Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 10th March 1997

2 (10.05 am)

3 THE REGISTRAR: Case number IT-96-21-T. The case of the

4 Prosecutor against Zejnil Delalic, Zdravko Mucic, Hazim

5 Delic and Esad Landzo.

6 JUDGE KARIBI WHYTE: Are all the accused persons present?

7 MS McMURREY: The defendant Landzo is present, your Honour.

8 MS RESIDOVIC (in interpretation): The defendant Zejnil

9 Delalic is present.

10 MR KARABDIC (in interpretation): Hazim Delic is present.

11 MR TAPUSKOVIC (in interpretation): The defendant Zdravko

12 Mucic is present.

13 JUDGE KARIBI WHYTE: Thank you very much.

14 Last Friday, before the close of the -- in fact,

15 shortly after, I would say, the close of the working

16 day, we received a few applications, one jointly by all

17 defendants' counsel, asking for certain procedures to be

18 adopted. Now specifically I mention the joint

19 application to adopt all motions made by each of them,

20 except as otherwise indicated before the Trial Chamber.

21 Actually, I think this is a fairly difficult thing

22 to say, because, although the reasons adduced for

23 adopting these motions are splendid and intended to

24 minimise the wastage of time, and to make things easier

25 for everyone, it is a fairly difficult thing to ask a

Page 2

1 Trial Chamber to have a blanket approval of motions not

2 already before it.

3 I think it still would not make a lot of

4 difference if, on each occasion any of the defence

5 counsel brought a motion, each of the other counsel is

6 asked whether he adopted it or not, and, if he did not

7 adopt it, that will be the position.

8 Technically, I think it is not in the interests of

9 proper procedure to grant a blanket approval of motions

10 not already before the Trial Chamber.

11 It would appear it is a very easy thing, because

12 it was a unanimous decision of the defence counsel, but

13 that notwithstanding, I do not think this Trial Chamber

14 should adopt that procedure. It is fairly irregular and

15 perhaps might commit the Trial Chamber to accept things

16 which otherwise would not have been the ideal situation.

17 The other matter which perhaps one needs mention

18 again before I call on the prosecution for its opening

19 speech, if it wants to make any, is the question of the

20 Landzo discovery motion. I am sure the prosecution has

21 been served with that motion.


23 JUDGE KARIBI WHYTE: And will be able to react to it, so

24 that we can take that.

25 MR OSTBERG: Do you want us to answer to that motion now,

Page 3

1 your Honour?

2 JUDGE KARIBI WHYTE: Yes, that is what I mean, because the

3 motion is asking that you should give the names and

4 location and places of --

5 MR OSTBERG: Yes, your Honour. We are now dealing with a

6 discovery motion, the discovery motion with the

7 addresses.


9 MR OSTBERG: Mrs McHenry, at my side, has been dealing with

10 that question. I will ask her to argue and answer to

11 it, your Honour.

12 JUDGE KARIBI WHYTE: Will counsel to Landzo move the

13 motion?

14 MS McMURREY: Your Honour, if I may respond to this, yes, we

15 did file the motion to compel the prosecution to

16 identify the witnesses and give us the names and

17 locations. I do not have the record of the prior status

18 conferences in front of me, but at the prior status

19 conference, I believe that the Tribunal had ordered that

20 these witnesses' locations be given to us, unless they

21 filed for protection.

22 Now, it has been clear at that the prosecution has

23 filed for protection for witnesses B, C, D, E and F,

24 but, as far as the other witnesses that they have not

25 filed for protection of, I believe that the Rules

Page 4

1 require that they give us the location. Mr Ostberg has

2 informed us that he has made an attempt to talk to these

3 witnesses and that the witnesses have said that they do

4 not wish to talk to us, but, under the Rules of

5 Discovery, it is not the prosecution's position to be

6 the go-between between the defence and the witnesses,

7 that we should, if they are not under the protection of

8 this tribunal, have a right to go and confront those

9 witnesses ourselves and have the same opportunity to

10 visit with them out of these surroundings as the

11 prosecution has had, in a more relaxed atmosphere, and

12 that is the basis of our request, that, according to the

13 status reports before, according to the rulings of this

14 tribunal, the witnesses that they have not requested

15 protection for should be given to us, their names and

16 locations, so that, before the prosecution calls them to

17 the stand, we have an opportunity to discuss with them

18 the same kind of things that the prosecution has

19 discussed with them, outside the presence and outside of

20 the protection of these walls.

21 JUDGE KARIBI WHYTE: Can we have your reaction, please?

22 MS McHENRY: Thank you, your Honour. Teresa McHenry for the

23 Office of the Prosecution.

24 Your Honour, the defence of Esad Landzo has had

25 the names of the witnesses for a significant length of

Page 5

1 time. What they are now seeking is the current home

2 addresses of the witnesses so that they may attempt to

3 contact the witnesses to ask about pre-trial interviews.

4 There is no Order of the Court at a status

5 hearing, or at any other time directing us to provide

6 those addresses, or to seek a protective order, if we

7 did not.

8 After we received the request from the defence, we

9 took it upon ourselves to contact all the witnesses and

10 ask them whether or not they wish to provide their

11 addresses and whether they wish to provide a pre-trial

12 interview.

13 In speaking with the witnesses, the prosecution

14 did not take a position on the matter and did not

15 influence the witnesses one way or the other. Without

16 exception, the witnesses, or their representatives, have

17 explicitly directed us not to reveal their home

18 addresses, and they have also reported, without

19 exception, that they do not wish to have a pre-trial

20 interview with the defence.

21 Indeed, even the asking of the questions

22 frightened many of the witnesses. The prosecution has

23 now done more than what is required. There is no basis

24 under the Rules, under the Statute, under the accused's

25 right to a fair trial, or under any Order of this Court

Page 6

1 which would require the prosecution to provide home

2 addresses of witnesses, or seek protective orders when

3 it declines to do so.

4 The Rules, in fact, quite sensibly do not

5 contemplate the provision of home addresses to the

6 defence. The Rules explicitly require the prosecution

7 only to provide the names of the witnesses, while under

8 Rule 67, the defence, on the other hand, is required to

9 provide both names and addresses.

10 Similarly, most national systems do not require

11 the provision of home addresses, and there is no reason

12 to think that there is anything that would indicate that

13 the addresses should be presented in this case,

14 especially when the witnesses have explicitly requested

15 that they do not wish to have their addresses provided,

16 nor do they wish to provide pre-trial interviews. The

17 defence will have the right to cross-examine the

18 witnesses at trial, and they are entitled to nothing

19 more.

20 It is the witness' right to choose whether or not

21 to reveal their addresses. To reveal their home

22 addresses against their wishes could endanger the

23 well-being of the witnesses, including jeopardising

24 their right to privacy and even jeopardising the

25 witnesses's safety and that of their family, and the

Page 7

1 prosecution could no do this. In all frankness, your

2 Honour, to provide witness addresses, where the witness

3 has requested us not to, would ensure that there is no

4 co-operation with the Tribunal in this case, or in any

5 other case. Indeed, it is a basic right of anyone, be

6 it your Honour's, be it we with the prosecution, even

7 the defence attorneys, not to be forced to reveal their

8 home addresses.

9 To expect the witnesses, who have all been

10 severely victimised by these accused, to reveal their

11 home addresses to these accused, or their attorneys, is

12 frankly unthinkable.

13 MS McMURREY: Your Honour, we object at this point to the

14 reference of Miss McHenry that these accused have

15 victimised all these witnesses. That has not been

16 proven in this court of law and she should not be

17 allowed to pre-judge them at this point.

18 JUDGE KARIBI WHYTE: Thank you, I think your objection is

19 sustained.

20 JUDGE JAN: I would like to draw your attention to

21 Rule 69C. It talks about identity of witnesses, the

22 address also, or not.

23 MS McHENRY: No, your Honour, we would explicitly state that

24 it does not include the address.

25 JUDGE JAN: "Identity" would not include the address?

Page 8

1 MS McHENRY: That is correct, your Honour. We would note,

2 for instance, in Rule 67 the defence is specifically

3 asked to provide both the identity --

4 JUDGE JAN: If you look at Rule 67 it talks about names and

5 then also addresses. It does not talk about identity.

6 This word has been used in Rule 69(c). Rule 67 talks

7 about names and then addresses, but here Rule 69(c) uses

8 the word "identity". Now, would the identity be much

9 larger than merely name, or include address also?

10 MS McHENRY: Your Honour, we would state that there is

11 nothing about the witness' current address which would

12 be included under their identity. It is possible that

13 you could say their birth date, or where they are from,

14 some of those things arguably might, but I do not

15 believe that there is any way that one could argue that

16 the witness' home address could be considered part of

17 their identity.

18 Thank you, your Honours.

19 MS McMURREY: Your Honour, if I might briefly respond, what

20 has happened is the defence of Esad Landzo has provided

21 to the prosecution names and addresses of witnesses that

22 we intend to call pursuant to alibi or any defences that

23 we have offered, and, as such, the prosecution has sent

24 investigators out there and interviewed these people in

25 their home environment.

Page 9

1 Now, what this does, it gives them the opportunity

2 to investigate motives for fabrication, what their

3 position is in their community, all the surrounding

4 circumstances around this witness, because we have not

5 been afforded the same possibility for investigation.

6 The defence case is highly prejudiced in that we cannot

7 go talk to the neighbours, "Is this person known to be a

8 liar?", talk to the people surrounding the

9 circumstances. We have no information when that witness

10 takes this stand to decide whether he is a person who

11 normally tells the truth or not, other than what the

12 prosecution's investigator has said. So we are severely

13 prejudiced in that they now have had the opportunity to

14 interview our witnesses and we have not been afforded

15 the same right. Thank you, your Honour.

16 MR TAPUSKOVIC (in interpretation): Your Honour, I am

17 Tapuskovic from Belgrade. What we heard from our

18 colleague is quite correct. Therefore, I should like to

19 second her position, because, as defence counsel already

20 in January, or even before, in August, I submitted a

21 certain number of names of witnesses who will be called

22 to testify in the defence of Zdravko Mucic, and I

23 counted on the possibility of the prosecution contacting

24 them. For me, this was nothing that I would object to,

25 and, therefore, I think this is another point at which

Page 10

1 the defence is in an unequal position. Thank you.

2 MS RESIDOVIC (in interpretation): Your Honour, may I too

3 support what our colleagues have said, and add by saying

4 that, by disclosure of the addresses of the defendants

5 too, Rule 21 of the Statute is being violated. I think

6 that, under the excuse that the defence may exert

7 certain pressure on the witnesses, one might say that

8 someone else is pressuring those witnesses, and that

9 possibility cannot be excluded. That is why I think, in

10 the interests of a fair trial, the prosecution should be

11 required to submit the addresses of the witnesses to us.

12 MR KARABDIC (in interpretation): As defence counsel of

13 defendant Delic, I would like to support the views of

14 the previous speakers and especially what Madam

15 Residovic has just said. I believe that, by acting in

16 this way, the prosecution is jeopardising the basic

17 rights of the counsel of the defendants to be able to

18 question the witnesses and collect data about them, the

19 more so as the witnesses are in other states in other

20 regions, and the prosecution and others can reach them

21 more easily, which we are unable to do. We cannot talk

22 to them or contact them or collect the basic information

23 about them.

24 MR BRACKOVIC (in interpretation): Your Honours, as defence

25 counsel of Esad Landzo, I should like to ask the

Page 11

1 prosecution, who are the witnesses afraid of? Is it us,

2 the counsels, and an interview with the counsels, or

3 their investigating Judges? Not one of those witnesses

4 is living on the territory of the Federation of

5 Bosnia-Herzegovina. They are living either in the

6 territory of the Republika Srpska in the Federal

7 Republic of Yugoslavia, or in third countries.

8 Therefore, this possible fear that the prosecution is

9 referring to is imaginary and non-existent, in fact. We

10 believe for the defence to be in an equitable position,

11 it should have access to the witnesses and be able to

12 have pre-trial interviews with them.

13 All witnesses of the defence are accessible to the

14 prosecution and the prosecution has talked to all the

15 witnesses that it was interested in talking to. Thank

16 you.

17 JUDGE KARIBI WHYTE: Please, can I ask Miss McHenry, is it

18 one of the arguments that the witnesses have refused

19 that you should disclose their addresses or their

20 identities to anyone else?

21 MS McHENRY: Your Honour, it is one of our arguments. Our

22 first argument is that there is no requirement

23 whatsoever that we do so. In fact, though, in an effort

24 to assist the defence and ensure that we did everything

25 possible, we contacted the witnesses and asked whether

Page 12

1 or not they objected to us providing their addresses to

2 the defence, and it is the case, and, if a witness

3 agrees that we may turn over the address, we are happy

4 to do so. Thus far, every witness we have contacted has

5 explicitly stated "Do not reveal my address to the

6 defence".

7 JUDGE KARIBI WHYTE: Thank you very much.

8 MR BRACKOVIC (in interpretation): Your Honour, before you

9 rule on this matter, I should like to draw attention to

10 one further point. We would like to have this pre-trial

11 interview before each of the witnesses were to appear

12 before the Trial Chamber, the defence would like to have

13 a pre-trial interview with them, and, in direct contact

14 with the witnesses, we could see whether they wished to

15 talk to defence counsel or not, prior to the actual

16 trial proceedings, therefore allowing the defence to

17 verify the position of the witnesses. So I do not see

18 why witnesses could not have pre-trial interviews

19 immediately before making their statements in the

20 court. Thank you.

21 JUDGE JAN: Are you not asking for a right which is not

22 available to you under the Rules? Are you not asking

23 for a right which is not available to you under the

24 Rules, that you want to interview the prosecution

25 witnesses, whether they want to talk to you?

Page 13

1 MS McMURREY: Your Honour, if I might respond, I do not know

2 that it is so important that we interview the witnesses

3 right here in The Hague before they testify as know

4 their identity and location so that we can investigate

5 them as a person, investigate the circumstances

6 surrounding their lives so that, when they come into

7 this courtroom to testify, we know something about them,

8 other than what the prosecution has told us. It is very

9 important for us to be able to have the same

10 investigative right that the prosecution has had, and

11 that they can go out to their location, they can

12 interview the people that these people work with every

13 single day, and they can find out something about their

14 personal lives, something other than what the

15 prosecution has provided us with, and that is the

16 purpose of needing their identities, more than their

17 actual testimony and an interview with them. Thank

18 you.

19 JUDGE KARIBI WHYTE: Actually, it seems to me what the

20 prosecution is protecting is the matter of

21 confidentiality between the prosecution lawyers and

22 their client who is a witness, and it is somewhat of a

23 strict matter in legal proceedings. The confidentiality

24 of this nature ought to be respected.

25 MS McMURREY: Your Honour, may I respond?

Page 14

1 JUDGE KARIBI WHYTE: Yes, you can.

2 MS McMURREY: The witnesses that the prosecution has sought

3 protection for we certainly are not going to object if

4 there is a legitimate reason for them to have

5 protection, but that leaves about 35 or 40 other

6 witnesses that they have not sought protection for, and

7 we are asking that it is very important for us to find

8 out the location of these witnesses so that we can send

9 our investigators to have the same advantage that the

10 prosecution investigators have taken advantage of.

11 Thank you.

12 JUDGE KARIBI WHYTE: We have had enough of this argument.

13 We will make our rulings later. Now we shall proceed to

14 the opening speeches of the prosecuting counsel.

15 MS McMURREY: Your Honour, if I may, I believe we have a

16 couple of other motions before the Court before we begin

17 opening statement. One is the joint motion in limine,

18 and the other one would be that we have -- we would like

19 to invoke the rule before the trial begins, the

20 Rule 90(d), I believe, which says that the other

21 witnesses should not be available in the trial chambers,

22 or in the audience, whenever other witnesses are

23 testifying. It is up to the discretion of the Court

24 when you want to hear this matter, of course, but we do

25 have a joint motion in limine that needs to be ruled

Page 15

1 upon before evidence is given.

2 JUDGE KARIBI WHYTE: Now, please, for the last suggestion

3 you have made about witnesses being out of court and out

4 of hearing, it is a normal tradition of every Tribunal,

5 of every Trial Chamber, and I think that announcement

6 normally would be made when it becomes necessary. What

7 are joint defences, joint motions, I stated it very

8 clearly, that it is a little irregular for one to

9 pre-judge what would be coming up in the future.

10 Whenever the motion is filed, it behoves every

11 defendant's counsel who is interested in it either to

12 associate himself with that motion and adopt it, or

13 state his objection to going it alone without that

14 motion. So you do not have to come by such a joint

15 decision. It is a very excellent thing, you have done

16 that, I accept in the right lines, but definitely it is

17 unnecessary in the interests of justice to gag future

18 motions by adopting a motion in a blanket way meeting

19 everything that would come in the future.

20 MS McMURREY: Yes, your Honour, we agree with you. I

21 believe you are referring to the motion to adopt the

22 other objections of the other defendants, but we have

23 another motion also, which is a motion in limine

24 regarding appropriate terms to be used in trial, and we

25 have objections to terms used by the prosecution that

Page 16

1 are highly prejudicial under Rule 70(f) that need to be

2 resolved before I believe Mr Ostberg begins his opening

3 statement, and before the reading of the indictment.

4 JUDGE KARIBI WHYTE: We do not read the indictment again. I

5 think they have pleaded to it. Apart from that, I

6 already appreciate your approach, because much of what

7 you are saying I think need not even come before the

8 Trial Chamber. If somebody is using an inappropriate

9 terminology, you can object to it when it is used, and

10 the Trial Chamber will take cognisance of that

11 objection, and especially when you mention terminologies

12 which are not peculiar, I do not see why anybody should

13 come by way of motion and make it a decision of the

14 Trial Chamber, because you do not want a particular

15 expression to be used. It does not follow.

16 MS McMURREY: Just so that I am clear, since this is all new

17 to me, just whenever these terms are used that we object

18 to, we object and the Court will rule on it?

19 JUDGE KARIBI WHYTE: Yes, you would have indicated to the

20 Prosecutor, or whoever is using that terminology, it is

21 inappropriate, and perhaps you would show reason, but it

22 should not come by way of motion at all.

23 MS McMURREY: Thank you very much, your Honours.

24 MS RESIDOVIC (in interpretation): Your Honour, before

25 giving the floor to the prosecution, allow me, in

Page 17

1 connection with this motion of the defence, to present

2 my view. I think that the Court should take a position

3 on this motion, even though the indictment will not be

4 read, because the indictment is a component part of this

5 trial, it begins with it and it will serve as a basis

6 for presenting to the public everything that is

7 happening in this Trial Chamber.

8 I must say that the decision on this motion is of

9 twofold significance: first, because, before the Court,

10 we have for the first time members of the legal Armed

11 Forces of Bosnia-Herzegovina, an independent and

12 internationally recognised country with legal bodies and

13 legitimate names, the use of terms such as "Muslim

14 forces", "Muslim courts", the commander of the Muslim

15 forces is absolutely legally unacceptable, and such

16 terms cannot be used in such a lofty institution as

17 this. On behalf of my defendant, I must say that he was

18 never a member of the Muslim forces, nor was he a

19 commander of the Muslim forces.

20 On the other hand, Bosnia and Herzegovina is an

21 independent and sovereign country, with its own

22 institutions, and it would be correct in this court, as

23 is the case in the United Nations, to use those terms

24 which the bodies of Bosnia and Herzegovina actually

25 have, and I think that such a decision should be taken

Page 18

1 straightaway, and that the prosecution should be asked

2 to correct those terms and to submit such a corrected

3 version of the indictment to this Court.

4 Allow me one further point. I think that these

5 are questions contributing to a fair trial, which is in

6 the interests of the Court and of us, as the defence

7 counsel. From a part of the mass media this morning I

8 learnt of a sensationalist invitation to this trial,

9 whereby this case is being linked to the trials in

10 Nuremberg and Tokyo. I wish to express my deep

11 disagreement with such announcements regarding this

12 case. By presenting numerous evidence, we will seek to

13 prove the innocence of our defendants. We expect a fair

14 trial and such an inappropriate announcement of this

15 case will not contribute to it.

16 I should like also to say that, as a member of the

17 defence team of my defendant, Delalic, I will oppose any

18 attempts which would infringe upon his rights as

19 stipulated by Article 21 of the Statute, and any other

20 tendencies which may undermine the fairness of this

21 trial. I felt it my duty to make this statement before

22 the beginning of the proceedings. Thank you.

23 JUDGE KARIBI WHYTE: Thank you very much, Mrs Residovic. We

24 appreciate your contribution, and, as I indicated from

25 the beginning, it is always appropriate for counsel to

Page 19

1 point out inaccuracies or poor representation of facts

2 or poor misdescriptions of situations to the Trial

3 Chamber for correction, and it is not a thing which can

4 be done once one has tried the whole trial. It can be

5 done as it arises and depending on the situation which

6 confronts you.

7 I do not think the Trial Chamber has any

8 responsibility, whatever adverse publicity you might

9 have read. It is not our duty, except it affects the

10 trial as a whole, to issue any corrections, and I think

11 you should not mind so much of what you have read or

12 heard, but do your best in the interests of your client

13 for the purposes of the justice of the case before the

14 Trial Chamber. We assure you the best from now, and

15 from the beginning, as you have been very familiar

16 with. The Trial Chamber has cooperated with every

17 aspect of this case, both with the prosecution and

18 defence, and there is no reason why you should have any

19 fears from whatever you have heard elsewhere.

20 MS McMURREY: Your Honour, I just wanted to state that the

21 defence of Esad Landzo would wish to adopt the arguments

22 of Zejnil Delalic at this point also. Thank you.

23 JUDGE KARIBI WHYTE: Actually, I have already indicated the

24 view the Trial Chamber takes. It is not necessary for

25 us to rule on such a motion I say once as our decision.

Page 20

1 Perhaps you have might have other inappropriate

2 expressions which might come up. When they come up, the

3 Prosecutor will also take heed and correct their

4 expressions, as the case may be.

5 Do you still have anything remaining?

6 MS McMURREY: One more thing. There is a terminology which

7 I think has been inappropriately used by the

8 prosecution, but I will reserve that until the time it

9 is brought before this tribunal. Thank you.

10 JUDGE KARIBI WHYTE: Can we hear the prosecution?

11 Opening statement by MR OSTBERG

12 MR OSTBERG: Thank you, your Honour. May I start by

13 introducing the bench of the prosecution for you, your

14 Honours? I am Eric Ostberg. You have already heard my

15 learned friend, Mrs Teresa McHenry. On my side, on the

16 other hand, I have Mr Giuliano Turone, and we have also

17 with us our case manager and legal assistant, Miss Ellis

18 van Dusschoten.

19 The prosecution brings today to the Trial Chamber

20 a case of violation of the laws or customs of war and

21 grave breaches of the Geneva Conventions of 1949

22 perpetrated by four individual persons, Zejnil Delalic,

23 Zdravko Mucic, Hazim Delic and Esad Landzo.

24 The crimes are alleged to have been committed in

25 connection with the Celebici camp in the Celebici

Page 21

1 village in the municipality of Konjic in Central Bosnia,

2 set up in May 1992 to detain persons of Serbian

3 ethnicity from villages surrounding the town of Konjic,

4 captured in the conflict that erupted between Serbs, on

5 one hand, and Bosnian Muslims and Bosnian Croats on the

6 other in the spring of 1992.

7 MS RESIDOVIC (in interpretation): Objection. I have an

8 objection.

9 MR OSTBERG: I would be very grateful if the defence counsel

10 would reserve their objections until I have finished my

11 presentation. The case has been referred to in media --

12 MR BRACKOVIC (in interpretation): The defence proposes that

13 a decision be taken immediately, because a moment ago,

14 your Honour, you said that the ruling would be made when

15 the problem arises. The problem has arisen, and we

16 would like to ask the Court to rule. The prosecution is

17 using inappropriate terminology, contrary to the

18 terminology accepted by the United Nations.

19 According to that terminology, there are no forces

20 of Bosnian Muslims. There are the legal forces of

21 Bosnia-Herzegovina, which were at that time called

22 "territorial defence" and later were transformed into

23 an army of Bosnia-Herzegovina. So the prosecution is

24 using a terminology which is, for us, malicious and

25 offensive, and it is contrary to the actual state of

Page 22

1 affairs at that time.

2 MR OSTBERG: Your Honour, I am trying to use, in this

3 opening statement, terms and descriptions that will

4 certainly be objected to, but I relate them to reality.

5 It is impossible to go into formal names and formal

6 things in this informal war, in these uncertain times,

7 and I ask your Honour to permit me to make my statement,

8 and then, after I have done that, I will be open to any

9 objections, and even able maybe to correct some, if we

10 find it necessary, but what we do, we are trying to

11 describe the reality to this court, and for that purpose

12 I have to use terms pertaining to reality.

13 If I may now proceed?

14 JUDGE KARIBI WHYTE: I think you have to consider two sides

15 of the matter. This is an opening statement. The

16 opening statement technically is not very much part of

17 the trial itself. It merely foreshadows what is coming

18 up. I agree there might be statements you would object

19 to in an opening statement, and I think the prosecution

20 also, having taken note of your objections, might be

21 able to adjust accordingly. I think you will try and

22 adjust accordingly, knowing the type of objections which

23 are being raised of certain descriptions, which

24 technically might not be as accurate as you would like

25 to have it.

Page 23

1 MS RESIDOVIC (in interpretation): Please, your Honour, just

2 one sentence?

3 MR OSTBERG: I did not quite hear, Mrs Residovic.

4 MS RESIDOVIC (in interpretation): Your Honour, by the UN

5 Resolution 827 of May 25th 1993, a decision was taken on

6 the formation of this court, and in this resolution, and

7 in all others of the United Nations, Bosnia and

8 Herzegovina is established as a sovereign and

9 independent republic.

10 In the report submitted to the Security Council of

11 the General Assembly by Mr Bassiouni's commission, a

12 single distinction is made between the legal bodies of

13 authority and the legal Armed Forces of the Republic of

14 Bosnia-Herzegovina, and all other paramilitary

15 organisations. This is a tribunal which must respect

16 lawfulness and legitimacy. There are no strange wars or

17 strange events. An aggression occurred against that

18 independent country, and I appeal to you as

19 functionaries of this court that the accurate

20 terminology should be used on the basis of the documents

21 of the United Nations and this tribunal.

22 JUDGE KARIBI WHYTE: Thank you very much. I think we have

23 heard enough on this, please. Let the prosecution

24 continue. Please, we have had enough. There is no need

25 for it.

Page 24

1 MR OSTBERG: I go on, and I will not start from the

2 beginning again. I will now say that this case, I will

3 repeat that it is against four individual persons

4 formerly named by me, this case has been referred to in

5 the media and elsewhere as "the Muslim case". This is

6 an unfortunate description. The religion or the

7 ethnicity of the perpetrators is of no consequence and

8 one of the indictees, Mucic, is not a Muslim.

9 The Statute of this Tribunal does not recognise

10 any other subjects to this jurisdiction than individual

11 persons. Had these persons now indicted been from any

12 other states on the territory of the former Yugoslavia,

13 or elsewhere in the world, or of any other religion or

14 ethnicity, they would have been sitting here,

15 nevertheless, charged in the very same fashion.

16 The Republic of Bosnia-Herzegovina, or any other

17 entity, or organisation, Muslim or not, is not sitting

18 on the bench of the accused today, just these four

19 individuals charged in the present indictment.

20 It is their serious violations of international

21 humanitarian law we are going to try in the proceedings

22 lying ahead of us in the upcoming months, nobody else's;

23 no responsibility of the state or army, or any such

24 body, just their own individual responsibility.

25 The prosecution will vigorously object to any

Page 25

1 attempts by the accused, their defence lawyers, or

2 whoever it may be, to turn this trial into anything else

3 than a trial of the individual criminal responsibility

4 of Delalic, Mucic, Delic and Landzo.

5 Should the defence maintain that the Bosnian and

6 Croat forces had the right to attack villages around

7 Konjic in May 1992, the prosecution would not contest

8 it. If the defence should maintain that these forces

9 had the right to round up and bring to a detention

10 centre defeated or disarmed Serb individuals from these

11 villages, the prosecution will not contest that either.

12 The case of the prosecution rests only on two facts;

13 namely, that members of the civilian population of the

14 villages were imprisoned unlawfully, and that many of

15 these persons once detained, along with those who were

16 prisoners of war, were killed, tortured and abused in

17 the detention centre, camp, prison, or what the proper

18 name would be for this horrific place with the name of

19 Celebici.

20 The unlawful imprisonment of the civilians, the

21 killings, torture, rape, and other atrocities and

22 inhuman treatment inflicted on the detained person, who

23 were all protected by international humanitarian law,

24 are the only matters that this present indictment deals

25 with. The underlying conflict of the parties of the

Page 26

1 former Yugoslavia, or the origin of the hostilities

2 among these nationalities of that unfortunate country is

3 not and cannot be the subject of this trial or any other

4 trial. It can be no more than a background to what has

5 to be tried by this Court.

6 To paint that background to the event in Konjic

7 that led to the incarceration in Celebici camp of

8 members of the Serb population in the surrounding

9 villages, and to facilitate the understanding of why it

10 happened, the prosecution will bring at least one expert

11 witness. That is Dr Marie-Janine Calic, a scholar of

12 the Institute for Research on International Policies and

13 Security in Munich, Germany. The prosecution may, at a

14 later stage of this trial, if necessary, bring the

15 retired general, JCAC de Vogel, previously Dutch

16 military attache to Belgrade, and a specialist on the

17 military involvement in the disintegrating former

18 Yugoslavia.

19 Dr Calic will touch on the historical background

20 of the Bosnian conflict. However, the prosecution does

21 not, for the purpose of trying Delalic, Mucic, Delic and

22 Landzo for their alleged crimes pertaining to the events

23 in Celebici camp, see any reason to burden this trial

24 with a broad overview of the history of the Balkans

25 going far back in the centuries. Our expert witness

Page 27

1 will therefore concentrate on the situation in Konjic,

2 in the beginning of the 1990s, from political and

3 military points of view.

4 The only elements of the underlying conflict of

5 the parties that has to become an issue for the evidence

6 of the prosecution is the question of whether the

7 outbreak of hostilities in the Konjic area was a part of

8 the conflict that was international in its character.

9 Grave breaches of the 1949 Geneva Conventions to be

10 found in Article 2 of our Statute, and charged in this

11 indictment, can only be committed in an international

12 armed conflict and directed against persons or property

13 protected by these conventions.

14 Subsequently, the prosecution has to prove that

15 the violations took place in such a conflict against

16 such persons and property. In doing so, it is not the

17 task of the prosecution to demonstrate who was the

18 aggressor or to make any statement as to who was to

19 blame for the outburst of the conflict. Nor is there,

20 in the submission of the Prosecutor, any need for the

21 Trial Chamber to deal with such matters to reach an

22 assessment of the character of the conflict.

23 The prosecution has filed a pre-trial brief in

24 which it, among other things, argues the application of

25 Article 2 of the Statute to the present case. The

Page 28

1 prosecution's evidence will, as laid out in greater

2 detail in the pre-trial brief, demonstrate that an

3 international armed conflict occurred, at least from

4 March 1992, for the duration of that year, on the

5 territory of the Republic of Bosnia and Herzegovina.

6 From now on, in this statement, if the defence

7 does not object, I will call it "Bosnia". Would that be

8 proper? Bosnia, its forces, were one of the parties to

9 this conflict. The other party was constituted,

10 firstly, from March 1992 by the Socialist Federal

11 Republic of Yugoslavia and its army, the so-called

12 Yugoslav People's Army, JNA, and from May 1992, the new

13 Federal Republic of Yugoslavia and its army, with the

14 same name, and secondly, from March 1992, by the entity

15 named "Serbian Republic of Bosnia-Herzegovina", and from

16 August 1992 of the entity named "Republika Srpska" and

17 their army.

18 It will also be shown that, during most of 1992,

19 the Croat army and the Armed Forces of the

20 self-proclaimed Croatian Community of Herceg-Bosna,

21 within Bosnia, called the HVO, fought against the

22 Yugoslav People's Army and the Bosnian Serb Army on the

23 side of the Bosnian Government forces.

24 To demonstrate the existence of an international

25 armed conflict, the prosecution also wants to rely upon

Page 29

1 the findings of the Appeal Chamber of this Tribunal in

2 the Tadic case.

3 In paragraph 68 of the Appeal Chamber's decision

4 of the 2nd October 1995, the Appeal Chamber noted that

5 the Geneva Conventions suggest that at least some of the

6 provisions of the conventions apply to the entire

7 territory of the parties to the conflict, not just to

8 the vicinity of the actual hostilities. Particularly

9 those provisions relating to the protection of prisoners

10 of war and civilians are not limited in such a way.

11 In the submission of the prosecution, this means,

12 as far as this indictment is concerned, that Konjic area

13 cannot be an exception from the overall international

14 conflict in which Bosnia was involved at the relevant

15 times.

16 The evidence of the prosecution will also

17 demonstrate that the victims of the present case are

18 protected persons under Article 4 of the Geneva

19 Convention number 3, or Article 4 of Geneva Convention

20 number 4. They were either non-combatants in the hands

21 of one side of the international armed conflict, that is

22 Bosnia, and seen to be linked to the other side of the

23 same conflict, namely the former Yugoslavia, or the

24 Federal Republic of Yugoslavia, and the Serbian Republic

25 of Bosnia, or they were prisoners of war from the

Page 30

1 Serbian side of this conflict who had been captured by

2 the Bosnian side.

3 Leaving all details to the expert witness, I will

4 now proceed to give a brief presentation of the area and

5 the camp, where the crimes charged in this indictment

6 took place. In that connection, I will also give a

7 short description of the political and military

8 situation in the area. After that, I will introduce the

9 accused to the Trial Chamber as the prosecution sees

10 them and describe their respective roles in the camp.

11 Then I will summarise the charges against the accused

12 and attribute their actions to the relevant articles of

13 our Statute. Finally, I will give a brief account of

14 the evidence by way of witnesses and exhibits that the

15 prosecution plans to tender.

16 The Republic of Bosnia-Herzegovina formed,

17 together with five other republics and two autonomous

18 provinces, the former Socialist Federal Republic of

19 Yugoslavia. Due to nationalistic tensions, that state

20 gradually began to fall apart. Two important events

21 were the declaration of independence by Slovenia and

22 Croatia in mid-1991. Bosnia soon followed suit and made

23 it clear that its intention also was to seek

24 independence. The referendum on that question took

25 place in March 1992, which, despite a boycott by the

Page 31

1 majority of the Bosnian Serb population, led to the

2 result that 90 per cent of the 63 per cent that

3 participated voted for independence.

4 On 6th March 1992, President Itzetbegovic declared

5 Bosnia's independence and called for international

6 recognition. The Bosnian Serb leaders had already

7 declared the existence of a Bosnian Serb republic in

8 Bosnia on the 9th January 1992, and, on 28th February

9 1992, the constitution and major components of the legal

10 system of this entity were proclaimed as having entered

11 into force. This entity would become the

12 self-proclaimed Republika Srpska.

13 These events preceded the outbreak of the war in

14 Bosnia. Already after the first multi-party elections

15 in 1990, the three national parties of Bosnia, the

16 Muslim SDA, the Serb SDS and the Croat HDZ had become

17 deadlocked over the future of Bosnia, because Serbs and

18 Croats called for the division of the republic, whereas

19 the Muslims insisted on a multi-ethnic state.

20 The Bosnian society was thus split into ethnic

21 factions, two of which, the Bosnian Serb and the Bosnian

22 Croat, broke with the Government of Bosnia. Ethnic

23 paramilitary groups were established. The Serbs' ones

24 were supplied with weapons and support from the Yugoslav

25 People's Army. In many areas, ethnic criteria in public

Page 32

1 life was put above everything else. Step-by-step,

2 ethnic homogenisation took place in all branches and

3 services of the administration. Konjic did not exist in

4 isolation from what happened in Bosnia. Konjic is a

5 municipality typical of the country, and is also the

6 name of its city.

7 Ethnically, its population of around 45,000 was,

8 in 1991, composed of around 54 per cent Muslims, 26 per

9 cent Croats and 15 per cent Serbs. About half of the

10 Serb population lived in the town of Konjic, and the

11 remainder spread in some of the villages surrounding the

12 city. Some of these villages, including Bradina, Brdani

13 and Donje Selo, were dominated by Serbs.

14 The municipality of Konjic is located in the

15 northern part of Herzegovina about 60 kilometres south

16 west of Sarajevo in a mountainous and woody area. Maps,

17 your Honours, will be tendered as exhibits in due

18 course.

19 The town of Konjic is situated at a crossing of

20 the Neretva River and is an important communication

21 point for road and railway traffic between Mostar and

22 Sarajevo and roads connecting the inland with the sea.

23 Konjic also, which is important, had military

24 installations for the old Yugoslav army, JNA, among

25 them, the Igman, a factory for production of arms and

Page 33

1 ammunition, the Ljuta barracks, where weapons were

2 stored for the territorial defence of Konjic and other

3 neighbouring areas, and the military barracks in

4 Celebici and Borci. The military facility known as

5 Celebici, located in a village with the same name, was a

6 rather small installation for the JNA surrounded by a

7 fence. It served primarily for storage of fuel and had

8 some partially underground building on its premises.

9 The prosecution has prepared a model of that

10 place, which will be tendered as evidence and then

11 described in detail.

12 In April 1992, the place had been taken over from

13 the JNA by the Muslim and Croat forces. After the

14 attacks on the Serb dominated villages, and capturing of

15 many of their inhabitants, it was turned into a

16 detention facility for those captured.

17 During the spring of 1992, the ethnic tensions

18 were growing in Konjic, as in the rest of Bosnia. There

19 was a large degree of mutual mistrust and fear among the

20 Muslims, the Croats and the Serbs of the area, augmented

21 by the military and strategic importance of Konjic to

22 all parties. Many Serbs who lived in areas who were in

23 minority, at Konjic town, moved to villages like

24 Bradina, Bijela and Borci, where the Serbs dominated.

25 Some moved because they lost their jobs or their

Page 34

1 property.

2 In April 1992, after fighting began in Bosnia, the

3 Serbs withdrew from the Municipal Executive Board, and

4 the Assembly. A War Presidency was set up. It

5 consisted of the President of the Executive Board, the

6 Chief of Police, and prominent members of the SDA and

7 the HDZ. Our expert witness will analyse in detail what

8 kind of body a War Presidency is. For the purposes of

9 this opening statement, it suffices to say that it took

10 over the running of the municipality in times of war.

11 Large numbers of persons on all sides were armed.

12 Some persons kept their arms for purposes of

13 self-defence, and persons formed or joined military

14 units, both formal and informal. Check points were

15 established in various parts of the municipality, manned

16 by members, including of course armed members from

17 respective parties. Some Serb dominated villages,

18 including Bradina, set up checkpoints.

19 During April and May 1992, negotiations took place

20 between the Konjic authorities and the larger Serb

21 villages, such as Bradina, and there were reportedly

22 agreements of non-aggression. However, the mistrust and

23 fear among the groups increased.

24 Beginning in April 1992, armed military units,

25 including territorial defence forces, abbreviated TO, of

Page 35

1 Bosnia and Bosnia Croat forces, HVO, were operational in

2 Konjic.

3 In addition, the municipal police was also used in

4 a military capacity, as it had substantial armed reserve

5 forces to be used in times of national emergency.

6 The HVO had become operational earlier than the TO

7 in this area, and was better organised and better

8 equipped.

9 In the beginning of this period, many Muslims who

10 joined the military operations were initially part of

11 HVO. That means the Croat side, which worked together

12 with TO, the territorial defence, without there always

13 being a clear distinction between these two.

14 There were also other Muslim or Croatian units in

15 the area, including a brigade from Split, and

16 independently formed local unit. The War Presidency had

17 a duty to provide support to the military units, so it

18 did not have direct authority over such units.

19 As the territorial defence, TO, became better

20 organised, as the tensions between the Muslims and the

21 Croats continued, as the TO began to assert its

22 supremacy as the legal Armed Forces of Bosnia, the

23 divisions between the TO and the HVO became evident.

24 Most of the Muslims were members of the TO, and most of

25 the Croats were members of the HVO. Even if there was a

Page 36

1 joint command, the two groups did not always work well

2 together. These tensions, as well as the improvised

3 establishments of military structures, the shelling of

4 Konjic by the Yugoslav People's Army, JNA, or maybe the

5 Bosnian Serb forces from positions outside Konjic town,

6 such as from the village of Borci, the differing

7 priorities of the various interest groups in the

8 municipality and problems in communication with central

9 authorities in Sarajevo all contributed to a difficult

10 and confusing situation.

11 Starting in late May 1992, after many Serbs in the

12 villages surrounding Konjic refused to give up their

13 arms to the War Presidency and become part of the

14 legally recognised independent Bosnia, some of the

15 Serbian villages of Konjic's municipality, including

16 Bradina, Brdani, Donje Selo, Bjelovcina, Cerci and

17 Viniste -- you have to excuse my pronunciation -- were

18 attacked by Bosnian Muslim and Croat forces. These

19 forces quickly took control of the villages, although

20 there was an armed defence from the people within some

21 of the villages.

22 During these attacks, many persons, including men,

23 women and children immediately surrendered, and many

24 others, also including men, women and children, fled to

25 the woods for safety. Many of those who fled

Page 37

1 surrendered or were captured within the next several

2 days.

3 Following these attacks and captures of persons,

4 hundreds of men and a small number of women were

5 imprisoned in Celebici. Some of these persons had been

6 involved in defending their villages, but others had

7 not.

8 Additionally, some Serb men, who remained in their

9 non-Serb dominated villages, believing they would be

10 safe, were also arrested and taken to Celebici.

11 During the initial period of the Celebici

12 existence as a prison facility, that is from mid-May or

13 early June 1992, it appears that both the TO, mostly

14 then Muslims, and the HVO, mostly Croats, and possibly

15 the military police, the MUP, were involved in the

16 operation and guarding of the Celebici facility.

17 During this time, there was a joint committee made

18 up by both Muslim and Croats, including members of the

19 MUP, the police forces, the TO and the HVO, charged with

20 the task to investigating the detainees. The

21 investigations consisted primarily, and often

22 exclusively, of interrogations of the detainees. The

23 detainees were then to be sorted according to

24 categories, with the most serious and harshly treated

25 being those directly involved in armed action.

Page 38

1 After several weeks, the committee decided that it

2 could no longer function, because of the large scale of

3 murder and mistreatment of the detainees that was

4 allowed to take place in the camp.

5 In the latter part of June, the committee wrote a

6 report, signed by both the Croat and Muslim members,

7 detailing the situation of the detainees and refusing to

8 continue with its work. This report will be tendered in

9 evidence.

10 The HVO, that is the Croat military forces,

11 withdrew at the same time from any participation of the

12 operation of the Celebici prison. After that, that is

13 from late June 1992, the Bosnian authorities exclusively

14 controlled the Celebici camp until its dissolution in

15 December 1992.

16 During its function as a prison, Celebici received

17 in total approximately 500 detainees. It is estimated

18 that around 300 were kept there at the same time.

19 From the time the prison was first opened, the

20 prisoners were subjected to horrible mistreatment.

21 Prisoners were murdered, tortured, raped and beaten by

22 the soldiers who brought them into the prison, by guards

23 at the prison, and by outside persons who were permitted

24 to come into the prison.

25 After a visit of the Red Cross in mid-August 1992,

Page 39

1 the conditions at the camp improved significantly, and

2 incidents of mistreatment noticeably declined, even if

3 such incidents continued throughout the existence of the

4 camp.

5 Some were released, some of the detainees, and

6 others were moved to other camps. When Celebici ceased

7 to be a prison in December 1992, only 30 detainees

8 remained. No one was ever punished by the responsible

9 authorities for the murders or mistreatment of the

10 prisoners in Celebici.

11 This is, your Honour, about the first part, the

12 half part of my opening statement, and if it would suit

13 the Court, I would not object to a short recess at this

14 moment.

15 JUDGE KARIBI WHYTE: Are you already exhausted?

16 MR OSTBERG: No, I can go on, if it pleases your Honours.

17 JUDGE KARIBI WHYTE: Please go on.

18 MR OSTBERG: I will do that. I will now turn to introducing

19 the accused to the Trial Chamber.

20 I will start with Zejnil Delalic, who had the

21 highest degree of authority among the accused. He is a

22 native Bosnian Muslim from Konjic municipality. He went

23 to school in Konjic and graduated from Zagreb University

24 in 1970 to become a teacher. He could not find a job

25 and went to Germany, where he lived from 1970 to 1983,

Page 40

1 only interrupted by one year of military service in the

2 Yugoslav People's Army, 1976, and that is his only

3 military training.

4 In 1983, he moved back to Konjic and stayed there

5 until 1987, when he moved to Austria. He seems to have

6 been successful in the construction and other business

7 branches in Germany, and in Austria. He was back in

8 Konjic in April 1992, when the war started, then

9 considered a wealthy and useful man.

10 Our evidence will show that he took part in the

11 War Presidency in Konjic, was made a co-ordinator

12 between the military forces and the War Presidency in

13 May 1992, and played an active role in the attacks

14 against Bradina and other villages surrounding Konjic.

15 Our evidence will also show that he took part in

16 the takeover of the Celebici barracks and in setting up

17 the prison camp.

18 On his suggestion, Mucic was made prison

19 commander, and thereafter reported to Delalic. On 11th

20 July 1992, Delalic was appointed Chief Commander of the

21 First Tactical Group by the Bosnian Chief of General

22 Staff in Sarajevo. On 27th July, his responsibilities

23 were extended to command all Armed Forces in an area,

24 including the Konjic municipality.

25 In this trial, the prosecution will show that

Page 41

1 Zejnil Delalic in his capacity as co-ordinator and as

2 the Commander of the First Tactical Group and as an Area

3 Commander, had the responsibility for the operation of

4 the Celebici camp, and was in the position of superior

5 authority to all persons acting there.

6 Zdravko Mucic, with the nickname "Pavo", born in

7 1955, a catholic of Croat origin, is also from the

8 Konjic municipality. He went to school in Konjic and

9 prepared to be a mechanical engineer. He did his

10 military service in the JNA and was discharged as a

11 Sergeant. He then worked as a metal worker in Konjic.

12 He moved to Austria in 1989 and worked, among other

13 places, in a construction firm run by Delalic.

14 He frequently went back to Konjic, and, when the

15 war started in April 1992 he remained there and

16 participated in the war effort, including taking part in

17 certain military actions with Delalic. Through Delalic,

18 he was made Commander of the Celebici prison camp, soon

19 after its inception in May 1992. He remained in this

20 position until 18th November 1992.

21 Our evidence will show that he was in de facto

22 control of the camp during this period, and responsible

23 for its operation, having a position of superior

24 authority to all guards or other persons allowed to

25 enter the camp, and he himself was a subordinate to

Page 42

1 Delalic.

2 Next accused in the chain of command at Celebici

3 camp is Hazim Delic, a Muslim born in 1964. Also he

4 came from Konjic area. He went to school in Konjic, and

5 after that, he was trained as a locksmith and worked as

6 such in Konjic.

7 In the beginning of the war, he was mobilised and

8 assigned to the joint police force, the MUP, and posted

9 at Celebici as an ordinary security guard. When Mucic

10 arrived at the camp as a Commander in May 1992, he

11 orally appointed Delic as his deputy. As such, he

12 exercised the command of the camp in the absence of Mucic

13 and even used to live in the camp. He remained in the

14 position of Deputy until the 18th November 1992, when

15 Mucic left, at which date Delic, by the order of

16 Delalic, took over as a Commander of the Celebici camp.

17 Our evidence will show that Delic, as a deputy to

18 Mucic, and then as a Commander himself, was responsible

19 for the running of the camp and that he was in superior

20 authority to all guards and other persons allowed to

21 enter the camp.

22 The last of our four accused is Esad Landzo, also

23 called "Zenga", a Muslim born in 1973. Like the others

24 in the municipality of Konjic, where he went to school.

25 Thereafter he had no specific education, because already

Page 43

1 in 1991, he was called upon by the army. In the

2 beginning of 1992 he joined the TO in Konjic, and was

3 assigned to serve as a guard. He was sent to Celebici

4 camp in May 1992, where he remained as a guard for at

5 least several months.

6 Landzo was never in any kind of superior authority

7 to others during his service in Celebici. He was a

8 subordinate to Delic, Mucic and Delalic.

9 After that, your Honours, I will briefly summarise

10 the indictment, explain the manner of charging applied

11 by the Prosecutor, and address some legal matters

12 pertaining to the charges.

13 In this indictment, your Honours will find that

14 Landzo is charged as a direct perpetrator in accordance

15 with Article 7, paragraph 1 of the Statute of the

16 Tribunal, with five murders, four instances of torture,

17 and two instances of cruel treatment causing great

18 suffering.

19 You will also find that, for these crimes alleged

20 to have been committed by Landzo, his superiors, Delic,

21 Mucic and Delalic are charged as individually and

22 criminally responsible in their capacity of superior

23 authority to Landzo, their subordinate, in accordance

24 with Article 7, paragraph 3.

25 You will find Delic charged as a direct

Page 44

1 perpetrator with four murders, five instances of

2 torture, two of which include rape, four instances of

3 cruel treatment, causing great suffering, one instance

4 of unlawful confinement of civilians, and one instance

5 of plunder.

6 You will find that, for these crimes alleged to

7 have been directly committed by Delic, there is only one

8 exception to that, Count 40 and 41, committed after

9 Delalic and Mucic had left the camp. Both Delalic and

10 Mucic are charged as Delic's superiors under Article 7,

11 paragraph 3. With respect to those counts, where Delic

12 is charged as a direct participant, he is also charged

13 under Article 7, paragraph 3 as the superior to other

14 participants in the acts.

15 Mucic is charged by his own action as responsible

16 under Article 7, paragraph 1, with creating inhuman

17 conditions in the camp, thereby causing great suffering

18 and cruel treatment, unlawful confinement of civilians

19 and plunder. For these crimes, Delalic is charged as

20 Mucic's superior, and Mucic himself as the superior to

21 the other participants in the commission of these

22 crimes.

23 Delalic, finally, is charged with direct

24 participation in just one single crime; namely, unlawful

25 confinement of civilians. All the rest of the

Page 45

1 individual criminal responsibility with which Delalic is

2 charged in accordance with Article 7, paragraph 3 in

3 this indictment, stems, as I have just pointed out, from

4 his superior authority over subordinates who committed

5 the crimes of which he knew or had reason to know, and

6 failed to prevent or punish.

7 Thus the perpetrator who directly committed, or

8 participated in the commission of the crime is, as your

9 Honours can see, charged under Article 7, paragraph 1 of

10 the Statute, as individually responsible for the crime,

11 whereas his superiors are charged with individual

12 criminal responsibility under Article 7, paragraph 3,

13 for having known, or had reason to know that the

14 subordinate was about to commit the crime, or had done

15 so, and the superior failed to take the necessary and

16 reasonable measures to prevent it or to punish the

17 perpetrator for it.

18 One more thing about the Prosecutor's way of

19 charging. There are, as far as I can see, three main

20 ways of charging an act described as punishable in more

21 than one article or paragraph of an applicable penal

22 code. One is to choose one, and only one, of the

23 descriptions that covers the act and state that this is

24 the crime that the accused has committed. Another is to

25 choose two or more descriptions of the act and charge

Page 46

1 them alternatively, and the third way is to use multiple

2 available descriptions of the act in question and charge

3 them cumulatively.

4 The Prosecutor has, in principle, chosen the third

5 and last option. It is only when the act fits more than

6 one description of punishable behaviour pertaining to

7 the same article in the Statute that the Prosecutor has

8 chosen to charge alternatively. This can be seen in the

9 charging of cruel treatment as an alternative to

10 torture, under Article 3 in Counts 15 to 35.

11 The reason behind the cumulative charging is that

12 the Prosecutor wants to put the Trial Chamber, and the

13 accused, on notice that the committed act is described

14 as a violation of international humanitarian law in more

15 than one of the Articles of the Statute of the

16 Tribunal. The reason is by no means to put the accused

17 in double jeopardy and to have him convicted for two or

18 more crimes in the same act. The Prosecutor will never

19 ask the Trial Chamber to find the accused guilty of

20 anything else than the act charged against him.

21 The Trial Chamber, in the Tadic case, has

22 addressed the question of cumulative charging and ended

23 up by saying, I quote from its decision of 14th November

24 1995:

25 "What can, however, be said with certainty is

Page 47

1 that penalty cannot be made to depend upon whether

2 offences arising from the same conduct are alleged

3 cumulatively or in the alternative. What is to be

4 punished by penalty is proven criminal conduct and that

5 will not depend upon technicalities of pleading."

6 In the context of charging, I would like to touch

7 on the legal issue of superior authority, in

8 international law often referred to as "command

9 responsibility". It is obvious from my summary of the

10 indictment that this is one of the major legal issues we

11 bring before the Court at this trial. It has been

12 thoroughly addressed in our pre-trial brief, but I

13 consider it is appropriate to stress some of the

14 submissions of the prosecution in this opening

15 statement.

16 Article 7, paragraph 3 of our Statute codifies a

17 well-established rule of customary and international law

18 with respect to persons in positions of superior

19 authority. The wording of this paragraph is more or

20 less verbatim, taken from Articles 86 and 87 of protocol

21 number 1 of the 1977 additional to the Geneva

22 Conventions of 1949. These articles can be seen as a

23 contemporary expression of the doctrine of superior

24 authority. The International Committee of the Red Cross

25 defines in its commentary to protocol 1 the three

Page 48

1 constituent elements of this doctrine which are

2 applicable to interpreting Article 7, paragraph 3, as

3 follows, I quote now from the International Committee of

4 the Red Cross, commentary on protocol 1, taken from

5 page 1012 and 1013:

6 "(a) the superior concerned must be the superior

7 of that subordinate;

8 "(b) he knew or had information which should have

9 enabled him to conclude that a breach was being

10 committed or was going to be committed; and

11 "(c) he did not take the measures within his

12 power to prevent it."

13 Article 7, paragraph 3 applies to any superior who

14 has a personal responsibility in relation to the

15 perpetrator on the basis that the perpetrator is a

16 subordinate under the superior's control. The doctrine

17 of superior authority is applicable with regard to

18 subordinates under the direct or indirect control of the

19 superior. Both forms of control can exist as a result

20 of de jure or de facto chains of command.

21 The ICRC commentary notes that:

22 "Article 87", I quote, "does not limit the

23 obligation of the commanders to apply only with respect

24 to members of the Armed Forces under their command. It

25 is further extended to apply with respect to other

Page 49

1 persons under their control."

2 Again, from the same commentary, I quote another

3 comment. Furthermore, this article says:

4 "only concern the commander under whose direct

5 orders the subordinate is placed. The concept of the

6 superior is broader and should be seen in terms of

7 hierarchy encompassing the concept of control."

8 In addition, the application of the doctrine of

9 superior responsibility to civilian leaders is justified

10 on the basis that command control can be exercised by

11 superiors who are not part of a military hierarchy.

12 In summary, it is the submission of the

13 prosecution that it is an established rule in

14 humanitarian international law that a superior is

15 criminally responsible for the violations of such law

16 committed by his subordinates. This includes

17 subordinates over whom he has direct or indirect command

18 and control, whether exercised de jure or de facto, if

19 he knew or had reason to know, which includes ignorance

20 resulting from the superior's failure to properly

21 supervise his subordinates, that these acts were about

22 to be committed, or had been committed. The superior is

23 under a duty to take all reasonable and necessary

24 measures that are within his power, or at his disposal,

25 in the circumstances to prevent or punish these

Page 50

1 subordinates for the same offences, but failed to

2 exercise his duty.

3 In respect of the superior's responsibility for

4 Delalic, Mucic and Delic, the evidence in the present

5 case will show that the Celebici camp commander, Mucic,

6 the deputy camp commander, Delic, the camp guards under

7 whom -- one of whom was Landzo, and all other persons

8 connected to the camp, were directly under Delalic's

9 command and control, and were his subordinates at all

10 material times.

11 In particular, the evidence will establish a chain

12 of command leading upwards from the camp guards to the

13 camp commander, and his deputy, and ultimately to

14 Delalic. Accordingly, Delalic had direct control over

15 the perpetrators and their superiors in the Celebici

16 camp. Below Delalic in the chain of command, Mucic and

17 Delic had direct control over the same perpetrators.

18 The Prosecutor's evidence will demonstrate that

19 Delalic, Mucic and Delic knew about the continuous

20 violations that were occurring in the Celebici camp. In

21 respect of Delic, he also had knowledge through his own

22 participation in the atrocities. At the very least, the

23 evidence will show that they should have known about

24 these violations as a result of their superior position,

25 the information they received about the camp, their

Page 51

1 proximity to these incidents, the prolonged period of

2 their occurrence, and their notorious nature. To the

3 extent that they claim ignorance of these incidents,

4 they were under a duty, as superiors, to acquire the

5 information and that would have enabled them to control

6 their subordinates in the circumstances and to punish

7 them.

8 As stated before, Delalic was the co-ordinator

9 between the Bosnian Armed Forces in the territorial

10 defence, TO, the HVO forces and the War Presidency from

11 approximately the end of May 1992. Thereafter, he was

12 the commander of the First Tactical Group of the Bosnian

13 Armed Forces from approximately July 1992 until November

14 1992. The evidence will show, beyond doubt, that in

15 these functions he had direct control over the personnel

16 of the Celebici camp, and the camp was situated within

17 the territory of his command.

18 There will likely, your Honours, in this trial be

19 much discussion over what Delalic's authority was on

20 paper. Not surprisingly, given that the function of

21 co-ordinator was a new function intended to deal with

22 the emerging complicated situation in Konjic at the

23 time, there is not one single organogram from the time

24 period which itself establishes exactly who had the

25 authority over Celebici.

Page 52

1 Rather, the documents, as well as the actions

2 taken at the time, need to be looked upon as a whole.

3 The prosecution believes that these documents, and

4 evidence concerning what actually happened at the time,

5 will clearly establish that Delalic had official

6 authority over the camp.

7 Of course, it may be that others shared authority,

8 and it is of course the case that others had authority

9 over Delalic, and indeed these may be the persons who

10 delegated the authority to Delalic, but such factors are

11 not decisive. The fact that others may also be

12 responsible is not a defence for the responsibility of

13 Delalic.

14 The issue is, did he have superior authority? The

15 evidence clearly establishes yes, he had. Indeed, the

16 evidence is overwhelming that Delalic was, in fact, the

17 superior in charge of Celebici. He was considered the

18 person in charge. He acted as he was in charge, and his

19 conduct demonstrated that he was in charge.

20 I will not go into the numerous relevant pieces of

21 evidence establishing Mr Delalic's authority. It may,

22 however, be noted that, while a co-ordinator, he was

23 participating member of the War Presidency. He was the

24 Chief Military Commander of the area. He participated

25 in a leading role in the battles leading to the capture

Page 53

1 of many of the detainees. He participated in the

2 setting up of the prison. He selected the commander,

3 Zdravko Mucic. He issued orders and instructions

4 regarding the investigation of the detainees. He

5 released certain detainees. He issued orders concerning

6 the administration of the camp. He gave reports on the

7 functioning of the camp. He was represented to

8 international organisations as the person in charge of

9 the camp, and he was the contact person for such

10 organisations, and finally, he appointed Delic as

11 commander at the time he himself and Mucic left.

12 Thus, whatever arguments can be made about his de

13 jure authority, there can be no doubt that he had the de

14 facto authority of the Celebici prison.

15 As pointed out before, Mucic was the commander of

16 the Celebici camp from approximately May to November

17 1992, and Delic served as his deputy for approximately

18 the same period, before he himself became commander of

19 the camp until its close in December 1992.

20 Mucic himself acknowledges that he was commander

21 of the camp from 27th July forward. The prosecution

22 notes that this admission alone, along with his

23 knowledge about the prior crimes in the camp, the

24 continuing nature of the crimes, even after 27th July,

25 and his failure to take appropriate action, including

Page 54

1 punishing the perpetrators, is itself sufficient to make

2 him responsible as charged in the indictment.

3 In any event, however, the prosecution's evidence

4 does not support Mucic's contention that he was not

5 commander until this main date, 27th July, but suggests

6 that this is a date he manufactured as part of his

7 defence.

8 Rather the evidence will establish that Mucic was

9 commander, in fact, from at least the beginning of June

10 1992. He represented himself as the commander. He was

11 considered a commander, and he acted as a commander.

12 Under well-established international law, he may

13 thus be found in a position of command responsibility.

14 Now finally, your Honours, a few words on the

15 manner in which the prosecution will present its

16 evidence. We will start our presentation with a

17 witness, a Dutch police officer, who on our behalf has

18 travelled to Celebici, taking photographs, drawing maps,

19 and preparing a model of the camp. Thus, having

20 acquainted the Trial Chamber with the premises of the

21 camp, we will bring two witnesses, both having been

22 detained in the camp, primarily to show the general

23 conditions of the prisoners in the camp, but also to

24 prove crimes alleged to have been committed against

25 them.

Page 55

1 Following this introduction to the Celebici camp,

2 the prosecution will bring its initially mentioned

3 expert witness, Dr Calic, to give us the background to

4 the events, and then go on with the witnesses to the

5 crimes charged in the indictment.

6 On the witness list in the hands of the defence

7 and the Trial Chamber, we have in total 76 witnesses.

8 There is no certainty that all of the 76 will appear.

9 Many things may happen that could make it impossible for

10 a witness to travel to The Hague. This is one of the

11 reasons - others are readiness for possible events

12 during the trial - for the huge amounts of witnesses

13 appearing on the list, all 76 will probably not be

14 called upon to give evidence before the Trial Chamber.

15 We have been asked by the defence to specify

16 beforehand which one of the witnesses that will give evidence

17 against which one of the accused. We have declined to

18 do so for the following reasons: this is a joint trial

19 of four accused on their responsibility for alleged

20 criminal actions in the Celebici camp, and their

21 responsibilities are closely linked to each other

22 through the chain of command.

23 Nevertheless, in our witness list, filed, as

24 ordered, on 7th March 1997, we have tried, in accordance

25 with the order by the Trial Chamber, as far as possible,

Page 56

1 to link every witness to specified counts, depending on

2 the crimes, consisting of continuous maltreatment of

3 prisoners, it is however, impossible to foresee

4 exactly to which alleged crime a victim or an eye

5 witness in the camp is able to give evidence.

6 Therefore, the prosecution will object to be precluded

7 from asking a witness questions about a count not

8 mentioned in connection with him in the witness list.

9 As appears from the list, many witnesses are going

10 to testify to more than ten counts. The effect of this

11 is that it is not possible to go through the indictment

12 count by count. Doing that would result in the

13 unthinkable situation that you would have to recall many

14 witnesses more than ten times. Nor is it possible to

15 work the way through the indictment in the chronological

16 order in which the acts took place. The only possible

17 way is to follow eye witness by eye witness through his

18 or her account of what he experienced, or saw, at

19 different times and in different ways, of the acts

20 charged in this indictment.

21 It can be anticipated that almost every witness to

22 an alleged crime directly committed by Landzo or Delic

23 will have relevant evidence regarding Mucic and

24 Delalic. Most of the witnesses that have not been

25 present in the Celebici camp will be examined on their

Page 57

1 information about what was going on in the camp, and who

2 was responsible for it. Thus, practically every witness

3 for the prosecution in this trial can be considered a

4 witness against each and every one of the accused.

5 Fourteen murders are alleged to have been

6 committed in this indictment. Some twenty witnesses

7 will testify to them. Sixteen victims of torture, in

8 two instances including rape, and being exposed to great

9 suffering, are called to testify on what happened to

10 them, and some twenty-five eye witnesses will testify to

11 these crimes. At least fifteen witnesses will testify

12 to the unlawful detention charge and at least ten to the

13 charge of plunder of property.

14 As stated, these witnesses on separately charged

15 crimes overlap, and many of them are in the position to

16 give evidence also to Delalic, Mucic and Delic's

17 superior authority.

18 In connection with the examination of the

19 witnesses, the prosecution of course will present and

20 introduce exhibits of various kinds, like the model of

21 the camp, maps, photographs, and many other documents

22 that appear on the document list, which we have provided

23 the defence with.

24 Many of these documents originate from the

25 accused, Delalic and Mucic themselves; material which

Page 58

1 was seized at the time they were arrested. They include

2 documents describing their own responsibilities and

3 functions relating to the Celebici camp. They also

4 include video tapes showing, among other things, the

5 responsibilities of the accused, their behaviour in the

6 camp, their knowledge of the accused of the Celebici

7 camp. This material will convincingly demonstrate the

8 criminal responsibility of both Mucic and Delalic.

9 I will refrain from commenting on them more

10 specifically until they are tendered. Now, your

11 Honours, I will conclude my opening statement. Thank

12 you, your Honours.

13 JUDGE KARIBI WHYTE: Thank you very much, Mr Ostberg. I

14 think the Trial Chamber will rise for twenty minutes.

15 We will come back at 12.15.

16 (11.55 am)

17 (A short break)

18 (12.15 pm)

19 JUDGE KARIBI WHYTE: Under the Rules of Procedure and

20 Evidence, the prosecution having concluded his opening

21 speech, the defence is also entitled to make an opening

22 speech, although there is an option either to make one

23 now or to wait until the conclusion of the case of the

24 prosecution, whichever way it chooses.

25 After the conclusion of the opening speeches,

Page 59

1 under the Rules also we have an order for presentation

2 of evidence.

3 Each party is entitled to call witnesses, and

4 present evidence, but the nominal order is the

5 prosecution will lead this evidence...

6 (Short technical interruption)

7 I am sorry for the time we have spent trying to

8 test the transcript. As I was saying before we stopped,

9 the prosecution, having concluded its opening

10 statements, our rules entitle the defence also to make

11 an opening statement. These can be made now, or at the

12 conclusion of the case of the prosecution, whichever way

13 is preferred, but the usual thing is for counsel for the

14 defence to make it at the end of the case of the

15 prosecution. After that, then there is also an order

16 for the presentation of evidence.

17 Each party, by "each party" I mean the prosecution

18 and the defence, is entitled to call witnesses and

19 present evidence, but generally the order is for the

20 prosecution to start first, unless the Trial Chamber

21 thinks otherwise, and especially that occurs where the

22 burden of proof lies on one party or the other, but we

23 have not found any necessity for that in this case.

24 The first is to have evidence for the

25 prosecution. At the conclusion of that, there is

Page 60

1 cross-examination and re-examination in the process.

2 Then the defence will lead its own evidence, similarly

3 with cross-examination and re-examination. Then the

4 prosecution can lead evidence in rebuttal, and also the

5 defence can lead evidence in rejoinder.

6 There are four accused persons in this case, all

7 with their own counsel. The general theory and practice

8 is that counsel is master of the situation, is in charge

9 of his defence, and determines what questions to ask in

10 consultation with the accused persons and, if in a team,

11 as it is in this case -- each one has a team -- the two

12 counsel would now determine how to cross-examine, but it

13 is usually tidier for counsel to know who is to

14 cross-examine and at what point he should hand over to

15 his junior, if the lead counsel is in charge of the

16 cross-examination.

17 In the interests of good arrangements, we should

18 also avoid duplication in cross-examination of the

19 witnesses. If lead counsel has taken the stand in

20 asking questions, perhaps it is better for the

21 co-counsel not to go over again some questions which

22 lead counsel has established.

23 The accused, if in consultation with his counsel,

24 and if he so desires, can appear as a witness in his own

25 defence, if he desires, and that depends on the

Page 61

1 agreement with his counsel. To a large extent, the

2 examination-in-chief, cross-examination and

3 re-examination shall be allowed in each case, and the

4 Judges of the Trial Chamber are entitled to put

5 questions to any witness if they find any need to do so,

6 especially to clarify difficult questions, difficult

7 issues, but by and large, the determination of such

8 matters, since they are left to the Trial Chamber, would

9 be for the counsel on both sides to determine how to

10 cross-examine, the subject matter of their

11 cross-examination and the conclusion of what comes out

12 of it.

13 At the end of this, the question of closing

14 arguments follows. We have four different accused

15 persons, and the order which I think is useful and less

16 time wasting is for counsel to start their

17 cross-examination from the first accused person. If the

18 nature of the evidence affects the first accused person,

19 he may cross-examine, but, if he is not affected, he

20 need not. It is not mandatory that you must

21 cross-examine, and similarly it goes down to the second,

22 the third, the fourth. If you do not have any -- if you

23 do not have to cross-examine, or if someone says that an

24 earlier case person's cross-examination has established

25 your own point, I suppose you can even adopt it, but

Page 62

1 otherwise, it will not be necessary for everyone to ask

2 questions unless he needs to do so.

3 As I said, in order to avoid duplication, as you

4 also tried to do in the first case, by a joint motion,

5 it is most appropriate in this case for you to agree, in

6 whichever case, whenever a cross-examination is being

7 gone into.

8 Some time before now, I have always said, it is

9 not mandatory, that lead counsel is technically in

10 charge of his case. It is not the position of the Trial

11 Chamber to dictate who conducts a case for an accused

12 person. It is the duty of counsel to determine how they

13 conduct their cases. We are more interested in the

14 order in which the case is conducted, and how tidy our

15 records are, because there will be more confusion if

16 there is no order in the cross-examination by the

17 defence, if there is no order in the objections raised,

18 and, in fact, if it goes on a staccato basis from one

19 end to the other, without one knowing which is

20 affected.

21 So, as far as this Trial Chamber is concerned, we

22 will prefer the order of cross-examination to follow

23 from the first to the fourth. Thank you very much.

24 MS McMURREY: Your Honour, may we address that one second?

25 I understand at the last status conference on January

Page 63

1 17th, we had asked the Court for some guidance in the

2 area of what order and procedure that we were going to

3 go in, and I thought that we understood that the Court

4 had told us to work it out among ourselves.

5 Now, we met this last week, all the counsel

6 together, and kind of worked out something that we hope

7 will work and if the Court would be tolerant enough to

8 let us try our method first. If it does not work, we

9 will certainly go to your preference, if that is okay.

10 JUDGE KARIBI WHYTE: You can still try it out. If one of

11 your colleagues raises an objection and you adopt his

12 objection, that is working it out.

13 MS McMURREY: We are talking about the order of

14 cross-examination.

15 JUDGE KARIBI WHYTE: I think if you have listened carefully,

16 all I said is if the first accused has nothing to

17 cross-examine, he need not. If the second has nothing,

18 he need not. It is only an accused person's counsel who

19 has anything to ask. So you do not go about asking

20 questions unless it is necessary.

21 MS McMURREY: I have one more question, just for

22 clarification. Let us say Esad Landzo, who is the last

23 defendant, let us say we chose that I cross-examined

24 first. The other three defendants are not waiving their

25 chance to cross-examination at that point, are they?

Page 64

1 JUDGE KARIBI WHYTE: If they choose you to cross-examine on

2 their own behalf, not necessarily because you are

3 cross-examining on behalf of your client, then they

4 would have waived their right to cross-examine, because

5 they cannot come back, after you have, after

6 surrendering their right to you to cross-examine, they

7 cannot come back to examine.

8 MS McMURREY: I think what everybody --

9 JUDGE KARIBI WHYTE: Please, I think that is the way I

10 understand it.

11 MS McMURREY: I wanted to make sure that, if I had missed

12 something, that they have a right to come in and ask a

13 question that I might have missed, so they did not

14 completely waive their right to cross-examination just

15 because I went first.

16 JUDGE JAN: There is no question of a waiver. It is a

17 matter you have to decide among yourselves.

18 MS McMURREY: That is all I wanted to hear. Thank you very

19 much, your Honours.

20 JUDGE KARIBI WHYTE: Yes, Mr Tapuskovic?

21 MR TAPUSKOVIC (in interpretation): Your Honour, I did not

22 understand what you just said in the beginning while the

23 transcript was not on. I think you understood that none

24 of us counsel, including myself, as counsel of Zdravko

25 Mucic, do not intend to present an opening statement,

Page 65

1 because you said that it is usually done at the end of

2 the prosecution case in chief. I have already informed

3 the prosecution, and it has been a while since I have

4 done it, that I would like to give my opening statement

5 right after the opening statement of my colleague,

6 Mr Ostberg, and I stand by it, and I would like to

7 address the Trial Chamber and tell you that I wish to

8 give the opening statement now, after the opening

9 statement of the prosecution.

10 If that is clear enough, then I have an additional

11 request for the Trial Chamber.

12 JUDGE KARIBI WHYTE: All I said was that the Rules enable

13 accuseds' counsel to make their opening statement after

14 that of the prosecution, but usually most counsel delay

15 making their opening statements until the close of the

16 case of the prosecution, and when they are opening their

17 defence. I did not for one moment assume that you have

18 no intention of making any statements.

19 MS RESIDOVIC (in interpretation): Your Honour, can I

20 address you?

21 JUDGE KARIBI WHYTE: Yes, Mrs Residovic.

22 MS RESIDOVIC (in interpretation): You mentioned that the

23 prosecution has given us a list of witnesses, and I

24 would like to point out that on the list that was

25 provided to us, the list was determined on 5th and 6th

Page 66

1 March, and I would like to object in the sense that the

2 defence counsel have not been consulted in putting

3 together this list. So I would like to request that the

4 time that was proposed by the prosecution for

5 examination of these witnesses be only tentative,

6 because the defence may have an interest in questioning

7 witnesses much longer than the prosecution may have

8 planned, for instance, only one quarter of one day. So

9 I would like to request that the Trial Chamber rule on

10 this based on the needs of the defence as well as the

11 prosecution.

12 JUDGE KARIBI WHYTE: Actually, the time taken for a witness

13 will depend on the exigencies of the prosecution and the

14 nature of the cross-examination following. So I do not

15 think there is any strict adherence to any particular

16 timing.

17 JUDGE JAN: There is not a check on time regarding

18 cross-examination.

19 MR OSTBERG: Your Honour, I want to point out as an answer

20 to Madam Residovic that it is headed by the word a

21 "tentative estimated time". It is of course by no

22 means to be understood that we want to try to limit the

23 time in which the defence want to cross-examine. Thank

24 you.

25 JUDGE KARIBI WHYTE: Can we hear Mr Tapuskovic, not only

Page 67

1 because I think we will go for a lunch break now -- we

2 will go for a lunch break and come back at 2.30 to hear

3 you, if you want to make an opening statement.

4 MR TAPUSKOVIC (in interpretation): In connection with this,

5 your Honour, since I plan to give the opening statement,

6 I have a proposition for the Trial Chamber. I have

7 prepared this opening statement a long time ago, and I

8 believe that it is appropriate to give it now, today,

9 and so is my client.

10 I was ready to give it back in October, as

11 originally planned, but, after I have heard the opening

12 statement of Mr Ostberg, and I have already turned over

13 a draft of my opening statement to the interpreting

14 unit, I think that I need to elaborate on certain points

15 of my opening statement, and I think that it would not

16 be asking too much if I gave this opening statement

17 tomorrow morning at 10.00.

18 We have waited for one year for this trial to

19 start. We insisted on going to the trial right away.

20 It has been postponed several times in October, then in

21 January and I feel that I have the right in order to

22 present this in the best possible way. I would ask for

23 an extension until tomorrow morning, and I think that we

24 have had a productive session already, and this would

25 give me an opportunity to elaborate on a few issues, and

Page 68

1 I would be able to reply to several points raised by the

2 prosecution, and I think it is a very small request

3 indeed, in the defences that we have had in the country

4 that we used to have, whatever it was. I am in a

5 position to just improve on my opening statement and I

6 would like to ask you to allow me to do that and then

7 I will be prepared to appear before you tomorrow morning

8 and give my opening statement. Thank you.

9 JUDGE KARIBI WHYTE: I do not remember any other date for

10 commencement of trial having been fixed before the 10th

11 March. I do not remember any earlier dates. I know so

12 many other dates have been fixed, not for commencement

13 of trial, but for preliminary motions and so many other

14 things.

15 We are going on fine, but let me ask the

16 prosecution for the state of their witnesses for today,

17 so I will know whether it will be convenient.

18 MR OSTBERG: Yes, your Honour. As I mentioned in my opening

19 statement, we are starting with the Dutch police

20 officer. He is here today, and he is something between

21 an expert and a factual witness. We will use him for

22 telling us what Celebici camp really looked like, and we

23 are going to bring a model and photos and videos to

24 introduce your Honours to this Celebici camp, and that

25 can be done today, and, if you consider him not to be

Page 69

1 too much of a witness of fact, then we can of course

2 consider it belonging to my opening statement, or

3 something like that, and I have nothing to say against

4 the proposition by the defence for Mucic to do this

5 tomorrow morning, if we hear our first witness today.

6 JUDGE KARIBI WHYTE: But this will be interposing between an

7 opening statement of the defence and the prosecution.

8 So that will not be a convenient way to fit it in.

9 MS McMURREY: Your Honours, if we may respond also --

10 JUDGE KARIBI WHYTE: Frankly, you would have allowed me to ask

11 whether there are any other opening statements on the

12 part of the defence, because once there is an

13 interposition of this nature, it becomes difficult to

14 know at what stage evidence and opening statements end

15 and I do not want to have that type of difficulty of

16 determining the two situations, because this is what is

17 likely to come, and if we have the evidence that will be

18 introduced now, it might be factual evidence. It is not

19 impossible it can impinge on some of the opening

20 statements. Nobody knows. So it is not that easy to

21 determine. It would have been easier if perhaps

22 Mr Tapuskovic could have made his statement today and we

23 reshift the evidence until tomorrow morning.

24 MR TAPUSKOVIC (in interpretation): Your Honours, this is a

25 very small thing that I am requesting, and it defies my

Page 70

1 understanding that I could not have that much leeway,

2 because I think that it would be in the interests of the

3 Chamber too to allow me to prepare as best I can,

4 because my opening statement has a particular purpose

5 here, and the witness who is ready to go and testify,

6 since he is a local person from here, they should be

7 able to be here tomorrow morning and go on right after I

8 have finished my opening statement.

9 Just to make a point, in May, the trial date was

10 set for October 1st, so we had four months to prepare

11 the trial, myself and Mr Mucic were ready to start in

12 October. Unfortunately it has been a year since, and,

13 when we are having a little problem, and Mr Ostberg

14 agrees with my position, in fact, I could start

15 presenting my opening statement now, without even

16 consulting it, but, in order for me to be of most

17 assistance to you, so that it would help you in your

18 work, I would really request that I be allowed some more

19 time, and I will be ready tomorrow morning, so that

20 tomorrow morning you can start addressing all the issues

21 pertinent to this trial.

22 JUDGE KARIBI WHYTE: Thank you very much.

23 MR TAPUSKOVIC (in interpretation): Thank you.

24 JUDGE KARIBI WHYTE: Mr Ostberg, I think you might oblige

25 us, so that we might be able to start with your own

Page 71

1 presentation after his opening statement.

2 MR OSTBERG: Yes, any way that your Honour --

3 JUDGE KARIBI WHYTE: I would prefer it that way.

4 MR OSTBERG: To have the statement first thing tomorrow

5 morning and then the witness?


7 MR OSTBERG: Yes, that is okay with me, your Honour.

8 JUDGE JAN: It has to come before the evidence starts.

9 MR OSTBERG: Yes, I see the principle point. No problem for

10 me. We can bring this witness after the defence has

11 made his opening statement.

12 JUDGE KARIBI WHYTE: I think that is the only opening

13 statement we are expecting from the defence.

14 MR BRACKOVIC (in interpretation): Regarding the defence of

15 Esad Landzo, the defence is going to present its opening

16 statement after the prosecution case of chief is

17 completed.

18 MS RESIDOVIC (in interpretation): The defence of Zejnil

19 Delalic will present its opening statement after the

20 prosecution case in chief.

21 MR KARABDIC (in interpretation): The defence of Hazim Delic

22 will give its opening statement after the presentation

23 of the prosecution defence.

24 JUDGE KARIBI WHYTE: Mr Tapuskovic, how long do you think

25 your opening statement will take, having prepared it for

Page 72

1 so many months?

2 MR TAPUSKOVIC (in interpretation): About two hours.

3 JUDGE JAN: So you can bring your witness after the break,

4 after he has finished.

5 MR OSTBERG: Yes, after his statement.

6 JUDGE JAN: You can start after lunch.

7 JUDGE KARIBI WHYTE: After lunch tomorrow.

8 MR OSTBERG: Tomorrow, yes, very good.

9 JUDGE JAN: Or maybe after 12.00.

10 MR OSTBERG: As soon as Mr Tapuskovic has finished his

11 opening statement, I am prepared to bring my first

12 witness.

13 JUDGE KARIBI WHYTE: Thank you very much. I think we are

14 having an unmerited short holiday this afternoon. We

15 will go for lunch and for the day until tomorrow morning

16 at 10.00 am. The Trial Chamber will reassemble at

17 10.00 am tomorrow.

18 (12.50 pm)

19 (Tribunal adjourned)