Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15679

1 Tuesday, 1 September 1998

2 --- Upon commencing at 10.05

3 (Open session)

4 JUDGE KARIBI-WHYTE: Good morning, ladies and

5 gentlemen. Let's have the appearances, please.

6 MR. NIEMANN: If Your Honours please, my name

7 is Niemann and I appear with my colleague Ms. McHenry

8 and Mr. Huber for the Prosecution.

9 JUDGE KARIBI-WHYTE: For the Defence.

10 MS. RESIDOVIC: Good morning, Your Honours,

11 I'm Edina Residovic, I appear for the defence of

12 Mr. Zejnil Delalic together with my colleague Eugene

13 O'Sullivan professor from Canada.

14 MS. BUTUROVIC: Good morning, Your Honours,

15 I'm Helen Buturovic from Konjic from

16 Bosnia-Herzegovina, and I'm the attorney of Mr. Mucic.

17 Together with me is my colleague, Mr. Kuzmanovic, an

18 attorney from America, and Mr. Niko Duric, the attorney

19 from Croatia.

20 MR. KARABDIC: Good morning, Your Honours, my

21 name is Salih Karabdic, I'm a lawyer from Sarajevo and

22 I represent the defence of Mr. Delic. Together with me

23 is my colleague from Houston, Texas, Mr. Moran.

24 MS. McMURREY: Good morning, Your Honours,

25 I'm Cynthia McMurrey and along with my colleagues

Page 15680

1 Ms. Nancy Boler and Mr. Calvin Saunders, we represent

2 Esad Landzo.

3 JUDGE KARIBI-WHYTE: Mr. Niemann, may we hear

4 you?

5 MR. NIEMANN: Good morning, Your Honours. By

6 this stage of the proceeding, Your Honours have heard

7 many thousands of words, and probably you've heard

8 about as many words as you want to hear in relation to

9 this case, so I promise that I will try and be as brief

10 as I can be. But I would like, if I could, to attempt

11 to destroy some of the myths that have been created in

12 this case, and particularly in the submissions that

13 have been made by my colleagues from the Defence.

14 So, in doing that, I fear that I may well

15 take the full extent of my half-hour, and I may indeed,

16 if necessary, have to seek Your Honours' indulgence to

17 borrow a little bit of time from that left over by my

18 colleague, Mrs. McHenry, yesterday, who kindly

19 completed her submissions in a timely fashion and

20 leaves 15 minutes over for the Prosecution, if Your

21 Honours would indulge me. I sincerely hope that is not

22 necessary.

23 So, Your Honours, there's been a number of

24 factors, a number of issues that have been raised by

25 the Defence which we, from this side of the courtroom,

Page 15681

1 say are myths, are not true, not correct.

2 The first one, Your Honours, that I'd like to

3 deal with is in the submission by Mr. Delalic. There's

4 a reference they, somewhat guarded, I might say, and

5 perhaps equivocal, but nonetheless exists, which

6 asserts that the Prosecution has the obligation to

7 prove every fact in the indictment. Your Honours have

8 no doubt seen that.

9 Your Honours, the Prosecution must prove

10 every fact in the indictment that goes to proof of an

11 element of the offence. Indictments are not they

12 merely to set out the facts which the Prosecution must

13 prove and if one of those facts is not proved that's

14 the end of the case.

15 The position is, Your Honours, that

16 indictments, as you well know, serve a number of

17 purposes; they inform the accused of the circumstances

18 of the case, they give particulars and they also set

19 out the charges, and they should express those words

20 which go to proof of the elements of the offence.

21 So you can't say categorically across the

22 board that if you can point to one fact that the

23 Prosecutor has pleaded in the indictment that that then

24 is the grounds upon which it should be dismissed.

25 That, Your Honour, is a myth.

Page 15682

1 Secondly, Your Honour, the question was

2 raised yesterday about the exercise of prosecutorial

3 discretion. It's a myth, Your Honour, that that's a

4 defence. As Judge Jan correctly pointed out, was this

5 matter raised with the Prosecutor. That's indeed what

6 should happen if there's any questions about

7 prosecutorial discretion.

8 In this jurisdiction, indictments are drafted

9 by the Prosecutor and submitted to a confirming Judge.

10 If there's any question about the exercise of the

11 discretion, that's a matter that needs to be taken up

12 with the Prosecutor. It's not a matter that need

13 trouble Your Honours, now, at all. To suggest that it

14 is a matter that needs trouble Your Honours is a myth.

15 There's been, in the course of these

16 proceedings, a number of instances where we have had

17 collateral attacks, if I can call it that, where

18 instead of concentrating and focusing on the main point

19 of the case, instead of challenging the Prosecution

20 evidence and saying this is wrong and this is why my

21 client is not guilty of this offence, because that

22 evidence is incorrect, or whatever, we have had this

23 series of collateral matters.

24 The prosecutorial discretion issue that I

25 mentioned is yet another one to be added to the top of

Page 15683

1 attacks upon the Registrar, the interpreter, the

2 guards, the accommodation, indeed, individual members

3 of Your Honours' bench.

4 So, why these issues are raised, Your

5 Honours? They are raised in my respectful submission

6 because attacking the Prosecution case directly exposes

7 the weakness in the defence. And it's because they

8 don't want you to see the weakness in their case that

9 they raise all these peripheral collateral matters to

10 otherwise consume Your Honours' time.

11 The next matter, Your Honours, is in relation

12 to Common Article 3 of the statute. Common Article 3

13 of the Geneva Conventions. It's been raised by

14 Mr. Moran, I think he made it plain that he raised it

15 because he wants to appeal it. He wants to persuade

16 the Appeal Chamber to change its mind for all its

17 previous decisions and say we got it wrong. Fair

18 enough, if he needs to create a record for that, for

19 those purposes, I can understand why he might want to

20 do that.

21 But so far as Your Honours' concern, you need

22 not be concerned about that at all. It's a matter

23 which has been decided by the Trial Chamber, by the

24 Appeal Chambers, and Mr. Moran, I think, concedes that

25 Your Honours are probably bound by it.

Page 15684

1 There's two points, however, that I would

2 like to address on this question, and it's not for the

3 record. It's two points which have been made, I think,

4 on numerous occasions, if not in this Chamber, before

5 this Court, before the Appeals Chamber and in other

6 cases.

7 The first point is that if you're a successor

8 state, then under the Treaty on Succession of States,

9 Article 34, which at this stage has not come into force

10 but is generally accepted as espousing the principles

11 of international law, clearly states that a succeeding

12 state carries with it and has, is obligated by

13 international treaties which are binding upon the

14 predecessor state. It's a simple concept but one

15 that's generally accepted, Your Honours, and has been

16 incorporated in this treaty.

17 The effect of that is, Your Honours, that you

18 need to look at the former Yugoslavia, and then the

19 question is had it exceeded to the Geneva Conventions.

20 Question is yes, no dispute about that, a long time

21 ago, 1959, I think. Then is Bosnia bound by it in the

22 early part of 1992? Yes, because of that principle.

23 But also, in the exercise and application of

24 that principle when the repository of states excision

25 to treaties, the foreign ministry of the government of

Page 15685

1 Switzerland, in relation to the Geneva Conventions, it

2 accepts it from the date of independence, which in the

3 case of Bosnia, is the 6th of March of 1992.

4 So, any suggestion, Your Honours, that the

5 Geneva Conventions had no application in

6 Bosnia-Herzegovina at the relevant dates of our

7 indictment is a myth.

8 The question of whether Common Article 3 was

9 intended by the security council to be incorporated and

10 picked up and applied by Article 3 of our statute has

11 been raised by the Defence in their submissions, as

12 well. It's been suggested to Your Honours, it was

13 never intended, that the security council had ever

14 intended to incorporate Common Article 3 under Article

15 3 of our statute. The Defence raised the argument,

16 look at the Rwanda statute, it's spelled out in the

17 Rwanda statute. Obviously that was the position, it

18 had to be expressly stated, otherwise it had no

19 application, and it was never contemplated.

20 Well, Your Honours only need to go to the

21 debates of the security council on the adoption of the

22 statute of the Tribunal of the Yugoslavia, for this

23 Tribunal, the 25th of May 1993. It's the verbatim

24 record of the 3.270th meeting of the Security Council,

25 and read what the Ambassador for the United States,

Page 15686

1 Madeline Albright, had to say about it at the time.

2 And she says that she believes that it's the

3 understanding of all of the members and that they share

4 the view that Common Article 3 of the Geneva

5 Conventions is incorporated and applied to the

6 International Tribunal for Yugoslavia --

7 JUDGE JAN: Can you read the statement she

8 made?

9 MR. NIEMANN: I'm reading from page 187 of

10 the record of the minutes of the meeting. And this is

11 Madeline Albright. "In particular, we understand that

12 other members of the council share our view regarding

13 the following clarifications related to the statute.

14 Firstly, it's understood that the laws or customs of

15 war referred to in Article 3," and she is referring to

16 Article 3 of our statute, "include all obligations

17 under humanitarian law agreements in force in the

18 territory of the former Yugoslavia at the time the acts

19 were committed, including Common Article 3 of the 1949

20 Geneva Conventions and the 1977 additional protocols of

21 these conventions." Quite clear, Your Honours.

22 The other issue that I might touch on now

23 that we're talking about, Common Article 3, and it

24 needs to be brief, is in relation to whom it applies

25 to. And there seems to be some suggestion that there's

Page 15687

1 doubt about that by these submissions that have been

2 raised by the Defence. Your Honours, there's no doubt.

3 It's very clear. Your Honours only have to read it.

4 And as you have been encouraged to rely upon the plain

5 words that appear in the statute, Your Honours only

6 have to do that to see the ambit of its application.

7 It applies to persons taking no active part

8 in the hostilities, including members of the armed

9 forces that have laid down their arms. Including. It

10 is not limited only to those, Your Honours. So it has

11 a very broad application, there's no question or doubt

12 about that.

13 The next myth, myth 4, if I can raise it

14 quickly and dispose of it quickly; they is a suggestion

15 that Your Honours may have seen in the submissions,

16 written submissions of Mr. Delalic which speak of the

17 prevailing conditions in Yugoslavia, in Bosnia in

18 particular, Konjic area at the time. And the argument

19 is mounted on the basis that if the government makes a

20 good faith effort to provide conditions which would

21 seek to comply with the Geneva Conventions, then that

22 is sufficient. It's all it has to do. Myth, Your

23 Honours.

24 Myth for a number of reasons. Myth because

25 it doesn't work that way. If you want to lock people

Page 15688

1 up in the course of war, there's rules that says that

2 they are conditions under which they must be kept.

3 It's not good enough to say we tried but we didn't

4 quite get they, things are pretty tough. No, that's

5 not it.

6 If you do it, the conventions are clear, you

7 must comply with them. But really, was they a genuine

8 attempt to ameliorate the conditions of these people

9 kept in this camp? They was no question they was

10 sufficient water. They is plenty of water they, the

11 evidence shows that; just they wouldn't give it to

12 them.

13 They was no need to keep people in a tunnel.

14 There's plenty of room. They didn't have to be kept in

15 a tunnel.

16 They was no need to beat them or torture them

17 or kill them. They didn't have to do any of that.

18 That's got nothing to do with conditions at the time.

19 So, Your Honour, it's a myth.

20 There's also another myth that's been raised

21 in the written submissions of the Defence, Delalic,

22 page 16. It's a somewhat convoluted argument and I'm

23 not sure I fully follow it; but it is suggested to Your

24 Honours that because the Celebici detainees don't set

25 out, in detail, all the matters which go to describe a

Page 15689

1 prisoner of war under the Geneva Conventions, that

2 either they are liars or we are liars.

3 Well, Your Honours, that's a fairly broad and

4 sweeping generalisation, if it's intended to mean what

5 it says, and I can only rely on the plain reading of

6 their submission.

7 We have never suggested at any stage, nor has

8 any of the evidence of the Prosecution suggested that

9 all of these people were prisoners of war under the

10 Prisoners of War Convention. They were certainly

11 detained. Some of them were civilians. And they are

12 different categories of that convention, different

13 categories in the Prisoners of War Convention which

14 apply.

15 They didn't come to Your Honours and

16 precisely state what category they fell under, but a

17 lot of them would have easily fallen under Category 46,

18 in my submission, namely inhabitants of a non-occupied

19 territory who on the approach of the enemy

20 spontaneously take up arms to resist the invading

21 forces, et cetera, Your Honours can read it.

22 JUDGE JAN: Invading forces.

23 MR. NIEMANN: Invading forces, yes.

24 JUDGE JAN: You invade a foreign country, you

25 don't invade your own country.

Page 15690

1 MR. NIEMANN: Your Honours, that's an

2 argument for the Defence. But it seems that the

3 people -- they is a great deal of comment about who is

4 doing what, and there's this curious argument which I

5 will come to and, I think, answer in greater detail

6 about this issue of whether it's an international armed

7 conflict. Because the Defence speaks with forked

8 tongues on this, and I will develop it shortly.

9 But they say on one hand, well, they don't

10 say, but they don't deny in a serious way that there's

11 an international armed conflict going on. Not at all.

12 Why could they do that? Well, because the very people

13 they worked for, the very government that they worked

14 for said it was an international armed conflict. So,

15 they can't very well say, it doesn't sit well in their

16 mouths to stand up now and say, Your Honour, this

17 wasn't an armed conflict at all.

18 JUDGE JAN: Whether it was an international

19 conflict -- you have the resolution of the security

20 council. It's an international conflict, maybe you

21 have some point to make they. But invading force

22 obviously means that some foreign force is invading a

23 foreign territory.

24 MR. NIEMANN: Well, Your Honours, we had here

25 a situation of transition, the transition of secession,

Page 15691

1 and the whole of this case has been argued by the

2 defence --

3 JUDGE JAN: I've not been able to make myself

4 clear. Bosnia-Herzegovina was recognised as a

5 territory as an independent state. The forces going to

6 Bradina, Konjic area, et cetera, were forces of Bosnian

7 state. The Konjic area is part of Bosnia, so wouldn't

8 these forces, the legal forces of Bosnia-Herzegovina be

9 set to be invading a territory which has been

10 internationally recognised as part of its own

11 territory? That's the point.

12 MR. NIEMANN: Yes, Your Honour, the point,

13 I'm using up a lot my valuable time, but I do want to

14 persuade you on this point.

15 JUDGE KARIBI-WHYTE: I will give extra time

16 to you.

17 MR. NIEMANN: Thank you, Your Honour.

18 The point of the matter is, Your Honours,

19 that this is not a question of where everything was

20 black and white. The fact of the matter is and it's an

21 undeniable fact that they was a part of

22 Bosnia-Herzegovina over which the forces of the army of

23 Bosnia-Herzegovina, at a point in time, had no control.

24 It still exists to this day. It's called the Republic

25 of Srpska, but the Republic of Srpska is an entity that

Page 15692

1 shrunk from a larger entity, and the fact of the matter

2 is that it shrunk because of a number of reasons,

3 particularly in international intervention where lines

4 were drawn, but it shrunk because of the fact it was

5 taken over by the forces of army of the

6 Bosnia-Herzegovina.

7 Up until that time it was held by forces of a

8 combination of the JNA, which represented the Serbian

9 Bosnian Serbs, and the Federal Republic of Yugoslavia.

10 So, it was a part of the country, and these people were

11 in that country and they knew that the advancing forces

12 of Bosnia-Herzegovina was going to take over their

13 territory.

14 This is a period of transition. You can't

15 just look at it and say this is black and that's white

16 and that's the end of the matter. You've got to look

17 at the facts. In my respectful submission, Your

18 Honour, the fact of the matter is we were going through

19 a process of change which is still happening to this

20 day. Because of that, is the Geneva Conventions to be

21 denied to these people?

22 JUDGE KARIBI-WHYTE: Before you go forward,

23 don't you think you should limit this type of analogy

24 to the particular facts of the case before us and where

25 the prisoners were captured from, and whether those

Page 15693

1 facts come within the purview of this argument?

2 Because the prisoners were from Bradina and -- two

3 places, these are the main areas where they were

4 prisoners who were in Celebici camp, from those two

5 areas, and these two areas come within that context.

6 MR. NIEMANN: And they do come within that

7 context, Your Honour. They were territories which were

8 occupied by people who were regarded as being hostile

9 to the government of Bosnia-Herzegovina. And that's

10 why, Your Honour, that the Geneva Conventions must

11 apply to them in those circumstances.

12 I may come back to just touch on some of

13 those matters in a moment, Your Honour.

14 One point, though, Your Honours, is when it

15 comes to prisoners of war, the question of nationality

16 doesn't arise, not mentioned. So if nationality is an

17 issue, it's not in respect of people who would be

18 prisoners of war.

19 Myth 6, Your Honour. Question of whether

20 diminished responsibility amounts to a Defence. Well,

21 the first point we make, we made in our written

22 submissions, we make it briefly again; in our

23 submission their evidence just doesn't meet the

24 defence. They haven't produced sufficient evidence to

25 demonstrate that they was diminished responsibility.

Page 15694

1 They haven't met their burden. That's clear from the

2 evidence but I go on.

3 There's a matter of law, Your Honours,

4 diminished mental capacity is not a complete defence,

5 and at most it would entitle an accused to a lesser

6 sentence. So, it can't be sort of put up as a basis

7 once we prove this, that's it, we're entitled to

8 acquittal.

9 The Defence have tried to incorporate English

10 law, but the English law only applies to murder. So it

11 has, if English law is to be applied, then Your

12 Honours, it only has that limited application, it

13 doesn't go to matters such as torture and the other

14 crimes with which the accused Landzo has been charged.

15 So, in our submission, Your Honours, firstly,

16 diminished mental capacity hasn't been shown.

17 JUDGE JAN: Are you very clear that the

18 citation of the British law not be convicted of

19 murder. That's all, but can be convicted of something

20 else?

21 MR. NIEMANN: Yes, can be a victim of

22 manslaughter, Your Honour.

23 JUDGE JAN: I checked up on that. I'm trying

24 to find out. It merely talks of murder.

25 MR. NIEMANN: Yes. I haven't got it with me.

Page 15695

1 JUDGE JAN: It has a number of qualifications

2 why he can't be convicted of murder. A number of

3 qualifications they; but I was just wondering what

4 happens then. Then he can be convicted of

5 manslaughter?

6 MR. NIEMANN: Yes. I will see if I can find

7 this out for you, Your Honour, but the alternative

8 verdicts apply, murder manslaughter.

9 JUDGE KARIBI-WHYTE: Conceptually, if it is

10 diminished responsibility, that is what the phrase

11 means. Definitely it could be spread to any area of

12 responsibility. I agree it is limited to murder, but

13 definitely, conceptually it could be extended.

14 MR. NIEMANN: That's not how it's understood

15 in most jurisdictions with which I am familiar.

16 JUDGE KARIBI-WHYTE: Yes, that's true, but

17 you follow the context within which the concept itself

18 originated because they were merely reducing homicide

19 to manslaughter. Then if all it does is to diminish

20 responsibility to committing an offence, if one can

21 establish that, that responsibility is not the fullest,

22 it should go accordingly.

23 MR. NIEMANN: As Your Honour is suggesting,

24 it should go to all offences.

25 JUDGE KARIBI-WHYTE: I have not said so. I

Page 15696

1 said if you can so show from the evidence which is

2 available to the Tribunal, then one should be able to

3 do that.

4 MR. NIEMANN: It's a bit like the duress

5 argument, Your Honours. There is nothing unusual,

6 strange in having a law that says it applies, the

7 defences only have limited application. The address

8 argument is the other way around. It says duress is no

9 defence to the killing of innocent human beings.

10 That's been held by this Tribunal in the Erdemovic

11 appeal case. But it has application to other offences,

12 so it can apply to lesser offences. Which is the

13 reverse of this argument, but it's the same concept and

14 there is nothing unusual or strange about it.

15 In this case -- you have in the United

16 Kingdom and I don't profess to be an expert in the law

17 of the United Kingdom -- but as I understand it in the

18 United Kingdom, we have alternative verdicts, which is

19 a very common provision in most states where you have

20 murder, manslaughter, so the jury are given the option

21 to return a verdict of murder or manslaughter under

22 certain conditions. This is how this operates as I

23 understand it. That if you establish diminished

24 responsibility, you're entitled to the alternative

25 verdict of manslaughter and that, of course, reduces

Page 15697

1 the penalty which would otherwise apply.

2 So, in our submissions, Your Honours, if the

3 Defence are relying on English law and they take with

4 it that concept as well, if they try and argue, well,

5 we're entitled to raise the defence of diminished

6 mental capacity. In so doing that, because there are

7 no alternative verdicts recognised by this Tribunal,

8 that means that we're entitled to jump the canal and

9 get a full acquittal. That's not the way, in my

10 respectful submission, it should be interpreted.

11 JUDGE KARIBI-WHYTE: Actually, what our own

12 evidence that allows us is to apply any law which is

13 appropriate for the particular situation. So we're not

14 bound to follow national laws.

15 MR. NIEMANN: Absolutely.

16 JUDGE KARIBI-WHYTE: It could be adjusted to

17 fit the circumstances. In the interest of justice

18 before us, we should be able to do that.

19 MR. NIEMANN: I venture to suggest, Your

20 Honours, that if you expanded the concept of diminished

21 mental capacity to cover a situation where you're

22 entitled to a complete acquittal, rather than a reduced

23 sentence or an alternative verdict, then you'd be doing

24 something which is quite novel to the common law.

25 JUDGE KARIBI-WHYTE: I am not saying we're

Page 15698

1 doing that. But if the evidence is such that the

2 nature of the diminished capacity is such that the

3 person cannot even act, because none of the

4 psychiatrists have given to us what the situation of

5 the diminished capacity is, none of them.

6 MR. NIEMANN: I think we've mentioned it in

7 our submissions, Your Honours, at page 236 and

8 following.

9 JUDGE KARIBI-WHYTE: I have read that.

10 MR. NIEMANN: Hopefully, Your Honours, in

11 time, may have a look at that.

12 JUDGE JAN: As far as that, as I read the

13 English position, there has to be a finding that the

14 accused is abnormal. It's only then that you give way

15 to display. It has to be finding of fact that he is

16 abnormal.

17 MR. NIEMANN: Yes, Your Honour. The next

18 point, Your Honours, myth seven, if I can call it that,

19 relates to the credibility of Prosecution witnesses. I

20 have a number of points that I wish to make on this.

21 Firstly, in the written submissions, there

22 are numerous occasions where Your Honours are

23 encouraged to look closely to the decision in the Tadic

24 case and to rely on that for various points that would

25 assist you in coming to your decision. Funnily enough,

Page 15699

1 no mention is made of the issue of credibility of

2 prosecution witnesses in Tadic case, in this respect.

3 In the Tadic case, Your Honours -- and Your

4 Honours, I may have to read the decision of Their

5 Honours. In that case, you'll see that almost to a

6 witness they were believed. And I am talking about the

7 witnesses who are inmates in the Omarska, Trnopolje and

8 Keraterm camps were accepted by the Courts as telling

9 the truth. The Court may have made decisions about

10 international armed conflict and all that other sorts

11 of things, but when it came down to believing there

12 witnesses, almost to a witness, they were believed.

13 There witnesses, Your Honours, had the same

14 sort of an axe to grind. Probably a bigger axe to

15 grind and they came before the Court. They gave their

16 story. They were inconsistent. They were nervous.

17 There was interpreting problems. There was

18 inconsistencies between statements. They were raised

19 on a daily basis in there proceedings. The Defence

20 made a big thing about this. And said, "How can you

21 believe any of it"? One of the principle submissions

22 they made is, how could you believe them, they have an

23 axe to grind, they have every reason to come here and

24 lie to you. That's not what the Tribunal found in that

25 case. And these witnesses may also be accused of

Page 15700

1 having an axe to grind. In my submission, Your

2 Honours, they're equally believable as any of there

3 witnesses in the Tadic case. The only distinction

4 between the Tadic case and this case was that in the

5 Tadic case, the majority of the witnesses were Muslim

6 and in this case they were Serb.

7 Your Honours, it's said that also that the

8 Prosecution relies on the evidence of, I think at one

9 stage it was said, we only rely on two witnesses,

10 Mr. Landzo and Witness D, is a myth and I wish to

11 correct that, Your Honours. It's interesting how the

12 evidence of Mr. Landzo consistently corroborates many

13 of the Prosecution witnesses. It's very interesting

14 how he does that. And the Prosecution is entitled to

15 point to that and say, "Look at this, Your Honours.

16 Look at how he is saying something very, very similar

17 and very close to what our witnesses said." We're

18 entitled to do that, and we've done it and that's

19 fair. But we're not only relying on Mr. Landzo for our

20 case. And, Your Honours, when you come to read our

21 submissions, I think you'll clearly see that that's the

22 case.

23 Then the Defence in this case have liked to

24 raise this question that the Serb association has

25 tampered with our witnesses and corrupted them and

Page 15701

1 there is talk of this seminar, which is a mystery to

2 me, which has been had so they can only be tutored and

3 come before you and give this tutored, structured

4 evidence. It's very interesting that I'd make that

5 argument and at the same time talk to inconsistencies

6 and say there is inconsistencies and yet they've been

7 tutored. It would be a fairly poor job of tutoring, if

8 that was the case.

9 Your Honours, when this question was raised

10 with the witnesses, every witness refuted that they had

11 been lectured, they had been tutored in giving

12 evidence. The so-called meeting of the witnesses in

13 Romania, which is sort of described as a seminar, if

14 you please, it happened to be a meeting with the

15 investigators from the Office of the Prosecutor who met

16 with the witnesses in Romania because they were

17 precluded and prevented from going on to the territory

18 of the former Yugoslavia in order to gather the

19 evidence of this case.

20 Another myth that has been raised is the

21 question of the calling of the witness, Ramic. It's

22 been said that we didn't call him because his evidence

23 would have been exculpatory. So, therefore, Your

24 Honours were deprived of hearing his evidence. Your

25 Honours that's an extraordinary thing to say. There

Page 15702

1 are many, many reasons why witnesses are called and not

2 called and there is no reason why the Defence couldn't

3 have called this witness. So if he had something

4 exculpatory to say, do you think that they would have

5 been up there in the first witness. Come along, Mr.

6 Ramic, and tell the Chamber about this exculpatory

7 evidence. Not a bit of it. We didn't hear anything

8 from them in that regard. So it's a sweeping, broad

9 generalisation, Your Honours. It's a myth.

10 It's said about the witness, Assad Harraz.

11 He is a credible witness and whatever you believe,

12 fine. We accept that. What we also ask Your Honours

13 to accept is his evidence about Mr. Delalic being the

14 overall commander of the area. We ask you to accept

15 that he spoke of Mr. Mucic as being commander of the

16 camp and his article in Exhibit 167 is the 24th of

17 July, 1992, so that's before the 27th of July, 1992.

18 Your Honours, you may have been there and didn't see

19 things that happened on another day, that doesn't make

20 him a liar. That doesn't make the Prosecution

21 witnesses a liar.

22 JUDGE JAN: There is one thing about the

23 Prosecution witnesses. It is said, many of them said

24 they were beaten up in front of this crew which is led

25 by this particular witness for the Prosecution. This

Page 15703

1 position was now clarified by you when he appeared in

2 the witness box.

3 MR. NIEMANN: I agree that there is some

4 issue there, Your Honour.

5 JUDGE JAN: That does affect credibility of

6 the witnesses who make such a statement.

7 MR. NIEMANN: It might affect the credibility

8 of Mr. Harraz. But, Your Honours, the point I wish to

9 make on that, is that there has never been any actual

10 certainty that he was the only Arab journalist that

11 visited the camp.

12 JUDGE JAN: I think there is some evidence.

13 It is the only thing he visited. I think there is some

14 evidence.

15 MR. NIEMANN: Well, my understanding -- Your

16 Honours, no doubt have a better understanding of the

17 evidence than me. But my understanding was -- it's

18 always open. It's a big stretch, Your Honours.

19 JUDGE JAN: I am just thinking, maybe the

20 witnesses of the Prosecution have made such

21 exaggerations.

22 MR. NIEMANN: That's always possible, Your

23 Honours. At the end of the day only you can decide

24 that question. It's entirely possible that either

25 Mr. Harraz may have made an exaggeration or may not

Page 15704

1 have told something which happened, or it may have been

2 the case for the prosecution witness. But it doesn't

3 mean, Your Honours, they're liars. It doesn't mean

4 they're liars.

5 JUDGE JAN: Exaggeration is not --

6 MR. NIEMANN: It's not a lie. So, one

7 doesn't immediately dismiss a witness out of hand

8 simply because they portray something differently than

9 somebody else portrays it. I don't know Mr. Harraz's

10 background at all, frankly. Things that he may not

11 consider to be serious, others may, I don't know.

12 Going on to the other witness that was

13 challenged, Risto Vukalo. Your Honours, because I am

14 running short of time, I do encourage you to go to the

15 evidence and read this. I think you'll agree with me

16 when you go to the evidence that it's very clear that

17 what's happened there when Mr. Moran is discussing this

18 question which he relies upon to demonstrate what he

19 says is the fact that this witness can't be relied on,

20 is a confusion. It's a clear confusion. Mr. Moran

21 says -- and I will quote shortly what he says in the

22 transcript. He says, "It would be in early January

23 1993," and he is talking about a beating in the Musala

24 camp. "Right before you made that statement to there

25 investigators from a Bosnian army, a couple of days

Page 15705

1 before, that is what you said, is it not?" So he

2 specifically raises the statement given to officers of

3 the Bosnian army. Specifically does that.

4 And about 20 lines later, he says show the

5 witness the statement by the Office of the Prosecutor

6 and says, "Read it." The witness reads it. And Mr.

7 Moran says -- reads that out and then the witness says

8 this and this is the point that I wish to make. "Sir,

9 I had it stated that way. If they had told me that

10 milk was black" -- they, in my respectful submission,

11 is clearly the Bosnian army investigators. "I would

12 have had to say that, lest I be treated the same way I

13 was treated in Celebici. Lest in Musala I was treated

14 the same way as I was treated in Celebici. I was

15 afraid of that. Who dared to say that there were

16 beatings going on in Musala." Clearly the witness is

17 confused and one can understand why the witness is

18 confused. He mentioned a statement he gave to the

19 Bosnian investigators in 1993 and then you hand him an

20 OTP statement.

21 Again, the situation with respect to Witness

22 T and Grozdana Cecez. Your Honours, the issue on that

23 is identification. The transcript page is page 6.782.

24 Your Honour, Judge Karibi-Whyte, picked that up

25 immediately and said it was the person who raped her

Page 15706

1 that she didn't know about at that time. That's not

2 the rape that's in the charge. That's the Witness T,

3 alleged Witness T rape. And so there was confusion

4 over that issue. No confusion whether she knew him

5 from some other occasion. Now, Your Honours there are

6 numerous cases that, Your Honours are as well aware of

7 as I am, that fall into that category where rapes have

8 occurred, even by people that the victims know about

9 and they didn't -- they weren't able to identify in the

10 circumstances.

11 Your Honours, finally, we come to the last

12 myth that I would seek to destroy, if I may. It

13 relates to the question of international armed

14 conflict. I have touched upon a number of these

15 matters so far and so I won't labour the issue by

16 repeating them again. But, I have mentioned the fact

17 of the attitude of the Government of

18 Bosnia-Herzegovina, the Serbinisation of the JNA, that

19 is, that an army which was the federal army for the

20 whole of the former Yugoslavia was converted into an

21 army of the Republic of Serbia and the Federal Republic

22 of Yugoslavia. It no longer was an army of

23 Bosnia-Herzegovina at all. That's denied in the

24 argument from the Defence. They never say anything

25 about the bombardment of Konjic by the air force of the

Page 15707

1 JNA. Are they suggesting to you that when Konjic was

2 bombed that that was some sort of internal conflict?

3 Is that the submission? No, Your Honour, they're not

4 saying that. They're not saying anything. They're not

5 saying that. I put it to you that the Serbinised JNA,

6 when it bombed Konjic, was an international armed

7 conflict and it was right in the town of Konjic. There

8 is no question about that, Your Honours.

9 Your Honour, Mr. Greaves, when he spoke to

10 you, spoke about this question about what do you rely

11 on when you come to looking at the offences charged in

12 the statute? Do you look at the statute of the

13 Tribunal, the ICTY statute? Or, do you look at the

14 Geneva Conventions, themselves, directly? And which

15 ones do you rely on primarily in assisting you in

16 interpreting the law to be applied? Mr. Moran will

17 tell you, no question, look at the Geneva Conventions,

18 the tribunals of the security counsel can't make laws,

19 so therefore the only relevant law is the Geneva

20 Conventions. Mr. Greaves would urge you the other

21 way.

22 In my respectful submission, I believe that

23 Mr. Greaves' argument stands up to better scrutiny.

24 Of course, the security counsel didn't create new

25 offences. It merely picked up and implied offences

Page 15708

1 that are already there. There is no question about

2 that. It did it in the statute of the Tribunal. But,

3 Your Honours, when you're looking at this question,

4 it's necessary to look at both documents, the statute

5 of the Tribunal and the Geneva Conventions and to

6 understand, as Your Honours no doubt do, but to

7 understand consciously what the Geneva Conventions are

8 doing. And what they're doing is they're trying to --

9 well, not trying to, they do in fact -- embrace two

10 concepts. One concept is the concept of state

11 enforcement of international law. So that's for state

12 courts to apply international law. The other concept

13 is the concept of International Tribunals enforcing

14 international law under the Geneva Conventions.

15 Now, Your Honours, unlike International

16 Tribunals such as yourselves, state courts are much

17 more concerned with the issue of extraterritorial

18 jurisdiction. Why? Because state courts are careful

19 not to offend foreign courts by usurping authority over

20 what's happened in their foreign country and exercising

21 jurisdiction. So state courts hold back, unless

22 they're given specific legislation to say, you should

23 go ahead and do this -- and this has happened in

24 numerous countries, including Britain, which prosecutes

25 offences that occurred during the Second World War in

Page 15709

1 Europe, war crimes and so forth. As it expressly does

2 say, the courts are very slow to exercise extra

3 jurisdiction. This was no doubt in the minds of the

4 drafters of the Geneva Conventions when they created

5 the conventions, and no doubt the concept of

6 international jurisdiction came about as a result of

7 that.

8 But one of the things that was inserted in

9 there for the assistance of state courts -- and I

10 promise I'll be very quick, Your Honours -- one of the

11 things that was inserted in there was Article 2, which

12 related to the issue of international armed conflict.

13 So that before a state court made that jump and stepped

14 in and exercised jurisdiction, in a matter in another

15 country, it looked to the question of whether or not

16 there was an international armed conflict. That's not,

17 in my respectful submission, a matter that needs

18 concern Your Honours. Your Honours need not be so

19 concerned with exercising jurisdiction in another

20 country. You are the product of the community of

21 nations.

22 Therefore the issue of being concerned about

23 breaches of sovereignty are not a matter that need

24 trouble you. In your own statute, the statute of the

25 Tribunal, in Articles 6 and Articles 8, you are

Page 15710

1 specifically given jurisdiction, territorial

2 jurisdiction. Now, against that background, if you

3 look at Article 2 of the Statute, which applies the

4 grave breach provisions, there is no reference to

5 international armed conflict at all. I raise this

6 submission for Your Honours' consideration. In my

7 submission, it's not a matter that need concern you.

8 It's not a matter that's an element of the offence.

9 It's a matter that may be an issue that could be raised

10 by the Defence as to argue why the conventions don't

11 apply or the grave breach provisions don't apply. It's

12 not a matter that must be proved beyond a reasonable

13 doubt. And I say that, and it might be a surprising

14 that I say this now at this stage of the proceedings.

15 There is no question that the evidence of the

16 Prosecutor proves beyond a reasonable doubt that this

17 was an international armed conflict. The point I make

18 is that you don't have to do it. It's not mentioned in

19 Article 2 of the Statute. You're not concerned with

20 issues of sovereignty, you're not concerned with issues

21 of the community of nations, so it's not a matter that

22 need concern Your Honours. You're clearly given your

23 jurisdiction under Articles 6 and Articles 8 and that's

24 where you can look to see whether you can determine

25 this case before the Court.

Page 15711

1 These matters are too serious. These events

2 too tragic to have them dismissed from court on the

3 grounds of a technicality, a technicality that should

4 not concern Your Honours.

5 Unless I can assist Your Honours with any

6 other matters, there are my submissions.

7 JUDGE KARIBI-WHYTE: Thank you very much. Do

8 you have any response?

9 MR. MORAN: Yes, Your Honour, a few things.

10 Technicality. Technicality. What in the

11 world is a technicality? We're not dealing with

12 technicalities, we're dealing with the law. We're

13 dealing with what the law defines as violations. If

14 it's not defined as a violation, it's not a

15 technicality to say the law doesn't apply. I can't

16 believe what I just heard. Judge, in some ways, in the

17 last hour or so, somebody has been trying to throw a

18 little sand in your eyes and let me see if I can get a

19 little of it out. Somebody has been trying to blur

20 your vision, Judge. Let's start --

21 JUDGE KARIBI-WHYTE: You want to get him

22 out? You want to ensure it is out of the eyes.

23 MR. MORAN: We'll try to, at least, clear

24 your vision a little bit, Judge.

25 First thing is, the last time I checked from

Page 15712

1 April 6th, 1992, the Republic of Bosnia-Herzegovina was

2 a nation just like Australia, just like the United

3 States of America, just like the United Kingdom and it

4 had defined boundaries, just like Australia, just like

5 the United States of America and just like the United

6 Kingdom. How a person can sit up here and say the

7 Republic of Srpska, whatever they were doing, this,

8 that and the other thing, how in the world does the

9 Republic of Bosnia-Herzegovina invade the Republic of

10 Bosnia-Herzegovina? I am sure Mr. Niemann would be

11 happy to tell you that on June 6th, 1944, when the

12 Gaullist troops landed with the allies in

13 Normandy, the French were invading France and the

14 Germans were happily defending this country. You have

15 to look at the Dayton Accords. My Secretary of State

16 was in Sarajevo just yesterday talking about the Dayton

17 Accords and how it's one country, always been one

18 country, since April the 6th, 1992. He is trying to

19 make -- he is got a set of facts and he's trying to

20 define a crime to fit those facts and it just doesn't

21 fit.

22 There seems to be some problem with the

23 difference between state succession and state

24 secession. The Prosecutor has taken the position at

25 various times in this trial, through his witnesses and

Page 15713

1 in his written submissions, that the Socialist Federal

2 Republic of Yugoslavia, according to Dr. Economides,

3 led by Mr. Niemann ended in September 1992. Professor

4 Gow says the latest was April 27th. In their written

5 submission here they seem to accept April 27th, '92.

6 That wasn't a matter of state succession, that one

7 state succeeded another on April 6th,'92 when

8 Bosnia-Herzegovina -- that was state secession. State

9 succession is when Zaire became the democratic Republic

10 of the Congo. A different government replaced an

11 existing government. Read Professor Bassiouni

12 book. He says that --

13 By the way, as far as I know, the United

14 Nations has never recognised any state as being a

15 successor state. To this great, good day, the federal

16 Republic of Yugoslavia claims to be a successor state

17 and has not been accepted as that by the General

18 Assembly and the Security Council. I believe I have

19 given the Trial Chamber several resolutions from the

20 Security Council on exactly that matter.

21 He takes the position when the Swiss foreign

22 ministry accepts the articles of ratification from the

23 Bosnian government in December 1992, it reflects back

24 to April the 6th, '92. For purposes of the Government

25 of Bosnia-Herzegovina, I have no problem with that.

Page 15714

1 But he is also saying that if an offence occurred on

2 -- pick a date, July 1st, 1992, at a time when the

3 Government of Bosnia-Herzegovina was not party to the

4 conventions, that because of an act of that government,

5 later, a criminal statute applies to individuals.

6 Seems like a problem to me.

7 Am I bound by the policies of

8 Bosnia-Herzegovina? I don't think so. Is my client

9 bound -- because the Republic of Bosnia-Herzegovina

10 takes a position on an issue of law, does that mean

11 that this Trial Chamber is bound? Does that mean then

12 that if they drag in a citizen of the federal Republic

13 of Yugoslavia, the Trial Chamber 3 or Trial Chamber 1

14 would be bound by the policies of the federal Republic

15 of Yugoslavia. I'll bet Mr. Niemann wouldn't like

16 that. I'll bet he wouldn't like that a lot.

17 JUDGE JAN: Mr. Moran I have just a

18 question. There is a creation of a statute passed by

19 the security counsel?

20 MR. MORAN: Yes, Your Honour.

21 JUDGE JAN: Can you say, or that the statute

22 states, take jurisdiction in these matters,

23 contraventions of the Geneva Conventions and can you

24 say, no we can't.

25 MR. MORAN: You mean in contravention of the

Page 15715

1 convention, Your Honour? In something different than

2 in the convention?

3 JUDGE JAN: We're saying conventions are not

4 applicable because the Government of Bosnia-Herzegovina

5 had not -- can you say, no, we don't have

6 jurisdiction. We're a creation of that statute, how

7 can we challenge the legality of that statute.

8 MR. MORAN: I understand your question now.

9 A couple of things. First, the statute and let's pick

10 an article that doesn't apply to us, the genocide

11 provision of our statute. It gives the Court

12 jurisdiction to decide if there were violations.

13 JUDGE JAN: Let's look at the provisions of

14 the Statute. You should have the jurisdiction. Can

15 you say, we don't have the jurisdiction?

16 MR. MORAN: No, Your Honour, you have the

17 jurisdiction, no question about that.

18 JUDGE JAN: That had the power to prosecute,

19 persons responsible for serious violations of Article

20 1. It's followed by similar language in Article 2.

21 Can you say, no, you don't have the jurisdiction?

22 MR. MORAN: Your Honour, no. You clearly

23 have the jurisdiction. The question before you is not

24 whether the jurisdiction of the Tribunal because it's

25 more than just this Trial Chamber -- has the

Page 15716

1 jurisdiction to prosecute persons committing or

2 ordering to be committed grave breaches. Clearly you

3 do. The question I am presenting is, if

4 Bosnia-Herzegovina was not at party, at the times

5 applicable to this, could anyone who was acting an as

6 agent of the Government of Bosnia-Herzegovina commit a

7 grave breach if that did not apply to them? That is

8 the issue that I am presenting. Clearly after December

9 31, Bosnia-Herzegovina became a party to the

10 conventions and so I am presenting a slightly

11 different, in fact, substantially different argument.

12 Credibility of witnesses. In the Tadic case

13 three Judges of this Court sat in the same three chairs

14 you're sitting in and looked at the witnesses and

15 judged credibility. I don't think the fact that they

16 thought witnesses were credible in the Tadic case

17 really is very binding on you in whether witnesses are

18 credible in this case. I think that's an absurd

19 argument.

20 I do think we ought to point out, and one of

21 my colleagues asked me to point it out, that in all

22 innocence, the Office of the Prosecutor called a

23 witness who was a card-carrying perjurer and presented

24 him as a witness of the truth.

25 Judge Jan, you hit the nail right on the head

Page 15717

1 on one thing about Mr. Harraz. He gets up and says he

2 is a credible guy, believe him about this and believe

3 him about that; but how about believing when he denies

4 filming or taking part in beatings of inmates in

5 Celebici?

6 Judge Jan, on at least two occasions I

7 recall, one of which I can find in the transcript

8 because I'm not as good at computers as I thought I

9 was, you asked witnesses for the Office of the

10 Prosecutor how many times there were Arab journalists.

11 And every time I recall you asking that question the

12 response was one.

13 Risto Vukalo, look at the videotapes. After

14 that experience, even Mr. Niemann was laughing, as I

15 recall.

16 Another thing that was just tossed out at you

17 was the bombing of Konjic by the JNA air force. I have

18 been informed by one of my colleagues that it is in the

19 record that that occurred on May 10th, 1992.

20 JUDGE JAN: I thought this was the Ljuta

21 barracks, where they were taking out certain ammunition

22 that was stocked there, that this place was bombarded.

23 MR. MORAN: I recall a videotape shot in

24 Konjic with actually the aircraft --

25 JUDGE KARIBI-WHYTE: Much of Konjic.

Page 15718

1 MR. MORAN: As I recall the air attacks were

2 on the city, on Konjic. And as I recall, one of my

3 colleagues, Mrs. Residovic pointed it out to me, that

4 that occurred on the 10th of May, 1992.

5 We have suggested that the Trial Chamber

6 accept the formulation on international internal armed

7 conflict that was used by Commander Fenrick, a member

8 of the commission on experts, when he reported to the

9 Canadian government, his government, that before April

10 6th it was an internal armed conflict, April 6th to May

11 19th, the order splitting the JNA, international.

12 JUDGE JAN: But there is another aspect,

13 whether it is international conflict or not. I think

14 the best evidence would be provided by the government

15 of Bosnia-Herzegovina. Their own declaration of war

16 naming the parties who committed the aggression, would

17 that not be evidence of it being an international armed

18 conflict? Because the government of Bosnia-Herzegovina

19 is a proper body to say whether it is internal conflict

20 or international armed conflict.

21 Apart from that, you have all of the

22 government of Serbia said that we were drawing up

23 forces from there. But then there is a resolution of

24 the security council imposing comprehensive sanctions

25 on Serbia saying that they had not complied with the

Page 15719

1 earlier direction of withdrawal. So, at least on the

2 30th of May when the security council imposes

3 comprehensive sanctions against the government, the

4 security council (inaudible).

5 MR. MORAN: Let me answer it a couple of

6 ways, and if I don't answer it satisfactorily keep

7 coming with questions and I'll work until I can.

8 The first thing I would say is while the

9 position of Bosnia-Herzegovina may be some evidence, I

10 think it is clearly not binding upon the Trial Chamber.

11 If you want to look at evidence, you can look in the

12 Prosecutor's own written submission to you on the May

13 22nd agreement signed by Izetbegovic and the SDS.

14 JUDGE JAN: It was to be ratified, and I

15 think I did raise this question when the trial was

16 going on whether someone ratified it or not; and I

17 think the answer was no. Only if a certain thing

18 happened, and that thing did not happen, how can you

19 say --

20 MR. MORAN: Your Honour, it was an agreement

21 under Common Article 3, and the parties to that

22 agreement, which the Prosecutor tells you the parties

23 of the conflict, in their written submission, were the

24 SDA, the SDS, the Bosnian Croatian community and the

25 government of Bosnia-Herzegovina.

Page 15720

1 JUDGE KARIBI-WHYTE: Supervised by the Red

2 Cross.

3 MR. MORAN: And the Red Cross, also, no

4 question about that, Your Honour. In fact, this kind

5 of Article 3 agreement, the Red Cross is only going to

6 try and get if the Red Cross believes it is an internal

7 armed conflict. So, if internal armed conflict breaks

8 out in, pick a country, the Philippines, the Red Cross

9 is going to try and get one of those.

10 As for the United Nations and the security

11 council's resolutions, Your Honour, I would suggest to

12 you that if those are binding upon this Trial Chamber

13 and upon the Tribunal --

14 JUDGE JAN: A piece of evidence of which you

15 can take judicial notice, nothing more than that.

16 MR. MORAN: Again, it's like the position of

17 the government of Bosnia-Herzegovina, it is some

18 evidence. You can take it for what it is worth.

19 You're not bound by it. You may be a creature, you

20 being the Tribunal, may be a creature of the security

21 council, but you are not bound in your judicial duties

22 by that. That would be a horrible depravation of every

23 right in the world.

24 JUDGE JAN: It is a piece of evidence.

25 MR. MORAN: Yes, I agree.

Page 15721

1 JUDGE KARIBI-WHYTE: Where do you get your

2 evidence about internationality of armed conflict?

3 MR. MORAN: Internationality of armed

4 conflict?

5 JUDGE KARIBI-WHYTE: Where do you get your

6 evidence?

7 MR. MORAN: Well, Your Honour, you do it the

8 same way the Tadic Trial Chamber did. You look at the

9 evidence presented to you. You look at May 19th

10 order. You look at the other factors that are there

11 and you make that kind of reasoned judgement. You

12 decide whether they have proven beyond a reasonable

13 doubt. They pled it, they have to prove it.

14 Especially in the Article 2 counts. I mean, that's

15 clear.

16 They have to prove beyond a reasonable doubt

17 that there was an international armed conflict or we

18 don't get any further than that. You look at the

19 Prosecutor's proof. I believe it comes under the

20 presumption of innocence in Article 21 of the statute.

21 JUDGE KARIBI-WHYTE: That's a different

22 answer than what I asked. I said, where do you get

23 evidence of armed conflicts?

24 MR. MORAN: Of armed conflict and the nature

25 of it?

Page 15722


2 MR. MORAN: There are a lot of places, Your

3 Honour. You get evidence from the witness stand. You

4 have, they brought in two experts, Gow and Calic. You

5 get evidence from them. You weigh the credibility of

6 that evidence. You look at other testimony. You look

7 at the testimony of Witness R. Excuse me, not Witness

8 R, Witness M. Just because it happens to be sitting in

9 front of me, residents that were brought in received no

10 orders from the Republic of Srpska army. Is the

11 republic -- the biggest thing I think you have to look

12 at, and it is an evidentiary problem and something they

13 have to prove, is the relationship between the army of

14 the Republic of Srpska, the rebels, if you would, and

15 the relationship with the Federal Republic of

16 Yugoslavia.

17 That's, frankly, the issue that the Tadic

18 Trial Chamber had a problem with. It's an evidentiary

19 problem. You look at who controlled what. And if, you

20 look to see if they brought you evidence that convinces

21 you --

22 JUDGE KARIBI-WHYTE: I just asked you this so

23 you will not simplify it as much as you have been

24 doing.

25 MR. MORAN: Yes, Your Honour. If I have

Page 15723

1 oversimplified, I apologise.

2 JUDGE KARIBI-WHYTE: It's so I know what I'm

3 finding when I'm looking at evidence before the

4 Tribunal.

5 MR. MORAN: Let me see, let me flip through

6 my notes real quickly and see if I can give you some

7 time back. The Prosecutor's position that it doesn't

8 make any difference for the grave breaches provisions

9 of the conventions, whether or not it was an internal

10 or international armed conflict, first, has no

11 foundation in law. It has no foundation in fact and

12 it's contrary to the Tadic Appeals Chamber decision.

13 That's just an incredible thing for them to

14 say. It just takes a plain reading of the statute.

15 Exaggeration is not a lie. Take that for

16 what it's worth.

17 Levee en masse, we talked about that.

18 JUDGE KARIBI-WHYTE: Touch only those areas

19 where you find --

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

21 flipping through my notes to make sure I cover

22 everything I wanted to cover.

23 Application of Common Article 3 and whether

24 it's incorporated into Article 3 of the statute. The

25 Secretary-General knew what he was doing when he wrote

Page 15724

1 the report that accompanied the statute of this

2 Tribunal to the security council. Presumably he knew

3 what he was doing when he wrote the report that

4 accompanied the statute of the Rwanda Tribunal to the

5 same security council.

6 That is the best evidence of the legislative

7 intent, because the security council adopted his report

8 along with the two statutes. I think that's awfully

9 good proof.

10 I've cited several other sources, Professor

11 Bassiouni and others on whether or not Common Article 3

12 comes within your Article 3 jurisdiction. You're

13 right, I am going to appeal it, or at least I'm

14 presenting the issue to you because I think I have to.

15 You may very well be bound by the Tadic Appeals Chamber

16 decision. I'm not going to argue with Mr. Niemann over

17 that.

18 I hadn't said anything about this, either,

19 yesterday, or I wasn't really planning on saying

20 anything about this today, but I noticed in my notes

21 there was that thing about witness school, the witness

22 seminars, the allegations on that. I don't know

23 whether there was or whether there wasn't. I wasn't

24 invited, if there was one.

25 JUDGE JAN: You're not a Serb.

Page 15725

1 MR. MORAN: That's true.

2 But let me suggest this to you in judging the

3 credibility of the witnesses. From the beginning of

4 the trial somebody would get -- there would be some

5 discussion about your prior statement, or you did this

6 or that, or on cross, and you would get an "I don't

7 recall," and you got "I don't remember, I don't

8 remember, I don't remember, I don't remember, I don't

9 remember, I don't remember," witness after witness

10 after witness. And then all of a sudden people didn't

11 have a problem not remembering, they had interpretation

12 problems. And then there was a whole series of

13 interpretation problems. And then the interpretation

14 problems stopped and these prior statements were

15 coerced out of them. And it ran in a series.

16 Now, I'm a believer that there is such a

17 thing as coincidence, but sometimes it goes a little

18 far. So, I think the Trial Chamber can look at that in

19 judging the credibility of witnesses.

20 The credibility of Esad Landzo, you're going

21 to have to judge what it is. You're talking about the

22 guy who is the last witness in the trial, he has heard

23 every bit of evidence and he has a computer with the

24 transcripts on it, you know that because he told you

25 that. You got a guy whose own psychiatrist says he is

Page 15726

1 a sociopath. If you want to believe him, fine.

2 I can't stop you. You're welcome to do it.

3 Unless the Court has some other questions,

4 I'm going to thank you for your time this morning and

5 if I took -- actually it was 21 minutes, I think I did

6 pretty well, given my record of running overtime, and I

7 thank you very much, Judge.

8 JUDGE KARIBI-WHYTE: Thank you very much.

9 Any other contribution?

10 MS. RESIDOVIC: Your Honours, yesterday I

11 took five minutes more of your time. I promise that I

12 won't use my 20 minutes today for my right to reply. I

13 should also like to apologise, I have a slight cold,

14 so, I am not going to articulate as well as possible.

15 I would like to speak about two matters which

16 the Prosecutor brought up in his closing arguments

17 today. The question of myth.

18 The Prosecutor tells us that we are talking

19 about a myth by saying that each and every fact, small

20 fact has to be proved; whereas, they say that you prove

21 the case as a whole, and in that sense they have the

22 evidence on their side.

23 Second, they maintain that the Defence wishes

24 to attack the discretion of the Prosecutor, and in that

25 way, once again, to speak about a myth.

Page 15727

1 The Defence does not wish to bring up any

2 myths. We wish to speak about the facts before this

3 Tribunal and the basic laws and rules underlining every

4 criminal case; and that is that the Prosecutor must

5 place the facts before this Court to be proved beyond

6 any reasonable doubt.

7 And the Defence of Mr. Delalic maintains that

8 the Prosecutor has not spoken about any fact which has

9 to do with Delalicís authority has proved beyond reasonable doubt,

10 that they have not proved any of these facts. We do

11 not base our assumptions on myths, but we base them on

12 facts and proof and evidence provided by the Prosecutor

13 and by the Defence alike.

14 None of the witnesses, neither the

15 Prosecution witness or the Defence witnesses confirmed

16 or stated a single word which could determine that

17 Zejnil Delalic was a person in superior authority in

18 the sense of Article 7.3 of the statute, nor that he

19 committed any acts for which he is personally

20 responsible in the sense of Article 7.1 of the statute.

21 I will remind you of two witnesses, the late General

22 Pasalic and General Divjak, both Prosecution witnesses.

23 In connection with the facts, what facts

24 state, and not myths, let me also remind you that the

25 Prosecutor very often, before us and before you, Your

Page 15728

1 Honours, said that he wanted to have the truth

2 determined before this Tribunal. And I'm going to say

3 that it is true that the Prosecutor has a discretionary

4 right as to who he is going to bring before the

5 Tribunal, just as the Defence enjoys the same right.

6 But, the Prosecutor himself, in his

7 investigations, listened to the witnesses which you

8 heard here, that is to say Dr. Rusmir Hadzihuseinovic,

9 DC-4, Bajram Demic, Redzepovic Enver, the first

10 commander of the TO of Konjic, Polutak Mustafa, the

11 first commander of tactical group one.

12 None of those were brought by the Prosecutor

13 to the Tribunal, to the Chamber. They were brought by

14 the Defence itself. That is the truth, Your Honours,

15 which we should like to indicate and for which we say

16 that the evidence presented before this Trial Chamber

17 are not myth, but facts which confirm that the

18 Prosecutor, vis-à-vis Zejnil Delalic, has not succeeded

19 in proving a single one of those facts.

20 He has not succeeded in proving beyond all

21 reasonable doubt that, at any time, Zejnil Delalic had

22 a position of superiority. I should also like to tell

23 you, Your Honours, and that is something that the

24 Prosecution is well aware of, that Zejnil Delalic

25 already in May 1996 quite openly suggested an exchange

Page 15729

1 of evidence, and up to July 1996 supplied the

2 Prosecutor with all the statements of the individuals

3 who were investigated and they all said the same thing,

4 that Zejnil Delalic gave the Prosecution evidence, that

5 is he gave orders dating the 24th of August and the

6 28th of August because he had nothing to hide. He

7 transferred the orders of the Supreme Command to the

8 municipal staff. And you heard General Polutak, not

9 this conveyance of orders, but a combat order to a

10 combat unit. This was transferred by Polutak

11 as commander of the tactical group and ordered that it

12 pass through occupied territory of Gorazde.

13 So the assertion of the Prosecutor that the

14 conveyance complies with the chain of command, this has

15 not been borne out by the evidence.

16 When we are talking about the myth that is

17 being offered, I did not want to raise this matter

18 yesterday, but I should just like to remind you today

19 of two points from the written submission of the

20 Prosecutor.

21 When there are no facts, then the Prosecutor

22 offers something that is not a fact. What does he do?

23 Namely, in point 430 C, page 166, the Prosecutor tells

24 us that his witness, just imagine that, General Divjak,

25 who visited, together with Mr. Delalic, the warehouses,

Page 15730

1 ammunition warehouses that you see over there; he does

2 not say that, he says when they visited Celebici that

3 he considered that Celebici were under the command and

4 control of Mr. Delalic.

5 On the page that the Prosecutor quotes,

6 General Divjak says, "I, with Mr. Delalic visited the

7 ammunitions warehouse," and when asked by the

8 Prosecutor under whose authority were they, he says

9 that the ammunition warehouses I think were under the

10 competency and authority of the TG2 group, Mr. Delalic.

11 And when you, Your Honours, asked on page

12 8.683 under whose authority was the prison? General

13 Divjak answers and says, "I think it was under the

14 authority of the municipal staff."

15 Therefore, it is the facts that you are going

16 to appraise, and it is the facts that stand up in

17 defence of Mr. Delalic and not myths.

18 For this reason yesterday we quoted the

19 example of the failure to call one of the commanders,

20 Esad Ramic, because he was brought under subpoena by

21 the Prosecutor, because he convinced the Trial Chamber

22 that the subpoena was necessary, because he had

23 something to say; whereas, the witness did not enter

24 this courtroom.

25 In that way, that is how facts are viewed,

Page 15731

1 and we do not make myths out of facts, we have facts.

2 I know, Your Honours, that you are also going

3 to take all the other facts into consideration. In the

4 written submissions there are some other assertions

5 stated to be in the evidence which is not there. Let

6 me quote two.

7 It is maintained in point 4155 that Zejnil Delalic

8 appointed Pavo Mucic in written form. If you

9 take a look at this, Pavo Mucic never said that.

10 Although, there is your decision that the statement of

11 one individual cannot be used against another

12 defendant.

13 The next question I wish to raise is

14 something that we heard comment about by my colleague,

15 and that is that it was unthinkable for me to hear the

16 explanations by the Prosecutor as to whether

17 Bosnia-Herzegovina is a state and whether it has the

18 right to control its own territory or not.

19 That is on the 6th of April recognised and on

20 the 22nd of May accepted into the United Nations; and

21 let me remind you of the words of General Divjak, the

22 Prosecution's witness, who in that independent state

23 took Ivan Sedlo, the Thermopile of Bosnia, on its own territory. It is the

24 question of that territory's defence and every

25 commander who would not try to deblock a town like

Page 15732

1 Konjic, then the commander would be the responsible

2 commander.

3 Unfortunately, in Sarajevo, for four years,

4 we tried to liberate ourselves, but we were not able to

5 do this without the help of the international

6 community.

7 And the last thing that I want to say is the

8 following. It was stated that the Defence has no

9 feeling for the victims. I did not want to raise this

10 question yesterday because this Trial Chamber and its

11 statute relies on individual responsibility; but these

12 are the first individuals who have been brought before

13 an international court of law who were, at the same

14 time, the victims. They were in the country and the

15 town that was under attack.

16 And the Prosecutor has not yet brought

17 forward somebody from another state which was also

18 attacked, as a reaction, and then committed a crime in

19 that sense; because the provisions and rules of this

20 Tribunal allow for that.

21 We cannot be accused of not having feelings, whether somebody was

22 murdered, whether he was mistreated, left to go hungry. Perhaps

23 the Prosecutor will call upon me as a victim of a town where 12.500

24 people were killed and 5500 were wounded, perhaps I will be called to

25 testify, or my 13 year old child who tried to help me get up as I lay wounded.

Page 15733

1 So, we do have feelings for victims, because

2 we were all victims, we were all killed, we all had to

3 go hungry, we were all wounded and injured and had to

4 live in the dark.

5 But we're not discussing feelings in this

6 Trial Chamber. We are discussing whether the

7 Prosecutor has been able to show beyond any reasonable

8 doubt the facts as they stand. And Your Honours, I

9 know that with those facts before you, you will

10 ascertain that the Prosecutor has not proved beyond

11 reasonable doubt, not one single fact with regard to Zejnil Delalic Thank you.

12 JUDGE KARIBI-WHYTE: Thank you, we will now

13 have a break and reassemble at 12.00

14 --- Recess taken at 11.34 a.m.

15 --- On resuming at 12.05 p.m.

16 JUDGE KARIBI-WHYTE: Yes, may we hear you.

17 MR. KUZMANOVIC: Thank you, Your Honour. I

18 know one of the biggest myths that lawyers say is,

19 we'll be brief. But I will be brief.

20 JUDGE KARIBI-WHYTE: In these circumstances

21 you are expected to be.

22 MR. KUZMANOVIC: I would like to talk on just

23 a couple of issues. The first issue is the

24 international armed conflict issue. I would like to

25 cite the Court to pages 278 and 279 of the

Page 15734

1 Prosecution's submission on the issue of whom they

2 consider to be parties to the conflict. That being

3 Serbian Democratic Party, the Croatian Democratic

4 Community and the Party of Democratic Action. I think

5 that amounts to an admission of who they think the

6 parties of the conflict are.

7 Further on that issue, I would like to point

8 the Court to something that's somewhat simplistic, but

9 I think it's very apropos. Pull out a map of

10 Bosnia-Herzegovina and take a look of where Konjic

11 lies. If this was an issue involving perhaps Belijna

12 and Zvornik, which is right on the border of

13 Bosnia-Herzegovina and Serbia Federal Republic of

14 Yugoslavia. Perhaps there may be a more compelling

15 argument to the issue of international armed conflict,

16 but given where this occurred -- and General Divjak in

17 his testimony talked about this and we talk about it in

18 our submission -- it's more of a local conflict in this

19 area between local people.

20 The other issue I wanted to talk about just

21 briefly is a comment by the Prosecutor in his rebuttal

22 about the governments for which the defence works or

23 the government for which the defence works, wanting

24 this to be an international armed conflict. I am not

25 supposing that that means that the lawyers and their

Page 15735

1 clients are employees of the government, I think that's

2 just the position that the prosecution is taking the

3 government has itself and not the attorneys. But I

4 wanted to point that out.

5 I am glad to hear that Mr. Mucic's lack of

6 authority in Celebici is not considered to be a myth by

7 the Prosecution in its rebuttal. I think two important

8 things we'd like you to look at with respect to

9 Mr. Mucic and command responsibility, command

10 authority: One is, Mr. Delalic is alleged to have

11 appointed Mr. Mucic. And if Mr. Delalic has not

12 appointed Mucic, then the question must be asked, well

13 where did that come from? Where did that authority

14 flow from? Because the indictment flows from the

15 top to the bottom with respect to command

16 responsibility. And if Mr. Delalic didn't appointment

17 Mr. Mucic, then who did? There is no evidence one way

18 or the other.

19 In a society, I think this is true in most

20 regions in Bosnia-Herzegovina, Croatia and wherever,

21 which is fixated on stamps and signatures and

22 documents, you see before you this cart of hundreds and

23 hundreds of documents and not one of those documents

24 indicates any appointment of Mr. Mucic, any parameters

25 for Mr. Mucic with respect to Celebici out of the

Page 15736

1 hundreds and hundreds of documents that sit before

2 you.

3 Finally, I would like to point out that on

4 the issue of whether or not the indictment needs to be

5 proven beyond a reasonable doubt, meaning the facts, I

6 do believe that the Prosecution has a burden to prove

7 up the facts in the indictment. Obviously you don't

8 have to prove up every single fact within the whole

9 case. But the indictment in and of itself is the

10 indictment upon which the accused must stand trial.

11 And the Prosecution has that burden to prove the

12 allegations within the entire indictment, not just part

13 of the indictment, beyond a reasonable doubt. And, for

14 these reasons, we believe Mr. Mucic should be

15 acquitted. Thank you, Your Honours.

16 JUDGE KARIBI-WHYTE: Thank you, very much.

17 MS. McMURREY: May it please the Court?

18 JUDGE KARIBI-WHYTE: Yes, you may proceed,

19 please.

20 MS. McMURREY: Thank you.

21 Mr. Landzo was never called a sociopath by

22 anyone in the testimony before this Court. Dr. Gripon

23 used anti-social. Sociopath was a creation made by

24 Mr. Delic's attorney. Mr. Delic's total defence has

25 been that everybody that testified from that witness

Page 15737

1 stand was incredible, was lying.

2 As I promised Judge Jan, I am now going to

3 read into the record, the submission of the Defence on

4 what the definition of torture should be from the

5 Defence perspective. And under the Geneva Convention

6 and under -- we wish to accept to propose the

7 definition of torture used by the ICRC in which it says

8 that torture is more than mere assault on the physical

9 and moral integrity and torture is the infliction of

10 suffering on a person to obtain from that person or

11 from another person, confessions or information. What

12 is important is not so much the pain itself as the

13 purpose of its infliction. It's much narrower than the

14 Prosecution submission on torture, which, of course,

15 includes such vague considerations as to intimidate or

16 coerce. So we believe that this submission should be

17 limited for the purposes described in the Geneva

18 Convention as applies to warfare.

19 Now, Mr. Niemann also talked to us about

20 prosecutorial discretion. I preferred to call it

21 selective Prosecution yesterday, but Mr. Niemann has

22 called it prosecutorial discretion. Mr. Niemann and

23 Judge Jan asked if I had taken up that subject with the

24 Prosecutor herself. I have to admit that I was

25 remiss that I had not taken that up with the

Page 15738

1 Prosecutor. But this morning we hand delivered a

2 letter to Ms. Arbour to please consider under Article

3 21 and under the guarantees of equity in this Tribunal

4 that the indictment against Mr. Landzo be dismissed.

5 And Mr. Niemann claims that Tribunal Chamber does not

6 have the right to interfere with prosecutorial

7 discretion. The truth is that this Trial Chamber is

8 here to guarantee and protect the guarantees under the

9 statute of this tribunal. And one of the guarantees is

10 equality. And as Judge Karibi-Whyte says, that he

11 stated on many occasion, that this Trial Chamber has

12 the duty to see that justice is served.

13 Also, as Mr. Kuzmanovic had stated, Mr.

14 Niemann is seeking to limit the proof of the Prosecutor

15 to merely the elements of the offence as he described

16 it. Well, when you read our statute, there are no

17 specific elements outlined. But in almost all

18 jurisdictions outside of this Tribunal and probably

19 adopted by this Tribunal, they hold the Prosecutor to

20 proving every allegation asserted in the indictment.

21 So to say that the burden is something less flies in

22 the face of the rights of the accused guaranteed under

23 Article 21. Not only is he tempted the limit the

24 burden, he is almost shifting the burden by saying that

25 he does not have to prove every allegation in the

Page 15739

1 indictment.

2 There have been several attempts of Esad

3 Landzo to come before this Trial Chamber and tell the

4 truth over the past two years. The first time in 1996

5 he asked his Bosnian lawyer to --

6 THE INTERPRETER: Could the counsel please

7 slow down for the benefit of the interpreters.

8 MS. McMURREY: Thank you. I want to

9 apologise to the interpreters right now. I do tend to

10 talk fast. I will be giving back time, so I can slow

11 down this time.

12 But he tried to cooperate at that point. He

13 reached out to Ms. McHenry at the end of 1996, saying

14 that in a letter that he wanted to be executed by a

15 firing squad and wanted to discuss things with her.

16 JUDGE JAN: Cooperation.

17 MS. McMURREY: Yes, Your Honour. In fact, I

18 had a meeting with Ms. McHenry and Mr. Niemann in the

19 summer of 1997 saying that he wanted to cooperate. But

20 his lead counsel did not consent to that then, so our

21 proposals were not considered.

22 JUDGE JAN: Proposal for execution.

23 MS. McMURREY: No, I didn't reach out to them

24 to have him executed, I reached out to them to see if

25 we could see if we could reach some kind of agreement

Page 15740

1 for cooperation.

2 He also sought to tell truth by asking his

3 witnesses who had previously agreed to come before this

4 Trial Chamber and testify who subsequently, right

5 before testifying, were somehow persuaded not to come

6 by other sources to come and tell the truth and they

7 refused. At the risk of his life and the life of his

8 family, he has come here to tell the truth. This

9 decision, this risk, should not be taken so lightly.

10 Mr. Niemann keeps describing these myths.

11 His sixth myth that he alleged that diminished mental

12 responsibility is not a Defence. That's exactly the

13 statement he said in opening that section up. The

14 Homicide Act of 1957 labelled it a defence as a matter

15 of law. The Rome statute, which was adopted in July,

16 but for the rules promulgated for in a permanent

17 international court to be established says that

18 diminished mental responsibility is a law. And the

19 laws of this Tribunal clearly say that as a matter of

20 law, diminished responsibility is a Defence. It's not

21 merely mitigation of punishment. Judge Karibi-Whyte

22 correctly recognised that this Trial Chamber can apply

23 any law it feels is appropriate in the interest of

24 justice. We're not bound by national laws or state

25 laws.

Page 15741

1 Now, we had to prove beyond a preponderance

2 of the evidence that Esad Landzo suffered from an

3 abnormality of mind that substantially impaired his

4 ability to exercise his free will and decisions in the

5 Celebici camp in 1992. We had to prove that by a

6 preponderance of the probabilities, the lowest burden

7 of proof in any legal system. We have met that burden

8 of proof with this Trial Chamber, with the evidence put

9 forth.

10 Now, Mr. Niemann also talked about myth

11 seven, was that the Prosecution witnesses were

12 incredible or uncredible. And Mr. Niemann should be

13 most familiar as all as mentioned before with the

14 hidden political agendas of persons coming before this

15 Tribunal to testify. In fact, he knows that once in

16 his zeal as an advocate, maybe he didn't ask the right

17 question to ask if his witness was telling the truth.

18 And maybe that witness was subsequently charged with

19 perjury before this Trial Chamber.

20 He talked about the association of

21 detainees. He said he never heard of the witnesses

22 going up there and talking about their stories with

23 each other. He never heard that the association of

24 detainees interfered here. Well, it's my submission

25 that Mr. Niemann was not present during most of the

Page 15742

1 Prosecutor's case. And if he'd only look at one in

2 particular, Mici Kuljanin, who testified for the

3 Prosecution, on cross-examination by one Defence

4 counsel, he said, no, he had never met with the

5 association of detainees and he did not have an

6 escort. That very evening he was found in the presence

7 of the representative of the association of detainees

8 and another testifying witness down at the beach. And

9 that was brought out on cross-examination the following

10 day. Mr. Niemann just needs to review the evidence in

11 this case to be aware of the interference of the

12 association of detainees from Belgrade.

13 Now, Mr. Niemann may claim that all the

14 evidence in this case put forth by the Defence is a

15 myth. And Ms. McHenry may claim that the Defence of

16 diminished mental responsibility is a joke, but this

17 approach by the Prosecution, a body set out to search

18 for justice and truth, is a conundrum, an oxymoron.

19 This past 18 months has been taken very

20 seriously by all of these defendants up here, in

21 particular, by a young man named Esad Landzo, who is

22 facing the possibility of life imprisonment. It's a

23 shame that the Prosecution put these accusations in a

24 light of calling them a myth, that the Defence was a

25 myth or a joke. We are not here to create myths.

Page 15743

1 We're not here to create jokes. We're here as the

2 embodiment of the aims and goals of the United Nations

3 to see that justice is done. Thank you.

4 JUDGE KARIBI-WHYTE: Thank you very much. I

5 think this is the last of your submissions and we're

6 very grateful for your efforts in lucidly stating in

7 what perhaps might have been obscured in our earlier

8 arguments. We are grateful you could find time within

9 the limited period to put them down so succinctly that

10 the Trial Chamber can be better guided in determining

11 the evidence which has been put forward before us for

12 the past -- how many months? About 18 or 19 months.

13 It's a long time. We are grateful, perhaps, even if

14 memory was failing. You have done enough to remind us

15 of what has transpired, even for things that were out

16 of the records because in your submissions so many

17 things have been said, which perhaps may not be found

18 in the record of proceedings themselves.

19 We'll do our best as impartial arbiters

20 between contesting parties. We're all familiar with

21 justice in the way it has been done. We are

22 particularly grateful to the parties and especially the

23 Defence in the manner in which they have actually led

24 evidence and trying to go to the root of the matter,

25 even for areas we did not need to do so. So we're very

Page 15744

1 grateful.

2 As I said, we'll do our best in the

3 interpretation of the provisions which are a little

4 obscure in the views which have been severely

5 criticised on both sides and in those areas where,

6 perhaps, good jurisprudence allows a Trial Chamber to

7 go to the bottom of the matter and determine issues as

8 we see them. As you know, it takes some time to put

9 these things down, to reflect on them and come out with

10 a rational justice. I delicately use the word rational

11 justice because of the issues confronting us and the

12 situations under which we have been working.

13 Thank you very much. This is the end of the

14 open session, so it will be closed session when we next

15 come around. It will be about reading the judgement and

16 then of subsequent matters.

17 You remember we promised you that we would

18 not allow the amendment of the rules to prejudice your

19 chances of bringing forward further evidence in the

20 interest of plans of accused persons who have to

21 produce evidence in mitigation of sentence. So we'll

22 take that into consideration. And, if it becomes

23 necessary to do that, we'll give you sufficient time to

24 file such evidence or produce any such witnesses who

25 might give testimony in respect of sentencing. Thank

Page 15745

1 you very much. So we'll now adjourn.

2 --- Whereupon proceedings adjourned at

3 12.25 p.m., to be reconvened sine

4 die.