Case No. IT-96-21-T

Friday, 2nd August 1996

Before:

JUDGE GABRIELLE MACDONALD
(The Presiding Judge)
JUDGE STEPHEN
JUDGE VOHRAH

MS. TERESA McHENRY appeared on behalf of the Prosecution

MS EDINA RESIDOVIC appeared on behalf of the accused Delalic
MR. BRANISLAV TAPUSKOVIC appeared on behalf of the accused Mucic
MR. SALIH KARABDIC appeared on behalf of the accused Delic
MR. MUSTAFA BRACKOVIC appeared on behalf of the accused Landzo

align (Open Session)

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1   (10.00 a.m.)

2   MR. BOS: We have before us case number IT-96-21-T, the Prosecutor v. Zejnil Delalic,

3   Zdravko Mucic, Hazim Delic and Esad Landzo.

4   THE PRESIDING JUDGE: This is a hearing on motions for separate trials that have been filed

5   by the accused in this matter. Mr. Mucic has filed the first motion for a separate trial. Mr.

6   Delalic filed a second one and then Mr. Landzo and Mr. Delic have responded to those

7   motions for separate trial, also asking that they have a separate trial. May I have

8   appearances, please, first for the Prosecutor?

9   MS McHENRY: Teresa McHenry for the Prosecution. Ms. Van Dusschoten, case trial

10   manager, is also here. Mr. Ostberg who is senior trial attorney is out of the country and

11   thus cannot attend.

12   THE PRESIDING JUDGE: For the Defence, please, for Mr. Mucic? Mr. Mucic, please?

13   MR. TAPUSKOVIC [In translation]: Lawyer, Branislav Tapuskovic. I am appearing before

14   this Trial Chamber for the first time today. I am ready to speak on all the questions that

15   may arise with regard to this motion.

16   THE PRESIDING JUDGE: Thank you, Mr. Tapuskovic. For Mr. Delalic, may I have

17   appearance, please?

18   MS RESIDOVIC [In translation]: Edina Residovic, counsel for Mr. Delalic, lawyer from

19   Sarajevo.

20   THE PRESIDING JUDGE: Thank you, Ms. Residovic. For Mr. Delic?

21   MR. KARABDIC [In translation]: Salih Karabdic, lawyer from Sarajevo, counsel for the

22   accused Hasim Delic.

23   THE PRESIDING JUDGE: For Mr. Landzo?

24   MR. BRACKOVIC [In translation]: Mustafa Brackovic, lawyer from Sarajevo.

25   THE PRESIDING JUDGE: Thank you, Mr. Brackovic. Is the Prosecutor ready to proceed --

26   actually, it is not your motion. So, is the Defence ready to proceed? Are each of the

27   lawyers ready to proceed with respect to their motions? You are ready to proceed?

28   Prosecutor, ready to proceed?

29   MS McHENRY: Yes, your Honour.

30   THE PRESIDING JUDGE: Mr. Tapuskovic, would you like to present argument? Actually,

31   that would be my preference only because Mr. Mucic filed the first motion. If counsel

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1   would prefer another order, I am amenable to that. It looks like, Mr. Tapuskovic, you go

2   first.

3   THE INTERPRETER: Microphone, please.

4   THE PRESIDING JUDGE: Put your microphone on.

5   MR. TAPUSKOVIC: I did not mention before that I was a lawyer from Belgrade. I saw that

6   my colleagues have pointed it out in the first place, that I should also like to make it clear

7   that I am a lawyer from Belgrade.

8   As of now I am quite ready, even though I have been the counsel for my client

9   for only some 15 days. However, I am quite ready to address the motions submitted by

10   Mr. Mucic.

11   Here it is. I should like to begin with several things. I believe that Mr. Rhodes

12   who was previously the counsel for the client was probably unable to state his opinion on

13   individual matters because he did not have Mr. Mucic's statement submitted to this Trial

14   Chamber. In other words, Mr. Mucic was interrogated between 29th and 23rd March in

15   Vienna. I presume that you are quite aware of that.

16   At that time he was interrogated without a counsel and he was not informed

17   about this indictment prior to the beginning of the interrogation. Whether this is regular or

18   not, I think it would be premature to say anything about that, but I believe this will be

19   addressed more at a later stage.

20   However, even then Mr. Mucic emphatically stated that he had become the

21   camp Commander of Celebici on 27th July '92. I need to point that out for two reasons.

22   At that point in time he neither knew which one of the witnesses had been questioned or

23   interviewed, nor did he have any knowledge of the content of the indictment. On the other

24   hand, I think it should not be disputable that somebody could come to that post otherwise

25   by being assigned to that post.

26   If this date, 27th July, is related to the crucial acts quoted in the indictment, it is

27   easy to see that all those major acts, all these grave acts, for which the indictment has been

28   filed had been committed prior to the 27th -- absolutely everything, everything absolutely.

29   Why am I saying all this? Since his arrest on 19th March '96, almost five

30   months have elapsed. To this day the Prosecutor has not even seen him, nor has the

31   Prosecution acted in line with Rules 39 and 67. First of all, 68 which refers to the

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1   disclosure of exculpatory evidence, especially if you bear in mind that he is mostly accused

2   of omission. Nothing has been undertaken. I cannot but ask myself why has nothing been

3   done in this respect to this day because, indeed, these are preliminary matters of fact

4   which may be of vital importance in determining the legal position of my client.

5   Such decision and that, of course, is not the responsibility of Mr. Mucic would,

6   presumably, resolve the matter and then the Trial Chamber might proceed according to the

7   Rules. It may also acquit him.

8   THE PRESIDING JUDGE: Mr. Tapuskovic, let me just ask you to focus on these questions.

9   Rule 48 of the Tribunal's Rules of Procedure provide that, "persons accused of the same

10   or different crimes committed in the course of the same transaction may be jointly charged

11   and tried".

12   Rule 2A defines "transaction" as "a number of acts or omissions whether

13   occurring at one event or a number of events at the same or different locations and being

14   part of a common scheme, strategy or plan".

15   Rule 82B of the Rules of Procedure and Evidence of the Tribunal provides that,

16   "The Trial Chamber may order that persons accused jointly under Rule 48 be tried

17   separately if it considers it necessary in order to avoid a conflict of interests that might

18   cause serious prejudice to an accused, or to protect the interests of justice".

19   In the motion that was filed on behalf of Mr. Mucic, I, at least, from reviewing

20   the motion, considered that you point to two factors: (1) in the motion you say that there

21   will be stress on the part of witnesses because witnesses will have to be called in the trial,

22   and it would be easier if they did not have to testify so often. The other allegation, I think,

23   that you mention, or is mentioned, in the motion is that it would be easier if there were

24   two short trials instead of one long trial.

25   What I want you to focus on, if you will, is what is the conflict of interest that

26   you consider exists that will prejudice Mr. Mucic if this matter is tried jointly in one trial

27   as opposed to having separate trials. What are the conflicts of interests that you consider

28   will prejudice Mr. Mucic?

29   MR. TAPUSKOVIC: Your Honour, I agree with you and I know this well. I have studied the

30   Rules. However, what I have to point out here is the following. Mr. Rhodes, who filed a

31   motion on behalf of Mr. Mucic, at that time did not have, among other things, this

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1   statement by Mr. Mucic. I need to insist on this preliminary issue. Mr. Mucic has

2   nothing against all these witnesses being questioned, but the key issue here is ----

3   THE PRESIDING JUDGE: What is your problem, Mr. Tapuskovic?

4   MR. TAPUSKOVIC: The problem is with a technical matter.

5   THE PRESIDING JUDGE: Tell me what it is about the statement that Mr. Mucic has given

6   that you consider will result in a conflict of interest that will prejudice his right if he is

7   tried with the other three accused.

8   MR. TAPUSKOVIC: I understand. Everything that Rule 82 addresses is all the prejudice

9   come out of the fact that the basic statement of Mr. Mucic has not been confirmed that he

10   became the Commander on 27th July. If that is correct, then none of the counts in the

11   indictment have anything to do with him based on his command responsibility.

12   THE PRESIDING JUDGE: That will be a matter that will have to be established at trial by

13   the Prosecutor, but I do not understand why it is necessary that the trials be severed or

14   separated. Why can that matter not be considered just as easily in a joint trial with the

15   other accused?

16   MR. TAPUSKOVIC: It can. It can be joined and it can be tired together. We have nothing

17   against it, but there has been enough time (and I think there is still enough time) because

18   the Prosecutor has to co-operate. I think that it is in the interests of justice and of this

19   Tribunal that if these facts can be established, then everything can be resolved. These are

20   subjective judgments.

21   THE PRESIDING JUDGE: I still do not understand why you need a separate trial. Where is

22   the prejudice that Mr. Mucic will suffer if there is a separate trial from the other accused

23   as opposed to a joint trial?

24   MR. TAPUSKOVIC: In the case that -- this is what I insist on, because that is a question that

25   comes before. I think this can be established, that document does exist. Then in that case,

26   if this document is found, then the motion for a separate trial will be even more .....

27   THE PRESIDING JUDGE: What document are you referring to, Mr. Tapuskovic?

28   MR. TAPUSKOVIC: I am talking about -- apparently, I have not been understood. The

29   question is ----

30   THE PRESIDING JUDGE: You give a statement and in an earlier status conference there has

31   been a request on the part of other accused, I think it was Mr. Delalic, to have a copy of

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1   that statement. So there may have been a statement, but tell me again what it is in that

2   statement, the content of the statement, that affects this motion, that relates to this

3   motion?

4   MR. TAPUSKOVIC: That is my opinion, that I think that there is no obstacle that the

5   document be provided when Mr. Mucic was appointed as the Commander of the camp in

6   Celebici. If there is such a document and it does exist, because nobody could come into

7   that position without having been appointed, then the whole indictment against him is

8   misplaced.

9   THE PRESIDING JUDGE: So you are saying that there is a document that you believe exists

10   which you have not received which goes to the question of whether or not Mr. Mucic was

11   the Commander of Celebici camp, is that what you are saying?

12   MR. TAPUSKOVIC: Yes, and I think that the Prosecutor, according to the Rules and its

13   prerogatives, he could have that provided by the Bosnian government.

14   THE PRESIDING JUDGE: That is a separate matter. That may be so, but can you point to

15   any conflict that will prejudice Mr. Mucic if he is tried jointly with the other accused? If

16   so, tell me what it is.

17   MR. TAPUSKOVIC: I think, and I repeat this, Mr. Mucic has nothing against a trial which

18   would be a joint trial of all of them together. However, I think that if this document would

19   be found -- we do not have the power to acquire this document; he does not have that

20   power -- then this request is justified. Otherwise, he has nothing against being tried jointly

21   with others, but I think it has to be found and that the Prosecution had an opportunity to

22   find it. I do not know if I am clear?

23   THE PRESIDING JUDGE: So you have no objection to a joint trial, Mr. Tapuskovic?

24   MR. TAPUSKOVIC: No, I do not disagree, and neither does the accused. It does not have to

25   be the 27th, as he puts it. It could be any other date, but the appointment of the decision

26   is dated and anything prior to this appointment he is not responsible for. This is the core

27   of his case, whether he be tried jointly or separately.

28   THE PRESIDING JUDGE: Have you filed a motion on the form of the indictment or a motion

29   to dismiss the indictment on that basis, that in fact he did not have responsibility at the

30   time that the matters are alleged to have occurred in the indictment?

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1   MR. TAPUSKOVIC: I have not and I will not object to that. It is his interest that his trial be

2   as speedy as possible, but the essential thing is that it is in his interest, because he is

3   locked up, for his trial to be as fast as possible. That is his position.

4   THE PRESIDING JUDGE: Then I understand that you ----

5   MR. TAPUSKOVIC: I am prepared to give our defence tomorrow in the spirit of the -- I

6   speak a bit more freely now, but I can address his problem, even if the trial started

7   tomorrow. That is my position.

8   THE PRESIDING JUDGE: And if the trial was a joint trial, is that correct?

9   MR. TAPUSKOVIC: Yes, yes.

10   THE PRESIDING JUDGE: Very good. Thank you. Ms. Residovic, would you like to

11   present oral argument on your motion for a separate trial? Are you still urging that Mr.

12   Delalic be tried separately from the other three accused?

13   MS RESIDOVIC: Your Honour, I still wholly abide by the position that my client, Mr.

14   Delalic, be tried separately. I request because my client has been detained now for five

15   months and he has a rare opportunity in front of this Trial Chamber to present more

16   precise reasons for his propositions. I request to be allowed to present them as concisely

17   as possible, because I think that in the spirit of the Rules of this Tribunal, as spelled out in

18   Rule 47, pleas for separate trials, the one that absolutely guarantees the establishment of

19   all the facts for the individual responsibility of each of the accused, even the ones who are

20   accused for the command responsibilities.

21   Rule 48 which provided the basis for the Prosecution to indict my client

22   together with the others is only a Rule of a possibility. It is legal, but it is not more

23   significant than the right of my client to be able, based on the Rule 82, to ask for a separate

24   trial. In other words, the principle of the Tribunal has to be individual trials and the

25   reasons listed in Rule 48 can sway the Tribunal not to rule that way.

26   Before I move on to the reasons for our motions and maybe supplemental

27   material, I am ready to support all proposals of other counsel based on this principle, the

28   right for the individual trial and establishment of individual responsibility.

29   In relation to the motion we filed on May 29th 1996 for a separate trial based on

30   Rules 73(A)(iv) relative to Rule 82, I want to point out that our position is that a joint trial

31   can bring about serious prejudice against my client, Delalic Zejnil. Second, that the

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1   separate trial is in the interest of finding the truth and the protection of justice which is the

2   paramount principle of this Tribunal, and that is so Delalic Zejnil has the right to be tried

3   without undue delay.

4   All this is in reference to the quoted Rule of the International Tribunal. Further,

5   I think that Delalic Zejnil based on Article 7 of the Statute of the Tribunal, which

6   establishes the principle of individual responsibility and a single trial against him, together

7   with the reason which we filed in our written motion, we also enclosed three key

8   documents precisely because it is our position that in the interest of justice it is required

9   that my client first unequivocally has to be established his command responsibility;

10   second, since it is a subsidiary in responsibility, it is necessary to establish beforehand at

11   least a minimum of the existence of the crime, if it is proven that my client has had the

12   command responsibility over the camp of Celebici and the personnel of that camp.

13   The key documents which we have already submitted in our motion clearly

14   speak to the fact that my client in the eight months from the start of the aggression against

15   Bosnia-Herzegovina until he left Bosnia was executing duties which never touched on the

16   camp, Celebici. He had the duties of somebody who had logistical responsibilities with a

17   mandate of six months. Then from the end of July, that is the beginning of August, he had

18   the command over a mobile group in the vicinity of Sarajevo whose only task was to

19   deblock of 300,000 imprisoned citizens of Sarajevo.

20   We have submitted documents of the military authorities which clearly show

21   that my client during the period of time and around Konjic has never had any function

22   which had command responsibility in the Defence forces of Bosnia-Herzegovina. We have

23   clearly stated that since May 18th he was only a co-ordinator.

24   So that there was a political body and in a war situation in the city of Konjic,

25   and the units of the defence of Konjic. The word "co-ordinator" does not mean

26   "subordinator". There is no mention in any document about his relationship to, let alone

27   responsibility, the camp Celebici.

28   I will be more free now. Unfortunately for our people, there have been many

29   other co-ordinators who have had higher people, like Messrs. Akashi or Holbrooke who

30   have co-ordinated activities to Zagreb and Belgrade. Nobody is going to say that they are

31   going to be responsible for the decisions of Belgrade and Zagreb. So that the facts

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1   presented in this way, I think, already give enough reason to give my client a separate trial

2   where the entire evidence will be presented, where the facts be established that his

3   responsibility for these acts will not be sustained.

4   This argument I can also tie to the question that you asked my colleague,

5   whether there was a conflict of interest. There is such a thing to a high degree. My client

6   would be in a position, first, to listen to and participate in establishment of alleged crimes.

7   We again have the issue of command responsibility and nobody has established

8   unequivocally his responsibility. Second, we have already submitted a number of

9   evidentiary materials from contemporary sources which confirm the events from 1992.

10   We have 20 witnesses, we have 10 more statements ready which would support the

11   establishing of this fact.

12   The conflict of interest with the other accused: They would be forced for days

13   to discuss the issue of the command responsibility of my client. There would be a conflict

14   of interest between them and my client, because they had to be present while the evidence

15   was being presented. Then he would be forced to be present at the time when their

16   evidence is being presented and there is not even a hint of his command responsibility and

17   the mistaken identity, error personae, I think all of us, in the interests of justice, we do not

18   have the right to enter into that.

19   THE PRESIDING JUDGE: Ms. Residovic, you have filed a motion on the form of the

20   indictment. You have also filed a motion for provisional release. In both of those motions

21   you raise this very point. Your position is that, although Mr. Delalic is named as being

22   responsible for the acts that occurred at Celebici, that in fact the position that he held did

23   not make him responsible for whatever went on at Celebici.

24   It seems to me that that is a matter that should be raised and resolved, as you

25   have, or at least you have raised it, in the motion on the form of the indictment. It seems

26   to me, therefore, that depending upon how the Chamber rules on the motion on the form

27   of the indictment, we would then be left, if we denied that motion, with Mr. Delalic as an

28   accused.

29   Under that circumstance, setting aside the merits, setting aside your position

30   that, in fact, he did not have responsibility, setting that aside, where is the prejudice? What

31   is the prejudice that he will suffer if he is tried with the other accused? What you suggest

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1   in your motion is that the Prosecutor must first establish that the acts were committed

2   before you even get to the question of command responsibility. You are correct, I mean,

3   that must be established.

4   It just seems to me that you would want to be present and a part of that trial so

5   that you yourself could cross-examine and challenge the witnesses who are contending that

6   these acts were committed. Because if the Chamber makes a finding that the Prosecutor

7   has proved beyond a reasonable that the acts were committed, the next step then, of

8   course, would be to determine whether or not Mr. Delalic is responsible because of his

9   superior position.

10   The Prosecutor says that these are intertwined, that their first position is that he

11   had active knowledge, actual knowledge, of what was going on. Their second position is

12   that he knew or should have known what was going on. So it seems that during a trial

13   where we will hear evidence regarding Mr. Landzo, for example, and Mr. Delic who are

14   charged with having committed acts that you would want to be a part of that trial in that it

15   would be in your interests, it seems to me, in representing Mr. Delalic to establish that

16   these acts were not committed or to respond to the Prosecutor's position.

17   So I do not see the prejudice. Actually, I see it to the contrary. I see that

18   unless you are prepared to accept the findings -- well, that is really another issue. It just

19   seems to me that it is all one common scheme, and that you would have an interest in being

20   in that trial, being present during the trial, to participate.

21   MS RESIDOVIC: Your Honour, I read the answer of the Prosecutor and I will state our view

22   on this, but since you raise this question, my interest in participating in a joint trial will

23   exist from the moment when this Chamber establishes that my client, this is a condition

24   sine qua non in any trial, to participate in a trial where you discuss crime, is putting my

25   client in a position vis-a-vis prejudice.

26   I apologise to the Prosecutor when he links all the prejudice to this Chamber.

27   The prejudice does not relate only to the Chamber, nor is it qualified in this way. It relates

28   to the accused. It may exist among the codefendants vis-a-vis the witnesses. They may

29   exist vis-a-vis the witnesses when they are tried jointly and vis-a-vis the public.

30   I believe that this Chamber will always be able to differentiate between truth and

31   untruth, but the other question whether he could know, whether he was aware, of the

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1   crimes, this is another question. But I would like to apologise for another example that

2   may not be very fitting, but Mrs. Sampayo, when she appointed me counsel, had to

3   establish that I was a lawyer and admitted to the bar in Bosnia and Herzegovina. Without

4   this I cannot appear before this court, and before the status of my client is established, he

5   cannot appear before the Court.

6   So, this is what we want to clarify in a separate trial. It cannot be solved as a

7   preliminary question, your Honour. We have to provide evidence, consider all the facts,

8   examine all the witnesses, hear all the witnesses, and see what functions Mr. Delalic had

9   been appointed to. Once this has been established, it is only then that we should establish

10   whether he could have known about certain facts, and whether the crime of which he is

11   accused existed or did not exist.

12   I say again, a condition sine qua non in this trial against my client is that it be

13   established that he was in a commanding position. This has not been established so far.

14   You mentioned my motion regarding the form of the indictment. Look at the

15   arguments. He is a co-ordinator and then a Commander of the Tactical Group I. He was

16   Commander of a prison and the personnel there. Is it possible that each function Mr.

17   Delalic was appointed to was a commanding position? It seems to me that this is

18   impossible. I do not know if he had had another post in Konjic whether it would be

19   claimed that he was also in a commanding position. It is for this reason that I call for a

20   separate trial. We should have separate trials in order for these facts to be established.

21   I have 30 witnesses, as I said, and 30 documents of various nature, and I claim

22   that there is a conflict of interest if my client is tried together with the other codefendants.

23   Another argument is that the witnesses ----

24   THE PRESIDING JUDGE: Why is that?

25   MS RESIDOVIC: --- would be traumatized.

26   THE PRESIDING JUDGE: Before you go to the witnesses being traumatized, why is there

27   ----

28   MS RESIDOVIC: The Prosecutor ----

29   THE PRESIDING JUDGE: --- a conflict of interest if Mr. Delalic is tried with the other

30   accused? You say that the Prosecutor has not yet established that he has a command

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1   responsibility. You say that you have raised that issue in the motion on the form of the

2   indictment. You have also raised it in the provisional release motion.

3   Let us assume for the moment that the Chamber denied that motion on the form

4   of the indictment and found that the allegations made in the indictment, if established at a

5   trial, would be enough to establish command responsibility. If we made that ruling, then

6   how would Mr. Delalic be prejudiced if the trials were held together, or if the trial of each

7   of the accused was to be held as a joint trial as opposed to a separate trial?

8   MS RESIDOVIC: First of all, because this would require a very long trial. I would insist that

9   his status be established and that crime be not mentioned if my client was never in the

10   post, was never in a commanding position in the camp. The other codefendants would

11   have to wait for days for this part of the trial to be concluded. If this motion were not

12   granted or accepted, then my client, even if he were not sentenced, he may be discharged,

13   the charges may be dropped, he would be in a situation throughout this time to be present

14   in offering of evidence, examination, cross-examination, etc. So, this preliminary situation

15   should be clarified first. Since our preliminary findings do not give us the possibility to

16   produce evidence, this is in the interest of justice that this separate trial be granted.

17   THE PRESIDING JUDGE: So it appears that what you are saying is that, although you have

18   raised this issue in your motion on the form of the indictment, the best way to resolve this

19   issue, that is, whether Mr. Delalic was in a command responsibility, did have command

20   responsibility, was in a superior position, is at a trial where evidence is offered, is that

21   what you are saying?

22   MS RESIDOVIC: Yes.

23   THE PRESIDING JUDGE: As opposed to resolving that on a motion on the form of the ----

24   MS RESIDOVIC: Yes, but in a separate ----

25   THE PRESIDING JUDGE: --- indictment?

26   MS RESIDOVIC: Yes.

27   THE PRESIDING JUDGE: In a separate trial?

28   MS RESIDOVIC: Yes, in a separate trial. If there will not be a separate trial if the objections

29   are so strong that charges will be dropped. But, if this ruling is not made, then we believe

30   that this question of the status of my client can be solved in a just and fair way only in a

31   separate trial, because the evidence does not lie with the victims, but in the authorities, the

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1   documents, with people who were not detainees. So neither the evidence, nor their value,

2   nor their sources and the places where they are located, have anything to do with the fact

3   of prison or with the camp. This is a very important reason.

4   Let me say something about the response of the Prosecution.

5   JUDGE STEPHEN: Just before you do that, can I ask you this? What you are proposing

6   would really be a very curious separate trial, because it would be one where the issues are

7   confined exclusively to the position of your client and whether he had command

8   responsibility. It would not go into all the allegations made about conduct at the camp.

9   That is the whole point of your submission. That means that it would not be a

10   trial on the present indictment. There would have to be a reframing of the indictment. Yet,

11   the whole question of command responsibility becomes irrelevant unless there are acts for

12   which he is to be held responsible. I do not understand how you can contemplate that sort

13   of separate trial.

14   On the other hand, I can understand that you might on the motion challenging

15   the indictment in its present form produce material which will require a reply, as you

16   indeed have sought to do, dealing with the question of command responsibility. Do I make

17   myself clear?

18   MS RESIDOVIC: Yes, you were absolutely clear, your Honour. However, I believe that in

19   any stage of the trial, of the procedure, these arguments should be taken into account. If a

20   ruling is made today on a separate trial for my client, this does not exclude the

21   responsibility of the Chamber, and we believe this will always be a responsible Court

22   Chamber. If in this trial it is established beyond any doubt (but I do not know how the

23   evidence will be produced in these preliminary arguments), if it is established that the

24   indictment should be dismissed, then the need will cease for the ruling to be implemented.

25   But in case there is a different ruling by the Chamber -- but this is not up to the

26   Prosecution or the Defence, it is up to the Chamber -- then it seems to me that there

27   should be a separate trial.

28   Your Honour, may I give you a few arguments concerning the response of the

29   Prosecution? I have already replied to the argument of the Prosecution that the prejudice

30   would relate only to the Court. I already said that the prejudice pointed out in our motion,

31   we do not claim that the Chamber will not be able to differentiate between truth and

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1   untruth, but prejudice relates to my client and this prejudice is broader and I have already

2   stated our arguments.

3   The second argument of the Prosecution is that the victims, the witnesses,

4   would be unnecessarily traumatized in the procedure of establishing facts in this trial. I

5   want to say that the Prosecution with the indictment, there are 22 statements by

6   witnesses. Out of these 22 statements three are not witnesses who were detainees in the

7   camp. Of all the detainees in the camp, only nine mentioned Mr. Delalic because they had

8   heard of him. They know nothing about his role of Commander. Only two of them can

9   speak about some elements of the post or functions carried out by my client.

10   In a separate trial, then, if it were on the basis of this indictment, it is not

11   necessary that other witnesses for the Prosecution be called to the Court, because the

12   statements of the two witnesses, if command responsibility is established, can be the basis

13   for a Court ruling. For a command responsibility, it is not so important how many crimes

14   were committed, but the very existence of crimes.

15   It, therefore, seems to me that with only two or three witnesses, two witnesses

16   who were detainees, other detainees did not say that they were subject to any torture. So,

17   I have full respect for the fact that the victim should not be exposed to unnecessary

18   suffering. In this way we would avoid such suffering, and traumatization. Four years in

19   an encircled Sarajevo, I know the situation, I know the situation where wounded people

20   live without electricity, where they lived without food. I can understand every witness or

21   victim who was in an even worse situation. This Chamber is well aware of the suffering of

22   the victims in Sarajevo.

23   Therefore, as a human being, I would not insist without great necessity for the

24   defence of my client to cause unnecessary suffering for the victims. The motion for a

25   separate trial, the Prosecution says, would need the prolongation of the trial.

26   Your Honours, before this Chamber in one week procedures in separate trials

27   can take place. The number of accused before this Chamber, if we have several trials,

28   would require this Chamber to work or operate for several centuries, but this Chamber,

29   this Court, this Tribunal, will find ways to conduct parallel trials. It seems to us that

30   persons who, for instance, live in the States, in America, can be heard in two or three trials,

31   if necessary. So, this argument given by the Prosecution seems invalid to us.

Page 16

1   I also had some additional reasons which are only indicating numerous facts of

2   which I mentioned only a few, because, according to what Article 7 speaks, regarding the

3   command responsibility, anyone remembers all the distinguished commission of Mr.

4   Bassiouni as confirmed by the United Nations. Even when command responsibility of a

5   person has been established, we, nonetheless, need to bear in mind all the other

6   circumstances which are relevant to establishing whether somebody knew or could have

7   known, may have known, that subordinate persons had been committing offences.

8   As I have already stated, Mr. Delalic was a co-ordinator. I have also submitted

9   a number of evidence, witness statements and the Rules of the Brigade, in effect, in

10   Bosnia-Herzegovina, and excerpts from military encyclopaedias clearly indicating that

11   tactical groups are mobile task forces, that Mr. Delalic was performing his mission around

12   Sarajevo with the headquarters in Posaric and 70 kilometres away from Celebici.

13   I also pointed out in my argument talking about this evidence which ought to be

14   adduced at a separate trial -- I am only indicating them -- that my client became the

15   Commander of a tactical group on 27th July and by that same order, which is now

16   available to the Court, one can easily see that all the previous appointments were thereby

17   invalidated. In other words, there were other Commanders of tactical groups before my

18   client, and the tactical group has existed since the beginning of May and these are also facts

19   which need to be ascertained at such a trial.

20   In other words, the combination, the cumulative evidence of various formations,

21   of various objectives, which would allow one to deduce the responsibility of my client, I

22   think would simply go in favour of our motion. All the more so, since the only witnesses

23   who heard, incidentally, that Mr. Delalic might be appointed a camp Commander verbally,

24   and that he might appoint Mr. Mucic as a Camp Commander, and that the order in writing

25   would only follow; I believe that a court will establish that these are statements by people

26   who already have been having a personal conflict with Mr. Mucic and who, several months

27   later, took part in the destruction of Konjic, as extreme members of Herceg-Bosna. These

28   are individuals against whom the Republic of Bosnia-Herzegovina has filed criminal

29   charges, and these we have also attached.

30   I believe that on this occasion these are facets to show that on the basis of the

31   circumstantial evidence submitted by the Prosecutor, I believe it will be in the interests of

Page 17

1   justice to consider seriously the motion of my client to take note of his reasons and to

2   provide him with a possibility for an immediate trial.

3   There are facts which we pointed out in our motion, unless of course the Trial

4   Chamber accepts our argument which goes to the defence in the form of the indictment.

5   THE PRESIDING JUDGE: In your motion regarding undue delay would be that Mr. Delalic

6   would be tried first. You are asking that Mr. Delalic be tried first?

7   MS RESIDOVIC: To be tried first, but only to indicate whether there are some crimes. There

8   are a couple of witnesses I have already mentioned and if during these proceedings it can be

9   done right away. If this Chamber finds that my client was in a position of a Commander,

10   then we shall be at the disposal of this Trial Chamber at any time to again join those

11   proceedings.

12   THE PRESIDING JUDGE: Ms. McHenry, would you respond to that, please? Would you

13   respond to Ms. Residovic's motion? Let me see if I can just put it in the framework. As I

14   indicated, there is a motion on the form of the indictment that has been filed by Mr. Delalic

15   and a motion for provisional release.

16   In both of those motions, Ms. Residovic in a sense goes to the merits in so for

17   as it relates to the issue of whether Mr. Delalic was a "Commander", not whether he knew

18   or should have known necessarily of what was going on, but whether he was even in a

19   position of superior authority.

20   I understand that your position has been that in order to prove command

21   responsibility you may show actual knowledge, or you may show that he knew or should

22   have known, and that you need a joint trial because you would offer evidence about all of

23   the various acts that occurred at Celebici and then set the stage that it was of such a

24   widespread nature that Mr. Delalic should have known that this was happening.

25   Ms. Residovic's position is you do not get to that if he did not have the

26   authority. She has provided us with a number of documents (which are very difficult for

27   us to use in ruling finally on this issue) saying he just did not have the authority, so you do

28   not get to the question of whether he knew or should have known because he had no duty

29   to do anything about it because he was not in a position to do anything about it because of

30   the limitations of his appointment.

Page 18

1   She raises a number of other issues for separate trials in her motion for a

2   separate trial, but I wonder if you focus on that? Tell me whether or not it is possible to

3   have a bifocated trial, first, for Delalic focused on this issue of what was his position, what

4   was his authority, before we even then get to the issue, which I may agree with you, that if

5   you once establish that he was in this superior position, that in order to prove that he

6   should have known about what was going on, it needs to be in a joint trial because all of

7   these acts that would be offered regarding Mr. Landzo, Mr. Delic particularly, would have

8   to be repeated in a trial for Mr. Delalic. But is it possible to have a bifocated trial to begin

9   with the sole issue for Mr. Delalic of whether or not he was in a superior position?

10   MS McHENRY: Yes, your Honour. I certainly was going to be respond to that. Now I will

11   do so.

12   THE PRESIDING JUDGE: You can order your response, but at some point address that

13   issue.

14   MS McHENRY: I can either give my general response which summarises ----

15   MR. TAPUSKOVIC: Excuse me. I think that we have to hear also a response, the

16   Prosecution's response, to my statement as the counsel for Mr. Mucic.

17   THE PRESIDING JUDGE: Yes.

18   MS McHENRY: Your Honour, I am prepared to respond now to all the arguments and include

19   in them the responses of counsel for Mr. Landzo and Delic or, if you want ----

20   THE PRESIDING JUDGE: I have heard counsel for Mr. Mucic, but I understand him to say

21   that he would withdraw, at least, his motion for a separate trial if we can resolve this

22   question of a statement, which is something that needs to be resolved separate and apart

23   from this. Respond to Mr. Delalic's argument, please.

24   MS. McHENRY: I will respond specifically only at this point now to the question of whether

25   or not it would be possible to have a bifocated trial because, as I understand counsel for

26   Mr. Delalic, she is really asking for two trials, one with just her client to determine

27   whether or not he was a superior, and then a second trial, presumably, with all the

28   defendants to determine whether or not these crimes occurred, if the superiors knew or

29   should have known and if they failed to prevent or punish.

30   It would not be possible to have, or it would not be possible without a very

31   large amount of duplication and a very large amount of trauma to the witnesses, to have a

Page 19

1   bifocated trial. It is the case that there is some difference, obviously, between determining

2   who was a superior and whether or not crimes occurred. But there is also a large number . . . a large amount

3   of overlap.

4   Let me first go, with respect to the witnesses who..., there are a large number of

5   detainees who do speak to Mr. Delalic. Let me just, sort of, correct that. Going, with

6   respect, as Ms. Residovic did, with respect to the 22 witnesses who were in the supporting material,

7   almost half of the witnesses had information relevant to Mr. Delalic. There are some

8   witnesses who were not detainees who have information relevant to Mr. Delalic. But

9   those witnesses, without exception, also have evidence relevant to Mr. Mucic and, really,

10   to the other defendants.

11   Further, because the question even and the evidence about whether or not Mr.

12   Delalic was a superior is intertwined, is part of a larger picture, you have to present that

13   evidence to establish his role as a superior.

14   Let me just give you one example of that. This is an example of how the

15   detainee witnesses, even those who do not know Mr. Delalic or do not know his role, fit in

16   and can help establish his role as a superior. Again I emphasise that there are a number of

17   detainees who also have direct information about Mr. Delalic.

18   With respect to the overlap, soon after Celebici camp was opened and a

19   Commission was set up with both Croat and Muslim members, the members of the

20   Commission were supposed to investigate the Serb detainees. Among other things, they

21   were supposed to interview the detainees and determine what they might have done and

22   what they probably did not do. After a few weeks, the Commission members, both the

23   Croat and Muslim members, were so horrified about the conditions of the camp, including

24   the beatings and the murder, that they wrote a report detailing some of what they had seen

25   and they quit. They refused to have anything more to do with the camp because of the

26   widespread and horrific treatment that detainees were receiving.

27   This report was signed by all the Commission members and it was sent to

28   several people, including Mr. Delalic, as co-ordinator. One of the potential witnesses,

29   whose statement was part of the supporting material, is an HVO Officer, a Bosnian Croat,

30   knowledgeable about the Commission and about the camp. He describes the Commission.

31   He describes the camp. He also reports that Mr. Delalic was responsible for this camp.

Page 20

1   Mr. Delalic's Defence has now said this is not true, that the witness is biased,

2   etc., but that is not an issue for today. So this witness, who was involved in running

3   affairs in this area and had direct contact with Mr. Delalic, has very important information

4   about his role and responsibilities.

5   The detainees generally would not have this kind of detailed information. But

6   the detainees will in many different and important ways corroborate this witness, not just

7   in the fact that beatings and murders did, in fact, happen, but that there was this

8   Commission; who the members of the Commission were, when they came in, what they

9   what they did not do and then the fact that they stopped coming.

10   This is just, I think, one example among many of how all the evidence is

11   interrelated, and even these detainees who do not have specific information about Mr.

12   Delalic would have relevant evidence going to his role as a superior.

13   Lets me again emphasise that there are a number of detainees who do have

14   information about Mr. Delalic. It would not be fair to those detainees to require them to

15   testify on multiple occasions.

16   THE PRESIDING JUDGE: So are you saying that the documents that were submitted by Ms.

17   Residovic in support of the motion on the form of the indictment and the motion for

18   provisional release primarily may deal or may not deal with the official position of Mr.

19   Delalic, but there may be evidence that would show de facto, notwithstanding any official

20   limitations of his authority, that would be reflected in the documents that we have

21   received that, as a matter of fact, he was exercising that superior control?

22   MS McHENRY: We would certainly contend that there is a large amount of evidence

23   indicating that he had de facto control, whether or not he had de jure control. I would just

24   add, although we have been very reluctant to in this context with, sort of, documents that

25   are often conclusary, that you do not have an opportunity to explain or cross-examine,

26   to get into the merits, but in fact most of the documents, if not all of them, do not indicate

27   that the defendant did not have de jure authority. For instance, there is a document that

28   says he was co-ordinator. The Defence attorney is now adding statements in to say,

29   "Well, this is what a co-ordinator generally does", but we have contrary information about

30   what a co-ordinator did, at least in this case. I do not think there is any universally

Page 21

1   understood definition of what a co-ordinator does and does not do, particularly in the

2   context of the period around when the war was just starting and people were going on.

3   Similarly, with respect to his role as a Commander, it is not disputed that at

4   least as of 27th July there is a paper officially appointing him Commander of this tactical

5   group. There is nothing, I do not believe, in those documents or in the other documents

6   that indicate that in his role as Commander of the First Tactical Group he did not have

7   authority for Celebici camp. It was a military camp, as best we can tell.

8   So, I would say that, in fact, the evidence does not indicate that he did not have

9   de jure authority. At least based on the documents that the Defence has submitted, it is

10   ambiguous. There is a large amount of evidence both explaining those documents and also

11   indicating that he had de facto authority and acted with that de facto authority.

12   THE PRESIDING JUDGE: You say that half of these 22 witnesses ----

13   MISS McHENRY: There are, I believe, 21 or 22 witness statements provided in the

14   supporting material. We do not know exactly at this point who our witnesses will be. I

15   believe at least nine of those specifically refer to Mr. Delalic. There are a number of those

16   nine who are detainees. Of the nine that specifically refer to Mr. Delalic, every single one

17   also refers to one of the other defendants, whether it be Mr. Mucic, Delic, Landzo or all

18   three.

19   THE PRESIDING JUDGE: So those witnesses would have to be called, if the trials were

20   separate trials, those witnesses would have to be called four times?

21   MS McHENRY: Yes, your Honour.

22   THE PRESIDING JUDGE: OK. What else do you have then regarding Delalic and then, if

23   you wish, you may respond to Mr. Mucic as well, except I still think you withdrew your

24   motion for separate trials. But what else do you have with respect to Delalic?

25   MS McHENRY: Your Honour, some of our arguments are the same with respect to the

26   Defence counsel, so what I suggest I do is just give a general summary of my arguments

27   and then, to the extent it is necessary, to supplement them. After Mr. Landzo's and Mr.

28   Delic's counsel speak, I will do that.

29   The Rules provide that the persons properly indicted together will be tried

30   together unless it is "necessary" not to, either because of serious prejudice or because the

31   interests of justice so require. Ms. Residovic may certainly request that the Rules be

Page 22

1   changed to make separate trials the norm for each defendant, but that is not now what is in

2   our Rules, nor is it required or even contemplated by any kind of fundamental notions of

3   justice.

4   Here there has been no showing of prejudice or that the interests of justice

5   require it. What we have here is vague allegations of prejudice and no explanation of

6   exactly what that prejudice would be. If unsupported and unspecified allegations, such as

7   are made here, provide grounds for a joint trial, every defendant in every case before this

8   Tribunal would be entitled to a separate trial. I do not believe that the Rules so require. It

9   would be hard to imagine a stronger case for joint trials than that presented here.

10   Again, it has already been talked about, but I wanted to talk about the first and

11   most important reason why the Prosecution is opposing separate trials, and that is the

12   victims and witnesses. It would be grossly unfair to require any of these witnesses to

13   testify on more than one occasion. The detainees and the witnesses from the camp were

14   horrendously treated. They were imprisoned for months or years; they were beaten,

15   tortured, suffocated, burned, imprisoned in vats of water, made to act like animals, made

16   commit fellatio against each other, they were raped, they were sexually assaulted and more.

17   The witnesses and the victims saw friends and family die from mistreatment in

18   the camp, and at every moment they were afraid that they would be next. The witnesses

19   are understandably traumatized. Many of the witnesses were reluctant to cooperate with

20   the Tribunal in any way. These witnesses would not be willing or able to testify on

21   multiple occasions.

22   The idea that this Tribunal would ask them to do so, just because an accused

23   says the word "prejudice" is not right. We support every right of the accused for a fair

24   trial, but in a case like this there is nothing that indicates that the defendants cannot have a

25   fair trial, and a joint trial.

26   Let us talk about this case. All the accused are charged with responsibility for

27   crimes arising in Celebici camp. The period is a relatively narrow period. It is between

28   May and December 1992, small and discrete. Even those accused, such as Mr. Delalic and

29   Mr. Mucic, who were responsible for things other than Celebici camp, are not charged in

30   this indictment with any of their activities outside the camp. The focus is solely Celebici.

Page 23

1   We have one accused, Mr. Landzo, who is charged as a guard with direct

2   participation. We have Mr. Delic who is charged as a Deputy Commander, then as

3   Commander but also as a direct participant. We have Mr. Mucic and Mr. Delalic both

4   charged with superior responsibility. In this case the Prosecution will have to establish,

5   first, that the crimes occurred. As Ms. Residovic has said, "I would like first to have this

6   part done", but the truth is, it is a chicken and egg problem; we have to establish each of

7   the elements. In this case they are all intertwined. Certainly we will have to prove that

8   crimes occurred.

9   With respect to Mr. Landzo and Delic, Mr. Delic with respect to those cases

10   where he is charged with direct participation, we will establish that they are the ones who

11   committed the crimes. For the defendants charged with superior responsibility, which

12   includes everyone except Mr. Landzo, we will have to establish that those who committed

13   the crimes were subordinates, that the accused knew or should have known and that the

14   accused failed to prevent or punish. So there will be some differences in the evidence, but

15   not a lot and not usually from different witnesses.

16   With respect to those witnesses who were not detainees, both the Prosecution

17   witnesses and even the Defence witnesses, because the Defence, although they are not

18   obligated to do, has indicated -- at least counsel for Mr. Delalic has -- that they will have

19   some witnesses to talk about the role, what was going on in this area, Mr. Delalic's role.

20   Those witnesses will have information relevant to the other defendants, certainly the other

21   defendants accused of superior responsibility but, realistically, all the defendants.

22   In discussing how all the evidence fits together and is relevant to each and every

23   accused, it is interesting to note that in asking for separate trials, as your Honour has

24   pointed out, none of the accused has agreed to accept certain propositions relevant to the

25   trials of others, nor have they agreed to accept the testimony of witnesses of other trials.

26   They want, each of them, a separate trial for their separate parts and then also a joint trial

27   or a duplicative trial.

28   Both Mr. Delic and Mr. Delalic have, in effect, asked for two separate trials for

29   themselves, not to mention the additional motions made by the other ones. Even if we

30   could break up the evidence, what would be gained in this regard and what exactly is the

31   prejudice that the defendants talk about?

Page 24

1   It appears now to be more or less conceded that there is not prejudice as far as

2   your Honours are concerned. This is a trial in front of Judges rather than juries. Judges are

3   trained to keep evidence separate, to ignore prejudicial evidence where they should.

4   Furthermore, in this case, the separate trials, even if they happened, would be in front of

5   the same Judges. Having separate trials, especially where you would have many of the

6   same witnesses, would be much more confusing and have many more logistical problems

7   than with one trial.

8   The defendants have different possible claims of prejudice, but it cannot be

9   expected that this Chamber must hypothesize about what it might be. The defendants

10   must demonstrate in a more specific and convincing way what exactly the prejudice would

11   be.

12   Mr. Mucic made the first motion. He made an argument about the Defence's

13   desire to protect the Prosecution witnesses. It appears that he is no longer maintaining

14   that motion, so I will not address it. As an aside, though, I certainly do want to point out

15   for the record that Mr. Rhodes, previous counsel for Mr. Mucic, received a copy of his

16   client's statement on 19th April and filed his motion for separate trials over a month later.

17   So it is not the case that counsel for Mr. Mucic did not get a copy of his client's statement

18   almost immediately after being arraigned.

19   THE PRESIDING JUDGE: Was that the statement, though, that needed to be translated and

20   we have talked about that in a status conference, and it was translated later -- or is that a

21   different statement?

22   MS McHENRY: Your Honour, I have to say, I do not remember exactly but I do know that on

23   April 19th Mr. Mucic's attorney, who was from the United Kingdom, received an English

24   copy of the transcript on that day. I believe his client received his soon thereafter.

25   With respect to Mr. Delalic, who has made the second motion, the only claim of

26   prejudice, he argues, is that he would have to sit, he and his counsel, potentially for a

27   longer period of time. But I do not think this is a particularly long or complicated trial. I

28   do not believe that the prejudice in having counsel and the accused sit for a few more

29   weeks is sufficient to undergo the confusion, the logistical problems and the trauma to the

30   witnesses of having, in effect, what will be duplicative trials. Thank you.

Page 25

1   THE PRESIDING JUDGE: Just one minute, Ms. Residovic, please. Mr. Tapuskovic, you

2   have heard what Ms. McHenry has said ----

3   MR. TAPUSKOVIC: Tapuskovic.

4   THE PRESIDING JUDGE: You will have to excuse my pronunciation of your name. I do not

5   speak Serbo-Croat. I will do the best I can and I will understand if you mispronounce my

6   name. In the meantime, let me ask you this question and see if you can respond, that is,

7   did the statement made by Ms. McHenry regarding the April 19th statement satisfy your

8   concern? We have had status conferences regarding this matter before you were counsel

9   and we have discussed this statement. Has that satisfied your concern for the statement?

10   MR. TAPUSKOVIC: I can say that I cannot either confirm or deny that, simply because for

11   me it was much more important that Mr. Mucic first gets the statement that was made

12   back in March sometime. He received this statement 15 days ago. So he was not in a

13   situation to communicate with counsel Rhodes on those issues.

14   Again, I appeal to the Trial Chamber and to the Prosecution, as his Defence

15   counsel, I think it is not of paramount importance whether it is separate or a joint trial, but

16   within the prerogatives that the Trial Chambers and the Prosecution have to do everything

17   that they can to get that statement in order to come to the truth about what Mr. Mucic

18   actually did, and it would be much easier on all of us.

19   So, I appeal more than I present any kind of defence, I just appeal that both

20   Prosecution and the Trial Chamber do everything they can to find this document because

21   Mr. Mucic is not able to do that.

22   THE PRESIDING JUDGE: Mr. Mucic received it 15 days ago, is that what you are saying?

23   MR. TAPUSKOVIC: No, you did not understand. The statement about his interrogation in

24   Vienna he received 15 days ago.

25   THE PRESIDING JUDGE: What statement are you talking about?

26   JUDGE STEPHEN: What is the statement?

27   MR. TAPUSKOVIC: His statement he gave in Vienna to the investigators of this Tribunal.

28   THE PRESIDING JUDGE: What statement do you want?

29   MR. TAPUSKOVIC: I have it.

30   THE PRESIDING JUDGE: Judge Stephen says you call it a "document". What is it you

31   want?

Page 26

1   MR. TAPUSKOVIC: From the beginning, it seems like we do not have an understanding here.

2   That document that Mr. Mucic was -- the appointment of the Commander of 27th July. I

3   am trying to say that everybody should try to find this document, to get this document, of

4   the appointment, of his appointment of July 27th 1992, his appointment as a camp

5   Commander.

6   THE PRESIDING JUDGE: This Trial Chamber will not get that document. That is not our

7   responsibility. If that is something that you believe that the Prosecutor has ----

8   MR. TAPUSKOVIC: I know that it is not your responsibility. It is the responsibility of the

9   Prosecution, but the Tribunal can help, can aid, the Prosecution in acquiring this document.

10   THE PRESIDING JUDGE: Meet with the Prosecutor, attempt to get that July 27th

11   document. If they cannot locate it, then you file a motion with the Tribunal asking for our

12   assistance. I do not know what the document is. I do not know how we can get it ----

13   MR. TAPUSKOVIC: Thank you.

14   THE PRESIDING JUDGE: --- but we will make that attempt. Thank you.

15   You may be seated. This is your first appearance and I hope that you are here in the future.

16   Who filed the next motion? Mr. Landzo and Mr. -- Ms. Residovic, do you wish to

17   respond to Ms. McHenry?

18   MS RESIDOVIC: I would like to shortly respond to the Prosecutor, counsel McHenry. First,

19   the legal terms and the legal basis.

20   47 provides that, Rule 48, the Prosecution is only given a possibility in the course of the same

21   transaction may be jointly charged and tried. In other words, it is not an absolute right, but

22   it is a possibility of the right. I accept that the Prosecution has used the right, and this

23   right also belongs to the accused to ask for a separate trial, provided there are reasons

24   which I have furnished.

25   This Tribunal already has an example of a separate trial of Mr. General Blaskic

26   in whose case the responsibility is unequivocal, and that the crimes committed have not

27   yet been established by individuals who have committed them and have been subordinate

28   to Mr. Blaskic. I do not see a reason why Mr. Delalic could not be tried separately and

29   should not be tried separately precisely because his command responsibility has not been

30   established unequivocally.

Page 27

1   Ms. McHenry cited reasons and corroborated my own thesis that if there is

2   contradictory evidence whether my client was or was not in command responsibility, then

3   that is the basis for a separate trial, so that the evidence presented leads to establishing of

4   the facts which is a condition sine qua non of the accused Delalic in front of this

5   Chamber.

6   In short, because this is going to be the case in the separate trials, Ms. McHenry

7   cites two witnesses who were not detainees and who have spoken to the superior

8   responsibility of my client. But, in the evidence presented to this Tribunal, first, it is clear

9   that one of them was in no situation to know the responsibilities of client. He was a

10   Deputy Commander of the artillery. Unfortunately, only several months after the

11   departure of my client, he was the Commander of the attack on the city of Konjic and its

12   terrible destruction and against him there is an indictment for genocide in the city of

13   Mostar. The other witness is also a controversial witness. Given the fact that we cannot

14   argue this because these are contradictory pieces of evidence, what Ms. McHenry brought

15   out are actually reasons for separate trials.

16   Lastly, those nine witnesses, detainees, from Celebici know that Mr. Delalic

17   was an important person. That is all their knowledge, and those nine, and not 22, saw him

18   once entering the barracks in which half was set aside as a weapons depot where many

19   people came. My client was a well-known person, if for nothing else, because it is the

20   first person from a small town who for

20   years has lived in the west and has given

21   evidence for cultural and other events. Several years before the war, he opened the first

22   discotheque of western style. So that everybody knew him when he was in the street or

23   goes about any business.

24   That fact, that the seven witnesses speak of him as an important person, does

25   not mean that he was a person of responsibility as charged by this Tribunal, especially

26   responsibility. These facts all require that this evidence should be presented and it is

27   contrary to the concept of justice to present this evidence when the witnesses speak about

28   their experiences. There is not even sufficient doubt regarding my client, let alone the

29   responsibility.

30   THE PRESIDING JUDGE: Let me just make one comment. That is true, General Blaskic is

31   being tried alone, as I understand it, but the other persons who are named in the

Page 28

1   indictment, I understand, have not been presented or, at least, have not come to the

2   Tribunal. So he is the sole accused who has been named in that indictment, I gather. So it

3   is certainly possible to go forward, even though the person is in a command responsibility.

4   The question again is whether there is this conflict that will prejudice the accused. That is

5   really what we are attempting to focus on. We will stand in recess for 20 minutes.

6   (11.30 p.m.)

7   (Short Adjournment)

8   (12.05 p.m.)

9   THE PRESIDING JUDGE: Mr. Karabdic, you have filed a motion also for a separate trial.

10   Would you like to present your argument?

11   MR. KARABDIC: Yes, your Honour. I fully support the arguments presented by Ms.

12   Residovic regarding separate trials, a separate trial for Mr. Delalic. It seems to me that

13   these arguments largely apply to my client too.

14   First of all, I would like to say that as regards the indictment, my client for our

15   situation is in a very strange position. In one paragraph of one point of the indictment he

16   is accused both as the perpetrator and as the superior officer. It seems to me that this

17   procedure of the Prosecutor goes contrary to the Rules of the Tribunal, and that it is in

18   breach of the basic rights of the accused to defence.

19   The basic right of the accused is that to a fair and just and a speedy trial. By

20   this mixing together of the responsibilities, this is made impossible for him. He cannot

21   defend himself properly. This is what I have stated in my motion. It seems me that it is

22   important to state it once again.

23   The Statute in Article 19 states that the indictment must contain facts, a brief

24   statement, a concise statement, of facts. Then it says that it should also contain the crimes

25   of which the defendant is accused. These are two sides of the same thing. In the first part,

26   facts are mentioned. In the second part, the same thing is described in legal terms. If my

27   client has been accused as a perpetrator, then this fact should be stated by the Prosecutor

28   in the indictment. It is on the basis of these facts that he should accuse him of crimes and

29   state the responsibility of the defendant.

30   If my client is a superior officer in a superior position, the Prosecution should

31   state his position, his capacity and the existence of acts perpetrated by others. These are

Page 29

1   other facts than the act perpetrated by the accused. Then, by implementation of the

2   Statute, the Prosecutor should indicate his responsibility. If these Rules are implemented

3   consistently -- I think that these Rules have not been implemented consistently. The

4   Prosecutor claims, alleges, that he is both the perpetrator and a person in command.

5   These two things should be clearly differentiated so that my client may defend himself and

6   present his defence. The procedure adopted by the Prosecution has made this defence

7   very difficult, not to say impossible.

8   It is also very important to say that the accountability under the Statute for the

9   acts of others are different from the Rules that are now in force in Bosnia and Herzegovina,

10   and those that were in force in ex Yugoslavia. The legislation or the Rules do not envisage

11   the responsibility of the commanding or the superior person for acts that were committed

12   and for not having undertaken any action against the perpetrator.

13   Under our legislation, the superior officer or the commanding officer is not

14   responsible for this act. He or she is responsible for a different criminal act, and this

15   difference in legislation makes the position of my client more difficult, as I said. This is

16   also what I stated in my motion. I believe that the Prosecutor should have stated the facts

17   which show that this responsible person omitted to do something. The accused may

18   answer only for certain facts and only when these facts are established can we investigate

19   whether his responsibility under a certain Rule exists or not.

20   My client believes that, in the interest of his defence, it is necessary to examine

21   his responsibility as the first thing, what he is charged with, as the responsible person, as a

22   person in authority. The Prosecutor should then prove that he was in a superior position

23   and that he should prove that he was responsible for this act.

24   I will not repeat the arguments presented by Ms. Residovic. I would only say

25   that we believe that this should be investigated separately, and this would be in the interest

26   of both justice and the protection of the rights of the accused which should also be taken

27   into account by this Tribunal. This should be taken into account as much as the interests

28   of the witnesses. Therefore, we ask for this to be investigated separately. The result of

29   this procedure could be such that there would be no need to establish the existence of these

30   acts regarding my client, if it is established that he was not in a position of authority or a

31   superior officer.

Page 30

1   I fully support the proposals, the motions, made by my colleagues for separate

2   trials. As for what Ms. Residovic said, I could also say about my client; Zejnil Delic was

3   not a person of authority, in a position of authority. Regarding Hazim Delic, Hazim Delic

4   was not in contact with him and Delalic did not give any orders to Delic. For this reason,

5   Hazim Delic believes that it is not necessary that he be present, that he participate, that he

6   be a party in the proceedings when Zejnil Delalic's responsibility is being established or

7   investigated. My client knows that Delalic was the Commander of Tactical Group I, but

8   being a simple guard, only a guard, he did not know the responsibilities and duties of such

9   a Commander, and he believes that he was not in charge of Celebici camp.

10   As regards Mucic, my client supports the statement of his counsel for the

11   Defence, that Mucic was appointed only on 27th July 1992. As for my client, as I already

12   stated, it is necessary that the acts with which he is charged as perpetrator be

13   differentiated with acts with which he is charged as a superior person, as a person in a

14   position of authority.

15   I also want to state that my client will also present an alibi. He was

16   hospitalised during a certain period of time and he will state when that was. It is

17   incontroversial, it seems to me, that he was injured or wounded, that he was hospitalised

18   for a time, and that in the camp he was walking on crutches and was in plaster. This

19   condition would not have made it possible for him to commit the crimes of which he is

20   accused.

21   By the same token, the alibi will relate to the time when he was detained because

22   he is charged with some acts committed during the time while he was detained by the

23   Bosnian authorities. My client will also point out his mental state, physical state, and the

24   examination of these conditions, of these elements, would make the proceedings more

25   difficult and it is, therefore, necessary that my client be tried separately. Thank you.

26   THE PRESIDING JUDGE: Ms. McHenry?

27   MS McHENRY: Your Honour, I will not respond to the portions of the Defence argument

28   going to the form of the indictment. I understand that yesterday the Defence counsel filed

29   the motion on that and we will respond, but I have not read it yet.

30   THE PRESIDING JUDGE: That was the question that I had and I had not seen it yet either.

31   It seems to me that if there is an allegation that the facts regarding Mr. Delic should be

Page 31

1   stated differently as they relate to his roles as alleged perpetrator and superior, that should

2   be filed, that should be contained in a motion challenging the form of the indictment. We

3   will take a look at that, sir, as soon as we receive the response.

4   MS McHENRY: With respect to his argument about separate trials, I will just reiterate my

5   previous arguments in which there is no indication whatsoever about why his client would

6   be prejudiced by having a joint trial. I will point out that Mr. Delic, apparently, wants

7   two trials himself; one to discuss I believe, first, his superior responsibility and then, the

8   second, to discuss his actual commission of crimes. We would object to that.

9   Obviously, there will be much overlap in that, but -- again I do not want to

10   repeat all the arguments I made previously -- I do not believe there is anything that the

11   Defence counsel said which indicates that he would be prejudiced by a joint trial. In fact, I

12   think as all the Defence counsel talk, you can see how everything is interrelated which, I

13   think, supports the notion of a joint trial.

14   THE PRESIDING JUDGE: Mr. Karabdic, with respect to the Rules in the former Yugoslavia

15   being different than this Tribunal -- would you stand up, sir, please would you stand up?

16   With respect to the Rules being different before this Tribunal than the former Yugoslavia,

17   we have discussed that, I think, at the last status conference. I am sympathetic, I suppose,

18   to your position because the Rules are new and they have been created for an International

19   Tribunal combining both common law system aspects with civil law system aspects, and

20   certainly from my personal background I am not familiar with the civil law system.

21   So, I understand that there are different rules, but we have tried to make our

22   Rules very clear. We would like to think they are the best of both systems. So, with

23   respect to the way that the trial will be conducted and even the pretrial procedures, keep in

24   mind that if you are familiar with our Rules, we are available to give you any direction that

25   you may wish and we have discussed that in status conferences.

26   I had a question, though, with respect to your papers, and that is whether Mr.

27   Delic objects to being tried with Mr. Landzo. What is your position in that regard?

28   MR. KARABDIC: Let me proceed in this order. My client is not against being tried together

29   with Mr. Landzo with regard to those acts for which he is charged as perpetrator, but I

30   also have to answer the first part of your comment. I also believe that the Rules are clear,

31   and that we from the territory of the former Republic of Bosnia-Herzegovina understand

Page 32

1   them. But we cannot understand the manner of their application by the Prosecution when

2   they are all put together and when it is not clear which each of the accused is charged with,

3   when in one paragraph we have 10 different kinds of responsibility. Then it becomes

4   impossible to defend.

5   The Prosecution needs to observe at least a minimum of the rights of the

6   accused, to at least indicate clearly what it is accusing him of and to show how from these

7   facts with which he is charged his responsibility under the Statute emerges, rather than give

8   him a mixture which he does not understand, neither head nor tail, as we would put it. I

9   think that the Prosecution here seems to be following such a practice and which we believe

10   to be contrary both to the Statute and to the Rules.

11   THE PRESIDING JUDGE: We will consider the motion that you have filed on the form of the

12   indictment as soon as the response of the Prosecutor is filed. One other comment that I

13   had regarding your submission, Mr. Karabdic, has to do with the statement that you made

14   regarding Mr. Delalic. You said that Mr. Delalic did not give any orders to Mr. Delic. It

15   seems to me that, rather than presenting inconsistent defences, the statement that you have

16   just made would be support for the proposition that there will be consistent defences.

17   In other words, once again, we are trying to focus on where is the conflict that

18   will prejudice the accused. One concern that I might have would be inconsistent defences

19   that might prejudice the accused. What I have heard from you is a consistent defence, and

20   once again something supportive of Ms. Residovic and Mr. Delic, that would seem to

21   make at least Mr. Delalic and, perhaps, Mr. Delic benefit from a joint trial and certainly

22   not be prejudiced by joint trial, unless I misunderstood what you said.

23   MR. KARABDIC: Quite the reverse. It will be prejudicial against Mr. Delic if he were tried

24   together with Delalic, because he has nothing to do with him, neither he was under his

25   orders and, therefore, he has nothing to do in a trial of Mr. Delalic, because the acts they

26   committed are not related. That is why he believes he should not be there, and that it will

27   be in the interest of justice and fairness and in order to avoid any prejudice regarding the

28   interests of the accused.

29   THE PRESIDING JUDGE: Thank you. Mr. Brackovic, you have also joined in or filed a

30   motion for separate trial. Would you like to speak on behalf of Mr. Landzo?

Page 33

1   MR. BRACKOVIC: Yes, your Honour. I stand behind my written motion and motions

2   submitted by the defenders of the accused Delic, Mucic and the others for separate trials.

3   I also agree with them regarding the response of the Prosecution. I have filed my written

4   motion to the Tribunal on July 16th, and the Prosecution responded to my motion. I

5   should like to briefly address what is said in the motion of the accused Esad Landzo.

6   Counsel for the accused Landzo supports the request for separate trials because

7   it believes that thereby the interests of the accused Esad Landzo would also be protected.

8   In other words, he will be tried without any undue delay.

9   Secondly, the Defence was against the Prosecution's view that these motions of

10   Delic and Mucic for separate trials, and also the accused himself submitted a motion for a

11   separate trial, that is, we also believe that this response is also our separate request for a

12   separate trial.

13   Why does the Defence of the accused Esad Landzo support the motions of the

14   accused Delic and Mucic for separate trials? The Defence states that this is the

15   circumstantial evidence which may not exist a priori. In other words, the responsibility

16   here is anticipated by the very fact that the indictment is filed for the whole group, that is,

17   both for the persons in command and for the those subordinates.

18   The Defence furthermore believes that in the proceedings in which the possible

19   responsibility of a subordinate would be established first, or in the proceedings in which it

20   would have to be established whether there has been a crime, only after such proceedings

21   could one discuss the possible responsibility of a superior.

22   The Defence of the accused Esad Landzo is of that opinion, because it believes

23   that in a joint trial serious prejudice might result towards superior persons, that is,

24   especially the accused Zejnil Delic and that this would be unfair and that justice would be

25   impaired.

26   I am afraid that such a such prejudice has already resulted in the case of some of

27   the witnesses, namely, there are some statements of witnesses (and there are 22 of them)

28   which have been collected during investigation and have been submitted to the confirming

29   Judge.

30   As Ms. Residovic has already stated, it transpires from these statements that

31   only some of the witnesses even mention Mr. Delalic, but the Defence has been given

Page 34

1   subsequently 20 redacted statements which do not show when the statements were

2   collected. However, in view of the substance of these statements, it is evident that these

3   are statements obtained subsequently after the indictment was raised against Delalic,

4   Mucic, Delic and Landzo.

5   In other words, it is enough to see those statements in the light of the indictment

6   and the fact that, according to the allegations in the indictment, Mr. Delalic is charged as

7   the person in command, that this creates the prejudice among the witnesses, that is, the

8   witnesses are left with the impression that somebody needs to be responsible for the

9   alleged crimes.

10   The witnesses, of course, recognise immediately this person amongst the

11   accused or, rather, in the person of the accused. Even if that were not so, the statements of

12   the witnesses would be indicative of the responsibility of these persons. I believe that if

13   one is to establish the capacity of a superior, the only relevant thing may be written

14   documentation which can be submitted by the Defence counsel of the accused Delalic, and

15   also the statement of the accused Mucic would also be material in this regard.

16   The statements of witnesses are of a subjective nature. They may not be

17   reliable. They may not serve as reliable evidence about the responsibility of Mr. Delic as a

18   possible superior. I shall briefly indicate why are the witnesses prejudiced.

19   Mr. Delalic was an eminent personality in Konjic before the war as a successful

20   businessman and also during the war itself, because he left Austria, he left all the wealth

21   and all the benefits of the west and came to serve his fatherland. Witnesses who gave their

22   statements who were detainees are no civilians, as the indictment alleges, but, rather, rebels

23   who were captured when armed when trying to overthrow the lawful authorities. This fact

24   then results in a prejudice with regard to the accused Delalic; and more than prejudice,

25   more than bias, there is also the desire for vengeance, to have somebody pronounced

26   responsible among the superiors.

27   In other words, I find that the question of responsibility needs to be discussed

28   separately and that in a trial which might be joined, the superior, the persons in command,

29   would be confronted with the alleged crimes rather than their possible responsibility. A

30   separate trial with regard to Mr. Delalic should not include the introduction of evidence

31   concerning the crimes allegedly committed, and instead should simply hear the parties

Page 35

1   regarding the alleged responsibility. The written response indicates that the separate trial

2   can begin, if prior to that the responsibility of subordinates can be established for the

3   alleged crimes.

4   However, the Defence of the accused Delalic pointed out today that this issue

5   may also be established as a preliminary one in the sense of the rule that persons should be

6   tried without undue delay. In this regard, the Defence of the accused Esad Landzo

7   supports this view.

8   Furthermore, the Prosecutor in his response to the motions of the Defence for

9   the accused Delalic and Mucic and the motions submitted by the Defence of the accused

10   Landzo, points out that separate trials would entail the duplication of evidence or the dual

11   adduction of one and the same evidence which I think does not hold true. Furthermore, the

12   Prosecution also says that this would entail considerable expenses and that for reasons of

13   economy of the proceedings the joint trial would be called for.

14   However, I wonder whether principles of protecting the interests of justice are

15   more important than the principles of the economical proceedings. Which one is more

16   important? The procedural interests of the accused Esad Landzo for a separate trial as

17   emerging from the substantive procedural interests of the accused Delic and Mucic for

18   separate trials. In a separate trial Mr. Landzo would have the right to be tried without

19   undue delay, as evidence would be adduced which is material to establishing his possible

20   responsibility as a subordinate. In a joint trial evidence would also be produced which has

21   nothing to do with his position, with his status in the indictment. A joint trial would, in

22   the opinion of the Defence of the accused Landzo, look as a big trial, that is a mega trial,

23   and this would also jeopardise or prejudice his right to be tried without undue delay.

24   For all these reasons, the Defence believes that the motions for separate trials of

25   the accused Delalic and Mucic need to be supported, notably the accused Delalic. It is in

26   view of these interests of the accused, it also involves the interests of the accused Landzo

27   to have a separate trial. With this I would conclude. Thank you.

28   THE PRESIDING JUDGE: Ms McHenry?

29   MS McHENRY: Very briefly, your Honour, I would first like to point out that Mr. Landzo's

30   counsel who also thinks there should be separate trials but thinks his trial should be first, I

31   would point out that there has been no showing that the defendants would be prejudiced

Page 36

1   by delay, much less that there is any possibility of any kind of undue delay in this case.

2   In fact, the way to make sure that all defendants get a relatively quick trial is to try them

3   together.

4   I will again point out that there has been no claim or showing of prejudice, other

5   than of potentially the accused and Defence counsel having to sit through some evidence

6   that is not directly relevant to them. Given the large amount of duplicative evidence that

7   would be relevant to all defendants, we do not believe this is anything close to the kind of

8   serious prejudice envisioned in the Rules. Thank you.

9   THE PRESIDING JUDGE: Mr. Brackovic says there may be a desire to ----

10   MR. TAPUSKOVIC: Excuse me, if I can have a word.

11   THE PRESIDING JUDGE: Mr. Brackovic would say that if Mr. Landzo is tried with Mr.

12   Delalic that Mr. Delalic is a leader, a recognised person, that there may be a desire on the

13   part of triers of fact in law to find a leader guilty, and that this will spill over in a negative

14   way to his client, as I understand your argument. I suppose my response would be that

15   that is the kind of an argument that there may be a certain passion involved. I am firmly of

16   the belief that we Judges, that this Trial Chamber would free itself from that kind of

17   passion, would listen carefully to the facts and in no way make any findings of law or any

18   findings as to the guilt of any accused based upon the position that that accused occupies,

19   whether that accused is a leader or a guard. So I hear your argument, Mr. Brackovic, but I

20   want to assure you that that will not happen in this Trial Chamber. I wanted to ask you,

21   do you object to being tried with Mr. Delic? Does Mr. Landzo object to being tried with

22   Mr. Delic?

23   MR. BRACKOVIC: Mr. Landzo does not have anything against a joint trial with Mr. Delic,

24   since both are accused as alleged participants in the crimes cited in the indictment. But he

25   is against being tried jointly with Mr. Delalic and Mucic, especially Mr. Delalic because

26   that would create undue delay and he has a right to be tried without undue delay. He

27   believes that in a joint trial it would itself create undue delay. When I earlier addressed the

28   prejudice I had in mind prejudice in regard to the superior authorities, above all Mr.

29   Delalic, and I did not have in mind the prejudice against Mr. Landzo. I explained how these

30   prejudices could come about. I already said that such prejudices do exist with witnesses,

31   and there is fear that these prejudices could spill over to the Trial Chamber.

Page 37

1   The prejudice which exists with witnesses is based on Mr. Delalic as a person of

2   superior responsibility and his general knowledge of people of him. As he is cited in the

3   indictment as the person of superior responsibility, the witnesses are prejudiced in a sense

4   that if these crimes have happened somebody has to be responsible for them as a superior

5   person. Since Mr. Delalic has been put in a position of superiority that such prejudice has

6   been created with witnesses. It is enough to look at the statements of witnesses that have

7   been provided during the investigation and the statements that have been provided later.

8   It is obvious that the detainees could not have access to information that is top

9   military secret. It is absurd that detainees would know facts about appointments of a

10   camp, appointments in a camp like a commander of a camp. Such documents are strictly

11   guarded and confidential military documents. In other words, the witnesses' statements

12   then are reduced to speculation. Since Mr. Delalic was a very well-known citizen and a

13   great patriot of Bosnia-Herzegovina, it is clear that not only have the prejudices been

14   established, but there is a desire for revenge. People who rose against the government are

15   not civilians, but they are armed rebels and there is relevant legal documentation that the

16   Defence is going to present in this Court.

17   THE PRESIDING JUDGE: Mr. Brackovic, your position would be that the trial of Mr.

18   Landzo would go forward first. You do not object to Mr. Delic being tried with Mr.

19   Landzo, and Mr. Karabdic does not object to Mr. Delic being tried with Mr. Landzo, but

20   both of you would say that your trial should begin first, am I correct?

21   MR. BRACKOVIC: Yes, your Honour, that is what I said and that is my position. The

22   position of the Defence of Mr. Landzo is for a separate trial, Delic Hasim and Esad

23   Landzo be tried separately, to establish whether these crimes have been committed and

24   potential responsibility of subordinates, that is Mr. Landzo and Mr. Delic as the alleged

25   direct participants in the crime. That also involves the prejudicial issue, if there is no crime

26   there is no responsibility of the superior person.

27   The circumstances where there is a superior person, it does not a priori involve

28   his responsibility that they knew, and I mean a superior person there, or should have

29   known about what potentially happened. In that procedure we should establish whether

30   Mr. Delalic has the responsibility of a superior person at all and, if he did, in that event we

31   could argue about his potential responsibility.

Page 38

1   THE PRESIDING JUDGE: Ms Residovic, is it your position that the trial against Mr.

2   Delalic should go first?

3   MS RESIDOVIC: Your Honours, we believe that the conditions exist that the trial of Mr.

4   Delalic be the first one, because at some stage of the trial if the Chamber can resolve some

5   issues, the knowledge establishes that the crimes have been committed, the trial can be

6   joined at any stage, but we believe that the trials could start simultaneously in front of this

7   Trial Chamber. This Trial Chamber is now trying Tadic and also it is trying this case. The

8   organisation of the trial can be such that it could be tried simultaneously on different days

9   which would cut down the cost of the trials and witnesses who could potentially be the

10   same for all trials could be called at the same time.

11   Again I reiterate that there are very few witnesses who are victims and

12   witnesses, and the minimum they would suffer should not be put above the interests of

13   justice and the interests of my client.

14   Just to add another thing, I have a different proposal which I have not

15   mentioned. We would accept that the Delalic trial would be after, that Mr. Delalic be tried

16   after the ones who are indicted for the direct participation have been tried. That is my

17   motion for provisional release.

18   THE PRESIDING JUDGE: Mr. Tapuskovic, what is your position regarding the order of the

19   trials? is it your position that Mr. Mucic should be tried first?

20   MR. TAPUSKOVIC: As his counsel, I can say that he does not care whether he is tried first

21   or second or third. What he cares about is that the trial start as soon as possible, because

22   he is convinced that all the issues that are involved in his case will be resolved. I asked to

23   speak just now not because -- I do not know if I am heard by the interpreter.

24   THE PRESIDING JUDGE: Yes, we are hearing you fine. You may proceed.

25   MR. TAPUSKOVIC: I asked to address the Chamber a moment ago so that I would give my

26   position after I have heard my colleagues speak, primarily my colleague who is Mr.

27   Delalic's counsel. I am not in a opposition to do that. My client and Mr. Delalic's cases

28   are in no collision and, as I said already, in March Mr. Delalic had no responsibility over

29   my client including the orders given. With Mr. Mucic it is in his own words, and this is

30   why I insisted on everything that I did earlier, that he was Camp Commander starting on

31   27th July and on. With Mr. Delalic the issue is whether he had responsibility over what

Page 39

1   was going on in the camp. So between the two of them there is no collision. I think that in

2   that regard the separate trial could make some sense. In contact with the Prosecution we

3   could eliminate in a preliminary, in a pretrial procedure, so that when the trial started we

4   would have a much easier situation. Essentially, Mr. Mucic cannot wait for the trial to

5   start and has nothing against testimonies of any witnesses because his case will be made

6   crystal clear and is going to be resolved.

7   THE PRESIDING JUDGE: Ms McHenry?

8   MS McHENRY: Can I respond for two sentences about the sort of logistical difficulties. As I

9   understand it now Mr. Landzo and Mr. Delic do not object to being tried together,

10   although Mr. Delic is charged with both direct participation and superior responsibility, as

11   are the other two defendants. Also we would be having the issues of superior

12   responsibility tried two, three or four times depending on ----

13   THE PRESIDING JUDGE: Three times.

14   MS McHENRY: Three times.

15   THE PRESIDING JUDGE: Three times I guess if the motion were granted.

16   MS McHENRY: Three times. Also with respect to the idea that there would not be a problem

17   if Mr. Delalic's trial was separated and last, ignores the fact that in addition to proving that

18   he was a superior, and again there will be duplicative evidence about that, the issues about

19   whether or not he knew or should have known and or failed to prevent or punish, those

20   issues would come out from also the witnesses who would be in the most part in the trial

21   against Mr. Delic, Mr. Landzo and or Mr. Mucic. Thank you.

22   THE PRESIDING JUDGE: Ms Residovic?

23   MS RESIDOVIC: I think that I speak pretty clearly and that I have been understood by the

24   Chamber. In Mr. Delalic's case it is not an issue whether he knew or should have known.

25   This is an error in persona. It is whether he is the person of authority at all. When we

26   resolve that then we will come to the issue of whether he knew or should have known. So

27   this issue is not related to any other issue. Here the issue is whether somebody was by

28   error and the lack of evidence in that regard in the position of the indicted. I could not be

29   counsel here until it was proven that I was legal counsel. I do not know if that is a good

30   example, and that is something that relates to my defendant.

Page 40

1   So I would like to argue that this fact was established. This fact has not been

2   established.

3   THE PRESIDING JUDGE: I understand your position. I think we all understand -- yes, go

4   ahead, Mr. Karabdic. Do you wish to speak? Yes, sir.

5   MR. KARABDIC: In regard to the Prosecutor's statement I want to reiterate what I have said.

6   I agree that Mr. Delic be tried jointly with Mr. Landzo, only as regards the parts of the

7   indictment which identify him as a participant, and as a person in a position of authority I

8   do not agree. I contend that that should be investigated separately in order to determine

9   whether there is a position that creates responsibility as a superior person. I think that

10   will be resolved by that alone. Even if that would be established, which I do not believe,

11   then there are other ways to determine the responsibility.

12   THE PRESIDING JUDGE: I understand your argument, Ms. Residovic. I now hear Mr.

13   Karabdic also say basically the same thing, that there should be a decision made as to

14   whether or not his client is in a superior position before we even get to the question of

15   knew or should have known. If we are to grant a motion for separate trials what we are

16   focusing on is trying to avoid confusion and delay, rather than to bring about confusion and

17   delay. I certainly understand your position.

18   One matter I would like to address with respect to Mr. Mucic, Mr. Tapuskovic,

19   you have recently been appointed to represent Mr. Mucic. We have a rule that governs

20   the time for the filing of preliminary motions, and that time expired on June 10th. You,

21   though, were appointed, as I understand it, on July 9th. I do not know whether you plan

22   on filing any preliminary motions, but if you wish to file any preliminary motions, we

23   wish to give you a month's time. That would be an additional month from the time you

24   were appointed, which would give you until August 9th.

25   We are going to set a hearing on August 20th on the matter that we had

26   considered in Delalic, but what I want to tell you, Mr. Tapuskovic, is that you may have

27   until August 9th to file any preliminary motions should you wish to do so. You have not

28   filed any thus far since your appointment, but we are giving you that additional time.

29   Mr. Karabdic, you are aware, I presume, that your deadline for filing

30   preliminary motions is August 17th. I want to remind you of that so that if you wish to

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1   file any additional preliminary motions they should be on file by then. Do you have

2   something to say, Mr. Tapuskovic?

3   MR. TAPUSKOVIC: Yes, I would like to say something about this, to make a statement

4   concerning the filing of a preliminary motion.

5   THE PRESIDING JUDGE: Yes, sir.

6   MR. TAPUSKOVIC: If I may do so. I most probably will not insist much on these

7   preliminary motions. The indictment is here, such as it is, and I believe that I can handle as

8   it stands. I want to use my rights, the rights granted to me by the Rules, and offer the

9   Chamber, when we have solved the matter we are discussing today, to offer the Court

10   what Mucic can offer as new evidence for his statement in this court. As for the rest of

11   the trial, his only interest, and as his counsel I have supported it, the interest of the

12   accused is a good defence, but when prison and detention are concerned, then a speedy

13   trial, a trial without delay. I will accept, therefore, all the decisions of this Chamber and I

14   would only call for a speedy trial without delay.

15   THE PRESIDING JUDGE: Am I correct that you do not express a preference for going first?

16   You said that is not your demand.

17   MR. TAPUSKOVIC: No, your Honour, I cannot determine this. I would only call for a trial

18   as soon as possible, but this will of course depend on the possibilities of the Chamber. I

19   cannot decide on that, but I will be prepared for any date, for any term set by this Court

20   by the Chamber.

21   THE PRESIDING JUDGE: Mr. Tapuskovic I think Mr. Mucic wishes to have a word with

22   you. If you wish to step back you may have a word and then we will conclude this

23   hearing in five minutes. Yes, sir.

24   MR. TAPUSKOVIC: I would just like to tell the Court what my client has told me just now.

25   After consultation with him tomorrow in the prison we will see whether we can file a

26   motion. We will use this time given granted by the your Honour.

27   THE PRESIDING JUDGE: Very good. As I indicated, you would have until August 9th. Ms

28   McHenry, if any preliminary motions are filed then you may have a week from that

29   period. August 16th would be your deadline for filing any responses should Mr. Mucic

30   wish to file any preliminary motions by August 9th. OK. You may have until 16th. Is

31   that acceptable?

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1   MS McHENRY: Your Honour, that is fine. We will do our best to respond. I have to say

2   that given I do not know how many motions he will file -- I believe Mr. Tapuskovic's

3   working language is French and there is some limited ability for us to speak French, both

4   Mr. Ostberg and I are not fluent and we will do our best, but I may be asking for an

5   extension.

6   THE PRESIDING JUDGE: We will see what we can do. We will see what is filed first and

7   then see if you need additional time if so. File a motion and then we will look at it. We

8   had indicated today we would set a date for the hearing on the defects of the form of the

9   indictment that had been filed by Ms. Residovic on behalf Mr. Delalic. That will be set for

10   August 20th at 10 a.m., Ms. Residovic.

11   Are there additional matters that we need to consider regarding this motion?

12   Nothing. Fine. The Court is adjourned.

13   (1.10 p.m.)

14   (The hearing adjourned).