sentence prescribed for the most

5 serious of the offences.

6 In other civil-law systems, the position is

7 different again. In paragraph 4.93 of our brief, we

8 give examples of countries where, in case of ideal

9 concurrence, the maximum sentence fixed for the most

10 serious crime can be increased to take account of the

11 fact that the act constituted more than one crime. And

12 it may not be without significance that the systems

13 adopting this approach include, in addition to

14 Bulgaria, Denmark, Italy, Portugal, and Switzerland,

15 the former Yugoslavia itself.

16 Thus while the expression "ideal concurrence"

17 is used in all these legal systems to describe the

18 issue, the solution adopted to the issue varies from

19 country to country.

20 Mr. Kuzmanovic has referred us to the

21 practice in the United States, where the Blockburger

22 test is applied. That's yet another approach again.

23 The Blockburger test prevents cumulative convictions

24 for the same conduct but only in certain particular

25 circumstances, which is where this test of reciprocal

Page 448

1 speciality is not satisfied.

2 The Prosecution submits that one of the

3 fundamental errors in the reasoning of the Kupreskic

4 judgement is that it tries to find a solution to the

5 issue of ideal concurrence by identifying general

6 principles of law common to national legal systems.

7 This approach was indicated in paragraph 668 [sic]of the

8 Kupreskic judgement. The Trial Chamber indicated its

9 intention to rely on the principles common to the

10 various legal systems of the world, in particular those

11 shared by most civil-law and common-law criminal

12 systems.

13 Then in paragraph 677, there's a similar

14 reference to general principles of criminal law as they

15 derive from the convergence of the principal penal

16 system of the world.

17 For the reasons given, it is submitted that

18 that approach is somewhat artificial because the

19 similarity between the systems is not as great as the

20 Kupreskic judgement would suggest.

21 The Prosecution submits that the approach

22 taken by the Kupreskic judgement can be contrasted with

23 that taken by the Appeals Chamber in its judgement of

24 15 July 1999 in the Tadic appeal dealing with the

25 common purpose doctrine.

Page 449

1 In paragraphs 185 to 283 [sic] of that judgement,

2 which cover some 20 pages, the Appeals Chamber

3 considers the International Humanitarian Law

4 authorities in relation to the issue, decisions of

5 national and international courts dealing with war

6 crimes cases, international treaties, and a decision of

7 this Tribunal, and it was only after dealing with all

8 those international authorities, it then, in paragraph

9 224, made reference to certain national law

10 authorities, but it added in the following paragraph,

11 and I quote:

12 "It should be emphasised that reference to

13 national legislation and case law only serves to show

14 that the notion of common purpose upheld in

15 international criminal law has an underpinning in many

16 national systems. By contrast, in the area under

17 discussion, national legislation and case law cannot be

18 relied upon as a source of international principles of

19 rules, under the doctrine of the general principles of

20 law recognised by the nations of the world: for this

21 reliance to be permissible, it would be necessary to

22 show that most, if not all, countries adopt the same

23 notion of common purpose. More specifically, it would

24 be necessary to show that, in any case, the major legal

25 systems of the world take the same approach to this

Page 450

1 notion. The above brief survey shows that this is not

2 the case."

3 The Prosecution, therefore, submits that the

4 answer to the issue of ideal concurrence should be

5 sought not by reference to national legal systems.

6 There is now an extensive body of case law of both

7 international Tribunals in relation to cases of ideal

8 concurrence, and the Prosecution submits that the

9 questions to be asked are, first, whether any

10 consistent principles can be derived from the existing

11 jurisprudence of the Tribunals, and if so, why there is

12 any reason the Appeals Chamber should exist [sic] from the

13 existing practice and principles.

14 As to the first question, the practice of the

15 two international Tribunals, in relation to ideal

16 concurrence, is quite extensive. It's set out in

17 detail at paragraphs 4.9 to 4.72 in our brief.

18 It's conceded that much of this jurisprudence

19 consists of decisions of Trial Chambers which are not

20 binding upon the Appeals Chamber and some of which are

21 the subject of pending appeals. Nevertheless, where

22 extensive practice already exists at the Trial Chamber

23 level, when a matter is first considered by the Appeals

24 Chamber, the Appeals Chamber should not, it is

25 submitted, ignore that practice when deciding the

Page 451

1 matter. Although not bound by Trial Chamber decisions,

2 such decisions can be persuasive, especially if a body

3 of jurisprudence constante has already begun to become

4 established.

5 The practice of entering cumulative

6 convictions under Articles 2 and 3 in respect of the

7 same conduct also finds support in the decision of the

8 Appeals Chamber in the Tadic appeal judgement. Details

9 are given in paragraphs 4.11 and 4.12 of our brief.

10 The particular issue of cumulative

11 convictions under Article 2 and Article 3, the

12 possibility of such cumulative convictions also finds

13 support in decisions of this Tribunal at the Trial

14 Chamber level. I refer to paragraph 4.80, subparagraph

15 (6) of the Prosecution brief, on page 48.

16 The Kupreskic judgement itself concerned

17 cumulative convictions under Article 3 and Article 5 of

18 the Statute. Its specific findings in that respect are

19 inconsistent with the practice of the Appeals Chamber

20 in the Tadic appeal judgement and the Jelisic and the

21 Blaskic judgements. I refer again to paragraph 4.80 of

22 our brief. We, therefore, submit that the Kupreskic

23 judgement cannot be considered an authoritative

24 statement on principles of cumulative convictions in

25 the legal system of this Tribunal.

Page 452

1 As our brief acknowledges, the Chambers of

2 the two Tribunals have not been consistent in the way

3 that they articulate the applicable principles in the

4 legal system of this Tribunal. I refer to paragraph

5 4.78 of our brief, which identifies four and possibly

6 five different tests that have been applied by

7 different Chambers. But a test which the Prosecution

8 submits is consistent with the weight of precedent in

9 the Tribunal is effectively the Akayseu test, which on

10 its face is somewhat narrower than what we call the

11 Tadic test, although we submit that the Tadic test can

12 be read in a way that it can be reconciled with the

13 Akayseu test. On that I refer to paragraph 4.82 and

14 4.83 of our brief.

15 Under this test, it is acceptable to convict

16 the accused of two offences in relation to the same set

17 of facts in the following circumstances: (1) where the

18 offences have different elements; (2) where the

19 provisions creating the offences protect different

20 interests; or (3) where it's necessary to record a

21 conviction for both offences in order to fully describe

22 what the accused did.

23 The Prosecution submits that under this test,

24 an accused can always be charged with and convicted of

25 more than one crime in respect of the same conduct if

Page 453

1 the different crimes fall under different Articles of

2 the Statute. For the purposes of this case at least,

3 this means that an accused can be convicted in respect

4 of the same conduct of both the crime under Article 2

5 and under Article 3.

6 There are three bases for the conclusion that

7 cumulative convictions under Article 2 and Article 3

8 are consistent with the Akayesu test. First, there's

9 the practice of the Tribunal itself. I've indicated

10 that such cumulative convictions do find support in the

11 existing practice, and the test should be interpreted

12 and applied in a way that is consistent with the

13 existing practice.

14 Secondly, for the reasons set out in our

15 brief, we submit that each of the Articles of the

16 Tribunal's Statute protects different interests for the

17 purposes of this test. I refer to paragraph 4.85 of

18 our brief.

19 And we would submit that in any event, where

20 an act constitutes a crime under both Article 2 and

21 Article 3 of the Statute, it can be said that it's

22 necessary to record a conviction for both offences in

23 order fully to describe what the accused did for the

24 purposes of this test.

25 The second question, which I indicated

Page 454

1 earlier, is whether there is any reason why this

2 existing practice should not continue to be followed.

3 Is the practice inconsistent with the rights of the

4 accused? The Prosecution submits the answer's no, for

5 the reasons given in paragraph 4.89 of our brief. We

6 submit that it does not violate the principle of non

7 bis in idem or double jeopardy for an accused to be

8 convicted of more than one crime in respect of the same

9 conduct at the same trial as opposed to successive

10 trials for the same conduct.

11 The legal systems that I have referred to

12 earlier and the authorities set out in our brief

13 indicate that that conclusion is supported by practice

14 in various jurisdictions. It may be that some

15 jurisdictions take a different view. Mr. Kuzmanovic

16 referred to the United States practice, which indicates

17 that this would be regarded as inconsistent with double

18 jeopardy in the United States, at least in the limited

19 circumstances where the Blockburger test applies. And

20 the question was asked whether there was any country

21 that takes the same approach. I could perhaps assist

22 the Chamber by pointing out that to the best my

23 knowledge, and I can't say this with certainty, I

24 mentioned earlier that in France, cumulative

25 convictions for the same or more than one conviction

Page 455

1 for the same act, as a general rule, is not permitted,

2 and I understand that the rationale given for that in

3 France is a double jeopardy or non bis in idem

4 rationale.

5 But the other examples we give from civil law

6 systems, such as Germany and the former Yugoslavia

7 itself, we submit indicates that a contrary approach is

8 not inconsistent with international standards.

9 We further submit that the practice is not

10 inconsistent with judicial efficiency, for the reasons

11 given in paragraph 4.90 of our brief. Whether the

12 multiple crimes are charged cumulatively or in the

13 alternative, it's still necessary for the Prosecution

14 to bring evidence of all of the elements of the crimes

15 charged.

16 The Prosecution concedes that there are some

17 limitations on the possibility of cumulative

18 convictions. Again we refer to paragraph 4.8,

19 subparagraph 3, paragraph 4.76, and paragraph 4.88 of

20 our brief, which deals with the concept of apparent

21 concurrence, as it's referred to in civil law systems.

22 We give the example of an accused who is

23 charged with stabbing a victim to death. We concede

24 that in respect of that one act, the accused couldn't

25 be convicted of both murder and wilfully causing great

Page 456

1 suffering or serious injury to the victim. Once the

2 serious injury leads to the death of the victim, the

3 murder would absorb the crime of serious injury. And

4 this kind of limitation is expressly acknowledged in

5 the Akayesu judgement at paragraph 468.

6 But the Prosecution submits that this type of

7 limitation only applies to crimes within the same

8 article of the Tribunal Statute. Each article of the

9 Statute is not a lesser included offence of another, or

10 a different form of participation of another, and for

11 the reasons given, it's submitted that convictions

12 under two different articles for the same conduct is

13 permissible in this Tribunal's legal system, and

14 accordingly we submit that this ground of appeal should

15 be rejected.

16 JUDGE HUNT: From a practical point of view,

17 could you explain what is the difference between the

18 second and the third indicia in -- I think it's

19 pronounced the Akayesu judgement. What is the

20 difference between them, that is, the different

21 interests affected in order to describe more fully what

22 the accused did?

23 MR. STAKER: That may be a difficult question

24 to answer in the abstract, Your Honour, and it may be

25 that it's the sort of thing that would be developed

Page 457

1 through further jurisprudence.

2 JUDGE HUNT: You don't think that one

3 includes the other and that you're accumulating the two

4 where one would do?

5 MR. STAKER: It may depend on how you defined

6 "different social interests," Your Honour. It may be

7 that if one took a slightly narrower view of different

8 social interests, that the third limb would then

9 provide a practical solution where it's clear that a

10 single conviction would simply not reflect the nature

11 of what occurred.

12 JUDGE HUNT: Thank you.

13 Mr. Kuzmanovic.

14 MR. KUZMANOVIC: Thank you, Your Honour.

15 It's our submission that concurrence may be

16 ideal for the Prosecution, but we are talking about

17 punishment twice, for two charges which are essentially

18 defined identically, and that, I believe, is

19 fundamentally unfair.

20 I will submit that the issue of the Akayesu

21 test is relevant here, and let's apply it to this

22 case. My colleague said that the offence must have

23 different elements, and I submit to you that murder,

24 under Article 2 -- or wilful killing and murder, under

25 Articles 2 and 3, are essentially one and the same.

Page 458

1 The Trial Chamber in our case decided them or defined

2 them the same.

3 Number 2, provisions creating offences

4 predict different interests. I think that's important

5 here. Yesterday we've heard from the -- with regard to

6 Common Article 3 that the Prosecution said Common

7 Article 3 was there to provide protection in internal

8 conflicts where grave breaches are not available. So

9 then the issue becomes, where the conflict is

10 international, can you convict them of both? And I

11 think number 2 fails when we look at it in our case.

12 And obviously number 3, record conditions to

13 fully describe what the accused did, that is an element

14 of that Akayesu test which I think can be fulfilled by

15 the Trial Chamber, and probably was in this case, given

16 the lengthy discussion about the conditions to fully

17 describe what each accused did.

18 But I think the second element of the Akayesu

19 test, provisions creating offences to protect different

20 interests, fails, and I think therefore the charges are

21 cumulative simply because of the position taken on

22 Common Article 3, internal versus international: Where

23 the conflict is international, can you then be

24 convicted of both? Is that cumulative? And I believe

25 that it is.

Page 459

1 And that's all I have in reply, Your Honours.

2 JUDGE HUNT: Thank you very much.

3 We move into group 6.

4 Mr. Morrison, we have been informed

5 informally that the omission of what was originally

6 ground 12 was accidental and that ground 12 is still

7 relied upon. Is that so?

8 MR. MORRISON: Your Honour, yes. It was an

9 accidental omission from the final issues that were, I

10 think, sent by my learned friend into the Court.

11 JUDGE HUNT: Providentially it can retain the

12 same number.

13 MR. MORRISON: Essentially, it does.

14 JUDGE HUNT: The other matter I thought I

15 should raise with you before you commence: You have

16 referred to various sections of the PACE legislation,

17 and the Prosecution seems to be very sensitive to these

18 matters. Is there any objection to us saying what is

19 obviously a clearly up-to-date version of the PACE

20 legislation which has been set out in the submissions?

21 MR. STAKER: Your Honour, I think our

22 position on that was set out in our response brief, and

23 we say that if national legislation or case law is

24 relied upon as persuasive authority in support of a

25 legal argument, there's no objection to it simply being

Page 460

1 referred to.

2 JUDGE HUNT: This is your distinction you

3 draw between that and the constitution of Costa Rica?

4 MR. STAKER: Yes, Your Honour. If you're

5 actually seeking some relief based on the fact of

6 national law, it must be proved --

7 JUDGE HUNT: So there's no need to prove the

8 PACE legislation here?

9 MR. STAKER: No, Your Honour. I've been

10 referring to national jurisprudence and practice myself

11 in my submissions just now.

12 JUDGE HUNT: Yes, Mr. Morrison.

13 MR. MORRISON: I'm much obliged for the fact

14 that I don't have to prove the PACE legislation.

15 I notice the time given for this section by

16 Mr. Hocking was very generously extended to one hour.

17 I can, I hope to everybody's relief, say that it's

18 going to be a very great deal less than that.

19 But there's one point, if I be forgiven for

20 one moment trespassing back in time, because sometimes

21 when one hears things said at the time, they make a lot

22 of sense and you're not in agreement with them; then

23 you think about them a bit more and a word takes on or

24 a phrase takes on a different meaning. I got an e-mail

25 the other day setting out some responses by children to

Page 461

1 a religious education examination, and one child wrote

2 this: "Christians can only have one wife. This is

3 known as monotony."

4 The illustration by the Prosecution of the

5 effective indemnity for a constitutionally superior

6 commander in the body of Her Majesty, Queen Elizabeth

7 the Second, is flawed by their own position that a

8 person of influence may be liable under Article 7(3),

9 because whatever the constitutional limitations upon

10 Her Majesty acting outside the authority of being the

11 Queen in parliament, which is how she does, in fact,

12 derive her authority, the monarch would no doubt be a

13 person not only of influence, but of considerable

14 influence, having, as the monarch does, the

15 extra-parliamentary power to confer commissions of

16 officers of her armed forces and to award honours for

17 civil and military services to the Crown.

18 So one could envisage a situation where a

19 military commander did a certain act which was going to

20 be alleged to be a crime but had been awarded by Her

21 Majesty, out of her own writ, of one of her personal

22 Honours, for instance, the order of the Royal Victorian

23 Order, and she may then be seen as a person of

24 influence for others who would go on to commit similar

25 offences, if offence it was. And that, in my

Page 462

1 submission, illustrates the serious flaw in the pursuit

2 of the person-of-influence approach.

3 I move on. The admissibility of the OTP

4 interviews. This in many ways may be otiose as far as

5 both the Defence and the crown are concerned, to this

6 extent: that we are still unsure as to what the effect

7 is going to be of the additional information which may

8 or may not yet be put before this Honourable Tribunal.

9 And I accept that it may be that the thrust of the

10 argument here as to the admission of the second of the

11 two interviews we're dealing with may or may not be of

12 moment. But there is a general issue which the Defence

13 raise on behalf of Mr. Mucic which we say is of general

14 and future application.

15 The objective, we submit, is to be fair,

16 whatever the consequences, when one is considering what

17 somebody says in an interview, which is of course

18 pre-trial, and usually, in most jurisdictions,

19 pre-indictment, but not necessarily as far as this

20 Tribunal is concerned. And if the objective is to be

21 fairness, that fairness cannot be subjugated to any

22 intellectually superior or acceptable argument or to

23 partisan compromise.

24 The jurisprudence in respect of the

25 admissibility of the interviews or, for instance, the

Page 463

1 identification of suspects, or for searches, is in

2 constant evolvement, and one doesn't have to look very

3 far back in time in my own jurisdiction to see that.

4 Prior to PACE it was an accepted procedure

5 that a defendant would be interviewed by the police,

6 usually by two police officers. There would be no tape

7 recording of the interview. The officers would simply

8 sit and ask questions. At the conclusion of the

9 interview, which may have been hours in length, those

10 two officers would go away, and in the words hallowed

11 in many cases, make up their notes, together. This was

12 not only a course to which no objection was taken; it

13 was a course which was followed case in and case out.

14 And we used to have trials where Judges would solemnly

15 address jurors that police officers had trained minds

16 and could do this.

17 Well, in some of the cases that one appeared

18 in, and some of the officers that appeared in front of

19 you, one would legitimately wonder where their minds

20 had been trained, because you would have somebody

21 saying, for instance, after a two-hour interview, that

22 he could remember verbatim what the defendant said and

23 what the questions were. This was patent nonsense, but

24 it was adopted in case after case.

25 And I recall that when PACE was first mooted

Page 464

1 and the suggestion was that each interview was going to

2 be tape recorded, there was outrage in some police

3 quarters, and I recall an article in the police review

4 at about that time stating solemnly that there would

5 never be another conviction in the Crown court if this

6 were to happen. Well, as it happens, the statistics

7 show us that since PACE, actually the conviction rate

8 has crept up, not gone down.

9 The Miranda provisions in the United States

10 and the litigation which was flowed therefrom is

11 another example of how this is an evolving part of

12 jurisprudence.

13 The fundamental problem that's been adopted,

14 in my respectful submission, in cases hitherto is the

15 adoption of an objective approach to the admission of

16 interviews and to the reliability of what a person has

17 said in those interviews, particularly in the case, as

18 in Mr. Mucic's case, where he was not, in fact, legally

19 represented in the interviews. And the reason it may

20 be a particular problem in cases before this Tribunal,

21 at trial, certainly, is that in the majority of cases

22 in any national jurisdiction, a defendant is likely to

23 be linguistically and culturally at ease, and an

24 objective case may well be fair. That is unlikely to

25 be the case where people from the former Yugoslavia are

Page 465

1 being interviewed. It is correspondingly very unlikely

2 that the social turmoil that underscored the events

3 that have given rise to the formation of this Tribunal

4 would be apparent in a national context.

5 So although I accept and I have set out in

6 the brief that in many cases, and in particular that of

7 the United Kingdom, the test is essentially an

8 objective test. It is essentially, in my submission,

9 the issue having been raised before this Appellate

10 Tribunal, is to see whether or not that is a test which

11 should stand or whether or not it should be -- there

12 should be a move towards a more subjective test of such

13 interviews.

14 To be fair, which must include a

15 determination of the qualitative aspect of fairness,

16 i.e., the foundation that the Prosecution bear the

17 burden of proof to the standard of beyond a reasonable

18 doubt, means that you have, in my submission, to look

19 at matters subjectively. The fact that somebody is

20 being interviewed in a language other than his,

21 probably in a jurisdiction or a place which he has no

22 cultural or personal knowledge, and the fact that he is

23 being interviewed about matters which have arisen from

24 an extraordinary and extra-national set of

25 circumstances, in our submission, is very germane.

Page 466

1 I don't seek to say anything else about the

2 admissibility of the interviews now, because it's set

3 out in the briefs, but it seems to us, on behalf of

4 Mr. Mucic, that when you have a man who is being

5 interviewed in a language, in a jurisdiction far

6 removed from a jurisdiction which he understood, to

7 wit, Austria, he was initially being interviewed in a

8 language which he did not understand, although of

9 course it was in translation for him, and he was being

10 interviewed without a lawyer present, and there is a

11 debate in the papers which can be resolved upon the

12 papers as to whether he should or should not have been

13 represented and whether that was a wilful error on his

14 part or a deliberate decision on his part not to be

15 represented. That's another matter. But if one is

16 going to take as the base point complete fairness, it

17 is our submission that the time has come to move

18 towards a subjective approach to interviews and away

19 from a national approach to interviews, where the

20 legislation and where the procedures have been adopted

21 and adapted over many, many years, and where, as I say,

22 the conditions and the cultural influences upon a

23 suspect are likely to be very, very different than they

24 are upon Mr. Mucic in particular, but defendants before

25 these tribunals in particular.

Page 467

1 I go on to the second ground, which is the

2 conduct of defence errors by counsel at trial.

3 Now, I've spoken to my learned friend

4 Mr. Staker about this, because he was concerned, as

5 indeed I was concerned. It doesn't, in fact, amount to

6 a ground of appeal by Mr. Mucic of ineffective

7 representation by counsel. That was something that was

8 considered, but it is apparent that that is not being

9 now raised.

10 The reason it's being raised at all is this:

11 That the Trial Chamber, in their judgement, chose to

12 mention the conduct of the Defence. The judgement is

13 not simply a historical narrative of the trial, it is a

14 judgement. It is not a judgement of counsel, it's a

15 judgement of the defendant. Therefore, it can only be

16 assumed, on behalf of Mr. Mucic, that there was a

17 reason for raising the matters which the Trial Chamber

18 did raise in paragraph 75 of the judgement. On any

19 analysis, it amounts to an effective publication of

20 criticism of his then lead counsel.

21 All I seek to say, on behalf of Mr. Mucic, is

22 this: If there is any good reason or any merit in the

23 Trial Chamber having so set out those criticisms, they

24 are criticisms of his counsel, they are not criticisms

25 of the appellant, and we would simply ask that when

Page 468

1 this judgement is read or reread, that this learned

2 Appellate Tribunal ignores them completely. There

3 cannot be any proper basis for having included those,

4 in our submission, in the judgement. There is

5 certainly no proper basis for criticism of Mr. Mucic by

6 virtue of them.

7 That leads on to the third ground of unlawful

8 confinement. I don't propose a rerun of any question

9 of protected persons upon this, but there is one point

10 which arises. It's been argued in the brief and

11 responded to by the Prosecution, and I don't want to

12 take those matters any further.

13 I do have -- I want to refer to the

14 particular paragraph in the judgement that sets out the

15 reasoning. It's paragraph 1145. It's short and I read

16 it:

17 "The Trial Chamber has established that

18 Zdravko Mucic was in a position of de facto position of

19 superior authority over the Celebici prison camp. The

20 Trial Chamber finds that Zdravko Mucic, by virtue of

21 this position, was the individual with primary

22 responsibility for and had the ability to effect the

23 continued detention of civilians in the prison camp.

24 Specifically, Zdravko Mucic, in this position, had the

25 authority to release detainees. By omitting to ensure

Page 469

1 that a proper inquiry was undertaken into the status of

2 the detainees and that those civilians who could not

3 lawfully be detained were immediately released, Zdravko

4 Mucic participated in the unlawful confinement of

5 civilians in the Celebici prison camp.

6 "Accordingly, the Trial Chamber finds Zdravko

7 Mucic guilty pursuant to Article 7(1) of the Statute of

8 the unlawful confinement of civilians as charged under

9 Count 48 of the indictment."

10 We reach this position: That he has been

11 found guilty on command responsibility, superior

12 responsibility under Article 7(3). The, of course,

13 specific difference between Article 7(1) and 7(3) in

14 this context is "know or had reason to know."

15 The omission contained within 7(3), "had

16 reason to know," has been used as a basis for the

17 positive finding of mens rea under Article 7(1). It

18 must be, if one reads and gives natural meaning to the

19 words in paragraph 1145, that what the Trial Chamber is

20 saying is that the defendant Mucic had the active mens

21 rea; he knew or -- not must have known but knew that

22 there were detainees in the camp who were not lawfully

23 detained.

24 Now, there is all the difference in the world

25 between unlawful detention and unlawful treatment. One

Page 470

1 cannot make the jump from saying that there were people

2 in the camp who are unlawfully treated or may have been

3 unlawfully treated that they were, therefore,

4 unlawfully initially detain. And it is a counsel of

5 perfection, in our submission, to say that Zdravko

6 Mucic, that while he may be convicted under section 73

7 of "ought to have known," that can be translated into a

8 positive mens rea under 7(1) that he did know, and the

9 adoption and assumption is made that he had the power

10 to know.

11 It's been stated in the brief, and I restate

12 it, simply this: That the fact that somebody is a

13 guard, even a superior amongst guards in a prison camp

14 is not the same thing as a person who has the authority

15 or the knowledge or the status to take somebody into

16 custody ab initio. A person who arrives at a prison,

17 particularly in a time of social turmoil and

18 hostilities, can be, in my submission, taken to be a

19 person who has been lawfully detained as far as the

20 guards of that camp are concerned, and it is a counsel

21 of impossible perfection that in those circumstances

22 somebody could be expected to conduct an individual

23 inquiry as to the lawfulness of each person's arrest

24 and to determine, on each case, that that person should

25 be released against the effective authority of the

Page 471

1 person who has already authorised their detention.

2 There is no evidence in this case that

3 Zdravko Mucic, whatever his authority, had greater

4 authority than the person or persons who authorised the

5 detention of the inmates at Celebici camp. To make the

6 assumption that he did is both wrong and, in our

7 submission, unfair, and that is what's happened in this

8 case.

9 Your Honour, those are my submissions.

10 JUDGE HUNT: Thank you.

11 JUDGE RIAD: Mr. Morrison, good morning.

12 MR. MORRISON: Good morning.

13 JUDGE RIAD: I gather from what you said that

14 if Mucic was not responsible for the unlawful

15 confinement, not being the decision-maker, he could

16 still be responsible for the unlawful treatment.

17 MR. MORRISON: There is a plain distinction,

18 in my submission, Your Honour, between the two. A

19 person can be lawfully taken into confinement and then

20 unlawfully treated when he's in confinement. The

21 unlawful treatment does not vitiate the lawfulness of

22 the confinement in the first place. Otherwise, we

23 would have a situation where if an individual prisoner

24 was beaten up by a prison guard, he would be liable to

25 be released from prison. That would be a logical non

Page 472

1 sequitur.

2 JUDGE RIAD: So in that case, the case of

3 unlawful treatment, he will not need even to discuss

4 the issue of being in a commanding position.

5 MR. MORRISON: Well, first of all, in any

6 individual's case you need to find out that the person

7 was in a position of authority. So as far as each

8 individual defendant is concerned, it would be

9 necessary to be satisfied that the person was, in fact,

10 in a position of authority. In this case, that's been

11 found under Article 7(3), as far as Mr. Mucic is

12 concerned. Only if the Appellate Chamber was satisfied

13 that he was in such a position of authority would you

14 then move on to say that being he's in a position of

15 authority and had inter alia the power to release

16 people did he then participate non-lawful confinement

17 by not releasing or not putting into place a system by

18 which people could be released.

19 The one must -- as far as individual

20 responsibility is concerned, individual culpability,

21 the one must precede the other in his individual case.

22 But, of course, I accept that a person can be lawfully

23 detained and, thereafter, unlawfully treated.

24 JUDGE RIAD: And, of course -- now we're

25 speaking about unlawful treatment. This would perhaps

Page 473

1 be the bottom line, that even if he's not a commanding

2 position.


4 JUDGE RIAD: But if he was, if he had some

5 authority, the fact that -- the idea is that

6 confinement should be limited only to those who

7 threaten the security of the state or of the whole

8 country, not any civilian.

9 MR. MORRISON: That goes back to the

10 fundamental argument, if you're going to convict

11 somebody under 7(1), that you find a positive mens rea

12 in his case.

13 In a situation of social turmoil and

14 hostilities such as this was at this time, I repeat my

15 submission that it is a counsel of impossible

16 perfection to expect anybody to be able to conduct that

17 sort of exercise in the heat of the moment or even

18 given a few days. Where a number of people, a large

19 number of people are confined, it would be necessary

20 for an analysis of each person's status, of the

21 background of each person to hear and determine perhaps

22 evidence against that person, to hold some form of

23 judicial inquiry. There can't be any sensible

24 suggestion, in my submission, that that falls upon a

25 person who is in the position of a guard or leader of

Page 474

1 guards of a camp.

2 It may well fall upon a person who is an

3 overall tactical commander or administrator in the

4 area, and perhaps such an exercise should have been

5 undertaken, but nobody suggested that this -- there's

6 been assumption that this appellant has had that

7 authority. There isn't a shred of evidence to that

8 effect.

9 JUDGE RIAD: Just for the sake of argument,

10 in case the person has authority, and you are speaking

11 about the heat of the moment, of course, in the heat of

12 the moment you can't collect everybody even without

13 having -- when there is a doubt, but then if there is

14 some kind of length of time, there is enough

15 opportunity to review and to -- and not to maintain the

16 confinement of innocent people, of civilians.

17 MR. MORRISON: And we then find ourselves --

18 or certainly the Defence finds itself in the rather, at

19 the moment, difficult position to determine, because at

20 the moment, the length of time by which it would be

21 proper to find, if it were proper to find at all that

22 Mr. Mucic had responsibility for the camp, may well

23 depend upon the documentation that has yet to be

24 produced.

25 JUDGE RIAD: Thank you very much,

Page 475

1 Mr. Morrison.

2 JUDGE HUNT: Thank you, Mr. Morrison.

3 Mr. Staker again. Thank you.

4 MR. STAKER: May it please the Chamber, in

5 relation to this ground of appeal -- when I say "this

6 ground of appeal," I mean the ground of the appeal

7 relating to the admissibility of the interviews with

8 the Office of the Prosecutor -- the starting point, as

9 in the case of all grounds of appeal, must be what the

10 standard of review is before this Appellate Chamber and

11 in determining that, again the starting point is that

12 there are a number of different kinds of decisions that

13 may be made by a Trial Chamber when determining this

14 kind of issue.

15 One is the legal definition of the expression

16 "voluntarily" in Rule 42(B). That, of course, is a

17 question of law. A second matter is to determine what

18 the actual events and circumstances of the case were.

19 That's a question of fact. And the third matter that

20 the Trial Chamber would have to consider is the

21 application of the law to the facts and circumstances

22 as established.

23 We would submit that in making this -- a

24 determination of this final matter, the Trial Chamber

25 is required to weigh all the facts in evidence before

Page 476

1 it, and in some cases involving issues of this kind, it

2 may be required to receive evidence and hear witnesses,

3 and so in accordance with general principles, it would

4 be necessary to afford a considerable margin of

5 deference to the finding of the Trial Chamber, and it

6 would only be where the decision of the Trial Chamber

7 could be shown to be an abuse of discretion that there

8 would be justification in the Appeals Chamber

9 intervening on appeal.

10 JUDGE HUNT: That, of course, puts back into

11 your formula an issue of discretion as well. You

12 hadn't asserted that earlier. You said there was,

13 first of all, a question of law, then a question of

14 fact as to voluntariness, then an application of the

15 law to the facts. That's where the discretion would be

16 exercised, do you say?

17 MR. STAKER: It's discretionary in the sense

18 that the application of the law to the facts isn't a

19 mathematical process. It involves a degree of

20 appreciation, and the appreciation is one for the Trial

21 Chamber to make. It's the Chamber that has seen and

22 heard the witnesses, and it's in the best position to

23 determine the credibility and the best position to form

24 a view of what the situation really was and what the

25 position of the suspect would have been.

Page 477

1 JUDGE HUNT: That's an ordinary finding of

2 fact in every case. Is there any overriding discretion

3 such as is found in some legal systems that

4 notwithstanding some error made by the Prosecution in

5 some formula that it must follow, the Court,

6 nevertheless, has a discretion to admit the evidence.

7 MR. STAKER: Your Honour, I think the answer

8 to that would be found in the precise wording of the

9 Rule of Procedure and Evidence that has been invoked in

10 order to exclude the evidence of the interview.

11 JUDGE HUNT: So that makes it a fourth issue,

12 does it not?

13 MR. STAKER: Indeed, Your Honour.

14 In relation to the question of the

15 application of the law to the facts, whether the waiver

16 of the right to counsel was voluntary, clearly the

17 Chamber can't read an accused's mind and any evidence

18 of a state of mind would have to be inferred from the

19 objective circumstances as a whole.

20 In this respect, we note that a test was, in

21 fact, proposed in the appeal brief filed on behalf of

22 Mr. Mucic in this case, a proposed test where the

23 formulation was whether the conditions of the

24 interrogation would be likely to lead a reasonable

25 person to offer an involuntary confession or, for the

Page 478

1 purposes of this case, an involuntary waiver of

2 counsel.

3 The appeal brief states that this test is

4 primarily an objective rather than a subjective test,

5 although it's submitted that there must be an element

6 of subjectivity in the case of a person who is under

7 any form of disability or in a strange and unfamiliar

8 situation, that is, in a foreign country or being

9 questioned in a language that's not his own.

10 The Prosecution doesn't concede that the mere

11 fact a reasonable person is in a foreign country or is

12 being interviewed in a language that is not his or her

13 own, means that the conditions of detention would be

14 likely to lead a reasonable person to waive their right

15 to counsel involuntarily, but we understand this test

16 to be saying that you look at what a reasonable person

17 would be likely to have done in the particular

18 circumstances, and that is essentially an objective

19 test taking into account the relevant circumstances.

20 In other words, it's a matter for the Trial Chamber to

21 determine on the circumstances as a whole, and as I

22 say, subject to review on the ground of

23 unreasonableness.

24 Now, the Prosecution submits that the

25 decision of the Trial Chamber that excluded -- that

Page 479

1 refused to exclude the evidence of this interview with

2 the Office of the Prosecutor isn't necessarily

3 inconsistent with this test. The Defence argued before

4 the Trial Chamber that Mr. Mucic, because of his

5 cultural background, his lack of familiarity with

6 Austrian culture and the procedures of the Tribunal,

7 because of this he needed to have his rights explained

8 to him in more detail. The Trial Chamber rejected this

9 argument at paragraphs 58 to 60 of their decision, but

10 it's submitted that at least on one reading of this

11 decision it did this on the basis of the facts of the

12 case rather than on the grounds of a particular legal

13 test.

14 It held that the rights of a suspect in the

15 Tribunal's legal system are based on universal human

16 rights, and that if these are explained to a suspect in

17 a language that the suspect understands, they would be

18 understood by the suspect even if they're different

19 from the rights in any other particular legal system

20 with which the suspect may be familiar. Therefore,

21 there's no need to explain these rights to a suspect in

22 a way that's more culturally specific to that suspect

23 merely by virtue of that circumstance, and the

24 Prosecution submits that this is a perfectly correct

25 reasoning.

Page 480

1 Provided that the suspect's rights are

2 explained in a language that the suspect understands,

3 it shouldn't matter in what country the suspect is at

4 the time, particularly in the case of an international

5 tribunal which may interview suspects in many different

6 countries and which has a legal system that's different

7 to that in any particular national jurisdiction. If

8 the rights in this Tribunal are based on universally

9 recognised rights and they're explained through an

10 interpreter in a language that the accused

11 understands, unless there is some other circumstance

12 that would indicate that a reasonable person, in all

13 those circumstances, would be likely to involuntarily

14 waive right to counsel, the inference must be that any

15 waiver was voluntary.

16 Now, the circumstances here were put before

17 the Trial Chamber, and I take it that it's not

18 contested by counsel for Mr. Mucic that when he was

19 interviewed by the investigators of the Office of the

20 Prosecutor, he did have an interpreter at all times;

21 that he was, before the interview began, informed of

22 his rights under the Statute and Rules of the Tribunal,

23 including his right to silence and his right to have a

24 lawyer; and that he agreed to conduct an interview

25 without the presence of an attorney; and that on

Page 481

1 several occasions during the course of that interview

2 he was again informed of his rights under the Statute

3 or the Rules, and he again agreed to proceed without an

4 interpreter being present.

5 The question then: Is there any

6 circumstance -- sorry, I should add that -- the other

7 facts that are mentioned in the Trial Chamber's

8 judgement are, for instance, the fact that the accused

9 had been living in Austria for several years at the

10 time, and I don't think it would be in dispute, for

11 instance, that he wasn't in a situation any more

12 unusual than that of any other suspect being questioned

13 by the police. He wasn't in the middle of a war zone.

14 It wasn't a situation of civil disturbance. It was

15 like any normal or regular situation where a person is

16 arrested by the police pursuant to a regular warrant

17 under Austrian law and questioned by the police.

18 In circumstances such as that, we would

19 submit it can't be unreasonable for a Trial Chamber, on

20 the evidence, to reach the conclusion that the waiver

21 of the right to have an attorney present was voluntary

22 unless the accused brought evidence of some particular

23 circumstance that might change the equation. And we

24 submit that it's very significant that the accused in

25 this case never brought any evidence as part of the

Page 482

1 application to exclude the evidence of the interview

2 and, in particular, didn't even file an affidavit in

3 support of the application despite, of course, being

4 the person who had the primary knowledge of what the

5 facts and circumstances were.

6 JUDGE HUNT: Can you just help me there? Is

7 there any procedure available for what some countries

8 call a voir dire and others a somewhat more plebeian

9 phrase, a trial within a trial, where the accused can

10 give evidence in relation to the admissibility of

11 material but cannot be cross-examined about the facts

12 of the trial itself?

13 MR. STAKER: Your Honour, no such practice

14 appears to have been established in this Tribunal to

15 date, but --

16 JUDGE HUNT: There would be nothing to stop

17 it though, would there.

18 MR. STAKER: There would be nothing to stop

19 it. Where evidence is sought to be introduced, the

20 Rules provide that the Chamber must determine its

21 admissibility. At that stage, issues of admissibility

22 could be taken up and the matter could be determined.

23 JUDGE HUNT: Well, the very issue of whether

24 or not something is voluntary is the prime example of

25 where a voir dire is often taken, so that the complaint

Page 483

1 made that the interpreter was not allowed to be called,

2 the basis of her being called being she was explain

3 what was affecting his mind. That could have been

4 answered by him quite clearly in a voir dire.

5 MR. STAKER: Yes. That is indeed our

6 submission, Your Honour.

7 We submit that the argument put on behalf of

8 Mr. Mucic here is not based on any real evidence and

9 the submissions are framed in terms of "likely" or

10 "probably." There is simply no evidence that it was

11 the case that there was any element present, in fact,

12 that would have changed the balance of the equation

13 which, as we say, as it was before the Trial Chamber,

14 could reasonably lead to the conclusion - In fact, we

15 would submit very reasonably lead to the conclusion -

16 that the waiver of the right to counsel was voluntary.

17 There is a suggestion that the second

18 interview with the investigators of the Office of the

19 Prosecutor was somehow tainted by a prior interview

20 with Austrian police officers. The interview with

21 Austrian police officers was excluded on the ground

22 that the accused did not have a lawyer present and

23 under Austrian law and procedure was not entitled to

24 have a lawyer present. That was held not to be

25 consistent with the requirements of the procedures of

Page 484

1 this Tribunal.

2 But in the appellant's brief at Registry page

3 A738, paragraph (B), it's suggested that if an accused

4 gives two interviews and his or her rights under

5 Rule 42 are not respected at the first, then somehow,

6 as a matter of logic, it affects the second interview,

7 and we would submit there's nothing in logic that would

8 inevitably lead to that conclusion. We would submit

9 that even if one interview was not voluntary, as a

10 matter of logic there is no reason why an accused or a

11 suspect couldn't agree to give a second interview where

12 the waiver of the right to counsel was voluntary. We,

13 therefore, submit that it hasn't been demonstrated by

14 the appellant that there was any error in the Trial

15 Chamber's judgement in this respect.

16 I would also, just in conclusion, note that

17 the appeal brief here places very considerable reliance

18 on the law of England and Wales which it sets out at

19 length. This is the only national jurisdiction that it

20 relies upon. With the greatest of respect to that

21 jurisdiction, it is submitted that a decision of this

22 Tribunal can't be erroneous merely because it's

23 inconsistent with the law of one national

24 jurisdiction. Reference to national jurisdictions may

25 be useful for some purposes, but simply to point to the

Page 485

1 provisions of one is not sufficient.

2 The appellant's appeal brief submits that the

3 legal system of England and Wales is the system having

4 the jurisprudence in relation to this ground of appeal

5 following most closely upon the substance and spirit of

6 the approach laid down in the relevant provision of the

7 Statute and the Rules, but this is merely a bald

8 submission that's not supported by any reasoning. And,

9 in fact, the appellant's appeal brief goes on to freely

10 admit that in England, Judges are pragmatic and,

11 therefore, reluctant to articulate the principles lying

12 behind the various rules behind the discretionary

13 powers. And if the judges are reluctant to articulate

14 the principles, it's submitted that it makes the value

15 of such authorities all the more questionable before

16 this Tribunal where analogies with national

17 jurisdictions, of course, would be based on general

18 principles.

19 The reluctance to articulate general

20 principles, I understand, is a comment frequently made

21 about common-law systems by people from the civil-law

22 tradition. I don't mean to suggest by that that

23 authorities from common-law systems aren't of value

24 before this Tribunal. They certainly are frequently

25 referred to. But it is the general principles that

Page 486

1 need to be identified and articulated.

2 Apart from those submissions, Your Honour, we

3 would rely on our brief in relation to that ground of

4 appeal. Unless there are questions, I'd propose to

5 move on.

6 JUDGE HUNT: Thank you very much.

7 MR. STAKER: The next ground of appeal is the

8 conduct of Defence counsel. It's our understanding

9 this isn't a ground of appeal at all. Our submission

10 is that the inference can't be drawn that the Trial

11 Chamber was necessarily trying to criticise --

12 JUDGE HUNT: I think, as Mr. Morrison very

13 frankly said, the only point of raising it is to make

14 sure we take no notice [Realtime transcript read in

15 error "take notice"] of what was said in the judgement.

16 MR. STAKER: Our response to that would be we

17 don't think there's any suggestion that the Appeals

18 Chamber would, and the Prosecution is certainly not

19 asking the Appeals Chamber to do so.

20 I would then move on to the next ground of

21 appeal, which is the unlawful confinement of

22 civilians. Our response to this is very brief, and I

23 think it's a point that we made earlier.

24 Our position is not based on a standard of

25 knowledge that Mr. Mucic ought to have known or is to

Page 487

1 be held against a standard of perfection, or anything

2 like this. I said this, in our submissions, in

3 relation to the appeal by Mr. Delic that our position

4 is based on the finding that he had actual knowledge,

5 and, therefore, the question of what the situation

6 wouldn't be if he didn't have actual knowledge is not

7 something that needs to be determined in this appeal.

8 JUDGE HUNT: May I just, before you proceed,

9 say that if the transcript correctly records me, I had

10 intended to say, "to make sure we take no notice of

11 what was said in the judgement." I'm sorry.

12 MR. STAKER: I have no further submissions,

13 Your Honour, on those grounds.

14 JUDGE HUNT: Thank you very much. Yes,

15 Mr. Morrison.

16 MR. MORRISON: Very briefly, Your Honour, the

17 point is, or one of the points is, that this ground of

18 appeal, as far as the interviews are concerned, that

19 we're dealing with a mixed question of fact and law.

20 I've not gone into the facts. They're argued in the

21 briefs. We don't, of course, because I didn't argue

22 them, is simply because we've been enjoying not to

23 argue the matters in the briefs, and I'm hopefully

24 sticking reasonably loyally to that. Same for the

25 question of whether or not the interpreter should have

Page 488

1 been called. We don't in any sense withdraw from

2 that. But as far as it's a question of law, it can be

3 a review on appeal, a de novo look at the law, to see

4 whether or not the law which is being applied is the

5 law which ought to be applied, and that is

6 quintessentially a matter for an appellate tribunal.

7 As far as the question of a voir dire is

8 concerned, yes, you could have a voir dire that begs

9 the question, with the greatest of respect: How

10 valuable is a voir dire in a system where the finders

11 of both fact of law are the same tribunal? You then

12 impinge, I appreciate, on very delicate territory and

13 very delicate ground, because everybody will draw a

14 sudden breath and say, "Oh, are you possibly saying

15 that professional judges can't distinguish between the

16 two?" And no, one is not saying that at all. But what

17 it's saying is that where those matters are to be

18 tested, if it is possible, it is better that they are

19 tested in front of two separate tribunals because they

20 are separate issues which are being raised.

21 One answer is this: that, to borrow from the

22 French system of having a person equivalent to a juge

23 d'instruction, and having a predetermination of matters

24 on the voir dire, which never appeared before the Trial

25 Chamber in any shape or form, if a determination is

Page 489

1 made to exclude evidence, you are then in the same

2 position as a judge and jury trial, where matters on

3 the voir dire are heard before the judge alone and the

4 jury only get to find what is admissible.

5 But because there is no system, or there

6 hasn't been a practical system, it would not, of

7 course, be right or proper, and I know this Court would

8 not, in any sense, hold that against the defendant that

9 he didn't, as it were, raise, or it wasn't raised on

10 his behalf, that such a procedure should be followed.

11 JUDGE HUNT: Mr. Morrison, my information is

12 that it was raised at some stage during the trial --

13 whether it was in relation to this matter or not, I

14 don't know -- that the existence of the procedure was

15 certainly discussed during the trial.

16 MR. MORRISON: Well, it may be that a

17 qualitative decision was made by then lead counsel. I

18 can't go into his mind on that matter.

19 I don't think there's anything else I wish to

20 say, except my learned friend did say -- talked about

21 the universal rights as far as -- or universal

22 procedure. The most universal right is that of

23 fairness.

24 JUDGE HUNT: Thank you very much, and at a

25 very convenient time. We'll take the break now and

Page 490

1 resume at midday.

2 --- Recess taken at 11.30 a.m.

3 --- On resuming at 12.04 p.m.

4 JUDGE HUNT: Now to Mr. Delic's group of

5 grounds.

6 Mr. Moran.

7 MR. MORAN: Your Honour, Mr. Karabdic is

8 going to discuss all except Counts 46 and 47. I'll

9 discuss those separately.

10 JUDGE HUNT: Very well.

11 Yes, Mr. Karabdic.

12 MR. KARABDIC: [Interpretation] Good day, Your

13 Honour.

14 In the proceedings before this Tribunal, it

15 is a generally accepted principle that facts have to be

16 established beyond any reasonable doubt. That is the

17 standard applied here: beyond reasonable doubt.

18 According to previous practice, facts are

19 established beyond reasonable doubt when there is no

20 doubt that can be based on reason. So it is allowed

21 that some doubt may exist, but not a doubt that would

22 be in accordance with the principle of intelligent

23 reasoning and thought.

24 In the Tadic judgement, in the first degree,

25 it was said that if a consideration of the facts allows

Page 491

1 for two possibilities, then the possibility that is

2 more favourable for the accused must always be adopted,

3 and this is the principle that in continental law is

4 called in dubio pro reo: in case of doubt, what is more

5 favourable for the accused should be accepted.

6 The task of the Defence is to show that the

7 Prosecutor, in presenting their evidence, have not

8 achieved this standard. In these appeal proceedings I

9 will deal with the reasons in the judgement, in the

10 first degree, that relates to the facts and I will show

11 that the required standard of beyond reasonable doubt

12 has not been achieved.

13 I shall limit myself only to some facts from

14 the judgement. I shall take some links from the chain

15 of reasoning of the Trial Chamber in the proceedings in

16 the first instance, and this will be enough to break

17 the whole chain and to topple the whole construction of

18 the reasoning in the first degree.

19 As regards murder, Counts 1 to 4, I think

20 that my client has been found guilty of participating

21 in the murders of Scepo Gotovac and Zeljko Milosevic.

22 Let me point out at once that no witness saw or

23 testified to having seen those murders. There were no

24 eyewitnesses to describe how those murders happened.

25 The facts in the judgement are based on indicia, which

Page 492

1 in our opinion, have not been established beyond

2 reasonable doubt, and taken together, they do not show

3 that these murders have been proved according to that

4 standard.

5 As regards the murder of Scepo Gotovac in

6 Counts 1 and 2, in this courtroom Esad Landzo, who at

7 the trial proceedings admitted that he had murdered

8 Scepo Gotovac, described how he had done it, with some

9 other guards, and does not mention Hazim Delic in his

10 confession. This confession before the Trial Chamber

11 is the strongest possible evidence, and the Trial

12 Chamber should have accepted it.

13 In our opinion, the Trial Chamber was right

14 in rejecting Landzo's testimony when he accused others,

15 but these reasons do not apply when he himself made the

16 confession and confessed to what he himself had done.

17 This fact alone --

18 MS. SINATRA: Your Honour, I'm going to have

19 to object at the moment. This is a misstatement of the

20 evidence in the case and I'm going to want to voice my

21 objection that that is a total misstatement.

22 JUDGE HUNT: We are hearing Mr. Karabdic.

23 It's a matter of argument. When you come to your

24 appeal, if it's relevant, you may raise it.

25 MS. SINATRA: Thank you, Your Honour.

Page 493


2 MR. KARABDIC: [Interpretation] This shows

3 that as regards the participation of Hazim Delic in

4 this murder, not only is there reasonable doubt, but we

5 think that it has been shown that he was not there and

6 that he did not commit this offence. The reasoning

7 given by the Trial Chamber in its judgement as regards

8 this murder, in our opinion, does not meet the

9 requirement of beyond reasonable doubt.

10 The Trial Chamber found, in paragraph 817 of

11 the judgement, that Gotovac was first taken out and

12 beaten in the afternoon, then returned to the hangar.

13 After that, in paragraph 818, it states that several

14 hours later, in the evening, he was again taken out of

15 the hangar and then he was beaten by Delic and Landzo,

16 so that two prisoners brought him into the hangar and

17 that a badge had been stuck into his forehead and that

18 he died a few hours later as a result. However, there

19 is no proof, no evidence to prove beyond reasonable

20 doubt that Delic was there at all when Gotovac was

21 taken outside for the second time in the evening when

22 he was beaten to death.

23 In paragraph 814 of the judgement, it is

24 stated that in support of the allegations made in these

25 two counts of the indictment, the Prosecution called

Page 494

1 and examined 12 witnesses. Eight of those witnesses,

2 Stefan Gligorevic, Witness N, Niko Djordjic, Witness B,

3 Branko Sudar, Risto Vukalo, Rajko Draganic, and

4 Witness R, all agreed in saying that Landzo then called

5 out Gotovac's name and took him outside. It has no

6 significance that Witness B thinks that Delic was near

7 the door when Landzo called Gotovac. And when Draganic

8 says that either Landzo or Delic may have participated

9 in the fatal beating, Witnesses F and Dragan Kuljanin

10 did not know who had called out Gotovac's name, while

11 witness Branko Gotovac only supposed that it was Delic.

12 Only witness Mirko Babic claimed that Delic

13 had participated in the fatal beating, but the Trial

14 Chamber did not give credence to that witness, even

15 when he testified to his own injuries. And Articles

16 27, 28, and 29 of the indictment, paragraph 978 of the

17 judgement, so that he could not be believed when he was

18 talking about somebody else's injuries. Branko Gotovac

19 and Sudar testified to having heard Landzo's voice

20 outside the hangar. No one said that they heard

21 Delic's voice outside the hangar. They all testified

22 that this time Landzo, after the beating, brought

23 Gotovac back to the hangar, except for witness

24 Gligorevic, who did not know anything about it. I

25 think that this shows sufficiently that the standard of

Page 495

1 beyond reasonable doubt has not been met and that,

2 therefore, it is in the interests of justice that Delic

3 should be acquitted of this crime.

4 The second count of murder --

5 JUDGE HUNT: Sorry. Before you proceed to

6 the next one, you did say that Mr. Landzo had confessed

7 to this crime and in the course of his confession he

8 had not mentioned your client, Mr. Delic. Now, there

9 is no reference to that in your submissions. Have you

10 got a page reference to the evidence?

11 MR. KARABDIC: [Interpretation] It is -- yes,

12 I can, Your Honour. Maybe not at this moment. Let me

13 just have a look and I'll tell you.

14 15045 to 15046, 15047. So those three pages

15 contain his statement that he killed --

16 JUDGE HUNT: That's the part that you rely

17 upon?


19 JUDGE HUNT: Thank you very much.

20 MR. KARABDIC: [Interpretation] In Counts 3

21 and 4, he is accused of the death of Zeljko Milosevic,

22 who died as a result of a beating. The Trial Chamber

23 was convinced that the last beating caused the death of

24 the victim, and this is stated in paragraph 833 of the

25 judgement in the first instance.

Page 496

1 In paragraph 832, as regards all the events,

2 the death of Zeljko and all the events leading to the

3 death of Zeljko Milosevic, the Trial Chamber gave

4 special credence to the testimony of Witness Novica

5 Djordjic and Milenko Kuljanin. In that paragraph it is

6 stated that Djordjic was able to observe the events and

7 that his testimony agrees with and is supported by the

8 testimony of Milenko Kuljanin.

9 The testimonies of these witnesses begin with

10 the story of Delic beating Milosevic before the cameras

11 of an Arab television crew, asking him to admit to some

12 crimes. However, the testimonies differ, and one

13 witness said one thing and another said another as to

14 what was required of Milosevic. This fact alone shows

15 that their testimonies are unreliable and cannot be

16 accepted. However, the Prosecution witness, Assad

17 Harraz, confirmed that he had visited the prison in

18 Celebici with a cameraman, and he said that at that

19 time there were no other Arab journalists in the area.

20 And he stated that there was no beating of any

21 prisoners in front of this camera crew and that he did

22 not see the inmates being treated badly. In our

23 opinion, this is sufficient to create reasonable doubt

24 and to throw doubt on the credibility of these

25 statements so that witnesses Djordjic and Kuljanin

Page 497

1 cannot be accepted as reliable.

2 Furthermore, in paragraph 832 of the

3 judgement, it is stated that Djordjic heard that on

4 that night Delic called out Milosevic's name. Kuljanin says

5 that it was pitch dark, in the transcript it says

6 "pitch dark," and that he heard Delic calling out

7 Milosevic's name. That's page 5481. None of these

8 witnesses saw Delic. Both of them say that they heard

9 his voice.

10 I have to stress that identification by voice

11 is highly unreliable and insufficient to show beyond

12 reasonable doubt that this actually happened. It is

13 always possible to mistake someone's voice, to take one

14 person's voice for another, so reasonably this cannot

15 be taken as reliable evidence.

16 In the same paragraph it is stated further

17 that Djordjic heard Milosevic being called to come

18 outside and that after that he heard a discussion, then

19 beating, and then shooting. This shows that there is

20 reasonable doubt as to the manner of Milosevic's death,

21 and that it can be concluded that he was shot with a

22 bullet. This, however, is quite a different act, which

23 is not alleged in the indictment.

24 It should be added that in the morning the

25 witness saw the body of Zeljko Milosevic covered with a

Page 498

1 rag, or a T-shirt over his forehead, with a big

2 bloodstain on it. That's page 4179 and 4180 in the

3 transcript. This shows even more clearly that

4 Milosevic was killed by a bullet.

5 Witness Kuljanin, however, did not see this

6 big bloodstain on the rag or T-shirt that was on the

7 victim's forehead. He said that Milosevic's head was

8 covered with a jacket that had a hood, and that he

9 recognised Milosevic by the clothes he had lent him, by

10 the shoes he wore, and by the fact that he was bald.

11 That's page 5484 in the transcript.

12 According to Djordjic, the body was above the

13 cesspool. That's page 4179 in the transcript, while

14 according to Kuljanin, it was next to the entrance to

15 the tunnel, transcript 5481. Kuljanin was persistent

16 in saying that Milosevic's body was there, and he said

17 that he saw him once when he was going to the toilet

18 and the second time when he was on his way back to the

19 hangar from the toilet.

20 These inconsistencies in the testimonies are

21 so great that they are unreliable and they cannot be

22 used to establish the facts and reach a judgement.

23 Therefore, we consider that it is in the interest of

24 justice that Hazim Delic be acquitted of these

25 charges.

Page 499

1 As regards Counts 18, 19, 21, and 22 relating

2 to rape, I would like to point out that the Trial

3 Chamber stated correctly that according to Rule 96, in

4 cases of sexual abuse, the victim need not testify.

5 However, the Trial Chamber understood this Rule --

6 MR. MORAN: I think we had a problem with the

7 translation just a second ago. I heard Mr. Karabdic

8 saying that in a sexual-abuse case the victim need not

9 testify, and I think what he actually meant to say was

10 her testimony need not be corroborated.

11 JUDGE HUNT: Well, that's clearly what the

12 Rule says. We can understand that.

13 MR. MORAN: Yes, Your Honour. I just thought

14 there was a mistranslation.

15 MR. KARABDIC: [Interpretation] However, the

16 Trial Chamber understood this Rule in such a way that

17 it judged all the evidence in the most favourable light

18 for the Prosecution and ignored all the contradictions

19 in the evidence as well as evidence refuting the

20 Prosecutor's evidence. The Trial Chamber thought that

21 only some evidence was needed to establish the elements

22 of the offence. Testimonies were accepted which were

23 very weak and contradictory and in direct contradiction

24 to the rest of the evidence and all to the detriment of

25 justice.

Page 500

1 Both the victims, Grozdana Cecez and

2 Witness A stated that they had been raped by Hazim

3 Delic. They named him. However, neither one of them

4 was able to identify him on the photographs shown to

5 them by the Prosecution.

6 No one ever asked them to identify him, to

7 point him out. Therefore, it has not been proved that

8 the person they mention as the perpetrator is identical

9 to Hazim Delic, against whom these proceedings are

10 being held.

11 As regards Counts 18 and 19, Grozdana Cecez

12 gave an extensive and detailed testimony. However,

13 many details which are important for the evaluation of

14 her testimony show that the Trial Chamber erred in

15 accepting her testimony.

16 Firstly, there are the circumstances that

17 show that she did not remember many events or that she

18 did not want to talk about them, and this shows that

19 her testimony cannot be accepted. For example, she

20 remembers that she gave a statement to an investigating

21 Judge of Yugoslavia. She remembers that handwritten

22 corrections were made to that statement, but she does

23 not remember when those corrections were made. She

24 does not remember that she gave a television interview,

25 and, in my opinion, an ordinary citizen or even a film

Page 501

1 star who appears on television remembers when that

2 was.

3 Her testimony is contradictory to the other

4 evidence presented. For example, Witness Milojka Antic

5 stated that Mrs. Cecez gave her some contraceptive

6 pills, while Mrs. Cecez claimed that she had not given

7 anyone such pills. Furthermore, she claims that her

8 doctor, a woman, in April 1992, gave her a prescription

9 for contraceptive pills and that she was able to obtain

10 these without a prescription while her doctor, a man

11 who was heard before the Trial Chamber as a witness,

12 said that he did not recommend those pills to her and

13 that, in April 1992, such pills could not be bought

14 without a doctor's prescription in the area of Konjic.

15 Mrs. Cecez claimed that she had been raped by

16 a certain person. Later, the Prosecutor brought that

17 person in and that person was heard under the pseudonym

18 "T", and Witness T categorically denied the claims

19 made by Mrs. Cecez. The Prosecution thus presented

20 evidence that Mrs. Cecez's testimony was incorrect and

21 could not be accepted.

22 Taking all this into account, I suggest that

23 the Appeals Chamber establish that as regards this

24 rape, the standard of beyond a reasonable doubt has not

25 been met and should acquit Delic.

Page 502

1 Likewise, as in the case of Mrs. Cecez, a

2 similar situation pertains to Witness A, Milojka Antic,

3 who is mentioned in Counts 21 and 22 of the

4 indictment.

5 As regards Milojka Antic, all the objections

6 I mentioned in Mrs. Cecez's case also apply. However,

7 in this case I would like to point out that she stated

8 before the Trial Chamber that she had been raped on

9 three occasions. However, she said to investigators of

10 the Prosecution that she had been raped over a period

11 of six weeks every two or three days. This discrepancy

12 is so great that it cannot be explained either by the

13 passage of time or by other circumstances. This

14 discrepancy gives rise to reasonable doubt that her

15 testimony is incorrect and cannot be accepted.

16 Furthermore, the witness stated that she had

17 taken contraceptive pills. However, she said that she

18 had had a hysterectomy and that she had had an

19 operation but that she was not sure that she could not

20 conceive. However, the Judge of the Trial Chamber,

21 Judge Jan, said that every woman knows what this

22 operation means and that in such a situation she cannot

23 conceive, and this casts doubt the testimony -- on the

24 testimony of Milojka Antic so that it cannot be

25 believed.

Page 503

1 Therefore, it is in the interests of justice,

2 I submit, that the Trial Chamber acquit Hazim Delic.

3 JUDGE HUNT: Thank you, Mr. Karabdic.

4 Yes, Mr. Moran.

5 MR. MORAN: Good morning, Your Honours.

6 First, Judge Hunt, you asked a specific

7 question, and while Mr. Karabdic was looking, I -- or

8 talking, I looked it up. You asked -- I keep getting

9 on the wrong channel. I'm hearing Bosnian, so you'll

10 excuse me for a moment.

11 You asked where in our brief we talked about

12 Mr. Landzo's testimony.

13 JUDGE HUNT: No, no. I said you hadn't

14 raised that particular issue about his testimony and

15 there is no page reference in your brief. Now,

16 Mr. Karabdic gave me the page reference. He said

17 15045 to 15047.

18 MR. MORAN: Yes, Your Honour.

19 JUDGE HUNT: That's all I asked.

20 MR. MORAN: I'm sorry. I just wanted to

21 point out that it's on page 126 of our brief, footnote

22 239. I thought that you hadn't found it there.

23 That having been said, Your Honours, I'd like

24 to discuss Counts 46 and 47, which are the inhumane

25 conditions counts, and they're based on -- in the

Page 504

1 indictment on the atmosphere of terror and the living

2 conditions.

3 First, I think we need to point out that just

4 as conditions are not relevant to the legality of

5 confinement, the legality of confinement is not

6 relevant to whether someone is guilty of inhumane

7 conditions. They're two separate issues and should be

8 considered separately.

9 I'm going to be making basically a two-part

10 argument. The first part is that the Trial Chamber's

11 judgement is unreasonable in that some of the factual

12 findings that form the basis, frankly, violate natural

13 law as presented to the Trial Chamber and ignores

14 relevant evidence.

15 The second is an issue of law, and that is

16 whether the issue -- whether the defence of necessity

17 is available in this count. The Trial Chamber rejected

18 that argument at trial.

19 As to the unreasonableness of the verdict,

20 there were two witnesses that were presented about

21 independent witnesses concerning conditions in the

22 camp. The first was a journalist, Assad Harraz, who

23 was in the camp in the middle of the applicable time

24 period and testified at great length as to the

25 conditions, the amount of medical supplies that were

Page 505

1 available, the conditions of the inmates, the basic

2 physical conditions of the camp. The Trial Chamber

3 just ignored that.

4 The second, and I think the most important of

5 the witnesses was a witness that we presented, Dr.

6 Eduardo Bellas. Dr. Bellas is a forensic pathologist,

7 a medical doctor, and he testified at great length,

8 basing his testimony on the Prosecution's witness'

9 testimony, if you would. What we did was give him the

10 Prosecution's witness' testimony or some significant

11 portion of it concerning the camp conditions and said,

12 "Doctor, in all reasonable medical probability, if

13 this was true, what would you expect to find?" And Dr.

14 Bellas testified that he would have expected to find

15 communicable diseases, which were not present; serious

16 physical injuries of a type that were not present. He

17 would have expected to find deaths by heatstroke, which

18 did not occur. There is no evidence of any of that.

19 And the Trial Chamber just never even considered that

20 evidence. It's the type of evidence that even the

21 Prosecutor said was not controversial, said that to the

22 Trial Chamber.

23 Necessity. Justice Arbour, when she was the

24 Prosecutor here, wrote a Law Review article where she

25 pointed out quite rightly that International

Page 506

1 Humanitarian Law, law of war, is law for soldiers. And

2 it's quoted in my brief at some length, in the

3 citations of my brief, so it's findable.

4 One of the things that has to be given to a

5 soldier in the field is the right to do the best he can

6 in following the law given what's available to him.

7 Now, this is a case of first impression

8 before this chamber. In Aleksovski, the defence of

9 necessity was raised and the Appeals Chamber held that

10 there was a waiver at the Trial Chamber level. Here it

11 was clearly presented to the Trial Chamber and decided

12 there.

13 The evidence presented at the Trial Chamber

14 was that the conditions in the entire Konjic

15 municipality were such that no matter what the good

16 faith of the parties involved was, they could not

17 provide the minimum standards required by the Geneva

18 Convention on civilians for confinement. They just

19 didn't have it. No one had the amount of food that was

20 available. No one had the place to keep these people,

21 to confine them. It just was not there. The city was

22 under siege, it was being shelled regularly, food

23 supplies were not available.

24 It is going to happen in any armed conflict

25 that sooner or later a party to that conflict is going

Page 507

1 to come in to possession, if you would, of prisoners,

2 be they prisoners of war or legally detained civilians,

3 and at the same time, it's going to occur that it's

4 impossible for the detaining power to provide all of

5 the -- I don't want to say amenities, but all of the

6 things that are required by the applicable convention.

7 MR. FARRELL: Excuse me. I apologise,

8 Mr. Moran, for interrupting you.

9 I would simply note that -- I would ask that

10 the submissions be limited to the facts of this case

11 and that this Court can't take judicial notice that in

12 every armed conflict everywhere in the world there will

13 be always the case where the parties are not able to

14 provide the conditions as required by the Geneva

15 Conventions. That's not the issue here and I ask that

16 that not be considered as some type of evidentiary

17 foundations. Excuse me.

18 JUDGE HUNT: You will have the opportunity

19 later, Mr. Farrell.

20 MR. FARRELL: I appreciate that. Thank you.

21 JUDGE HUNT: As I understand, this is a very

22 long introduction as to why there should be a defence

23 of necessity available. I assume at some time we'll

24 get to the facts of this case, I hope.

25 MR. MORAN: Yes, Your Honour. I'm just

Page 508

1 saying that the defence of necessity should be

2 available. And it's a defence. It's something that

3 the defendant has to prove.

4 The Trial Chamber flatly held that there is

5 no defence of necessity, that it just does not exist,

6 that the requirements of the conventions are absolute.

7 That basically gives any detaining power, including the

8 Bosnian government in this case, really three options:

9 Detain people under the best conditions that are

10 available and be criminally liable; not detain people

11 they may very well have the legal right to detain; or

12 take some other steps.

13 Now, I would just submit that as a matter of

14 law, the defence of necessity, which is nothing more

15 than "There is a law, and I'm violating this law to

16 prevent a greater harm, and therefore I am going to be

17 forgiven my violation of the law because I was

18 preventing the greater harm," should be available.

19 That's all we're saying. And that that defence being

20 available, we should be able to prove, as I think we

21 did, that the best conditions that could have been

22 provided as to food, water, toilet facilities, sleeping

23 facilities, those types of things, medical care, were

24 provided.

25 All of the evidence -- or at least we

Page 509

1 presented evidence that the inmates in the prison were

2 given the same diet as the guards and the soldiers, the

3 same rations.

4 We provided testimony that -- or actually, we

5 didn't. It was the Prosecution witness, the

6 journalist, Mr. Harraz, who testified that he went

7 through the hospital in Konjic and he went through the

8 dispensary in the Celebici camp, and in his opinion,

9 given the number of people involved, it appeared that

10 the amount of medication available was about the same

11 per person. He was very experienced in covering wars.

12 He knew what was -- he had seen these kinds of

13 conditions before.

14 We are simply saying that the Trial Chamber

15 erred in law in not recognising that defence.

16 Unless there's some questions from the Bench,

17 I'll ...

18 JUDGE HUNT: Thank you very much.

19 MR. MORAN: Thank you, Your Honours.

20 JUDGE HUNT: I'm sorry. No. There is one.

21 JUDGE POCAR: May I perhaps raise one point

22 just to be sure of what your position is.

23 Your defence is based on the fact that these

24 conditions, although falling below the minimum standard

25 as required by international humanitarian law, were

Page 510

1 unavoidable, under the circumstances, notwithstanding

2 the good faith in trying to provide good conditions.

3 So my question is the following: Am I

4 correct in assuming that the burden to prove the good

5 faith rests on the party claiming that necessity, or

6 would you think that it would have been for the

7 Prosecution to prove the absence of good faith, under

8 the circumstances, as part of the crime, I mean, of

9 the --

10 MR. MORAN: Yes, Your Honour.

11 JUDGE POCAR: What is your position on that?

12 MR. MORAN: My position would be that it is a

13 defence, which means that we have the burden of

14 bringing forward evidence to show that the conditions

15 that were provided were the best that could reasonably

16 be provided. And I think we met that burden, at least

17 by bringing forward evidence. The Trial Chamber made

18 no findings as to that.

19 JUDGE HUNT: That's not the question you were

20 asked, though.

21 MR. MORAN: Yes, Your Honour.

22 JUDGE HUNT: If you just bring forward

23 evidence, that is consistent with requiring the

24 Prosecution, having seen the evidence, to establish

25 that there was no necessity. I think you have to

Page 511

1 answer Judge Pocar directly.

2 MR. MORAN: Yes, Your Honour.

3 JUDGE HUNT: Do you bear the burden of

4 persuading the Trial Chamber on the defence of

5 necessity?

6 MR. MORAN: Yes, Your Honour. On the defence

7 of necessity, I think it must be proven by the Defence

8 to a preponderance of the evidence.

9 JUDGE POCAR: Thank you.

10 MR. MORAN: Yes, Your Honour.

11 JUDGE HUNT: Thank you.

12 Yes, Mr. Farrell.

13 MR. FARRELL: If I can start with the last

14 submission by my learned colleague, Mr. Moran, first.

15 There have been some comments about the

16 grounds of appeal raised and whether or not they're

17 actually necessary for the hearing of the appeal,

18 whether they're purely academic issues. I would

19 respectfully submit that this is clearly not an issue

20 before you that needs to be determined, and not even an

21 issue before the Trial Chamber in relation to the

22 conviction of Mr. Delic.

23 The ground of appeal relates to whether or

24 not the inhumane conditions were such that they were

25 inevitable and that there was nothing that the accused,

Page 512

1 in this case, the appellant, Mr. Delic, could do to

2 have prevented the inhumane conditions, and Mr. Moran

3 refers to things like lack of food.

4 I would note that Mr. Delic was never

5 convicted of this with respect to these counts. He was

6 not found to be a superior and he was not found to be

7 responsible for the conditions in the camp. Mr. Delic

8 was found, at paragraph 1121, to be responsible for the

9 direct acts of violence he committed in the camp which

10 contributed to the atmosphere of terror.

11 What was concluded was that he was not found

12 to have exercised superior authority over the Celebici

13 prison camp, for this reason: The Trial Chamber finds

14 that Hazim Delic cannot be held responsible as a

15 superior for the inhumane conditions that prevailed in

16 the Celebici prison camp. So with respect, he was not

17 found guilty, and this is not an issue before you with

18 respect to his conviction.

19 The Trial Chamber did find that by virtue of

20 his direct participation in specific acts of violence

21 which he was charged with in the indictment and which

22 have been proven, that he was a direct participant in

23 the creation and maintenance of an atmosphere of

24 terror.

25 With respect, as we know from the decision in

Page 513

1 Aleksovski, defence of necessity that the conditions

2 regarding the health and welfare of the prisoners,

3 resulting in inhumane conditions, that defence of

4 necessity has nothing to do with the acts of violence

5 committed by Mr. Delic.

6 This issue was actually -- as I'm sure Judge

7 Hunt will remember, we debated this issue of necessity

8 in the Aleksovski case, and in fact, Mr. Aleksovski

9 raised a similar defence regarding the inhumane

10 conditions. Mr. Aleksovski was also found guilty, not

11 necessarily for the conditions, but for the

12 mistreatment of the prisoners, the same situation, in

13 my submission, as Mr. Delic.

14 What the Court in Aleksovski said, and I

15 submit the facts are sufficiently similar, at paragraph

16 54, was that what the appellant is in effect submitting

17 is that the mistreatment the detainees suffered should

18 have been interpreted by the Trial Chamber as somehow

19 having been justified by the assertion that they would

20 have suffered even more had they been treated in a

21 different manner, that is, if they had been released

22 from detention. Here the defence of necessity somehow

23 is that the Trial Chamber should find that the acts of

24 violence were somehow justified, as a matter of

25 necessity, because they couldn't provide them food.

Page 514

1 The Appeals Chamber in Aleksovski goes on and

2 says:

3 "The appellant does not and cannot argue in

4 the present case that he was faced with only two

5 options, namely, mistreating the detainees or freeing

6 them. The appellant, faced which the actual choice of

7 mistreating the detainees or not, was convicted for

8 choosing the former."

9 Likewise, in this case, Mr. Delic was

10 convicted for choosing to mistreat, torture, and kill

11 detainees, not for making a choice, when he could make

12 none other, to somehow not provide the sufficient

13 conditions for humane treatment.

14 Secondly, I would simply note that the Trial

15 Chamber specifically made a finding of fact with

16 respect to this matter, that the inhumane conditions

17 inflicted upon the detainees were a product of design,

18 not necessity, at paragraph 1118.

19 As a result, it's my submission that

20 Mr. Delic is raising a matter which does not directly

21 relate to him and does not affect his determination of

22 guilt.

23 Now if I may, with respect, turn to the other

24 counts. I'll start with the ones raised by my learned

25 colleague Mr. Karabdic.

Page 515

1 He starts with some general standards of

2 review. I know that as a result of the Status

3 Conference, the standards of review are not to be

4 briefed, and I will not brief you on it. I would

5 simply bring to your attention that the issues raised

6 regarding the sufficiency of evidence, the standard

7 submitted in the appellant's brief, are responded to in

8 our brief in this case, but I'd also inform the Appeals

9 Chamber, as I'm sure you're aware, these very same

10 issues and the same standards proposed by the appellant

11 are also put forward in the Furundzija appeal case, so

12 that matter is being determined in that case as well.

13 Regarding counts 1 and 2, this is the beating

14 death of Mr. Gotovac, the submissions by my colleague

15 are that the evidence is insufficient and that it

16 doesn't meet the reasonable doubt standard. Obviously,

17 the Prosecution's submission is that it's not whether

18 or not the evidence meets a reasonable doubt standard,

19 but whether or not it was unreasonable, on all the

20 evidence before the Trial Chamber, to have reached the

21 conclusion it did.

22 The main submission, as I understand it, or

23 at least one of the main submissions -- I'm sorry -- is

24 that there was no evidence that he was involved in the

25 second beating. There was a beating in the afternoon

Page 516

1 and then there was a beating later on that day of the

2 deceased, and as a result of the beating the second

3 time, he died. And the submission is that Mr. Delic

4 has nothing to do with the second beating and there's

5 no evidence of that.

6 Obviously this matter, in the Prosecution's

7 submission, needs to be looked at in context. The

8 beatings and the resulting death all took place in the

9 course of one afternoon and evening. There's no

10 separation, per se, of these events. Secondly, the

11 beatings were of a 70-year-old man. Thirdly, there was

12 evidence, which I will bring to your attention, that

13 corroborated that Mr. Delic threatened to kill this

14 witness, this victim, that day.

15 Mr. Delic, the evidence indicates, was

16 involved in the beating of this victim inside the

17 hangar, and then outside the hangar earlier on the same

18 day, the same day that he threatens to kill him. Only

19 a few hours later the victim was then taken outside the

20 hangar again. And there are two witnesses, Mirko Babic

21 and another witness, Witness B, which the Trial Chamber

22 relies on and which I'll refer to briefly.

23 The last thing is that Mr. Delic admitted in

24 his statement that he knew that the victim had actually

25 died in the camp.

Page 517

1 Regarding the first complaint, or error, as

2 alleged by my friend, that the Trial Chamber should not

3 have relied on the witness Babic -- and as I understand

4 it, he says that Mr. Babic's testimony was not relied

5 upon by the Trial Chamber in other counts -- counts 27,

6 28, and 29 -- and therefore that taints his whole

7 evidence. With respect, Mr. Babic was not believed,

8 according to the Trial Chamber, in relation to these

9 counts as a result of the fact that his evidence in

10 this instance was not wholly reliable. It doesn't

11 conclude that he was completely an unreliable witness

12 that can't be believed in all circumstances. And they

13 find that there was other evidence which seemed to

14 contradict it and there was no supporting evidence

15 whatsoever from Mr. Babic.

16 JUDGE HUNT: May I suggest that you face up

17 to the real problem with this witness. The Trial

18 Chamber disbelieved him in relation to those other

19 counts not simply because of the quality of his

20 evidence in relation to those other counts but because

21 he had given untrue evidence, which they found to be

22 untrue evidence, about his own injuries, I think it

23 was. So there was some third incident which infected

24 the quality of his evidence in relation to the other

25 counts where they didn't believe him. And the issue

Page 518

1 is: Why didn't that third incident similarly infect

2 his evidence in relation to this incident?

3 MR. FARRELL: First of all, it appears they

4 didn't believe him, clearly, but I think the language

5 is that they said that it was not wholly reliable. And

6 with respect, there is a fine distinction between proof

7 beyond a reasonable doubt and finding that a witness is

8 lying. But taking that as it is, I'm sure you're

9 familiar with the distinction, Judge Hunt.

10 First of all, the evidence with respect to

11 Mr. Babic about the beatings earlier on in the day are

12 consistent with the other evidence. No one disputes

13 that this witness was not beaten earlier on in the

14 day. There's extensive corroboration regarding the

15 beatings and the death.

16 Secondly, with respect to this evidence that

17 it was Delic, there were two pieces of evidence -- I'm

18 sorry -- there was evidence that Mr. Delic threatened

19 to kill him that day, as I understand it. I'll have to

20 pull that out. There was also evidence that Mr. Babic

21 said that Delic and Landzo came to the door.

22 The evidence that is referred to as

23 unreliable with respect to the coming to the door, as

24 Witness B -- and they said that in light of the fact

25 that there's only one witness, Witness B, who refers to

Page 519

1 Delic coming to the door, there is no other evidence

2 that Mr. Delic was involved.

3 With respect, in light of the context and in

4 light of the threat -- and there's no doubt he

5 threatened to kill him. There's no doubt the beatings

6 took place that day, there's no doubt that the beatings

7 continued that day, and there's no doubt that they came

8 back two hours later after the beating and after the

9 threat, to kill him, to come and get the victim. In

10 that respect, Mr. Babic's evidence is not inconsistent;

11 in fact, it's corroborated.

12 The one witness that my friend refers to that

13 relates to whether or not Delic was there, Mr. Babic

14 indicates that Delic was there, he was at the door when

15 the victim was taken out. He's correct that there was

16 only one witness who actually supported that. That was

17 Witness B, and was found credible by the Trial

18 Chamber.

19 Witness B's testimony, in describing where

20 the people were when they came the second time to get

21 the victim to beat him, states that he thinks he was at

22 the door, outside. And in my respectful submission --

23 and this is a reading that requires the Trial Chamber's

24 determination -- he was describing where Mr. Delic was,

25 not whether he thought he was there or not. He

Page 520

1 describes that there were people that came to get him.

2 He doesn't identify Delic. That's fair enough. But

3 what he does say is that there were people that came to

4 get him. He describes where Landzo was, and then he

5 says, "Yes, Landzo actually was the one who came in."

6 And then he says, "I think Delic was at the door,

7 outside." In my respectful submission, it's not that

8 he thinks that Delic was there. He's identifying where

9 he is, that he was in the door frame, outside/inside.

10 That's where he thinks he was.

11 JUDGE HUNT: The problem you'll have there,

12 and you might like to come back to this after lunch, is

13 that the Trial Chamber seems to have specifically found

14 that death resulted from the second of the beatings.

15 MR. FARRELL: Fair enough.

16 JUDGE HUNT: So there is no causal connection

17 between the first beating and the death. And if the

18 evidence relating to the second beating is found by

19 this Chamber to have been such that the determination

20 made was unreasonable, how do you go there?

21 MR. FARRELL: I think I can answer that very

22 briefly. I mean, I think the Prosecution's case

23 related to the second beating. It wasn't clear -- and

24 I'll look at the evidence at the break -- that the

25 first beating would have resulted in death. So I think

Page 521

1 you're correct. I think the causal connection is in

2 relation to apparently the second -- not apparently --

3 in relation to the second beating. But I'll look at

4 the evidence for whether or not there's any evidence

5 that the first could have resulted, which negates the

6 necessity of determining his existence with the second.

7 Thank you.

8 JUDGE HUNT: Thank you. We'll adjourn now

9 until 2.30.

10 --- Luncheon recess taken at 1.03 p.m.
















Page 522

1 --- On resuming at 2.32 p.m.

2 JUDGE HUNT: Just before you resume, we have

3 now received the translations of those newspaper

4 cuttings. What is the Prosecution's attitude towards

5 accepting them into evidence subject to relevance and

6 weight?

7 MR. STAKER: Your Honour, I think we've

8 addressed that in a filing already. We don't object to

9 their admission as evidence that they were published as

10 press reports.

11 JUDGE HUNT: What does that mean?

12 MR. STAKER: Well, the fact that something is

13 published in the press as a press report, depending on

14 where it's published, might render it more likely that

15 the facts reported in it did happen, that they wouldn't

16 be conclusive evidence.

17 JUDGE HUNT: Oh, certainly not. Certainly

18 not. That's all they're tendered for, to show that

19 this was reported, and they will use it, as I

20 understand it, as some evidence that it happened. What

21 weight we give it to it is a matter for us.

22 MR. STAKER: Exactly, Your Honour.


24 MR. STAKER: All we're saying is we don't

25 object to them going into evidence as evidence that

Page 523

1 newspaper reports in that wording were, in fact,

2 published.

3 JUDGE HUNT: Thank you, Mr. Staker.

4 Sorry, Mr. Farrell.

5 MR. FARRELL: Thank you, Your Honour.

6 In an attempt to address your question,

7 Judge Hunt, regarding the issue of causation. My

8 understanding, of course, is that if there is -- if the

9 evidence that supports the linking of Mr. Delic to the

10 second incident is found to be unreasonable, and I've

11 already made my submission on Witness B and Mirko

12 Babic, then the question becomes whether or not it can

13 still be substantiated as a result of a link or the

14 cause of death to the first one.

15 JUDGE HUNT: That's right.

16 MR. FARRELL: I think to be fair, the Trial

17 Chamber didn't find that, first of all, as I'm sure

18 you're fully aware, at paragraph 818 and 823.

19 Paragraph 818, they make a specific finding that the

20 death was a consequence of the second beating. They

21 find at 823 that he died as a result of the injuries he

22 received after listing the two beatings, but I think to

23 be fair, that clearly must be read in light of the

24 previous paragraph.

25 That being the case, I don't think there was

Page 524

1 any finding that there was a link between the first

2 beating and the death.

3 For the Prosecution to now argue that this

4 Appeals Chamber should substitute -- should uphold the

5 verdict on the basis that it should substitute a

6 finding of fact, the Prosecution would have to argue

7 that the only reasonable conclusion on the evidence

8 before you would be that there was a causal link from

9 the first beating.

10 To be fair, I don't think the evidence before

11 you meets that standard. I can go through the

12 evidence. I went through all of it, but there's only

13 one witness who directly refers to the result or the

14 impact of the first beating, the others do not, and

15 there is the intervening event of the second one. So I

16 think to be fair, that can't be substantiated.

17 JUDGE HUNT: Thank you.

18 MR. FARRELL: With respect to Counts 3 and 4

19 and the evidence that was put forward, I would make one

20 note. In, I think, almost all of these submissions by

21 the Defence, they raise two grounds in many of them.

22 The first was that the victim was not a protected

23 person, and then secondly, that the evidence was

24 insufficient.

25 Just to make sure I cover the first ground,

Page 525

1 Mr. Staker argued, with respect to the unlawful

2 confinement, the findings of fact by the Trial Chamber

3 that the victims were, in fact, civilians and protected

4 persons. The issue of protected persons in law has

5 been argued. The issue of protected person in

6 substance and the facts as found by the Trial Chamber

7 has been mentioned by Mr. Staker.

8 I would only simply draw to your attention

9 that the Trial Chamber's finding at paragraph 1130 that

10 they were civilians; paragraph 1134 that the detention

11 was a collective measure aimed at a specific group

12 based on their ethnic background; and the submission, I

13 think, by my learned colleagues is that there wasn't a

14 specific finding that the victims as alleged in the

15 indictment, not a general finding but a specific

16 finding of these victims or the victims as alleged in

17 the indictment were protected persons, and I would

18 simply refer you to paragraph 265, where the Trial

19 Chamber found:

20 "It is clear that the victims of the acts

21 alleged in the indictment were arrested and detained

22 mainly on the basis of their Serb identity."

23 And based on their previous finding as to

24 that being the basis for the protected person status,

25 I'd say that that is a finding with respect to the

Page 526

1 victims alleged in the indictment.

2 I have reviewed the evidence on a number of

3 the victims that the appellant indicates there was no

4 evidence on, indicating that they were Serb and that

5 they were detained because of their Serb identity, but

6 in my submission, in paragraph 265 meets that test.

7 With respect to Counts 3 and 4, this is the

8 killing of Zeljko Milosvic, one the issues I understand

9 being raised was the inconsistency in the evidence

10 between Milenko Kuljanin and another witness named

11 Djordjic. There was the argument put forward that, in

12 fact, all they could hear was Mr. Delic's voice and

13 that, therefore, the simple voice identification of

14 Mr. Delic certainly was insufficient to make a finding

15 of fact in this regard.

16 Before going to the evidence regarding the

17 voice identification, as it's called, it's the

18 Prosecution's submission that there's an important

19 piece of evidence -- it's not specifically referred to

20 by the Trial Chamber and it's not referred to in my

21 friend's brief -- and that is the evidence of both

22 Djordjic and Kuljanin.

23 The evidence of the witness Djordjic is at

24 transcript page 4177. And at that page he states that

25 that day, the day before the night, Hazim Delic told

Page 527

1 him that that night at 1.00, 1.00 a.m., he would go to

2 the toilet. This is in relation to the witness's

3 testimony that Hazim Delic had basically told him

4 earlier that day that he was going to be -- that Delic

5 was going to come and get him again. Further on,

6 Mr. Djordjic, at transcript 4179, continues and says:

7 "And indeed, as Hazim had said, that

8 night -- I don't know what time it was -- his voice

9 could be heard outside building number 9 and he called

10 out Zeljko Milosevic."

11 Further, the other witness referred to by the

12 Trial Chamber, Kuljanin, at transcript page 5483, in

13 relation to this issue about the appellant, Mr. Delic,

14 calling the victim out earlier in the evening, the

15 witness testified:

16 "So he had," "he" being Mr. Delic, "had

17 actually forewarned him," that being the victim, "of

18 what was to come and told him to be ready at 1.00 a.m.,

19 and that was what happened."

20 Then the next step is the evidence of when

21 the two individuals heard the voice of Mr. Delic

22 calling out the victim.

23 When assessing the evidence of the two

24 witnesses saying that Delic called out the victim and

25 he died as a result of the beating, the Prosecution

Page 528

1 would submit that you should look at other evidence

2 which isn't referred to, which is the evidence of both

3 of them saying Mr. Delic forewarned him and told him he

4 would be coming and getting him and that he would be

5 called out later that night. In my submission, that's

6 evidence of the intention of Mr. Delic and clearly can

7 be linked to the voice identification of the two that

8 that, in fact, is what happened.

9 With respect to the two witnesses, there

10 clearly is some differences in their testimony, and the

11 Trial Chamber actually notes the discrepancies and the

12 differences of their testimony. But it seems fairly

13 clear that they're similar in the fact there was the

14 comment by Mr. Delic that he was to come out later that

15 evening. There was the evidence of both of them that

16 he was, in fact, taken out of the building that night.

17 Both of them confirm in their testimony that it was

18 Mr. Delic's voice and that Mr. Delic did call him out,

19 as he had indicated earlier in the day. Both indicated

20 that they could hear the beatings just outside the door

21 after he was taken out by Mr. Delic. Both of their

22 evidence is that he did not return, and both see the

23 body the next day at a similar place when both are

24 being taken to the toilet.

25 There clearly is discrepancies, as indicated

Page 529

1 by my friend, regarding whether one saw a T-shirt over

2 his head, over his body, or one saw what he thought was

3 a jacket over his head, but in relation to the

4 discrepancies, in light of the accuracy and consistency

5 of their statements and the findings by the Trial

6 Chamber, I submit that it's not unreasonable.

7 The next count, if I may, is counts 18 and

8 19. This is in relation to the rape count of

9 Mrs. Cecez, if I pronounced it correctly.

10 There was one comment made by my learned

11 colleague and one submission made regarding the

12 corroborative nature of the evidence, though it's no

13 longer necessary. There's a comment in the brief that

14 the Trial Chamber erred by relying on a presumption of

15 reliability with respect to the two. And I'm not sure

16 that's exactly what he's getting at, but I think that

17 may have been what he was getting at, and in his brief

18 he refers to a passage where the Trial Chamber quotes

19 from another decision, that's the Tadic decision, that

20 there is a presumption of reliability vis-a-vis

21 witnesses of sexual assault.

22 In the Prosecution's submission, clearly what

23 that relates to is the recognition by this Tribunal,

24 and many other jurisdictions, obviously, that you no

25 longer require corroboration of the testimony of

Page 530

1 victims of sexual assault. It rebuts the former rule,

2 or the former presumption, in fact, that victims of

3 sexual assault were in some way inherently unreliable

4 and therefore --

5 JUDGE HUNT: You're right about that, but it

6 is a very unfortunately expressed statement in the

7 Tadic judgement. Clearly, I think, the Rule was

8 inserted to overcome the presumption of unreliability

9 which some 19th-century judges imputed to victims of

10 rape or complainants of rape. And if that was all they

11 had said, there could be no quarrel with it. But the

12 expression is that it accords to the testimony of a

13 victim of sexual assault the same presumption of

14 reliability as the testimony of victims of other

15 crimes. Well, there is no presumption of reliability

16 of any witness. All they're saying is that they're in

17 no -- I think what they had intended to say was that

18 there is no difference between a rape complainant and

19 any other sort of complainant.

20 MR. FARRELL: I think that's clearly what

21 they --

22 JUDGE HUNT: But it is very unfortunately

23 expressed.

24 MR. FARRELL: The wording I would -- I mean,

25 it's taken from the Tadic Trial Chamber's decision and

Page 531

1 quoted, and it's also quoted -- in fact, the same

2 language is quoted in the Akayesu judgement for the

3 exact same proposition. And I think the -- at least

4 the understanding that I can draw from it is that it's

5 the same as yours, Judge Hunt. I think the language is

6 not that there's, in fact, a presumption of reliability

7 in the sense that they're presumed to be reliable

8 simply because they're a victim; it's that their

9 evidence shouldn't be accorded some type of diminished

10 value because it's not corroborated. And I would refer

11 to -- that's the understanding, and I think that's

12 clearly what the submission of the Prosecution is.

13 Just to note what was mentioned by the Trial

14 Chamber in Akayesu, the Trial Chamber in Akayesu, in

15 paragraph 134, refer to the same passage and quote the

16 same passage from the Tadic judgement.

17 Then in paragraph 135, the Trial Chamber in

18 Akayesu says:

19 "In view of the above, the Chamber can rule

20 on the basis of a single testimony, provided such

21 testimony is, in its opinion, relevant and credible."

22 And in my submission, clearly the inference

23 that's drawn by the Trial Chamber in Akayesu, the

24 obvious inference is the meaning from Tadic and by the

25 Trial Chamber in Celebici, as indicated by Judge Hunt.

Page 532

1 I just wanted to address that issue.

2 Now back with respect to the factual basis

3 for counts 18 and 19. Once again, there is an

4 allegation that the victim was not a protected person,

5 and that's been addressed.

6 One of the issues raised is the

7 identification of the accused by this victim, and there

8 was some comment about the fact that her -- there was a

9 problem with her identification itself in the photo

10 ID.

11 Now, with respect to the testimony of this

12 victim, it's submitted that, in fact, there are four

13 pieces or elements upon which you can find that there

14 was sufficient evidence of identification. First of

15 all is the evidence that the accused, in this case,

16 Mr. Delic, had a crutch and was limping, and that's how

17 she identifies him at numerous passages: in her

18 testimony at page 513, and her testimony at 513 further

19 on, when she then identifies him as coming and going

20 often in the camp.

21 This evidence that he was -- one thing that

22 she knew him by, besides hearing his name, of course,

23 but as "the man with the crutch" was corroborated by

24 other witnesses, that he did have a crutch and that he

25 was limping as he was walking around in the prison. So

Page 533

1 first of all, there's a link of identification with

2 respect to her allegation as to who the man was that

3 did it and what his condition was. There's four or

4 five transcript references to that.

5 I'd also note that Mr. Delic, according to a

6 medical report which was relied on, was in the hospital

7 from the 21st to 25th of May, 1992 for an injury to his

8 leg. So 21st to the 25th of May. The victim arrived

9 at Celebici camp on the 27th of May, two days later,

10 which is equally consistent with her testimony that he

11 had a crutch and he obviously was limping. She arrived

12 two days after he came out of the hospital with a

13 crutch.

14 Secondly, she indicates in her evidence that

15 she frequently heard others refer to him as "Delic" and

16 others refer to him as "Hazim."

17 Thirdly, she identifies that he was

18 essentially the second most important person in the

19 camp. She identifies him by his title. At her

20 transcript page 514, she states: "We heard that Pavo

21 was the most important, Pavo Music, and he" meaning

22 Delic, "was his deputy."

23 Fourthly is the issue of photo

24 identification. She did not clearly identify him in

25 the photo identification. She said she was not sure.

Page 534

1 But what is telling about her testimony is that when

2 she says, "I am not sure," she says, "I don't dare say

3 which one. Maybe the man has changed. After all, I

4 haven't seen him for five years." In fact, the witness

5 is being quite careful, and it has been five years, and

6 she only saw him in the camp for a month or so.

7 There is also the Witness T, as I understand

8 it, who the victim claimed that Witness T actually had

9 committed a rape on her as well. Witness T testified

10 at the trial, and Witness T denied it. The Defence

11 relies on this as another piece of evidence which

12 clearly goes to her credibility.

13 First of all, I don't know how much the

14 weight the Trial Chamber gave to the fact that a

15 witness who was obviously in a position of a guard in

16 the camp is going to come before the Tribunal and admit

17 that he committed a war crime. Regardless of that,

18 what is useful from his testimony is that when he is

19 asked specifically whether or not he raped the victim,

20 Witness T states: "This is a made-up story as much as

21 possible. The only person who raped in the camp were

22 Hazim Delic and another man." In fact, when asked

23 about this specific witness, his answer with his

24 denial, which has been brought to your attention, also

25 is the identification of Mr. Delic.

Page 535

1 If I can move on now to the witness

2 Ms. Antic. This is Counts, 21, 22, and 23.

3 Once again, the issue of identification is

4 raised, and I'll just briefly speak to that.

5 First of all, she describes Mr. Delic as the

6 commander in the camp, and she says that within the

7 camp itself, Mr. Mucic was in charge. Once again

8 equally consistent with the actual positions found by

9 the Trial Chamber.

10 Secondly, with respect to the photo ID, she

11 actually picks out number 4, which is Mr. Delic, and

12 fair enough, as is alleged, she doesn't say it's

13 exactly him, but what she does says is: "He seems to

14 be familiar. I'm not sure, but you must remember it

15 has been five years since it happened, so the details

16 are a bit vague. But the features I remember are the

17 forehead, the nose, and the mouth. As far as I can

18 remember, since it was some time ago, he looked like

19 the perpetrator of the crime."

20 Secondly -- or the third piece of evidence

21 which assists in identification is that on the first

22 night at the camp, this witness testified that she had

23 been raped by Mr. Delic, and that after that she went

24 back and she couldn't stop crying.

25 Another witness, the witness who was the

Page 536

1 victim of the previous counts, Grozdana Cecez,

2 testified Hazim Delic raped this witness that first

3 night. "The girl cried for 24 hours. She could not

4 stop." It's equally consistent with the testimony of

5 the victim.

6 Secondly, with respect to the second one, the

7 victim testified that one day Mr. Delic came during the

8 daylight and ordered we go into the command building

9 where they were to wash up. She and another victim

10 then went and went to that building to wash up in a

11 bathroom. There was discrepancy in their evidence as

12 to who went first, and when one of them washed up did

13 the other one go back, but they both confirmed that

14 they went there, and they both confirmed that the

15 circumstances were the same.

16 The victim then testified that after she

17 washed up, she was then called into another room where

18 Mr. Delic was and the second incident occurred.

19 In that respect most of the testimony is

20 similar with respect to the incidents leading up to

21 it. Now, the victim testified that she was called

22 separately into where the second rape occurred so

23 obviously the other witness couldn't confirm that but

24 confirms all the evidence leading up to it with the

25 minor discrepancies that I've mentioned.

Page 537

1 There was the other passage of -- I should

2 mention one thing. This may, just it be fair, may

3 assist or not assist the Prosecution, but in the

4 testimony of the victim, she indicates that after the

5 second rape, when she returned, she did not tell the

6 other witness, the other witness who went to the

7 command building for the wash and who actually

8 confirmed her testimony with respect to the first

9 rape. She says that she didn't tell that witness.

10 She does state, though, that she never spoke

11 with and never had the chance to meet with that witness

12 again. She says in cross-examination at 1827: "The

13 victim indicated that she had no contact with the other

14 witness." This other witness is the confirming witness

15 that the Prosecution and the Trial Judge relies on.

16 The other witness does testify though, and what she

17 testifies to is that she was told.

18 Now, on its face it may look like an

19 inconsistency, and in fairness to the Defence, this is

20 an inconsistency in the evidence between two witnesses

21 as to after the second rape whether the victim told the

22 other witness.

23 Despite that discrepancy between whether one

24 told the other, it appears that she was told. It

25 appears that the witness was told. As she indicates

Page 538

1 that there was no time for them to contact or be in

2 touch prior to the testimony, at least if I read it

3 correctly, the confirming witness states that she was

4 told when the victim returned.

5 Grozdana Cecez at page 529 says about this

6 victim: "They came to get her to wash up at the

7 command building. I went in to take a shower. Later I

8 went back to my room and the guards took out the

9 victim," the victim of this count. "When she came

10 back," that's the victim came back, "she was crying,

11 and she told me while she was washing up, Hazim Delic

12 had raped her and she then had been brought back."

13 Now, as I indicated, the victim herself said

14 that she didn't tell this person. That may be a

15 discrepancy, but the actual testimony is equally

16 consistent. It can't be denied that the facts are

17 completely consistent with what happened.

18 I've dealt with Counts 46 and 47 which deal

19 with the defence of necessity and those are essentially

20 my submissions.

21 There is one thing that I noted over the

22 lunch break, and I think to be fair, the identification

23 of -- the photo identification of the second witness,

24 Ms. Antic, I reviewed the transcripts, and it appears

25 there is some, once again to be fair to the Defence, it

Page 539

1 appears it's unclear as to whether or not Mr. Delic is,

2 in fact, the one identified. So in fairness to the

3 Defence, they have relied on it and they've said that

4 the photo identification is problematic. The

5 Prosecution's submission rests on the fact that she

6 does basically identify him but then says she can't be

7 sure because it was five years ago.

8 In the manner in which this was presented at

9 trial, the Prosecution presented, if I read it

10 correctly, they presented the photo identification

11 line-up of six people, and they presented the --

12 basically the statement by the victim in which she

13 identifies a person, and the extent to which she

14 identifies that person I've referred to as saying "he

15 looks familiar." So to that extent it's not a strong

16 identification obviously.

17 But I think to be fair, when you review the

18 transcripts I think you'll see, unless I've missed

19 them, that, in fact, what happens is that the witness

20 says that, "This is my identification. He looks

21 familiar but I haven't seen him in five years." She

22 identifies him as number 4. The photo board and the

23 document are tendered but then the -- neither the

24 Prosecution nor the witness indicate that number 4

25 happens to be Mr. Delic. So we have the evidence

Page 540

1 before the Court, we have the picture before the Court,

2 we have her testimony as to that he seems to be

3 familiar, but on the face of the transcript itself, to

4 be fair, it's not then confirmed that Mr. 4 is

5 Mr. Delic, and it's hard to say whether or not at this

6 point in time that picture is Mr. Delic, to be

7 completely fair.

8 I think that at the time, in the

9 Prosecution's submission, what had happened was it was

10 clear to the persons who were putting the document

11 forward who that person was, and it was clear to the

12 bench when they looked at that document who that

13 person was, but it doesn't appear to be on the

14 transcripts in relation to this issue.

15 So since it was raised by the Defence, I

16 wanted to make sure it was clear.

17 JUDGE HUNT: Do we have the exhibit itself

18 in.

19 MR. FARRELL: Yes, we do. We have the

20 exhibit with the photo and her statement attached to

21 the exhibit, identifying the person.

22 JUDGE HUNT: Thank you.

23 MR. FARRELL: But not the specific

24 identification in terms of the Prosecution identifying

25 who it is in the photo line-up, as far as I could tell,

Page 541

1 unless it's somewhere in the transcripts I missed.

2 Subject to any questions, those are my

3 submissions to the grounds of appeal raised by

4 Mr. Delic.

5 JUDGE HUNT: Thank you very much.

6 MR. FARRELL: Thank you very much.

7 JUDGE HUNT: Mr. Karabdic, do you wish to

8 reply?

9 Mr. Moran.

10 MR. MORAN: Yes Your Honour.

11 JUDGE HUNT: Thank you.

12 MR. MORAN: Your Honour, rather quickly from

13 back to front, if you would. The photo array is our

14 exhibit. The Prosecution, exercising the highest

15 ethical standards, both told us that there had been a

16 failure to identify and gave us the photo array, and I

17 introduced it. So that's how it's in the record.

18 Your Honours, the Prosecution has to prove

19 identity. That is part of their proof, and if they

20 didn't get it in the record, they didn't prove it.

21 And what -- and when it comes to mentioning

22 the names, on Witness T there was some discussion that

23 Witness T had been accused of rape. On

24 cross-examination, he was presented with Ms. Antic's

25 testimony -- excuse me, Ms. Cecez's testimony, right

Page 542

1 out of the transcript. "Here's what she said. Is she

2 mistaken or are you a war criminal?" And of course,

3 needless to say, as one would expect, he denied the

4 allegations.

5 Then there was some discussion in the

6 transcript, as I recall, and I believe it was Judge

7 Jan, and it may have been the Prosecutor, saying,

8 "Maybe she's mistaken about the name." Well, maybe

9 she's mistaken about the name of Witness T. Just as

10 likely, she's mistaken about the name "Hazim Delic."

11 There was no positive identification. During

12 the entire trial, Mr. Delic was sitting in the seat

13 he's sitting in now, and no one ever asked these

14 people, "Do you see the man that raped you?" Nobody

15 ever asked.

16 Judge Hunt, on the presumption of

17 reliability, that is definitely unfortunate language.

18 JUDGE HUNT: Perhaps I should make it clear.

19 I am only saying what I believe they meant. Whether or

20 not that was what they meant, I don't know.

21 MR. MORAN: Your Honour, I think that when a

22 Judge writes an opinion or a group of Judges write an

23 opinion in a judgement, we owe it to those Judges to

24 presume that when they say they use a legal test that

25 that's the legal test that they used, and I credit the

Page 543

1 three Judges on the Trial Chamber with doing exactly

2 what they said they did, which was presumption of

3 reliability. If, in fact, that is true, that they did

4 that, that is clearly reversing the burden of proof,

5 that no witness is reliable, each witness stands on his

6 or her own merits. There's no presumption one way or

7 the other.

8 Counts 3 and 4, the two murder counts, all of

9 these counts together on protected persons. I believe

10 that that's been well presented to the Court. It's a

11 question of law. Either these persons were protected

12 persons or they're not. That was included in the brief

13 just to make sure nothing was waived.

14 The Prosecution, in saying that the evidence

15 was sufficient in Counts 3 and 4 wants the Appeals

16 Chamber to take into account evidence that was not

17 referred to by the Trial Chamber. I think that's

18 basically asking the Appeals Chamber to make fact

19 findings. We don't know how the Trial Chamber judged

20 the credibility of those witnesses, the credibility of

21 those specific pieces of testimony.

22 JUDGE BENNOUNA: [Interpretation] Let me

23 interrupt you, Mr. Moran, if I may, on something that

24 you said previously. I am sorry. I'm very quickly

25 going back to something that you mentioned a little

Page 544

1 earlier on on the issue of the protected persons.

2 MR. MORAN: Your Honour, I'm not getting any

3 interpretation.

4 JUDGE BENNOUNA: [Interpretation] The English

5 interpretation is given and appears on the transcript.

6 JUDGE HUNT: It's channel number 4.

7 MR. MORAN: That's what I'm on, Your Honour,.

8 THE INTERPRETER: Can you hear us,

9 Mr. Moran? Can you hear the interpretation into

10 English?

11 MR. MORAN: Just barely.

12 THE INTERPRETER: Maybe you can push the

13 volume up.

14 JUDGE BENNOUNA: Can you hear us now, Mr.

15 Moran? Can you hear me?

16 MR. MORAN: Now I can hear, Your Honour.

17 JUDGE BENNOUNA: [Interpretation] Right. This

18 is going to be quite straightforward. Mr. Farrell

19 reminded us a moment ago that on the issue of protected

20 persons, we could go to paragraph 265 of the Celebici

21 judgement where it is said: "[In English] [Previous

22 translation continues] ... acts alleged in the

23 indictment were arrested on the basis of their Serb

24 ethnicity."

25 [Interpretation] So the question I want your

Page 545

1 opinion on is the following: Don't you think that as

2 far as the parties at conflict are concerned and for

3 the Bosnian Muslim party, who belong to the other

4 ethnicity, don't you think then that this party is

5 considered to be the enemy and as such they are

6 considered as being people belonging to the other

7 nationality, to the nationality of the other party? So

8 they come from the opposing, the rival party, so to

9 speak. So here you have the presumption that from the

10 moment these people belong to another ethnicity, in

11 that case the Serb ethnicity, from that moment on then

12 they're considered as the enemy and they were arrested

13 on that particular basis.

14 This is what Mr. Farrell said. Well, he

15 didn't say that exactly, he just referred us back to

16 the judgement, but that is the question I put to you,

17 because I want all the light to be made on this

18 particular issue.

19 MR. MORAN: Yes, Your Honour. In my view,

20 the word "national" and "nationality" in the definition

21 of protected persons in Article 4 of the convention is

22 different from the way -- has a different meaning from

23 the loose word "nationality" that is used in the

24 vernacular in the former Yugoslavia.

25 In the former Yugoslavia, "nationality"

Page 546

1 refers to ethnicity in normal conversation, and

2 "nationality" in the convention is an a legal term of

3 art having to do with citizenship in a state, I think.

4 I would be shocked if it would mean anything else. And

5 given that, the fact that these people were Serbs or

6 Croatians or Irish is of no moment under my view of the

7 definition of protected persons. The key question is

8 whether or not they were nationals of

9 Bosnia-Herzegovina regardless of their ethnic

10 background, their religion, their last name, or any of

11 those factors, applying the definitions in the

12 convention.

13 Have I answered your question to your

14 satisfaction, Your Honour?

15 JUDGE BENNOUNA: [Interpretation] You have,

16 Mr. Moran, and I thank you very much, because that is

17 also what I believe. I've looked at what has been done

18 by this Tribunal and what I can see is that indeed [In

19 English] [Previous translation continues] ...... refers

20 to ethnicity in normal conversation.

21 [Interpretation] Because indeed in current

22 conversation, you have people introducing themselves

23 and saying, "I am from Muslim nationality," or, "I am

24 from Serb or Croat nationality." They don't say they

25 are from an ethnic background. They don't use the name

Page 547

1 of a state as such, they just say, "I am from a Muslim

2 nationality." And it may strike us as being strange

3 because to be a Muslim is first and foremost to be of

4 the Muslim faith. And that is indeed the way the

5 people talk in the former Yugoslavia, and, of course,

6 the Appeals Chamber will have to look into that and to

7 draw a certain number of conclusions as to what it

8 means as to how the convention should be interpreted.

9 Thank you very much.

10 MR. MORAN: Your Honour, as a bit of a

11 follow-up, as I recall, there were occasions in the

12 transcript in cross-examination where witnesses who

13 said, "What's your nationality?" "I am Serb." On

14 cross-examination was a follow-up meaning -- where it

15 was it was cleared up. "You mean your ethnicity was

16 Serbian?" I can't recall any specific examples but I

17 recall that other occurring, just out of memory.

18 JUDGE BENNOUNA: [Interpretation] Thank you,

19 Mr. Moran.

20 MR. MORAN: Yes, Your Honour.

21 Counts 1 and 2, Mr. Gotovac. You have a

22 judicial confession by a person who said, "I did it

23 with three other people or two other people, and

24 neither one of them is Hazim Delic."

25 JUDGE HUNT: We don't really want to go

Page 548

1 through what you said in chief.

2 MR. MORAN: Yes, Your Honour. And that is

3 the best evidence.

4 On Counts 46 and 47, the Prosecution says

5 Mr. Delic was convicted for acts he personally

6 committed. That's true. No question about it.

7 However, the Prosecution is asking this Appeals Chamber

8 to reverse the acquittals of Mr. Delic as a superior

9 under a command responsibility theory, and when you

10 look at the next couple of paragraphs of Mr. Mucic, I

11 believe it's paragraph 1123, it talks about he violated

12 the law based on the amount of food, toilet facilities,

13 things like that. And if the Prosecution wants to hold

14 Mr. Delic liable on a command responsibility theory for

15 those things, I think I ought to be able to say that

16 there is a defence of necessity there.

17 Unless there are some further questions from

18 the bench.

19 JUDGE HUNT: No. Thank you very much indeed,

20 Mr. Moran.

21 MR. MORAN: Thank you, Your Honour.

22 MR. FARRELL: Excuse me, Judge Hunt. I'm

23 sorry. Just for clarification. There might have been

24 a bit of a misunderstanding. When I was referring to

25 the photo exhibit, where I indicated that there

Page 549

1 appeared to be some difficulty in its introduction,

2 that was in relation not with respect to the photo

3 exhibit which the Defence put in vis-a-vis Ms. Cecez.

4 I was referring to, just so we're clear, the photo

5 exhibit put in with respect to Ms. Antic, which was

6 Exhibit 90 by the Prosecution. That's all.

7 MR. MORAN: And they're the same exhibit,

8 Your Honour. The same photo array.

9 JUDGE HUNT: We turn now to Mr. Landzo's

10 individual grounds.

11 Ms. Sinatra.

12 MS. SINATRA: Yes. Good afternoon, Your

13 Honours. I have asked the assistance of Ms. Murphy

14 here. I decided I'd love to take advantage of some of

15 this high technology that we have in this courtroom by

16 using the ELMO. May it please Your Honours.

17 Although the Prosecutor and the founders of

18 this Tribunal have declared that the way to peace and

19 reconciliation in the former Yugoslavia is to allow the

20 victims to come here and be heard, to be vindicated,

21 and to relieve their pain, it may be a result of these

22 proceedings that the victims go back to the former

23 Yugoslavia with less hatred and less pain, but the real

24 concern of all of us being here today is to mete out

25 justice. This is not merely about victims' rights;

Page 550

1 this is about the creation of a body of guarantees of

2 justice and fairness for each individual that appears

3 before this Tribunal.

4 This is a fragile body of law and it's

5 unsettled, but we do have fundamental principles of law

6 from which to draw. There's been a lot of discussion

7 in the last few days whether it's called rule of law,

8 rule of the land, or due process of law. Whatever you

9 call it, Esad Landzo is only asking for these minimum

10 guarantees.

11 And justice must be perceived to be

12 even-handed. It must be applied to all three sides in

13 the Yugoslavian tragedy, with fair impartiality, and

14 that's what brings me to the first issue of selective

15 Prosecution.

16 The reason I'm here is because the Trial

17 Chamber did not understand the Article 21 argument of

18 Esad Landzo regarding the actions of the Prosecutor.

19 May I have the assistance of the usher,

20 please.

21 I don't know if the Court would like to see

22 it again. I think it was attached to our brief, which

23 is the statement by the Prosecutor describing why --

24 well, I'm going to go ahead and go to: The Trial

25 Chamber stated -- the reason it misunderstood was the

Page 551

1 Trial Chamber stated -- and if you'll turn on the

2 computer monitor instead of referring to the paragraph

3 in the judgement, it will be put right before you --

4 that it argued that Mr. Landzo is arguing that he is

5 one of thousands of individuals who might be prosecuted

6 for similar offences in the former Yugoslavia and this

7 places him in an unfair position of being made --

8 THE INTERPRETER: Could the counsel please

9 slow down when reading.

10 MS. SINATRA: Of course. Sorry.

11 -- made into a kind of representative of all

12 these persons who are not subject to the proceedings

13 before the International Tribunal.

14 This is not at all what we were arguing

15 about. We're not saying that he represents a class of

16 persons or individuals who might be prosecuted for

17 similar offences.

18 The issue that Mr. Landzo was complaining

19 about is that there were 16 people of Serbian

20 ethnicity, as Judge Bennouna has pointed out, who were

21 already subjects of indictment before this Tribunal,

22 who had already been investigated by the OTP, and some

23 of whom were already in custody, and their indictments

24 were dismissed.

25 You have the Prosecutor's statement before

Page 552

1 you. Former Prosecutor, Louise Arbour, discussed that

2 she dismissed these indictments for three reasons. One

3 economic, and other one was that -- well, two reasons

4 -- that the Serbians had no military rank, were merely

5 guards and privates carrying out orders, and she wanted

6 to preserve the resources of the ICTY for those accused

7 with command responsibility.

8 Now, this has merit of candour and makes good

9 sense, but since the charging decision is so critical,

10 it must be objectively applied. And if for the moment

11 it appears that it's not applied even-handedly, then

12 we're going to have problems. If it appears that

13 there's money and time enough to prosecute a Bosnian

14 guard with no military rank, but there isn't time and

15 money enough to prosecute Serbian guards in the same

16 position, then we're going to have a lot of problems

17 and the people will not respect this Tribunal.

18 You have to be sensitive that in this arena

19 appearances are just as important as substance. Unless

20 the public believes that even-handed justice is done

21 and that both sides are being even-handedly punished,

22 then we'll never substitute law for blood feuds.

23 At this time, these are already ICTY

24 documents, but I'd like to put before -- with the help

25 of the usher, please. These are the motions from the

Page 553

1 Prosecutor to dismiss the indictments against the 16

2 Serbians, and also the orders signed on their

3 dismissals. And I'd like to add that the Prosecutor

4 has no objections. These are ICTY documents, available

5 to everybody.

6 And when I say "Serbs" or "Bosnians," I'm

7 talking about Bosnian Muslims from Bosnia-Herzegovina,

8 and the people that had their indictments dismissed

9 were Serbs from SFRY, coming from FRY.

10 I'd like to also add that there was no person

11 who participated in the armed conflict in the former

12 Yugoslavia who was on a lower rung of the chain of

13 command structure than Esad Landzo. He was an

14 18-year-old, 19-year-old boy who was brought into this

15 conflict -- he had no military training -- he was

16 brought into this conflict because his family, his

17 home, and his very culture were under attack. And I

18 mean literally under attack. Konjic was shelled by the

19 Bosnian Serb forces for over a thousand days. That's

20 over three years.

21 The ICTR has an agreement with the Rwandan

22 government that those without command responsibility

23 would be prosecuted in the Rwandan courts. The

24 jurisdiction for Esad Landzo's case should have been in

25 the Bosnian court.

Page 554

1 Now, the maintenance of the conviction

2 against Esad Landzo clearly violates his rights under

3 Article 21 of this Statute and the moral integrity of

4 these proceedings. Article 21(1) guarantees that all

5 persons shall be created equal -- not created equal.

6 That's the Bible. All persons shall be equal before

7 the International Tribunal.

8 Now, at this point I don't know what the

9 remedy is. At the Trial Chamber level, the remedy

10 would have been to dismiss this case and send it back

11 to the Bosnian courts. But here in the Appeals

12 Chamber, Your Honours, I don't know what the remedy is.

13 I suggest that maybe it would be dismissal of the

14 case.

15 Are there any questions on this issue of

16 selective Prosecution?

17 JUDGE RIAD: Ms. Sinatra, good afternoon.

18 MS. SINATRA: Good afternoon.

19 JUDGE RIAD: You call it selective

20 prosecution. Of course, to be selective, there has to

21 be the real intention of selection. Was there a

22 real -- and you refer -- you seem to suggest that Esad

23 Landzo was the representative of the Muslim community,

24 apparently, but other Muslims have been also indicted.

25 So it's not because -- he was not indicted because he

Page 555

1 was the representative, don't you think so? He was one

2 of a few.

3 MS. SINATRA: Well --

4 JUDGE RIAD: Were they all representatives,

5 in your opinion?

6 MS. SINATRA: Your Honour, I believe that

7 that is correct, because if you do a percentage

8 analysis over the detention centre, there are only

9 about three Muslim Bosnians in custody right now, and I

10 think they're all in this room. I may be mistaken, but

11 in order to maintain the proceedings against the other

12 Bosnian Muslims in this case, I think they felt it

13 necessary to maintain the conviction against

14 Mr. Landzo, who stands in exactly the same shoes as the

15 16 ethnically Serbian accused who were dismissed.

16 JUDGE RIAD: And the second question: Does

17 he really stand in the same shoes as the other 16?

18 MS. SINATRA: Your Honour, I didn't read all

19 of the indictments of the 16 people. I'm only going by

20 what the Prosecutor represented in her statement and

21 what's represented in the motion by the Prosecutor,

22 that she was dismissing these because they have no rank

23 and no command responsibility, and she wants to proceed

24 in the other cases where there is more command

25 responsibility and best use the Tribunal's resources in

Page 556

1 that direction.

2 JUDGE RIAD: When I say they stand in the

3 same shoes, were they at large or were they in the

4 prison? Were they already arrested? Were they -- they

5 were indicted, but were they already before the Court,

6 the Tribunal here?

7 MS. SINATRA: Your Honour, I'm going to defer

8 to you at this point, because I believe you signed the

9 order dismissing the indictments, and since you signed

10 the order, you would probably be best to tell us who

11 was in custody and who wasn't. At this point I believe

12 there were a few in custody, but by far most of them

13 were at large.

14 JUDGE RIAD: Good. Those who were in custody

15 were not yet before the Trial Chamber. And was

16 Mr. Landzo before the Trial Chamber? Was his trial

17 already on?

18 MS. SINATRA: Yes, Your Honour. His trial

19 began in March of 1997, and I believe the Prosecutor

20 dismissed these indictments in the spring of 1998.

21 JUDGE HUNT: It was the 8th of May, 1998 when

22 your client's trial was well under way.

23 MS. SINATRA: Yes, that's correct.

24 JUDGE RIAD: So the trial was well under way.

25 MS. SINATRA: It was about a year under way

Page 557

1 at least.

2 JUDGE RIAD: So do you still maintain they

3 were in the same shoes, exactly on very equal

4 conditions?

5 MS. SINATRA: Well, if you're talking about

6 economic resources of the Tribunal, then they weren't

7 on the same economic -- I mean the same shoes, because

8 Mr. Landzo had already had a year's worth of

9 Prosecution evidence put on against him. But if you

10 talk about their rank and their position and before

11 they were brought before this Tribunal, there was

12 nobody who was lower on the -- in the structure of the

13 chain of command than Esad Landzo. And I'm sure that

14 of these 16, most of them probably were on the higher

15 structure.

16 JUDGE RIAD: Let us assume that, as you say,

17 they were all of rather modest condition as far as

18 command responsibility is concerned, or even -- the

19 crimes were on the same level. Do you still consider

20 that, the fact that the Prosecutor decided not to

21 prosecute this level of presumed war criminals? Would

22 that -- do you think this should also apply to those

23 who were already before the Court, where the trial was

24 going -- was on for some time, or should it apply only

25 to the future?

Page 558

1 MS. SINATRA: Your Honour, I believe if this

2 Tribunal is going to be perceived as being even-handed,

3 then it should apply retroactively as well as forward.

4 JUDGE RIAD: And if it was retroactive,

5 should it apply also to those who have been already

6 sentenced?

7 MS. SINATRA: Well, at that point I don't

8 think there were very many, only three or four, that

9 had been sentenced.

10 JUDGE RIAD: I mean, how retroactive would

11 you like it to be?

12 MS. SINATRA: This is in the infancy of the

13 law of the Tribunal, and in 1998 -- retroactively, yes,

14 I think if there's somebody who has absolutely no

15 command responsibility -- and that would exclude

16 Aleksovski, that would exclude Blaskic, that would

17 exclude Tadic -- then I think that we're not looking at

18 a gigantic effect on the back convictions here in the

19 Tribunal.

20 JUDGE RIAD: Don't you think a new policy

21 should be applied from the dates announced, and you

22 say, "There is a change of policy. Here it is," for

23 those who are not yet before the Trial Chamber?

24 MS. SINATRA: I understand your argument,

25 Your Honour -- not your argument, but your idea.

Page 559

1 JUDGE RIAD: I'm asking you. You are the

2 one --

3 MS. SINATRA: I'm an advocate for Esad

4 Landzo, and as an advocate for him, who was in an equal

5 position with the 16 persons who had gotten their

6 indictments dismissed, I think he should have equally

7 had his indictment dismissed the same way and for the

8 same reasons.

9 JUDGE RIAD: You are an advocate, but you are

10 also telling us how the Tribunal should function --

11 MS. SINATRA: I'm really just talking --

12 JUDGE RIAD: -- for the sake of justice, so

13 this is why I'm asking you; otherwise I would not ask

14 you. Do you think this policy would be retroactive and

15 then we should change completely the policy, not only

16 for the future, but retroactive to the beginning of the

17 Tribunal?

18 MS. SINATRA: Well, I believe that the

19 Bosnian court system and law system is appropriately

20 set up now to function; to try -- indict, try, and

21 serve justice on the people who would fit into that

22 category.

23 JUDGE RIAD: What about the Statute which

24 does not require any standard of calibre of presumed

25 criminals or crimes?

Page 560

1 MS. SINATRA: I'm not challenging the

2 jurisdiction of the Tribunal. The Tribunal has

3 jurisdiction over this type of case. All I'm saying is

4 that for the perception of even-handedness, for the

5 ideals set out in Article 21 of the Statute of the

6 Tribunal, that all defendants are to be treated

7 equally, and as such, Mr. Landzo was treated unequally

8 in relation to the 16 Serbians who had their

9 indictments dismissed.

10 I don't know what the remedy is. That's for

11 you to decide. There is no remedy. But I believe his

12 rights under Article 21(1) were violated.

13 JUDGE RIAD: In case they are exactly on

14 equal footing.

15 MS. SINATRA: Yes, Your Honour.

16 JUDGE RIAD: Thank you very much.

17 MS. SINATRA: Thank you.

18 JUDGE HUNT: May we have this straight? None

19 of the other 17 were actually facing trial or

20 undergoing trial at the time, were they?

21 MS. SINATRA: That's correct, Your Honour.

22 JUDGE HUNT: And have you read the sentence

23 at the foot of the first page of this press statement

24 that you've issued, that the Prosecutor said she was to

25 concentrate not only on persons having higher levels of

Page 561

1 responsibility, but also upon those who have been

2 personally responsible for the exceptionally brutal or

3 otherwise extremely serious offences? You don't think

4 that's a matter which could have been taken into

5 account also.

6 MS. SINATRA: I believe it must have been

7 taken into account in consideration with the Serbs, who

8 were charged with more murders and more violations of

9 cruel treatment and torture than Mr. Landzo was charged

10 with.

11 JUDGE HUNT: But who hadn't yet started their

12 trials.

13 MS. SINATRA: That's correct.

14 JUDGE HUNT: Had you finished? I'm sorry.

15 MS. SINATRA: Yes, I've finished with that

16 one.

17 JUDGE HUNT: Thank you very much.

18 MS. SINATRA: If you don't mind, I'll go to

19 diminished --

20 JUDGE HUNT: Well, may we just take it one

21 ground at a time.

22 MS. SINATRA: Okay. Sure.

23 JUDGE HUNT: Mr. Staker.

24 MR. STAKER: May it please the Chamber. The

25 argument is being put that Mr. Landzo was a very

Page 562

1 low-level perpetrator. Now, as I understand the

2 argument, it's not being put that it could be a ground

3 of appeal, following a trial and conviction, that the

4 perpetrator wasn't a sufficiently high-level

5 perpetrator. We saw on the ELMO this document being

6 put about the Tribunal being established to try only

7 the most serious perpetrators, but I understand the

8 argument is only being put on the basis of

9 discrimination, that there's no argument being put that

10 a ground of appeal would be that the perpetrator is not

11 sufficiently serious.

12 MS. SINATRA: That is correct, Mr. Staker.

13 MR. STAKER: I thank my friend.

14 If that's the case, though, it must be

15 assumed that the Tribunal has the jurisdiction, and

16 therefore the ability, to try perpetrators at all

17 levels in the command, and I don't think there's ever

18 been a suggestion that if there are sufficient reasons

19 justifying it - and the discretion is one essentially

20 within the Prosecutor to determine what indictments are

21 presented for confirmation - that low-level perpetrators

22 can [sic] be tried. And clearly it would be impossible for

23 every alleged crime in the former Yugoslavia to be

24 tried by this Tribunal, and that therefore there needs

25 to be some selectivity and that prosecutions in this

Page 563

1 Tribunal will always be selective in some sense. There

2 can be no objection to selectivity as such. The issue

3 here is selectivity on an impermissible basis.

4 Ms. Sinatra has put that Mr. Landzo was

5 tried, while others who were identically situated were

6 not tried. Now, as we have put in our response brief,

7 and as has come out in argument just earlier, there can

8 be no basis for the argument that Mr. Landzo was

9 identically situated with those against whom the

10 indictments were withdrawn, the simple reason being

11 that he was at mid-trial, and it's a very different

12 thing to withdraw an indictment when someone's already

13 mid-trial to withdrawing an indictment against someone

14 before trial has even commenced.

15 JUDGE HUNT: Can you just help me, though, on

16 one particular problem. Ms. Sinatra has gone beyond

17 the 14 to which the Prosecutor has referred, and she

18 says there were 16, and I assume that the other two

19 were in custody but hadn't yet faced trial. It's

20 anything but clear to me, at the moment, anyway.

21 MR. STAKER: That is something that it might

22 be possible to clarify after the next break. Certainly

23 I don't think there's any suggestion that trials had

24 commenced against any of the --

25 JUDGE HUNT: No. She has agreed with that.

Page 564

1 But she refers to the figure of 16. The previous

2 Prosecutor talks about 14 and asserts that none of them

3 had yet been arrested, which puts them on a completely

4 different basis, I would have thought, with all due

5 respect. But if there were two that were in custody

6 who were also released with their -- the charges

7 against him withdrawn, I think we should know.

8 MR. STAKER: Your Honour, I will attempt to

9 clarify that, although I should specify that it would

10 still be our submission that there's a difference

11 between a person who's been arrested and whose trial

12 has not yet commenced and a person who's at trial.

13 JUDGE HUNT: I understand that completely,

14 but as I understand Ms. Sinatra's submissions, there is

15 somebody, or at least two people, somewhere in between

16 who were actually in custody but whose trial hadn't

17 begun.

18 MR. STAKER: I will endeavour to clarify

19 that, Your Honour.

20 JUDGE HUNT: Thank you.

21 JUDGE RIAD: I think, if I remember rightly,

22 they were in custody.

23 MR. STAKER: Thank you, Your Honour.

24 JUDGE RIAD: I have to check.

25 MR. STAKER: Thank you.

Page 565

1 In any event, as we say, even if the --

2 JUDGE HUNT: I think the French translators

3 are having trouble with you, probably with your speed.

4 MR. STAKER: My sincerest apologies to the

5 translators. I will endeavour to be slow.

6 Even if the legal principles are as put by

7 Ms. Sinatra, we submit that it's not the case that

8 Mr. Landzo was identically situated to those against

9 whom the indictment was withdrawn. But I would also

10 like to address the question of the relevant legal

11 principles.

12 I come back to a point that I made earlier

13 today. In the appeal brief that was filed on behalf of

14 Mr. Landzo, reference is made to national law, and

15 again it's a case where reference has been made to the

16 national law of only a single jurisdiction. In this

17 case it's that of the United States of America.

18 As an aside, I would notice that it is the

19 practice in this Tribunal, and the Prosecution's

20 understanding, I believe, is that Rule 111 in fact

21 requires, that copies of all authorities relied upon be

22 filed with the appeal brief, and we note that that

23 appeal brief filed on behalf of Mr. Landzo did in fact

24 contain a copy of the Pinochet decision, but not of any

25 of the United States authorities that were relied upon,

Page 566

1 and copies of these cases were subsequently provided in

2 the book of authorities for the Prosecution's response

3 brief.

4 It's our submission that if the legal

5 principles set out in those cases were taken as an

6 adequate reflection or as an accurate reflection of the

7 legal principles applying in this Tribunal -- and we

8 don't concede that that's necessarily the case -- that

9 they don't in fact support the argument being put here

10 at all.

11 I would refer to the case of United

12 States versus Armstrong. That's referred to on page 15

13 of the Landzo appeal brief. And the case itself is

14 reproduced, as I said, in the Prosecution's book of

15 authorities. The relevant page is registry page number

16 A2757, which sets out the principles.

17 Briefly stated, it's said there that:

18 "The Attorney General and the United States

19 Attorneys, which means the Prosecutors in the United

20 States system, "retain a broad discretion to enforce the

21 Nation's criminal laws. As a result, the presumption

22 of regularity supports their prosecutorial discretion [sic],

23 and, in the absence of clear evidence to the contrary,

24 courts presume that they have properly discharged their

25 official duties."

Page 567

1 There then follows the statement which I

2 think is the one relied upon by my colleagues for

3 Mr. Landzo, which says that:

4 "The decision whether to prosecute may not

5 be based on an unjustifiable standard, such as race,

6 religion, or arbitrary classification."

7 The case then goes on to say that:

8 "In order to dispel the presumption that a

9 Prosecutor has not violated equal protection, a

10 criminal defendant must present clear evidence to the

11 contrary," and it adds that "The claimant must show [sic]

12 that the federal prosecutorial policy had a

13 discriminatory effect and that it was motivated by a

14 discriminatory purpose."

15 Then another case perhaps of relevance here

16 as well is Oyler versus Boles, another case relied on

17 in the appellant's brief, at page 13 of the brief. The

18 relevant page is reproduced in the Prosecution book of

19 authorities at registry page A5930 [sic]. And there it is

20 said:

21 "Moreover, the conscious exercise of some

22 selectivity in enforcement is not in itself a federal

23 constitutional violation." Even though the

24 statistics in this case might imply

25 a policy of selective enforcement, it was not

Page 568

1 stated that the selection was deliberately based upon

2 an unjustifiable standard such as race, religion, or

3 arbitrary classification".

4 Then in United States versus Parham -- this

5 is not an United States Supreme Court decision, it's a

6 Federal Circuit Court of Appeals reproduced at Registry

7 page A2787 -- the Court of Appeal said that where a

8 defendant cannot show anyone in a similar situation who

9 was not prosecuted, he has not met the threshold point

10 of showing that there's been selectivity in

11 Prosecution.

12 So if these principles are applied to the

13 circumstances of this case, what's the result? As I've

14 said, the position of Mr. Landzo was not identical to

15 those against whom indictments were withdrawn, that

16 whatever statistics might indicate, unless clear

17 evidence is presented by Mr. Landzo that this was

18 motivated by a discriminatory purpose, the standard set

19 out in the United States cases is not met.

20 Now apart from the argument based upon the

21 withdrawal of the indictment against some accused, and

22 as we say their position was not identical, the Landzo

23 appeal brief contains a number of factual assertions.

24 I refer to page 17 of that brief where it is said:

25 "In order to give the appearance of

Page 569

1 even-handedness, the Prosecutor had to scour the

2 countryside to find allegations of war crimes against

3 those of all ethnic backgrounds."

4 Now, if it's suggested that the Prosecution

5 was scouring the countryside with a discriminatory

6 purpose, I must say that it's something the Prosecution

7 certainly has never conceded or admitted. The

8 appellant pointed to no finding of the Trial Chamber to

9 that effect, and I submit there's no basis for the

10 making of that kind of accusation. I assume it's not

11 an accusation made against the Prosecution on the basis

12 of any evidence, but that this is merely an inference

13 that's sought to be drawn from the withdrawal of

14 certain prosecutions.

15 JUDGE HUNT: Surely, Mr. Staker, the

16 proposition could only be made good if you looked at

17 all the indictments that have been filed, because it's

18 no part of the Prosecution's duties, unfortunately, to

19 be able to arrest people. So the Prosecution has

20 little to say in who comes to the Court to be tried.

21 That depends upon who's picked up or who surrenders.

22 So the issue would have to be determined in relation to

23 the indictments that were filed. And there's no

24 suggestion that there was such a scouring around of

25 people against whom indictments could be filed.

Page 570

1 MR. STAKER: Yes. And in any event,

2 indictments themselves, the decision as to against whom

3 indictments will be filed can be based on various

4 perfectly legitimate considerations. Apart from the

5 level in the hierarchy of the perpetrator or alleged

6 perpetrator or indeed even the gravity of the crimes

7 that were committed, it may include matters such as

8 where the particular perpetrator fits in in relation to

9 others who have been indicted. It may be that a

10 low-level perpetrator provides the crime base for an

11 allegation of superior responsibility against a

12 higher-level perpetrator so that it would be necessary

13 to bring evidence of the crimes committed by that

14 person in order to establish the superior

15 responsibility of another. The likelihood of an arrest

16 being effected in the future may be a legitimate

17 consideration in determining who will be indicted.

18 And as I've said, these United States cases,

19 though they support the proposition that a mere

20 comparison of statistics is not sufficient to establish

21 that there's a discriminatory purpose and that there

22 has to be clear evidence of the actual motivation based

23 on discrimination not a mere analysis of the relative

24 numbers of those prosecuted.

25 In fact, it would be our submission that what

Page 571

1 Ms. Sinatra really seems to suggest is that the

2 Prosecution should be doing precisely what she says it

3 can't, namely that where indictments are presented on

4 the basis of what appear to be legitimate criteria but

5 then there's an imbalance in the different numbers from

6 different groups being indicted, that regardless of any

7 merits, the Prosecution should then seek to find a few

8 indictees to make up the balance to give an overall

9 impression of even-handedness, and we would submit that

10 that would be a greater injustice than what's being

11 complained of here.

12 Our submission --

13 JUDGE RIAD: With regard to this point, and

14 perhaps you can answer this question, the fact that, as

15 Ms. Sinatra mentioned, there are only three indicted

16 Muslims, is it due to the fact that you only indicted

17 three or only three were arrested?

18 MR. STAKER: That's another matter, Your

19 Honour, on which I would have to seek clarification.

20 Perhaps I could answer that after the break.

21 JUDGE RIAD: Thank you.

22 MR. STAKER: Unless there are further

23 questions, I have no further submissions in relation to

24 that ground of appeal.

25 JUDGE HUNT: Thank you very much.

Page 572

1 JUDGE BENNOUNA: [Interpretation] For my part,

2 I have a question that I would like to put to the

3 Prosecutor, but maybe that Ms. Sinatra could also

4 listen to it and maybe try to answer it.

5 What consequences do you draw from the fact

6 that we find ourselves before an International

7 Tribunal, the International Criminal Tribunal for the

8 Former Yugoslavia, which was created in the

9 circumstances that we are all very well aware of,

10 before a Tribunal who does not have exclusive

11 jurisdiction on the different crimes that are of its

12 jurisdiction, i.e., crimes against humanity, war

13 crimes, genocide, among others, this Tribunal that

14 doesn't have exclusive jurisdiction on the crimes

15 committed, and it has a certain number of competencies

16 described within its rationae temporis jurisdiction,

17 crimes committed since 1991 and until the Security

18 Council deems it's necessary to put an end to the

19 Tribunal's function in terms of its rationae temporis

20 jurisdiction. We don't have exclusive jurisdiction but

21 we have primary jurisdiction; i.e., other Tribunals can

22 been called upon to try the people who are prosecuted.

23 Ms. Sinatra was comparing, when she was

24 talking about selective prosecuting, what happens at

25 the national level and what happens at the

Page 573

1 international level, which is not something that can be

2 compared, in fact.

3 I'm sorry to have to say that, but in these

4 last two days I see many people trying to transpose

5 what happens at a national level to what happens at the

6 international level, and you do this very freely

7 without taking the necessary precautionary measures.

8 What happens internally has nothing to do with what

9 happens internationally, even though a certain number

10 of principles can apply at both levels.

11 So the fact that some indictments have been

12 dismissed as it has been explained to us, the fact that

13 they have been withdrawn, so to speak, does not at all

14 mean that these persons cannot be prosecuted anymore.

15 These individuals can be prosecuted in other countries

16 or, as the Prosecutor Arbour says, if is deemed

17 necessary, the Prosecutor himself can prosecute them at

18 a later stage according to the circumstances which

19 prevail.

20 So the principle of nondiscrimination which

21 you have been mentioning does not apply in the same

22 way. This is a power that was granted to the

23 Prosecutor by the founding act of the Tribunal. The

24 Prosecutor has jurisdiction to prosecute individuals of

25 who it thinks that it is necessary that they be

Page 574

1 prosecuted in view of the evidence that it has in its

2 hand, but that doesn't mean that the Prosecutor has to

3 prosecute all the individuals who find themselves in

4 the similar situation.

5 That is the situation as it stands, and I

6 would like both the Prosecutor's and the Defence's

7 opinion on that fact.

8 Now, trying to say things without taking the

9 necessary precautionary measures when you speak about

10 international law is something that might lead us to

11 more confusion. Even though national jurisprudence and

12 case law can be of use when you use it with all

13 precautionary measures, but do not forget that you are

14 in an international tribunal. This is what I wanted to

15 say.

16 Is there something that either of would you

17 like to add? I'd be most interested.

18 JUDGE HUNT: Mr. Staker?

19 MR. STAKER: Yes. In response to that

20 question, I think it would be the Prosecution's

21 position that that is certainly an additional

22 consideration that applies in the case of this Tribunal

23 that does not apply in the case of a national

24 jurisdiction. I'm not sure that the Prosecution would

25 want to push that argument to an extreme and say that

Page 575

1 no matter what, this could never be a consideration

2 here, but I think certainly it's an additional factor.

3 I think perhaps it's unnecessary to consider

4 potential extreme cases in this instance, because, as I

5 say, even if one applied the standards that have been

6 applied in the national jurisdiction relied upon, this

7 case simply doesn't fall within it.

8 JUDGE HUNT: Now, if you wish to reply to

9 Judge Bennouna and also to reply generally,

10 Ms. Sinatra.

11 MS. SINATRA: I will try to reply to both.

12 Judge Bennouna, I believe you were talking

13 about the primacy of the International Tribunal and

14 also when we are trying to come up with standards of

15 law to apply, since right now some of the issues we're

16 dealing with, we're dealing with in a vacuum. We draw

17 from all sources of legal answers that we can come up

18 with, and if they happen to be a course of national

19 law, we're here only to put these thoughts before the

20 Tribunal. It's up to you to decide what standards,

21 what laws you want to apply.

22 There are no cases in international law that

23 I can see dealing with selective prosecution, so we

24 were left solely with national law to draw from.

25 I don't know if that answered your question.

Page 576

1 I apologise for just citing United States law, but it

2 was the one most available to me and the one I'm most

3 familiar with when I'm in Texas or California, because

4 I don't have access to the library here.

5 JUDGE BENNOUNA: [Interpretation] No, but

6 beyond that you have to look at what the Statute says

7 and you have to look at all the articles, all the

8 papers that have been written on the Tribunal and its

9 jurisdiction.

10 When we speak of primacy, when in fact the

11 future International Criminal Court will have a

12 concurrent jurisdiction and will not have a primary

13 jurisdiction or prevailing jurisdiction, what we're

14 looking at is what are the competencies of the

15 Prosecutor basically. You can't have the Prosecutor

16 being expected to draw indictments for all the people

17 who would be susceptible to be brought before the

18 Tribunal. He has to make a choice. This choice is

19 made by taking into account a certain number of

20 considerations which are those of the Prosecutor.

21 But it is well understood that it doesn't

22 mean that these individuals have been declared innocent

23 by the Prosecutor by the simple fact that an indictment

24 has not been brought against them. The individuals

25 that are not prosecuted by the Prosecutor but who are

Page 577

1 presumed to have at least committed a certain number of

2 serious offences can be prosecuted, as you well know,

3 before any Tribunal in the world, and that is the

4 principle of universal jurisdiction. That is the

5 situation that we find ourselves in.

6 So you should bear this this mind when you

7 try to speak of selective prosecution, and which brings

8 you to say that a person who has been tried and

9 convicted should be released because the same standard

10 that was applied to other people has not been applied

11 to her. And you also refer to Article 21, an article

12 that, let me remind you, deals with the way people

13 should be tried, people who are accused individuals who

14 are brought before us by the Prosecutor.

15 MS. SINATRA: And it is my submission that

16 although Mr. Staker argued that they were not in

17 identical positions as Mr. Landzo, whose actual trial

18 had commenced, I believe that the rule of law would

19 embrace that trial. The trial process begins upon

20 indictment, and if the trial process begins at

21 indictment, then they were in the same shoes.

22 And that's really all I have to add as far

23 as -- well, also Mr. Landzo does agree with the

24 Prosecution's position on US versus Parham, I believe

25 you cited, which states the standard that we were

Page 578

1 looking for anyway.

2 JUDGE RIAD: Ms. Sinatra, granting that they

3 are in the same shoes, just to following your

4 reasoning, don't you think there should also be an

5 intention of discrimination, or would it be

6 self-evident that if they're in the same shoes,

7 discrimination is established?

8 MS. SINATRA: Your Honour, I don't believe

9 that there was any discrimination that had been

10 established, but they were in the same shoes and they

11 should have had equal treatment under Article 21.

12 As far as what Judge Bennouna was just

13 talking about, I believe he was talking about

14 pre-indictment. I'm talking about post-indictment

15 equality. And I'm not trying to limit the Prosecutor's

16 right to indict whoever they have enough investigation

17 against, but I'm talking about post-indictment

18 treatment of the accused before this Tribunal.

19 JUDGE RIAD: Let us -- there was also one of

20 the reasons, I think, of the Prosecutor to, let's say,

21 withdraw some indictments, was the economic factor

22 which was said, but as far as having started the trial

23 for half a year almost, don't you think the economic

24 factor here is not equal? You are speaking of exactly

25 equal conditions.

Page 579

1 MS. SINATRA: I didn't know that we can

2 equate economy in dollars or guilder to justice before

3 this Tribunal.

4 JUDGE RIAD: That is apparently what the

5 Prosecutor had mentioned, that economically it would be

6 better for the Tribunal to withdraw some indictments.

7 But in that case, the trial was already -- economically

8 speaking, it would not be on the same level if the

9 policy was economic. I'm just commenting on the order

10 or the statement of the Prosecutor.

11 MS. SINATRA: That's exactly what I meant.

12 It's impermissible for the Prosecutor to maintain

13 charges and convictions against one person who stands

14 in the same shoes as others, and especially

15 impermissible to do it for economic reasons.

16 JUDGE RIAD: Thank you very much.

17 JUDGE HUNT: Does that conclude your

18 submissions on your selective prosecution grounds?

19 MS. SINATRA: Yes, Your Honour, it does.

20 JUDGE HUNT: Well, we've got three minutes,

21 if you'd like to say something about diminished

22 responsibility.

23 I remind everybody that there is no late

24 session today. We will not be sitting from 4.30 to

25 5.30.

Page 580

1 MS. SINATRA: Well, in that case, Your

2 Honour, I would ask the Court's indulgence to allow me

3 to begin the new issue tomorrow.

4 JUDGE HUNT: That seems fair enough.

5 MS. SINATRA: Thank you.

6 JUDGE HUNT: All right. Well, we'll adjourn

7 and resume at 10 in the morning.

8 --- Whereupon the hearing adjourned

9 at 3.58 p.m., to be reconvened on

10 Thursday, the 8th day of June, 2000

11 at 10 a.m.