Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16209

1 Thursday, 15th October, 1998

2 (Open session)

3 --- Upon commencing at 10.12 a.m.

4 JUDGE KARIBI-WHYTE: Good morning, ladies and

5 gentlemen. May we have the appearances, please?

6 MR. NIEMANN: Good morning, Your Honours. My

7 name is Niemann and I appear with my colleagues, Ms.

8 McHenry and Mr. Huber, for the Prosecution.

9 JUDGE KARIBI-WHYTE: Can we have the

10 appearances for the Defence, please?

11 MS. RESIDOVIC: Good morning, Your Honours.

12 My name is Edina Residovic. I'm representing

13 Mr. Zejnil Delalic. Along with me here is Mr. Eugene

14 O'Sullivan, Professor from Canada. Thank you.

15 MR. MORRISON: Good morning. I'm Howard

16 Morrison. I appear with Madam Buturovic for the

17 defendant Mucic.

18 JUDGE KARIBI-WHYTE: Thank you. May we have

19 the further appearances, please?

20 MR. KARABDIC: Good morning, Your Honours.

21 I'm Salih Karabdic, attorney from Sarajevo. I

22 represented Mr. Hazim Delic, together with my

23 colleague, Mr. Tom Moran, attorney at law from Houston,

24 Texas.

25 MS. BOLER: Good morning, Your Honours. I'm

Page 16210

1 Nancy Boler, and together with lead counsel Cynthia

2 McMurrey, who is not present in the courtroom today, we

3 represent Mr. Esad Landzo.

4 JUDGE KARIBI-WHYTE: Thank you. We are still

5 on with Ms. Residovic.

6 MS. RESIDOVIC: I would like to call

7 Mr. Nebojsa Manigodjic to the courtroom. The Defence

8 has completed its examination-in-chief, and I believe

9 it's my colleague turn now from the Prosecution.

10 JUDGE KARIBI-WHYTE: Yes. Bring in the

11 witness.

12 (The witness entered court)

13 JUDGE KARIBI-WHYTE: You may proceed,

14 Mr. Niemann. Kindly remind the witness he is still

15 under oath.

16 THE REGISTRAR: Sir, I remind you that you

17 are still under oath.


19 Cross-examined by Mr. Niemann:

20 Q. Good morning, Mr. Manigodjic.

21 A. Good morning.

22 Q. I just wanted to ask you some questions about

23 what you were saying in your evidence. Did you say

24 that you lived in Konjic up until the war and then went

25 to Jablanica or did you always live in Jablanica?

Page 16211

1 A. I always lived in Jablanica, and my family

2 has been living in Jablanica for 250 years.

3 Q. I take it then that your business extended

4 into areas such as in Konjic?

5 A. Yes. This is a very narrow area, and

6 Jablanica is only, maybe, 40 kilometres away from

7 Konjic.

8 Q. You said that you visited Mr. Delalic in

9 Vienna, and you saw him in the club there. Do you

10 remember the name of the club?

11 A. It was the club that gathered friends of

12 Bosnia. This was the basis for their getting together.

13 Q. Did you know whether or not Mr. Delalic had

14 any connection to that club, other than being just a

15 member of it?

16 A. I did not have any specific information that

17 he was. As I told you, people who gathered in that

18 club, as far as I learned, in Vienna, were people from

19 Jablanica, whom I knew and whom I had to see on that

20 occasion. So that was the reason of my going there.

21 On that occasion, I also met with Mr. Zejnil Delalic.

22 Q. Did you stay with Mr. Delalic on that

23 occasion at his home?

24 A. On that occasion, I stayed both at

25 Mr. Delalic's home, maybe for one day, and the rest of

Page 16212

1 the time I spent with other people from Jablanica.

2 People are curious. They were wanting to know how

3 things were at home, so I had to spend some time with

4 all of them.

5 MR. NIEMANN: Your Honours, excuse me a

6 moment. No further questions, Your Honour.

7 JUDGE KARIBI-WHYTE: Thank you. Any

8 re-examination? Have you any re-examination?

9 MS. RESIDOVIC: No, Your Honour. Thank you.

10 JUDGE KARIBI-WHYTE: You are discharged. You

11 may go.

12 THE WITNESS: Thank you.

13 (The witness withdrew)

14 MS. RESIDOVIC: I call the witness Ibrahim

15 Cilic to take the stand.

16 (The witness entered court)

17 THE WITNESS: I solemnly declare that I will

18 speak the truth, the whole truth, and nothing but the

19 truth.

20 MS. RESIDOVIC: May I proceed, Your Honour?

21 JUDGE-KARIBI-WHYTE: You may, yes.


23 Examined by Ms. Residovic:

24 Q. Good morning, sir. Could you please

25 introduce yourself by stating your full name?

Page 16213

1 A. My name is Ibrahim Cilic.

2 Q. Mr. Cilic, what is your ethnic background and

3 what is your nationality?

4 A. I'm a Bosniak by ethnic background, and I'm a

5 national of Bosnia and Herzegovina.

6 Q. Mr. Cilic, are you related to Mr. Delalic?

7 A. Not directly, but I married the daughter of

8 his brother Dzafer, his niece. I guess you can call it

9 a family relationship.

10 Q. How long have you known Mr. Delalic?

11 A. I've known Mr. Delalic since 1985. I married

12 Almina that year. She is the daughter of his late

13 brother Dzafer.

14 Q. After that, did you meet with Mr. Zejnil

15 Delalic frequently?

16 A. Yes. We met on a number of occasions after

17 that.

18 Q. Mr. Cilic, do you know what kind of family

19 Mr. Delalic is from?

20 A. Mr. Delalic comes from a large and poor

21 family. He has a lot of brothers and sisters.

22 Q. Mr. Delalic, when he became a successful

23 businessman, do you know whether he helped members of

24 his family?

25 A. Yes, I did. As far as I know, he was quite a

Page 16214

1 successful businessman in Germany, and he helped his

2 family, both his close family and his large family. I

3 know that he helped, personally, my wife, his niece

4 Almina. He paid for her education in Sarajevo, and he

5 also helped her brother.

6 Q. Did you and your wife feel gratitude towards

7 Mr. Zejnil Delalic because of his attitude towards her?

8 A. Yes, because of his attitude, not only

9 towards her, but towards the whole family in general.

10 We were really thankful to Mr. Zejnil Delalic, and we

11 also decided that we should help his family now that he

12 was in trouble.

13 Q. This is exactly what I would like to ask

14 you. Do you know where Mr. Delalic's children and his

15 wife live at the moment?

16 A. Mr. Zejnil Delalic's children are living

17 currently in Belgrade, and they come, from time to

18 time, to their family house in Konjic. I saw them

19 there on a couple of occasions.

20 Q. Mr. Cilic, do you know who supported the

21 children and the ex-wife of Mr. Zejnil Delalic before

22 he was detained?

23 A. Before Mr. Zejnil Delalic was detained, he

24 personally supported his children and his wife. As far

25 as I know, he held his family in very high regard.

Page 16215

1 Q. Mr. Cilic, you said, as a sign of gratitude

2 for Mr. Delalic did for your wife when she was in need,

3 that you decided to help his family now. Tell us, what

4 do you do exactly in Jablanica?

5 A. Yes, exactly as you said, we decided to help

6 his family. Now I have a private business in

7 Jablanica, and I have certain means and resources to

8 help them now that they are in a very difficult

9 situation.

10 Q. Mr. Cilic, do you know whether, throughout

11 this period, this year or last year, whether Gordana

12 Delalic, the wife of Mr. Zejnil Delalic, came to Konjic

13 with her children. If she did so, could you tell us

14 how she was accepted, how she was received, by your

15 family and the town of Konjic in general?

16 A. His wife used to come to their family house

17 in Konjic, and me and my wife, we would personally go

18 there to pay them a visit in their family house, and

19 she was received very well by citizens of Konjic in

20 general. When we went there to that house, we saw

21 people from all ethnic backgrounds in their house, lots

22 of their friends who never stopped being their friends,

23 people who were interested in his situation and people

24 who came to The Hague. She was received very well by

25 all of them.

Page 16216

1 Q. Mr. Cilic, since you are related to

2 Mr. Zejnil Delalic, could you tell us whether you know

3 that Zejnil Delalic, whenever he could, helped people

4 who were not members of his family?

5 A. Yes. I'm aware of that. He helped a lot of

6 citizens from Jablanica. Whenever he was asked for

7 help, he would gladly do so, either financially or in

8 any other way.

9 Q. Mr. Cilic, did you ever notice Mr. Delalic

10 having a different attitude towards members of other

11 ethnic communities, or did he have friends from all

12 ethnic backgrounds?

13 A. I didn't notice any difference in attitude,

14 any difference in his behaviour. He was very

15 well-respected by anyone as an honest man, a highly

16 moral person. Mr. Delalic was thought to be a

17 cosmopolitan, and he never distinguished amongst people

18 according to their nationality, religion, of any such

19 thing.

20 Q. Did you meet with him on a couple of

21 occasions in Jablanica during the war? If you did, did

22 you notice that he had changed in any way, that he had

23 changed his attitude in that respect?

24 A. I met him only once during the war in

25 passing. Actually, I just saw him, and I didn't have

Page 16217

1 an opportunity to talk to him. At that time, we were

2 all running around. We had lots of obligations, but I

3 didn't notice any change in his behaviour. On the

4 contrary, he was esteemed by everyone in the community.

5 Q. My last question for you, Mr. Cilic, when

6 Zejnil Delalic left the area in late 1992, the Court

7 knows, and you as a member of his family probably also

8 know, that he was a victim of very intensive

9 propaganda. He was accused of being a member of KOS.

10 What I'd like to know is whether Zejnil Delalic, in

11 spite of that, continued helping people who were in

12 trouble. Do you know of any specific example as

13 regards Jablanica where he sent some assistance, some

14 aid, to the town in general?

15 A. Yes. I am aware of that. I know that he

16 helped people in Ostrozac and Jablanica at that time.

17 My mother-in-law spent some time in the area after the

18 conflict with the HVO, and I know that he even sent

19 some money on one occasion for the flour to be

20 purchased for the town of Jablanica in general. At

21 that time, both Muslims and Serbs lived in Jablanica.

22 It was a mixed community. He helped individuals in

23 general, if anyone needed, for example, medical

24 treatment and things like that.

25 MS. RESIDOVIC: Thank you very much,

Page 16218

1 Mr. Cilic. I have no further questions.

2 JUDGE KARIBI-WHYTE: Have you any examination

3 of this witness?

4 MR. MORRISON: None for Mr. Mucic.

5 MR. KARABDIC: No questions, Your Honour.

6 MS. BOLER: None from the Defence of Esad

7 Landzo.

8 JUDGE KARIBI-WHYTE: Have the Prosecutor any

9 questions for him?

10 MR. NIEMANN: Thank you, Your Honour.

11 Cross-examined by Mr. Niemann:

12 Q. Mr. Cilic, did you ever hear of Mr. Delalic

13 being referred to by a nickname of Pera, P-E-R-A?

14 A. No, I haven't.

15 MR. NIEMANN: No further questions, Your

16 Honour.

17 JUDGE KARIBI-WHYTE: Call your other

18 witness. You are discharged. Thank you very much for

19 your assistance.

20 (The witness withdrew)

21 MS. RESIDOVIC: I call the next witness for

22 the Defence, Mr. Branko Tomann.

23 (The witness entered court)

24 THE WITNESS: I solemnly declare that I will

25 speak the truth, the whole truth, and nothing but the

Page 16219

1 truth.


3 Examined by Ms. Residovic:

4 Q. Good morning, sir. Will you please introduce

5 yourself by giving the Court your full name?

6 A. My name is Branko Tomann, and I would like to

7 extend my greetings to all the ladies and gentlemen

8 present in the courtroom.

9 Q. Mr. Tomann, will you please tell us, what is

10 your ethnic background and what is your citizenship?

11 A. I'm an Austrian.

12 Q. Mr. Tomann, what are you by profession?

13 A. I am a medical technician. I'm a specialist

14 in radiology, and I also graduated in Slavic studies.

15 Q. Did you also engage in any sports activities?

16 A. Yes. Until the age of 50, that is, until

17 1990, I was a referee in the Soccer Association of

18 Austria. After 1994, I joined the Football Association

19 of Bosniaks in Austria. At first, I was a referee, and

20 then I became an instructor who controls the quality of

21 the work of referees. I'm also a member of the

22 Football Association.

23 Q. As everybody can notice, as an Austrian

24 citizen, you speak Serbo-Croatian very well. You said

25 you studied Slavic studies, but can you tell us where

Page 16220

1 you were born and did you live in Bosnia-Herzegovina at

2 any time?

3 A. I forgot my Serbo-Croatian a little bit, but

4 I was born in Bosnia and I lived there for 18 years.

5 Q. You lived in Bosnia as an ethnic minority, an

6 Austrian in Bosnia?

7 A. Yes, that's correct. I lived there. My

8 grandfather was a high ranking officer in the Austrian

9 army, so my mother tongue is really Austrian, but we

10 got along very well with people in Bosnia, and I still

11 have affection for it.

12 Q. Very well. Mr. Tomann, how long have you

13 known Mr. Zejnil Delalic?

14 A. I met Mr. Delalic sometime in mid-1994.

15 Q. Mr. Tomann, when did you meet Mr. Delalic and

16 on what occasion?

17 A. This is, I don't know, maybe a longer or a

18 shorter story. When I take the tram to go to work in

19 the 17th district in Vienna, in Tabergasstrasse 15,

20 once as I was riding on the tram, I saw a sign saying

21 Gemeinschaft BiH and let me give you a translation. It

22 was actually an association of Bosnia and Herzegovina.

23 That's where I met him.

24 Q. You said that you saw this sign in the middle

25 of 1993 and that you met him sometime in mid-1994. Did

Page 16221

1 you go in to the premises of this association and did

2 you join this association as an Austrian?

3 A. Until 1990, as a person who used to live in

4 Yugoslavia, I associated with all nations and

5 minorities from the territory of the former

6 Yugoslavia. When these quarrels started over there, I

7 stopped going to all restaurants or associations or

8 clubs, because I did not know who was behind it all.

9 Maybe there were some extremists there, some

10 nationalists there. So I decided not to pursue this,

11 and then sometime, I think it was in April 1994, an art

12 show opening was going to take place from well-known

13 painters from Serbia, Bosnia, Macedonia, Croatia, and

14 the poster said that all proceeds from this art exhibit

15 were going to be sent as humanitarian help for children

16 in Bosnia.

17 Q. Is this announcement for the art exhibit with

18 participation of artists from all over the Yugoslavia,

19 did that make you decide to go there and join this

20 association?

21 A. I was hesitating, but there was this lady,

22 Madam Biserka, and there was a well-known painter from

23 Belgrade who managed to get out and bring his work

24 there. I thought that all this showed some kind of

25 solidarity. I thought, "I'm Austrian. I speak

Page 16222

1 German. Nobody knows me. I will not show that I can

2 speak Serbo-Croatian, so I will show up. I will go

3 there."

4 Q. Was this when you first met Mr. Delalic?

5 A. Yes. After awhile, there were speeches.

6 There were addresses by invitees, and after a number of

7 things, I finally met him.

8 Q. Did Mr. Delalic also address the invited

9 guests there?

10 A. At the opening, Mr. Simon Wiesenthal spoke,

11 and I was very glad when I saw it in the catalogue, and

12 I believe you may have the catalogue, first it was

13 Mr. Wiesenthal that mentioned that this was for peace

14 and against fascism. So Mr. Wiesenthal spoke, and then

15 the deputy minister -- I'm thinking in German, so give

16 me a moment, please, yes, Alois Mock, the deputy

17 foreign minister who is also a member of this club, as

18 well as a Mr. Simon Wiesenthal is also an honorary

19 member of this club. They talked about the suffering

20 of children in Bosnia. There was people there from

21 different humanitarian organisations, there was a press

22 conference. The whole cultural elite of Austria showed

23 up. The editor in chief of the Sarajevo newspaper,

24 Sergej Princip, who is a Serb, also spoke there.

25 Q. Did Mr. Delalic also speak?

Page 16223

1 A. Mr. Delalic interpreted. At that time, I,

2 actually, didn't know that this was Mr. Delalic. I

3 just saw a nice man, a bit corpulent. He was

4 interpreting. Afterwards, he spoke too. I can only

5 recall one small part. He said, "Why are we here?

6 They imposed unofficial borders to us, but the

7 humanitarian and the human heart are larger than all

8 these artificial borders, and we are here to prove that

9 we are all together."

10 Q. At this art opening, when you heard Delalic

11 speak, how did you experience Zejnil Delalic? What did

12 you think of him?

13 A. I pursue arts. I also pursue literature. A

14 foreigner cannot have such an accent, so I thought that

15 he was also a person with the similar heritage as I

16 had. I recognised a certain, kind of, humanitarian

17 attitude. I used to help the Jews from Russia and

18 placed them in different jobs in Austria. So I thought

19 that he was an Austrian too. There was a German

20 minority in Yugoslavia called Volksdeutscher, and I

21 asked him whether he belonged to that minority.

22 Q. After you met him, did you continue to see

23 and associate with Mr. Delalic? In other words, in

24 conversation with Mr. Delalic and other activists of

25 the BH association, did you all discuss your potential

Page 16224

1 involvement in this club?

2 A. As we started talking, they recognised me as

3 a football referee, and then they said, "We would like

4 to establish a sports association which would involve

5 football, volleyball, handball, basketball. Would you

6 want to get involved in this?" At first, I declined

7 it, but Ms. Zutka Delalic, and Mr. Dzemal Delalic, this

8 was a bit later, and Zejnil Delalic too, they said,

9 "You know the methodology, and you know the

10 education. You have education skills and you have a

11 Slavic background. Would you set up and conduct

12 language courses?" I agreed.

13 Q. How long did you conduct these courses?

14 A. About two and a half years.

15 Q. Were you trying to help all the refugees from

16 Bosnia and Herzegovina, regardless of their ethnic

17 background, or were these lectures geared only to the

18 Bosniaks?

19 A. I wouldn't have agreed to that. My students

20 were Bosniaks, Serbs, Croats from Bosnia, Serbs from

21 Serbia, the workers who work in the west.

22 Q. Do you know, Mr. Tomann, that this

23 association organised a number of humanitarian

24 activities to assist their population in

25 Bosnia-Herzegovina, and do you know whether Zejnil

Page 16225

1 Delalic also took an active part through contributions,

2 through suggestions, and in other ways?

3 A. Yes, I do know. Starting with that

4 exhibition, and I saw that there were people from all

5 over the former Yugoslavia. There was even

6 Mr. Bogdanovic, the mayor of the city of Belgrade, who

7 later came back to this club and held lectures. He is

8 well-known. He built a number of wartime memorials.

9 Unfortunately, I have to say, a number of these

10 monuments and now been destroyed.

11 Q. My question, Mr. Tomann, was whether Zejnil

12 Delalic also took an active part in all these

13 humanitarian activities?

14 A. Of course, yes, yes. We had an executive

15 board which met, and we had ideas and we made

16 agreements. However, Mr. Delalic lived in Munich at

17 the time, and we would invite him, and he would come

18 and he would take part, mostly as a sponsor, donor, and

19 in organisational matters.

20 Q. As a person who knows Mr. Zejnil Delalic, is

21 he a humane person?

22 A. Yes. That is my conviction.

23 Q. From reports that you received as a member of

24 the association, could you see that he frequently was

25 one of the instigators of these humanitarian

Page 16226

1 activities?

2 A. I will mention just a few. It was one that

3 concerned the sick and the wounded. Then it was one

4 for the electric power, utilities, then for schools.

5 My group was in charge of a collection of medicine and

6 clothing. All this was sent, and all this was posted.

7 It was all recorded who did what. Mr. Delalic gave the

8 largest individual financial contribution. We led the

9 whole thing, but he was one of us. He was not a leader

10 of it all.

11 Q. Can you tell me, did Zejnil Delalic, at any

12 point, either during the collection of humanitarian aid

13 or in organising any of the events showed any kind of

14 hostility towards the Serbian population, or did he

15 ever, for instance, insist that the aid should be sent

16 just to the Muslims, or was his attitude the opposite

17 of that?

18 Q. No, madam. Everybody used to come to this

19 club, and this is what this club will continue to do.

20 There are Bosniaks who have been in the west longer

21 than Mr. Delalic who only pursued their own interests,

22 and they sent their aid just to one side, but our aid

23 went to everyone, regardless of their ethnic

24 background.

25 Q. Mr. Tomann, this cosmopolitan approach of

Page 16227

1 Mr. Delalic, was it something that was expressed also

2 through his sports activities where all Bosnian

3 citizens who were refugees in Austria were gathering

4 around?

5 A. I am very proud, because I am a member of

6 this club, because this is the policy. At first,

7 Mr. Delalic was the president of this sports

8 association in Austria, but as he lived in Germany and

9 as the association grew, as more people kept coming, he

10 couldn't continue in that position any longer, so he

11 stepped down and he was given an honour position, a

12 position of an honorary head.

13 In our club, we are multi-national. We have

14 over 400 members. Out of them, 50 are of Serbian

15 ethnic background. There are some Macedonians who were

16 driven out of the Yugoslav league in Austria, so they

17 play with us. In Austria, there is a Yugoslav league

18 and a Croatian league, but in those leagues, in those

19 associations, no person of another ethnic background

20 ever plays.

21 Q. Very well. Mr. Tomann, can you tell me in

22 brief, throughout this period of your association with

23 Mr. Delalic through different activities in 1994 and

24 1995, what are your views of Mr. Delalic as a person?

25 A. I have many things in common with

Page 16228

1 Mr. Delalic. He's younger than I am, but we have the

2 same kind of upbringing. My mother gave me examples,

3 moral examples from Talmud, from the Koran, and from

4 the Bible. She told me to go to different neighbours

5 and associate with different people, so it was an

6 honour for us when the Muslims would invite us to

7 their religious holidays, and we would invite them back

8 to our holidays.

9 Another thing that I have in common with

10 Mr. Delalic is that he is well-versed in humanities, in

11 philosophy and literature. One of his favourite writers

12 is Isaac Bashivas-Singer, who is one of my own favourite

13 writers, also Hume, Carl Pauper, are his favourite

14 philosophers, just as they are mine. I saw him as a

15 person of high education.

16 Q. Mr. Tomann, do you think that Mr. Delalic

17 could harm anyone, the person that you met?

18 A. No. I am convinced that he could not.

19 Q. Mr. Tomann, the way you saw Mr. Delalic, was

20 he a person that could see somebody in trouble and

21 suffering and not help him?

22 A. From what I know about him, I don't think

23 that he could even hurt a fly.

24 Q. Mr. Tomann, knowing Mr. Zejnil Delalic as you

25 do, could you say whether Mr. Delalic could ever agree,

Page 16229

1 if he would agree with anyone who would harm others?

2 A. There were attempts, there were attempts to

3 break up our association, and unfortunately, it came

4 from Bosnia and Herzegovina. These attempts were made,

5 but we did not allow that. Mr. Zejnil Delalic was one

6 of the first, he and I both, and this whole leadership

7 did not allow this.

8 Q. Finally, Mr. Tomann, is it true that, upon

9 your arrival in The Hague, you gave me a catalogue of

10 this art exhibition where you first met Mr. Delalic and

11 where Mr. Delalic's words have been printed, as were

12 Mr. Simon Wiesenthal's. Did you give me this catalogue

13 as corroboration of your presence there?

14 A. Oh, yes. I think I forgot. Yes, I turned

15 this over to you.

16 MS. RESIDOVIC: Your Honours, we have made a

17 translation of the address of Mr. Wiesenthal and of

18 Mr. Zejnil Delalic, and these words speak of

19 Mr. Delalic's character. We have included it in our

20 motion, and the witness confirmed that he personally

21 submitted it to us and that he participated in this.

22 I, here, have the original of this catalogue, and I

23 tender it as an exhibit in evidence. Could you please

24 hand it over to Their Honours, even though this has

25 been enclosed within our motion.

Page 16230

1 This concludes my questioning of this

2 witness.

3 THE REGISTRAR: This is D204/1.

4 MS. RESIDOVIC: Is this admitted into

5 evidence, Your Honours?

6 JUDGE KARIBI-WHYTE: Let me look at it, if

7 there is any need for it. Let me see it.

8 MS. RESIDOVIC: We have already requested

9 translation into English. We are now submitting the

10 original, which was provided to us by this witness.

11 Inside, you will find the words addressed by

12 Mr. Delalic in 1994. The original text contains the

13 words of Mr. Delalic on the last page.

14 JUDGE KARIBI-WHYTE: Which of them are you

15 putting in? Here, the one I see, "Always together," I

16 think that is the one you have in mind, February 1994.

17 MS. RESIDOVIC: Yes. This is the whole

18 document. We have translated the words, that is the

19 speech of Mr. Wiesenthal, Mr. Orban, various artists

20 from different ethnic backgrounds who exhibited during

21 the show, as well as the words of Mr. Zejnil Delalic

22 who was one of the organisers of the show which clearly

23 show what kind of man he was, what kind of cosmopolitan

24 he was, even after he left the area of

25 Bosnia-Herzegovina.

Page 16231

1 JUDGE KARIBI-WHYTE: I suppose it's

2 associated with the publications, and this is what you

3 want to show, that he is associated with what happened

4 on that day.


6 JUDGE KARIBI-WHYTE: You might well put it

7 in.

8 MS. RESIDOVIC: Thank you, Your Honours.

9 This concludes my examination of this witness.

10 JUDGE KARIBI-WHYTE: Any examination of him?

11 Any examination of this witness?

12 MR. MORRISON: No thank you, Your Honour.

13 MR. KARABDIC: No questions, Your Honour.

14 MR. NIEMANN: No questions, Your Honour.

15 MS. BOLER: No questions, Your Honour.

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

17 think you are discharged.

18 THE WITNESS: Thank you.

19 (The witness withdrew)

20 JUDGE KARIBI-WHYTE: Who is your next

21 witness?

22 MS. RESIDOVIC: Yes, Your Honour. The

23 Defence calls Witness Darko Ruzic.

24 (The witness entered court)

25 THE WITNESS: I solemnly declare that I will

Page 16232

1 speak the truth, the whole truth, and nothing but the

2 truth.

3 JUDGE KARIBI-WHYTE: You may sit down,

4 please.


6 Examined by Ms. Residovic:

7 Q. Good morning, sir.

8 A. Good morning.

9 Q. Sir, would you please introduce yourself to

10 the Court by stating your full name?

11 A. My name is Darko Ruzic.

12 Q. Mr. Ruzic, what is your ethnic background and

13 what is your nationality, citizenship?

14 A. I'm a Croat by nationality and I'm a national

15 of Bosnia and Herzegovina.

16 Q. What is your profession, Mr. Ruzic?

17 A. I completed technical college, and before

18 that, I completed vocational school and was trained as

19 a locksmith.

20 Q. Do you know Zejnil Delalic?

21 A. Yes, I do.

22 Q. When did you first meet Mr. Zejnil Delalic?

23 A. The first time I met Mr. Delalic was at the

24 beginning of August on the Igman platform.

25 Q. Mr. Ruzic, was that at the time when

Page 16233

1 Mr. Zejnil Delalic took over the duty of the commander

2 of the Tactical Group and came to Igman?

3 A. Yes. This was at the beginning of the action

4 whose objective was to lift the siege of Sarajevo. It

5 was the operation called JUG '92.

6 Q. What exactly did you do before the war?

7 Where did you work?

8 A. For about 20 years, I worked at the technical

9 institute which worked for the Yugoslav People's Army.

10 Q. What kind of job were you supposed to get at

11 the beginning of August when you saw Mr. Delalic on

12 Mount Igman?

13 A. I spent as an analyst of technical materials,

14 I spent some time working on that issue for about five

15 years. So I was involved with weapons, and I worked in

16 Zadar, Kalinovik, and other places in the former

17 Yugoslavia. I also worked as an inspector of weapons

18 for the JNA.

19 Q. Were you a member of the Territorial Defence,

20 and did you go to Mount Igman in that capacity, that

21 is, to take over a certain amount of artillery weapons?

22 A. Yes. I was a member of the Territorial

23 Defence before the aggression on Hadzici. I was also a

24 member of the Patriotic League. At the beginning of

25 the aggression, I went to the area of Pazaric which, at

Page 16234

1 that time, was the free territory in that area. At the

2 beginning, I worked with certain municipality bodies,

3 and I was also involved in preparations of the JUG '92

4 operation. I was supposed to take over a certain

5 amount of artillery weapons, that is, T-55, T-133

6 millimetre gun.

7 Q. In that capacity, you were deployed on the

8 main axis of the JUG '92 operation. The Court knows

9 quite a few things about that. I'm not going to go

10 into any details, but I would like to know whether you

11 provided support to Zejnil Delalic at one point, who

12 was the commander of the Tactical Group?

13 A. Yes. I was the commander of a battery, and I

14 had certain assignments in that respect. I know that

15 Mr. Zejnil Delalic was the commander of the Tactical

16 Group 1 in the place called Ormanj. Whenever the

17 Serbian artillery would open fire from Rakovica and the

18 neighbouring areas, we would use our gun, the so-called

19 Sultan, and we would often receive requests to provide

20 support and to return fire to the Serbian artillery.

21 Q. Yes. Thank you very much, but I'm not

22 interested in combat activities. We've been listening

23 about that for 18 months now. My question to you,

24 Mr. Ruzic, is whether you had an opportunity to meet,

25 to get to know Zejnil Delalic as a person throughout

Page 16235

1 that period of time?

2 A. Yes.

3 Q. Mr. Ruzic, what was Delalic's personal

4 attitude toward his fighters, to other combatants.

5 A. I had a very positive impression of

6 Mr. Zejnil Delalic, and it was an honour for me that

7 Zejnil Delalic, together with another friend of ours,

8 who had been a member of the JNA, to become members --

9 who became a member of the army of Bosnia-Herzegovina,

10 so it was an honour for me that Zejnil Delalic wanted

11 to spend some time on Bjelasnica with us, together with

12 a number of my superior officers and my soldiers. He

13 wanted to spend a few hours with us, and we gladly

14 shared the little food we had with him. So we would

15 sort of take some time off together whenever it was

16 possible to do so.

17 Q. You had quite a few informal encounters with

18 Mr. Delalic, in spite of the intensive fighting that

19 was going on at the time. Did you notice Mr. Delalic,

20 did you observe any different attitude by Mr. Delalic

21 in respect of you, who are a Croat?

22 A. At the beginning of the war, and even later

23 in 1992, 1993, as a member of the BH army, first a

24 member of the Territorial Defence, and then member of

25 the BH army, I never experienced any nationalistic

Page 16236

1 hatred. I never experienced that from Mr. Delalic, in

2 particular, who always wanted to spend some time in

3 friendly conversation with me and others. This was

4 never an issue with us. Even if we did discuss these

5 things, Mr. Delalic, as commander of the Tactical

6 Group, as someone who had a superior position, insisted

7 that we should adopt and behave in accordance with our

8 strict moral principles in that regard.

9 Q. Later on when you provided support to his

10 units, did you ever observe any kind of hostility

11 towards other people because they were of different

12 ethnic or religious background?

13 A. No, I never noticed that kind of behaviour.

14 Q. We all know that the war causes a lot of

15 misfortune. What kind of attitude did Zejnil Delalic

16 have towards his soldiers?

17 A. Zejnil Delalic, as a commander of the

18 Tactical Group 1 and who was a superior to me in the

19 chain of command, always paid attention to his men,

20 always took proper care of his men. He never allowed

21 any wounded soldier to be left behind, and he never

22 allowed us to behave differently.

23 Q. The weapon that you were in charge of, the

24 gun that you mentioned, is a large calibre gun, and

25 it's quite destructive. When you provided support to

Page 16237

1 Tactical Group 1, which was under the command of Zejnil

2 Delalic, did he, did Zejnil Delalic ever tell you, ever

3 warn you, as to the targets that should not be covered

4 by that heavy weapon?

5 A. Yes, but this was not something that we would

6 discuss during a military operation. During a military

7 operation, we knew exactly what our targets were.

8 However, outside combat, outside battle, when we would

9 discuss things in general, he would insist on that. He

10 bore in mind the fact that we did not have enough

11 weapons and ammunition, and he insisted on the fact

12 that we should only limit ourselves to military

13 targets. He was aware that this is something that we

14 could bank on after the war, after the victory.

15 Q. Mr. Ruzic, the Court is aware of the fact how

16 we were all hungry in 1992. However, do you know that

17 occasionally in Pazaric, where Zejnil Delalic had his

18 headquarters, do you know that members of Zejnil

19 Delalic's family would go there, would come there from

20 abroad, and bring you things which were so precious for

21 you at the time, like, canned food, cigarettes, and so

22 on. Are you familiar with that?

23 A. Yes. We all knew about that. It wasn't only

24 Zejnil Delalic, but there were also others who had

25 well-off families abroad and who would send us

Page 16238

1 equipment, cigarettes, food. I don't know the family

2 of Zejnil Delalic personally, and I didn't know them at

3 the time; however, it was common knowledge that Zejnil

4 Delalic, Ziam Civic who were not stationed at Igman

5 were the ones who provided food, cigarettes and other

6 necessities through their families. We knew that

7 whenever Zejnil would come, there would be more

8 cigarettes and food for us.

9 Q. Could it happen that Zejnil Delalic got a

10 large carton of cigarettes and keep them for himself?

11 A. No. We would all have them. We would all

12 share them.

13 Q. Could Zejnil Delalic smoke a pack of

14 cigarettes himself, or would he always share that one

15 pack of cigarettes that he had at the time?

16 A. Whenever he had a pack of cigarettes, it

17 would lie on the table. It was offered to everyone.

18 He would share his last cigarette with anyone.

19 Q. Mr. Ruzic, you were a member of the

20 Territorial Defence and, later on, a soldier in the

21 Bosnian army. Could you tell me, throughout the JUG

22 '92 operation, that is, August, September, October,

23 1992, what was the ethnic composition of Zejnil

24 Delalic's units? Was there a significant number of

25 Bosnian Serbs that were members of his unit?

Page 16239

1 A. As you could see from what I have said, there

2 was no nationalistic hostility among us, and the

3 composition of the Territorial Defence and, later on,

4 the composition of the army of Bosnia and Herzegovina,

5 was mixed. I used to say that the Bosnian army very

6 well represented the Bosnian country, Bosnia and

7 Herzegovina in general. It's an ethnically mixed

8 society. In my unit, I had people from various ethnic

9 backgrounds, and when it comes to the JUG '92

10 operation, I can tell you that, for example, the Zenica

11 Brigade supplied one battalion for the operation, and

12 there were over 30 per cent of Serbs in that battalion,

13 which is a higher percentage of Serbs. That does not

14 reflect, for example, the actual situation in Zenica.

15 Q. You have mentioned Cedo Domaz who lived in

16 the same residential block in Zenica. Are you talking

17 about a BH army soldier who was killed later on but was

18 declared a national hero after his death?

19 A. Yes. Cedo Domaz was a member of the

20 Patriotic League, and he came to Igman one month before

21 I did, and he became a legend. He was buried in

22 Brezovaca, and he received the so-called Golden Fleur

23 de Lys as this is the highest military decoration in

24 the BiH army.

25 Q. You said that there was a battalion in the

Page 16240

1 Zenica Brigade which has 30 per cent Serbs in it. Was

2 this a similar situation in the unit under the command

3 of Mr. Zejnil Delalic?

4 A. I'm not familiar with the precise hierarchy,

5 but in Ormanj, in the area of Ormanj, I know, because I

6 was involved with providing logistics support in that

7 area, I know that they also had the village of

8 Tvrdimici under their responsibility, and I provided

9 support to them as well. The battalion that first

10 completed the task and stopped in the village of

11 Tvrdimici, one day before we managed to arrive in

12 Stojcevac, I know that was the case with that unit.

13 Q. Do you know whether Zejnil Delalic had the

14 same kind of attitude towards all soldiers, and did he

15 retain that kind of attitude throughout your

16 acquaintance?

17 A. I never had any doubts as to the behaviour

18 and attitude of Mr. Zejnil Delalic towards me and

19 towards other people he came in contact with. I simply

20 cannot accept the possibility that Zejnil Delalic would

21 behave differently somewhere else.

22 Q. To conclude, Mr. Ruzic, if you can just

23 briefly tell me, what was your view, what was your

24 idea, of Zejnil Delalic as a man? What can you say

25 about him as a man?

Page 16241

1 A. Well, since you ask me that question, I have

2 to add a few things. When I joined the Territorial

3 Defence and the BH army, and the first persons, in

4 general, who joined the Territorial Defence and the BH

5 army, they were the real Bosniaks like myself. They

6 were the people who wanted to prevent the aggression,

7 to prevent the war. Zejnil Delalic was one of the

8 persons who joined the Territorial Defence first,

9 together with other worthy Bosniaks. They were the

10 real Bosniaks. They were the real fighters.

11 Q. Did Zejnil Delalic, from the beginning of

12 August until the end of autumn, did he remain the

13 same? Did he remain humane? Did he remain a true

14 Bosniak, which, in our parts, implies religious and

15 national tolerance? Did he ever change?

16 A. My personal opinion is that, not only in that

17 period, but still today, these people, these fighters

18 think of Zejnil Delalic as a good person and as a true

19 Bosnian.

20 Q. You don't know anything about Zejnil Delalic

21 from the period prior to August 1992. You don't know

22 anything about how he lived before, and you don't know

23 what happened to him after he left Bosnia and

24 Herzegovina; is that correct?

25 A. Yes, that is correct.

Page 16242

1 MS. RESIDOVIC: Thank you, Your Honours.

2 That concludes my examination of this witness.

3 JUDGE KARIBI-WHYTE: Any examination of this

4 witness?

5 MR. MORRISON: No questions for Mr. Mucic,

6 thank you.

7 MR. KARABDIC: No questions, Your Honours.

8 MS. BOLER: No questions, Your Honours.

9 MR. NIEMANN: Thank you, Your Honours.

10 Cross-examined by Mr. Niemann:

11 Q. Mr. Ruzic, did you ever work for Mr. Delalic

12 in and about the city of Konjic, or was it only up on

13 Mount Igman that you knew him?

14 A. I met him only at the beginning of August on

15 Mount Igman.

16 Q. That was the only place where you were in

17 contact with him?

18 A. Yes, the only place, because I spent a lot of

19 time on Mount Igman. I would stay there for two or

20 three months.

21 Q. Was there any particular reason why you

22 weren't a member of the HVO as opposed to the TO, the

23 Territorial Defence?

24 A. I was never a member of the HVO.

25 Q. I was wondering if there was any reason for

Page 16243

1 that?

2 A. If you followed me closely, you could have

3 noticed that I said at the beginning, I said that all

4 Bosnians behaved the same. I lived in the area of

5 Hadzici. I wanted to be as close to home as possible,

6 and I was expelled from my home by Serbian soldiers.

7 Q. Do you ever recall, during the time that you

8 knew him, Mr. Delalic being referred to by a code name

9 or a military name?

10 A. No.

11 Q. You spoke of his attitude to people of

12 different ethnic groups. Did you ever observe or hear

13 him express his attitude towards the enemy when you

14 were engaged in military activities?

15 A. If I understand you correctly, no, never,

16 except when we would discuss things freely at my unit,

17 and the code of conduct of soldiers towards their

18 enemy. We didn't have any other conversations of that

19 kind. No, I never felt any attitude towards the enemy

20 expressed in that way.

21 Q. Did you ever hear him refer to the enemy by

22 names such as "Chetniks"?

23 A. No.

24 Q. What about prisoners of war, were you ever

25 able to hear him express his attitude about prisoners

Page 16244

1 of war?

2 A. No. As I told you, Mr. Zejnil Delalic would

3 only come during his free time, and his attitudes

4 towards prisoners of war, if he was the same, but I

5 don't know whether he had any contacts with prisoners

6 of war.

7 Q. Do you consider Mr. Delalic to be an honest

8 man?

9 A. Yes, I do.

10 Q. Do you think that he would ever state untrue

11 things or exaggerate in order to protect himself?

12 A. No.

13 MR. NIEMANN: No further questions, Your

14 Honours.

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

16 think you are discharged now.

17 THE WITNESS: Thank you.

18 (The witness withdrew)

19 MS. RESIDOVIC: Your Honour, this might be a

20 good time for a break. Do you want me to call my

21 witness after the break? This is the last witness for

22 the Defence.

23 JUDGE KARIBI-WHYTE: We will break now and

24 reassemble at noon. So you will call your witness

25 then.

Page 16245

1 --- Recess taken at 11.28 a.m.

2 --- On resuming at 12.07 p.m.

3 MS. RESIDOVIC: Your Honours, before I call

4 our last witness, I promised you that I would provide

5 you with a copy of a translation of the Criminal Code

6 of Bosnia and Herzegovina. My office was able to

7 provide it, so I would like to submit it to you. This

8 is the integral text of the Criminal Code, which

9 Professor Tomic used when he testified. I have

10 provided copies for each one of Your Honours and for

11 the Prosecutor as well.

12 If I can ask the usher's assistance to

13 distribute the copies.

14 Also, my office in Sarajevo was able to find

15 the text of the Yugoslav Criminal Code, and we are

16 working on copying that, and I will provide that to

17 you. In this way, you will have all the pertinent

18 documents that were discussed through the witness

19 Professor Tomic.

20 JUDGE KARIBI-WHYTE: Thank you very much, Ms.

21 Residovic.

22 MS. RESIDOVIC: I believe it is not necessary

23 to have these exhibits marked, and my apologies for

24 interrupting you, Your Honour.

25 JUDGE KARIBI-WHYTE: Yes. We can have them

Page 16246

1 as they are. Kindly bring the witness in.

2 MS. RESIDOVIC: The next witness is Almina

3 Cilic.

4 (The witness entered court)

5 THE WITNESS: I solemnly declare that I will

6 speak the truth, the whole truth, and nothing but the

7 truth.

8 JUDGE KARIBI-WHYTE: Please take your seat.


10 Examined by Ms. Residovic:

11 Q. Good afternoon, madam. Would you please

12 introduce yourself to the Court by stating your full

13 name?

14 A. Almina Cilic.

15 Q. Will you please tell us where you were born

16 and what is your ethnic background and your

17 citizenship?

18 A. I was born on 22 May, 1959 in Ostrozac in the

19 Jablanica municipality. I am a Bosniak by ethnic

20 background, and I'm a citizen of Bosnia-Herzegovina.

21 Q. What is your occupation?

22 A. I'm a graduate of law school.

23 Q. Ms. Cilic, are you related to Mr. Zejnil

24 Delalic?

25 A. Yes. Zejnil Delalic is my uncle. He is the

Page 16247

1 brother of my deceased father, Dzafer Delalic.

2 Q. Where does your family come from?

3 A. From Ostrozac in the Jablanica municipality.

4 Q. In Ostrozac, where both you and Mr. Delalic

5 were born, do people of different ethnic backgrounds

6 also live there, that is, Serbs, Muslims, and Croats?

7 A. Yes. The people of all ethnic backgrounds,

8 there were a lot of Serbs, and maybe just four Croatian

9 families, but our population was mixed, and we all live

10 well together.

11 Q. What was the economic status of the Delalic

12 family?

13 A. Mr. Delalic or, I should say, my Uncle Zejnil

14 was born in a very poor family with nine children,

15 seven brothers and two sisters.

16 Q. Did the children from this family go to

17 school, and did Zejnil Delalic go to school,

18 specifically?

19 A. Yes. All children went to school. The two

20 girls completed elementary school, and the boys

21 finished some secondary school, and Zejnil completed

22 high school and then college in Sarajevo.

23 Q. Could you tell us, Ms. Cilic, what your uncle

24 did after he graduated?

25 A. As far as I know, after he graduated, he

Page 16248

1 first was employed in the labour bureau in Sarajevo,

2 and after that, he went to Germany and started his own

3 successful business.

4 Q. As you said, he came from a very poor

5 family. You probably are not aware of his early

6 childhood or youth. You're much younger. After your

7 uncle became a successful businessman, did he forget

8 his parents?

9 A. No, not at all. He took great care of his

10 parents. He frequently visited them, not only during

11 his vacations, but at certain holidays. He always made

12 sure that they had medical assistance if they were

13 sick, and he also supported them financially so that

14 they did not lack anything. They had everything, and

15 he made sure that they did.

16 Q. Your Uncle Zejnil did not forget about his

17 parents. What about his relationship with his brothers

18 and sisters?

19 A. I know that he supported his brothers and

20 sisters. For instance, if they had a problem with

21 housing, he would contribute money to help finish the

22 house or buy an apartment. If they wanted to start a

23 business, they knew that they could rely on him, and

24 often times, they didn't need to specifically go to him

25 and ask him. He would find out and he would help them

Page 16249

1 on his own. So he really supported them consistently.

2 Q. Your aunts, Sefkija and Hajena, Zejnil's

3 sisters, both were widowed early. What was Zejnil's

4 relation to them and their children?

5 A. I think that he had a special relation to

6 them, because he was aware that they were widowed very

7 young. And also, the lost of a father is

8 irreplaceable, but he tried to, at least, make sure

9 that they did not have any financial problems, and,

10 indeed, he really helped them a lot.

11 Q. You said that Zejnil struggled to put himself

12 through school. Did he take care that his siblings'

13 children also received a good education?

14 A. Yes. There were quite a few children in our

15 family, and almost all of us have gone through school,

16 and I wanted to study, and he was very glad to hear

17 that I wanted to do so. He immediately asked if he

18 could help us financially, and my father did not have

19 much money, so an arrangement was made. I studied law,

20 and my brothers studied mechanical engineering, and he

21 would give us 200 German marks monthly throughout this

22 time. I have actually kept receipts from banks as a

23 kind of souvenir.

24 Q. This money which you kept receiving, and your

25 brother and maybe some other members of your family

Page 16250

1 too, over a period of four years, was this money the

2 only help that your uncle sent you in order to help you

3 get an education?

4 A. It was not the only help. He would also,

5 whenever he would come home, bring presents, different

6 kinds of presents. He took both myself and my brother

7 to Germany so that we would meet different people, so

8 that we would meet his friends. There were a lot of

9 people that we met, including Germans, so that we would

10 learn the language a little bit, so that we could

11 expand our horizons and learn another culture. So he

12 made it possible for us to do this.

13 Q. From the evidence that has been presented to

14 the Court so far, the Court knows that two of his

15 brothers died on the same day, and there were some

16 under-aged children who were left fatherless. How did

17 Zejnil treat those children?

18 A. In 1993, in a single day, two of my uncles

19 died, Sefik and Vesil, Sefik in Vienna, and Vesil in

20 Zagreb. One of them left behind a daughter, and Vesil

21 had two sons, and Zejnil provided all assistance that

22 he could so that the family would not be wanting

23 because of the loss of a father. So he helped them.

24 Q. Could you say that all of you in the family

25 who lost a parent, Zejnil helped to the extent that he

Page 16251

1 could in order for you not to feel the loss too much?

2 A. Yes. Because another uncle of mine, Rasim,

3 also died, and he helped his daughter as well.

4 Q. Does Zejnil Delalic have his own children?

5 A. Yes. Zejnil has a son and a daughter. The

6 son just graduated. We saw each other recently. He

7 graduated from the secondary medical school, and he is

8 now going to go on with his education. His daughter

9 Sandra is also putting herself through school studying

10 commerce.

11 Q. Let me first ask you: Who is Zejnil

12 Delalic's wife?

13 A. Her name is Gordana and she was born in

14 Belgrade.

15 Q. What is her ethnic background?

16 A. She is a Serb.

17 Q. When Zejnil Delalic married a Serbian woman

18 from Belgrade who came to live in Konjic, how did the

19 Delalic family receive Gordana?

20 A. Fine. There was no problem that she was

21 Serbian. Even though Zejnil's mother was a religious

22 person, she did not mind that she was of another

23 religious background, and she accepted her as her own

24 daughter.

25 Q. Could you please say, as a member of the

Page 16252

1 family, who was supporting Zejnil Delalic's children

2 who lived with their mother in Belgrade until Zejnil

3 was brought here and detained?

4 A. It was Zejnil who supported them. He

5 provided for their living expenses, and they frequently

6 visited him during school vacations. He bought them a

7 wonderful house in Belgrade, and he supported them

8 financially, anything they needed. I know about this

9 because I talked about it with Mrs. Gordana. I saw her

10 recently. We talked about everything, including this.

11 Q. You know that Gordana Delalic, wife of Zejnil

12 Delalic, had a serious traffic accident and she is

13 unable to work. Who supported her before Zejnil was

14 arrested?

15 A. Yes. She had a very serious traffic

16 accident, and she is still recovering from the

17 consequences of that. Right now, we are able to

18 provide enough money to Gordana and the children in

19 Belgrade so that they do not lack of what they need.

20 They are used to living rather well, and we are trying

21 to help them, and we will continue to do so.

22 Q. Ms. Cilic, even though Mr. Delalic's wife and

23 children live in Belgrade, have you ever heard Zejnil

24 Delalic speak badly about his wife, and did they

25 continue to maintain a decent relationship throughout

Page 16253

1 this period?

2 A. I have been with them a lot of times, but

3 he's a gentleman. I've never heard him say anything

4 bad. He always treated me in a gentlemanly manner, and

5 he also treated his wife in the same way. I think that

6 they continue to maintain relations. She has visited

7 him a number of times here. Now, I don't know all the

8 details about their private relations, but from

9 everything I know, from all the conversations I've had,

10 I think that she wouldn't be doing this had he treated

11 her badly.

12 Q. Do you know that she has visited him a number

13 of times, along with the children?

14 A. Yes. I know that they came a number of times

15 here in The Hague, both she and the children.

16 Q. You said that Zejnil Delalic is a person who

17 helped his immediate family and also helped his wider

18 family. Do you know, regarding this humane approach of

19 his, did he also help other people?

20 A. Yes. He helped quite a number of people down

21 there. He helped some financially. He helped somebody

22 find a job. He helped somebody open a private

23 business. He also supported cultural events, as well

24 as sports activities. He also contributed to schools

25 in providing teaching aids, equipment, and such.

Page 16254

1 Q. The Konjic municipality, which is where the

2 Delalic family comes from, was not a very rich

3 community, but people engaged in different types of

4 activities. Do you know whether your uncle helped

5 develop certain activities in your municipality before

6 the war?

7 A. I know that he specifically helped quite a

8 bit in Ostrozac. He was one of the founders of the

9 sports association and club, water sports association,

10 in particular. It was windsurfing equipment

11 and kayaks, and I don't know what else this equipment

12 is. He organised some regattas. It was a small

13 community, and without his financial support, I don't

14 think they would have been able to organise all these

15 activities.

16 Q. I know that you were not in Jablanica in

17 1992, but I know that you came back there later, even

18 though there were terrible rumours. People were saying

19 that he was a member of the Serbian Secret Service and

20 things like that. Do you know something about his life

21 after he left Bosnia?

22 A. Yes, I know. Even after he left, I know that

23 he supported people. I know that my mother went to

24 Germany in 1994, and he sent 10.000 German marks to

25 help provide flour in Ostrozac and distribute it among

Page 16255

1 the population. There were Serbs living there, and

2 even a few Croats, and this was distributed evenly to

3 everyone in Ostrozac.

4 Q. Zejnil was married to a Serbian woman from

5 Serbia, and there were other mixed marriages in your

6 family. How did your family view members of different

7 ethnic groups once they became members of your family?

8 A. Yes. There are other mixed marriages in my

9 family. My sister is married to a Serb and lives in

10 Belgrade. Another cousin is married to a Croat. This

11 is a normal thing, that people do not distinguish.

12 What was important was whether somebody was a good

13 person.

14 Q. As a member of the close family, do you know

15 whether Zejnil Delalic ever engaged in politics?

16 A. As far as I know, he was interested in

17 business. He's, first of all, a businessperson. I'm

18 not aware of him engaging in politics, at least he

19 hasn't to my knowledge.

20 Q. A moment ago, Ms. Cilic, you said that as an

21 uncle, he also treated you as a gentleman. I want to

22 ask you whether he showed respect to all people, or did

23 he try to be above them?

24 A. No. I think that if anything, he would, sort

25 of, even take a step down so that people would feel

Page 16256

1 comfortable. You know, we're all the same, and for

2 him, every person was a worthwhile person. This is how

3 he treated everyone.

4 Q. Ms. Cilic, did your uncle show feelings

5 towards people?

6 A. Yes, very much so. Even though he is trying

7 to hide it a little bit, I know that he's a very

8 sensitive person, and I notice that very often.

9 Q. Did he ever put down other people?

10 A. No. I never noticed that.

11 Q. In so far as you know Mr. Delalic, could he

12 harm anyone?

13 A. No. He's not such a person. He always

14 sought to help people. It is a bit unusual for a

15 person to help people so much, but I felt that he took

16 pleasure from helping others.

17 Q. You say that he, himself, could not harm

18 anyone, but in so far as you know your uncle, do you

19 think that your uncle would accept or agree if somebody

20 else was doing harm to someone else?

21 A. I think that he would try to prevent it. I

22 know that if he was aware of it that he would try to

23 prevent it.

24 Q. Ms. Cilic, if someone were to ask you to give

25 a brief comment on your uncle, what would you say?

Page 16257

1 A. As a person with a strong character, a humane

2 person, a gentleman, a very highly educated person. I

3 also graduated from college, but I never knew as much

4 as he did about various areas of knowledge. Again, as

5 I said, also he is somebody who helps people, and I

6 really don't know anything negative that I could say

7 about him.

8 Q. Ms. Cilic, you are a member of the family,

9 and this is your perception of your uncle, but you also

10 move among other people. Have you ever noticed that

11 any of the people that you have come in touch with who

12 knew your uncle said anything bad about him?

13 A. There may be people who have something

14 against him, but all the people that I'm aware of

15 perceive him as I do. This is a small community, and

16 most people know him there, and they perceive him as a

17 humanitarian. Perhaps there are people who believe in

18 some kind of propaganda or something like that.

19 Q. Very well. Finally, Zejnil Delalic was

20 arrested in March of 1996. At that time, you were in

21 Jablanica. Can you tell me what the reaction was when

22 this news came?

23 A. The citizens of Jablanica were very

24 surprised. A number of them came to me and said, "How

25 can we help? He did not deserve it." We actually

Page 16258

1 expected that he would be awarded for what he had done,

2 rather than get arrested. Nobody still knows why this

3 has happened. Really, people wanted to help. It was

4 difficult for them, and they still, to date, approach

5 me and ask me how he is, how he is enduring all of

6 this.

7 Q. My last question to you, Ms. Cilic: In fact,

8 you already said that your uncle was sending you money

9 for four years. This is your foreign currency account

10 which you have provided me.

11 MS. RESIDOVIC: Your Honours, I have tendered

12 a copy of this, and I'm not going to tender the

13 original booklet here. This concludes my examination

14 of this witness. Thank you.

15 JUDGE KARIBI-WHYTE: Thank you very much.

16 Any examination of this witness by any other counsel?

17 MR. MORRISON: No questions on behalf of

18 Mr. Mucic. Thank you.

19 MR. KARABDIC: No questions, Your Honours.

20 MS. BOLER: No questions, Your Honours.

21 MR. NIEMANN: No questions, Your Honours.

22 JUDGE KARIBI-WHYTE: This concludes your

23 witnesses for the --

24 MS. RESIDOVIC: Yes, Your Honour. We have

25 come to the end of our witness list, that is, character

Page 16259

1 witnesses, that we want to call for the purpose of the

2 sentencing hearing. Thank you very much.

3 JUDGE KARIBI-WHYTE: You are discharged now.

4 Thank you very much.

5 THE WITNESS: Thank you.

6 (The witness withdrew)

7 MR. MORAN: Your Honour, the Court has given

8 us permission to supplement with Mrs. Delic's

9 statement. We have a sick copying machine so all we

10 have is one copy. The Prosecutor has seen it and, I

11 believe, has no objection, and the Registry has agreed

12 to copy it and distribute it to the members of the

13 Tribunal. We would move to introduce this as the next

14 Delic number.

15 Secondly, we have previously provided the

16 Trial Chamber with copies of the English translation of

17 two statements. We have the original Bosnian, if the

18 Court would like them. If the Court doesn't want them,

19 whatever pleases the Court. One is from Mr. Delic's

20 father, and the other is from Salem Delic. Again, you

21 already have the English translations. Whatever

22 pleases the Court pleases me.

23 JUDGE KARIBI-WHYTE: As long as you've

24 submitted them, I think it's sufficient for that

25 purpose.

Page 16260

1 MR. MORAN: Thank you, Your Honour. Instead

2 of cluttering the file with more paper, we will just

3 leave these. Thank you, Your Honour.

4 MS. BOLER: If Mr. Moran is finished, there's

5 a matter that I need to bring up before the Court, if

6 this is an appropriate time?


8 MS. BOLER: The Defence of Esad Landzo filed

9 a motion for acceptance of additional written

10 statements as evidence relevant to sentencing of Esad

11 Landzo. It was in my box this morning, but after

12 talking to my friend and colleague, Tom Moran, he had

13 not seen it as of shortly before -- as of an hour or so

14 ago. I also showed the motion to Teresa McHenry and to

15 Grant Niemann, and my understanding is they had not

16 seen it either. So I guess my first question is was

17 this in your boxes this morning? Have you had an

18 opportunity to see it?

19 JUDGE KARIBI-WHYTE: Yes. We've seen it.

20 MS. BOLER: Certainly, Tom has already told

21 me that he plans to object, but I would just like to

22 ask the Court that this be accepted into evidence based

23 on two Rules, Rule 84(A)(vi), presentation of evidence,

24 which states: "Any relevant information that may

25 assist the Trial Chamber in determining an appropriate

Page 16261

1 sentence, if the accused is found guilty on one or more

2 charges in the indictment."

3 The second relevant Rule is Rule 100,

4 pre-sentencing procedure, which states: "If the accused

5 pleads guilty or if the Trial Chamber finds the accused

6 guilty of a crime, the Prosecutor and the Defence may

7 submit any relevant information that may assist the

8 Trial Chamber in determining an appropriate sentence."

9 Clearly, the important words in both of those Rules are

10 "any relevant information that may assist the Trial

11 Chamber in determining an appropriate sentence."

12 As you can see from the motion, Mr. Jelisic

13 does not want to come back to court and testify again

14 to clear up the false impression that his last

15 statement clearly left. I understand that an article

16 was published yesterday in a Serb newspaper criticising

17 him for coming to court and testifying for a Muslim,

18 testifying for Esad Landzo. I would ask that since the

19 Court has shown flexibility all week long in admitting

20 written statements, even Mr. Delic's Defence finished

21 Tuesday and just offered a written statement which, of

22 course, he did have your permission, and I think

23 Mr. Mucic's Defence also mentioned that they were going

24 to be turning in some things, we would ask that the

25 Court accept our motion as well and enter that into

Page 16262

1 evidence.

2 JUDGE KARIBI-WHYTE: Any objection on the

3 part of the Prosecution?

4 MS. McHENRY: Your Honour, we just received

5 it a few minutes ago. We're deferring to the Court as

6 to whether or not you believe it would be helpful or

7 appropriate.

8 MR. MORAN: Your Honour, I would just toss a

9 few thoughts out here. This man took the witness stand

10 and essentially shut down a cross-examination by

11 refusing to answer questions. Now to come back without

12 the ability for me or anyone else to cross-examine him,

13 it's a highly unusual procedure, to say the least.

14 I've never heard of such a thing. If this man wants to

15 answer questions, fine, then he can take the witness

16 stand and answer questions. If the Court decides or

17 someone else thinks that it's necessary to have some

18 protection for him, this Court is well familiar with

19 protecting witnesses from threats and other things.

20 But to testify and then refuse to be subjected to

21 cross-examination, and then to submit a written

22 statement that's uncross-examinable, to me, is

23 something I've never heard of before, either in a guilt

24 or a sentencing proceeding.

25 MS. BOLER: If I might just respond. It's

Page 16263

1 also a highly unusual procedure for a situation like we

2 had yesterday or the day before, where Mr. Delic spoke

3 directly to Esad Landzo. We objected. The Court

4 accepted that testimony, allowed that to happen, has

5 been very flexible all week long. I would simply ask,

6 in light of the fact that there's no objection from the

7 Prosecution and they are deferring to the Court, I

8 would just ask that the Court allow that to be admitted

9 in evidence.

10 JUDGE KARIBI-WHYTE: It will be admitted.

11 Actually, what weight do you attach to it yourself as

12 counsel?

13 MS. BOLER: I believe you asked me what

14 weight I attached to that?

15 JUDGE KARIBI-WHYTE: Yes. What weight do you

16 attach to that type of testimony?

17 MS. BOLER: Well, my understanding is that

18 the Court will attach whatever weight -- as the trier

19 of fact, you will attach whatever weight you choose

20 to.

21 JUDGE KARIBI-WHYTE: I suppose so.

22 MS. BOLER: I would just ask that we be given

23 the opportunity to, at least, present it --

24 JUDGE KARIBI-WHYTE: To say what he refused

25 to say when he was in the witness box.

Page 16264

1 MS. BOLER: Your Honour, I'll just tell you

2 that I was caught by surprise, as I think everybody

3 was. He did go home that night, back to the detention

4 centre, and wrote a statement which he gave to us the

5 next day. We had it translated the next day and filed

6 it as part of the motion.

7 JUDGE JAN: All that the witness said, the

8 gist of what he said, is he is a very nice man. He

9 entertains. He has no prejudices. That's all. That's

10 what you wanted him to say. He said that.

11 MS. BOLER: That's true.

12 JUDGE JAN: How does this statement help?

13 JUDGE KARIBI-WHYTE: No. What he now wants

14 to say is the question which arose when he refused to

15 lead his immunity. He wants that in.

16 MS. BOLER: Right. I do want that in.

17 Clearly, that's mitigation, and I ask that the Court

18 accept it --

19 JUDGE KARIBI-WHYTE: Why did he refuse to say

20 it under oath?

21 MS. BOLER: My understanding was -- well, as

22 I state it in the motion --

23 JUDGE KARIBI-WHYTE: That's not fair. That's

24 not fair, because if he refused to say it when he was

25 before the Trial Chamber, it would be unusual for him

Page 16265

1 to go away and then say it.

2 MS. BOLER: I agree with you that in this

3 case there have been lots of unusual things that have

4 happened in this case. I can see that you're leaning

5 toward not allowing me to admit that into evidence, and

6 I will ask that, again, since there's no objection from

7 the Prosecution --

8 JUDGE JAN: How does it further support his

9 statement? I've told you what the gist of his

10 statement is, and what he's said doesn't hurt Mr.

11 Moran's client. Why should he be objecting?

12 MR. MORAN: You're asking me, Your Honour?

13 Your Honour, the question was, "Were you told by

14 Mr. Landzo that he was going to get on the witness

15 stand and lie," and when he --

16 JUDGE JAN: You see the question of guilt and

17 innocence is not to be decided on the basis of these

18 statements. The statements will be taken into account

19 only when the question of the quantum of sentence is

20 being considered. If somebody wants to produce

21 evidence to say that he is a very nice man, that he has

22 no prejudices, that he is feeling very sorry, and it's

23 probably the leaders who got them into all of this is,

24 the point which you cited --

25 MR. MORAN: Your Honour, there will be one

Page 16266

1 thing that I will discuss in my final submissions, and

2 I'm going to ask you not to consider involving my

3 client with --

4 JUDGE JAN: But it doesn't involve your

5 client. The evidence with regard to sentencing is very

6 individual in the sense that everyone speaks for

7 himself.

8 MR. MORAN: Yes, Your Honour, and my client

9 spoke for himself --

10 JUDGE JAN: I have some doubts whether one

11 witness can be cross-examined by the other. It's very

12 personal.

13 MR. MORAN: Your Honours, in the procedures

14 that I'm used to when there are multiple defendants, if

15 it comes time for sentencing, the Court brings in the

16 first defendant and does what the Court's going to do,

17 and then brings in the next defendant. It's a totally

18 separate procedure.

19 JUDGE JAN: This is the usual course. In the

20 situation of a joint trial, it doesn't come in that

21 way.

22 MR. MORAN: You're right. I've never been

23 involved in any proceeding quite like this sentencing

24 proceeding because of four defendants at the same time,

25 but the Court has handled it as well as --

Page 16267

1 JUDGE JAN: The Rule, as it is framed by us,

2 does envisage some sort of cross-examination by the

3 other counsel.

4 MR. MORAN: Yes, Your Honour.

5 JUDGE JAN: Otherwise, it's a personal effort

6 of every accused to show that he should not be given a

7 more severe sentence than would normally be awarded in

8 such cases.

9 MR. MORAN: Yes, Your Honour. I concur with

10 you completely. It's a time to bring in mitigating

11 evidence and aggravating evidence, where the

12 Prosecution wishes to show that someone is a bad

13 person, or I wish to show that someone's a good

14 person. It's the time to do that. It's also a time

15 for the Court to get to know defendants as people.

16 You've seen four people sitting here, four bodies, but

17 this is a chance for you to know who they are. I think

18 that is one of the more important things that this

19 proceeding has done.

20 JUDGE KARIBI-WHYTE: In the interests of the

21 credibility of your witness, I don't think you need to

22 pursue that motion. It's not necessary.

23 MS. BOLER: Did I understand you to say in

24 the interests of the credibility of --

25 JUDGE KARIBI-WHYTE: Yes. You do not need to

Page 16268

1 pursue that motion, because it's not coming in to be of

2 any assistance to what he has said before in other

3 respects.

4 MS. BOLER: I will ask that, even though that

5 may be true, based on what his testimony involved,

6 clearly, his hesitance to answer a question that, based

7 on the motion, you will see that he believed that that

8 was -- I've forgotten the word now that we used, but he

9 did not want any adverse reaction from any of the other

10 defendants. When he came here, that was not his

11 intent, to be critical of any of the other defendants,

12 but I believe that left a false impression, and I would

13 like to clear it up.

14 JUDGE JAN: When considering the charges

15 against your client, the Defence of your client was

16 that he committed some of these crimes under the

17 influence of Delic. When we consider that, whether

18 that statement can be relied upon or not when

19 considering his guilt, then that finding may have some

20 bearing on the question of sentence if he was acting

21 under influence. But this statement which he made,

22 this witness has nothing to do with it, but he wants

23 now to further explain it.

24 MS. BOLER: So you don't --

25 JUDGE JAN: Basically his statement --

Page 16269

1 JUDGE KARIBI-WHYTE: It's of no assistance.

2 JUDGE JAN: -- was that your client is a very

3 fine gentleman.

4 MS. BOLER: I'm sorry. Because you were both

5 speaking at the same time, I just didn't hear the first

6 part of your sentence, Judge.

7 JUDGE JAN: His evidence was that your client

8 is a very fine gentleman. He entertains. He looks

9 after things, socialises, has no prejudices.

10 MS. BOLER: The gist was also just to show

11 that they achieve some harmony in the prison between

12 the ethnic --

13 JUDGE JAN: How does this statement really

14 help his explanation?

15 MS. BOLER: Again, rather than so much

16 helping the things that you've just spoken to, in my

17 view, it leaves a false impression that weighs heavily

18 on my client's credibility. He is the only defendant

19 who took the stand and testified for two days, and I

20 would just hate for that one instance to profoundly

21 affect the way the Trial Chamber view his testimony.

22 JUDGE KARIBI-WHYTE: We've looked at the

23 sequence and the way this statement is now being

24 suggested to be admitted. It was denied. It was

25 refused, him claiming immunity. Then when he left, he

Page 16270

1 thought it over again, and now he wants it to come in

2 without cross-examination. He wants it to be admitted

3 without cross-examination, in which case it has no

4 effect on whatever he must have said and, thereby,

5 raises doubts on the question which was put to him.

6 MS. BOLER: Your Honours, it sounds like

7 you've listened to everything that I can say. If it's

8 not to be admitted into evidence, if that's your

9 decision, then that's your decision.

10 JUDGE JAN: It's unnecessary.

11 JUDGE KARIBI-WHYTE: I'm saying that even if

12 it was there, it's counterproductive and cannot be of

13 any use to me.

14 MS. BOLER: At the risk of asking the same

15 thing over and over and over, I will now sit down.

16 Thank you, Your Honour.

17 JUDGE KARIBI-WHYTE: Mr. Niemann, when are

18 you starting your address?

19 MR. NIEMANN: Well, we're ready to start,

20 Your Honour, but considering it's five minutes to

21 one -- in fact, my colleague Ms. McHenry will start,

22 and then I will follow after her presentation. We're

23 ready to commence now.

24 JUDGE KARIBI-WHYTE: All right. Utilise the

25 five minutes.

Page 16271

1 MR. NIEMANN: Your Honour, I make application

2 that we put it over. It's difficult to interrupt it

3 and --

4 JUDGE KARIBI-WHYTE: Because in any event --

5 you mean you want a full one hour.

6 MR. NIEMANN: No. As I said yesterday, it

7 will take longer than an hour. I said when we made our

8 original submissions to Your Honours, we said that we

9 wanted half a day last Monday --

10 JUDGE KARIBI-WHYTE: For summarising what has

11 happened?

12 MR. NIEMANN: No. We've never had an

13 opportunity to address the Defence's submissions, and

14 we need to do that, to make our oral submissions as a

15 consequence of the submissions they've made. We've

16 never had that opportunity. They had that opportunity

17 because they received ours first.

18 JUDGE KARIBI-WHYTE: In spite of your

19 submissions, you still have extensive submissions to

20 make?

21 MR. NIEMANN: There is no way, in our

22 submissions, could we anticipate what they put in their

23 submissions which we received after we had filed ours.

24 Their submissions were written with the benefit of

25 having our submissions available.

Page 16272

1 JUDGE KARIBI-WHYTE: Well, I don't know. It

2 might be understanding the philosophy of punishment and

3 sentencing, which is one thing, but it doesn't have to

4 be as extensive as that. Whatever aggravation or

5 whatever mitigation you have might have been out of the

6 proceedings we've already heard.

7 MR. NIEMANN: Your Honours, we've sat here

8 all week without having any submissions at all, and we

9 haven't responded to their submissions. I mean, surely

10 the Prosecution is going to be given an opportunity to

11 respond to their written submissions. We could have

12 done it in writing, if Your Honours had so ordered, but

13 we understood it to be done by way of oral

14 submissions.

15 JUDGE KARIBI-WHYTE: Yes. You may well

16 start.

17 MS. McHENRY: Did I understand, Your Honour,

18 that you would like me to start now?

19 JUDGE KARIBI-WHYTE: Yes. I would like you

20 to start.

21 JUDGE JAN: I know you know what you're

22 doing, but I'm just saying it, please don't touch on

23 the merits of the case.

24 MS. McHENRY: No, Your Honour. We did not

25 intend to touch on the merits of the case. I don't

Page 16273

1 believe --

2 JUDGE JAN: Still, I thought I would say so.

3 MS. McHENRY: Thank you. Your Honour, we're

4 also not intending to repeat what was said in our

5 written submission. What we would like to do is just

6 emphasise a couple of points and, in particular, to

7 respond to certain points made by the Defence in their

8 written submission and then throughout this week in

9 their oral presentations.

10 I will speak about the two accused who made

11 their presentations first, Mr. Landzo and Mr. Delic,

12 and then Mr. Niemann will speak about Mr. Mucic and

13 Mr. Delalic.

14 I would note that systems differ as to

15 whether the Prosecution is expected to give a

16 recommendation to the Judges about its view of the

17 proper sentence for a particular accused. In some

18 systems, it is not considered appropriate to do so,

19 while in other systems, it is customary to do so and,

20 indeed, it would be considered inappropriate not to

21 give a recommendation.

22 For a variety of different reasons, the

23 Prosecutor Justice Arbour has adopted the policy of

24 giving a sentence recommendation and, thus, in every

25 case before this Tribunal and the Rwanda Tribunal, the

Page 16274

1 Prosecution has given its recommendation. Consistent

2 with this policy, it would be our intention to give

3 Your Honours our view as to a recommended sentence,

4 unless we are directed to --

5 THE INTERPRETER: Could the counsel please

6 slow down?

7 MS. McHENRY: -- unless we are directed not

8 to do so by Your Honours.

9 Obviously, the Defence has presented material

10 and evidence from families and friends of the accused

11 to the effect that the witness considers each of the

12 accused to be a nice person. Indeed, it would be rare

13 for an accused not to have family members or friends

14 who think that and probably in every case before this

15 Tribunal, there would be some evidence. The

16 Prosecution does not, in fact, contest that the accused

17 have persons would care for them and have seen them to

18 be nice persons.

19 However, these and similar other facts raised

20 in this case, although relevant, are of limited

21 weight. For not only are these facts not unusual, more

22 importantly in this case, they are not ones that would

23 entitle the accused to a significantly lower sentence.

24 The most important facts, as pointed out in our brief

25 with citations, and I believe that Judge Karibi-Whyte

Page 16275

1 has alluded to this several times, the most important

2 considerations for sentencing are those that are

3 already presented during the trial. They are the

4 factors that relate to the crimes for which the accused

5 will have been convicted, including the gravity of the

6 offence and the accused's role in these crimes.

7 Your Honours have heard about the gravity of

8 the offences, and you have heard for how, over seven

9 months, persons were imprisoned in Celebici, many of

10 whom, most of whom, should never have been imprisoned

11 at all, much less for months on end, and how they were

12 treated. I won't repeat the evidence. I can't even

13 repeat all of it. I would just ask, when finally

14 deciding on a sentence, that you think about and

15 remember the hundreds of victims of the Celebici camp,

16 that you think about what their lives were like, how a

17 large number of them did not survive, and how even

18 those who did survive will be scarred, physically or

19 emotionally or both, for the rest of their lives.

20 As found by the Chamber in the Kambanda case

21 in the Rwanda Tribunal, sentences should reflect the

22 predominant standard of proportionality between the

23 gravity of the offence and the degree of responsibility

24 of the offender. As also noted in that decision, fair

25 sentences contribute to the respect for the law and the

Page 16276

1 maintenance of a just and peaceful society. This

2 Tribunal is only concerned with serious violations of

3 international humanitarian law. It is expected that

4 the majority of sentences here, as opposed to national

5 systems which deal predominantly with less severe

6 crimes, will be severe. Indeed, in cases with

7 significant loss of life, it should not be surprising

8 if the majority of the sentences imposed by this

9 Tribunal are the most severe possible.

10 In this case, the Celebici case, the gravity

11 of the offences committed by the accused and the degree

12 of responsibility attended to each defendant are high.

13 The crimes carry an intrinsic gravity, and their

14 atrocious, cruel, and repetitive nature is shocking to

15 the human conscience. Given this, unduly light

16 sentences would be contrary to justice and the

17 fundamental purpose of this Tribunal.

18 As I said, we're going to go through the

19 accused individually, and I'll start with Mr. Landzo.

20 Mr. Landzo was a guard in the camp for a number of

21 months. Mr. Landzo acted as a cruel and sadistic guard

22 who took every opportunity to use his power to horribly

23 mistreat the detainees. Sometimes he did it because he

24 was ordered to do so, and sometimes he did it on his

25 own initiative.

Page 16277

1 Mr. Landzo has made a number of different

2 arguments in favour of mitigation and ultimately

3 requested a five-year sentence. With all due respect

4 to Mr. Landzo and his counsel, the Prosecution must

5 begin its submission by stating that the recommendation

6 of five years and, indeed, many of the arguments made

7 by the Landzo Defence are, in our submission,

8 ludicrous. Normally, we don't like to use such

9 characterisations, but in this case, we feel it is

10 necessary. I will address the points raised by the

11 Landzo Defence in, more or less, the same order that

12 they were raised in their written submission.

13 The Defence first suggested that the accused

14 Landzo, and I believe Mr. Delic has made a similar

15 suggestion, turned themselves in. This is not a full

16 and accurate characterisation of what happened, as the

17 records of this Tribunal demonstrate. Mr. Landzo and

18 Mr. Delic were indicted by this Tribunal. The

19 indictment was public, and the indictments received a

20 reasonable amount of publicity, including in Konjic

21 where the accused were located.

22 The accused did not turn themselves in to any

23 international authority. Rather, the accused,

24 Mr. Landzo, at least, gave interviews to the press

25 talking about the indictment and the fact he knew about

Page 16278

1 it, but they did not turn themselves in. Initially,

2 there were no steps taken to arrest them by the Bosnian

3 authorities, and after some weeks, I believe over a

4 month, when the accused had neither turned themselves

5 in, nor been arrested, the Prosecutor personally

6 intervened at the highest levels, and the authorities

7 of Bosnia-Herzegovina initiated action.

8 We don't know how exactly the Bosnian

9 authorities got custody of the accused and, thus, we

10 are not in a position to contest any representations

11 that they were directed by their local authorities to

12 report to the police and that they did so. We can

13 state categorically, however, that the accused, both

14 Mr. Landzo and Mr. Delic, fought then their surrender

15 to The Hague. Indeed, it was only after some time,

16 after their challenges to their extradition or

17 surrender were ultimately rejected by the Bosnian

18 Supreme Court, that the accused were forcibly

19 surrendered to this Tribunal.

20 When the accused, Mr. Landzo and Mr. Delic,

21 report that they spent 43 days in gaol in Sarajevo,

22 that's not because the Tribunal or international

23 authorities were slow in transporting them. It's

24 because the accused challenged their extradition, and

25 it took some time to work its way through the courts.

Page 16279

1 In circumstances where an accused has fought

2 his surrender to the Tribunal, we believe that there

3 can be no legitimate claim that an accused deserves

4 some sort of credit for turning himself in. We would

5 note that the facts, including that there were

6 challenges by the accused to their extradition, are

7 noted in a number of court documents from

8 Bosnia-Herzegovina. Some of those ones which

9 specifically reference the objections made by the

10 accused are part of this Tribunal's record. If there's

11 any question, we would refer Your Honours to the

12 registry record for this case, including documents 337,

13 1337 bis, and 2337 bis. There are other documents, but

14 I believe those state it.

15 The accused, Mr. Landzo, then argues that he

16 should get some kind of credit for an admission of

17 guilt, in attempts to compare this case with that of

18 Mr. Erdemovic, before this Tribunal. We believe there

19 can be no comparison. In the Erdemovic case, the

20 accused had not been indicted by this Tribunal.

21 Indeed, the accused was not under investigation, and

22 the Prosecution was not even aware of the specific

23 incidents in which Mr. Erdemovic was involved.

24 Mr. Erdemovic informed the Prosecution about the crimes

25 he had been involved in. He cooperated fully,

Page 16280

1 including giving truthful statements from the

2 beginning, and he pled guilty immediately. There was

3 no trial, saving a tremendous amount of expenditure of

4 resources and not putting witnesses through the

5 traumatic experience of testifying at trial.

6 Of course, that is not the case here. Here,

7 we are here almost two and a half years after

8 Mr. Landzo was indicted, after a lengthy trial of

9 almost one and a half years, which entailed significant

10 expenditure of resources and significant trauma to the

11 witnesses. Mr. Landzo still has never pled guilty to

12 anything. The Prosecution fails to see how he can

13 claim credit for admitting guilt when, in fact, he has

14 not admitted his guilt. Indeed, you saw even this

15 week, when the Prosecution referred to crimes committed

16 by Mr. Landzo, the Defence objected and said that we

17 were required to use the term "alleged crimes."

18 The Defence then claims that Mr. Landzo acted

19 under superior orders, and the Prosecution does agree

20 that the evidence established that sometimes Mr. Landzo

21 was acting under orders. We emphasise that in speaking

22 of the evidence, we are including the evidence of the

23 victims, who saw and heard when Mr. Landzo and other

24 guards were sometimes ordered to mistreat victims. We

25 are not relying solely on any uncorroberated testimony

Page 16281

1 of Mr. Landzo.

2 We believe that sometimes he was acting under

3 orders, and this can sometimes be a relevant factor.

4 The Prosecution believes, though, that under the

5 circumstances of this case, this factor does not

6 warrant a significantly reduced sentence, and we would

7 note that there is no evidence of duress here. Indeed,

8 the accused expressed no hesitation and, indeed,

9 reported that he enjoyed carrying out his orders.

10 Further, of course, on multiple occasions, Mr. Landzo

11 acted out any superior orders whatsoever.

12 The Defence next attempts to claim some sort

13 of credit for an attempt to cooperate. We find this

14 also unbelievable. We would first note that although

15 the details are not important, the Prosecution, in its

16 written submission, has accurately reported the one

17 plea discussion that occurred between the Defence and

18 the Prosecution. The events were independently

19 remembered by both Mr. Niemann and myself, and they

20 were the subject of a detailed memorandum to the file

21 at the time.

22 In any event, the main fact, and really the

23 only important fact, is not in dispute, and that is

24 that the accused approached the Prosecution about a

25 potential plea, and there was no agreement for reasons

Page 16282

1 including that the Prosecution was unwilling to

2 contemplate recommending a sentence of five years

3 because, in the view of the Prosecution, that would

4 represent a travesty of justice.

5 It's clear that the Defence did not approach

6 the Prosecution just because the accused wanted to

7 accept responsibility or as a sign of genuine remorse

8 or to aid the truth-finding process or the attainment

9 of justice. No. The accused made the strategic

10 decision that it might be in Landzo's best interest to

11 have a plea agreement if it was extremely, extremely

12 generous. The Defence could not get the agreement they

13 wanted, and they chose not to cooperate or plead

14 guilty.

15 We don't criticise Mr. Landzo for wanting to

16 explore what was in his best interest, but the idea

17 that by making an exploration, he's entitled to some

18 sort of mitigation for cooperation, we think is

19 unbelievable and must be rejected. The Prosecution

20 states unequivocally that the accused has not

21 cooperated with the Prosecution.

22 Does Your Honour want me to continue or break

23 now? I saw you looking at the clock.

24 JUDGE KARIBI-WHYTE: We will break now and

25 come back at 2.30.

Page 16283

1 MS. McHENRY: Thank you.

2 --- Luncheon recess taken at 1.13 p.m.
























Page 16284

1 --- On resuming at 2.37 p.m.

2 MS. RESIDOVIC: Your Honours, I just wanted

3 to make good on the second part of my promise. We

4 received copies of the Yugoslav Criminal Code, and I

5 would like to ask the usher's assistance to distribute

6 it to you. I apologise for, perhaps, a bad copy. It

7 was due to the fact that we received it via fax, but

8 now you have the complete texts of both legislations

9 for your consideration. Thank you.

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

11 think we can now listen to Ms. McHenry.

12 MS. McHENRY: Thank you, Your Honour. I will

13 just continue with our submission and now discuss the

14 general issue of Mr. Landzo's mental health. The

15 Prosecution has always agreed that this issue is one

16 that is relevant to sentencing, and the Prosecution has

17 accepted that Mr. Landzo has certain personality

18 problems. Indeed, we've suggested from the beginning

19 that this is obvious to anyone who knew anything about

20 his crimes.

21 We suggest, however, that many persons, if

22 not most persons, who commit horrific crimes, such as

23 those committed by Mr. Landzo, have personality

24 difficulties. We do not believe that the circumstances

25 as a whole concerning Mr. Landzo's mental health

Page 16285

1 warrant a significantly reduced sentence. Among other

2 things, we would point out the long period of time over

3 which the crimes occurred in the evidence demonstrating

4 that he had the ability to understand what he was doing

5 was wrong, and he had the full ability to control his

6 actions. Indeed, among other things, we point to the

7 evidence that he frequently initiated mistreatment as

8 evidence that his actions were fully voluntary.

9 During the oral submissions, we heard more

10 evidence from yet another mental health expert. In

11 reviewing his testimony and the testimony of the other

12 mental health experts, I was struck by something I read

13 in Defence Exhibit 90/4, page 297, which is just an

14 article summarising some of what's said about forensic

15 psychiatry, and quoting Dr. Resnik, who indicated that

16 there were five major criticisms made of expert mental

17 health testimony in criminal trials. They were five

18 major criticisms, four of which were that the

19 psychiatrists always disagree, that they speak in

20 jargon-ridden and subjective testimony, that they

21 attempt to dictate the law, and that they give

22 conclusive opinions.

23 The first and, we would suggest, the major

24 criticism is that psychiatrists excuse sin, and we

25 suggest that that is what is attempting to go on here.

Page 16286

1 Every criminal who exhibits sadistic behaviour, such as

2 that exhibited by Mr. Landzo, has problems. Indeed,

3 when Mr. Delic used his electrical device to shock and

4 burn prisoners and laughed while doing so while they

5 begged for mercy, that's also sadistic behaviour.

6 Indeed, one can legitimately argue that when Mr. Mucic

7 amused himself for hours on end by humiliating retarded

8 prisoners, by make them praise Allah, or give details

9 about sexual activities, or dress up as a woman, these

10 are forms of sadistic behaviour, albeit of a lesser

11 form.

12 But any explanation of why Mr. Landzo or any

13 other criminal did what they did, be it dependency or

14 narcissism or transferred aggression, maybe can explain

15 it, but it certainly doesn't excuse it or, in these

16 circumstances, significantly reduce the appropriate

17 punishment. These are just labels. The issue is,

18 could Mr. Landzo understand and control what he was

19 doing? The Prosecution submits that the evidence shows

20 he was in full control of himself, and he did what he

21 wanted to do. He did what was in his interest to do at

22 the time. He chose what to do in Celebici, and he's

23 choosing what he does today, which is to try to

24 manipulate the Court's process to his advantage. But

25 the fact remains, as Mr. Landzo himself recognises at

Page 16287

1 various times, that he needs to be appropriately

2 punished for his horrible crimes.

3 What did, in fact, Dr. Goreta add? Of

4 course, his opinion was preliminary, and he relied, in

5 large part, on the opinions of others, which may be one

6 reason why he didn't differ continually, but they

7 indicated, among other things, that Mr. Landzo could

8 easily choose, for his next role model, a bad person.

9 Dr. Goreta's evidence also indicates that he

10 is very inclined to give recommendations of diminished

11 mental responsibility. Indeed, when asked to review 25

12 of the most serious cases of war crimes in his own

13 country, he found diminished responsibility in every

14 single one. We would ask that you consider that when

15 you're evaluating his testimony.

16 We note, of course, in the former Yugoslavia,

17 abuse of drugs and alcohol can be a basis of diminished

18 responsibility, and there is evidence that Mr. Landzo

19 voluntarily chose to abuse drugs and alcohol when he

20 was in Celebici. But in almost every country, and we

21 would certainly suggest in this Tribunal, because the

22 taking of such substances are voluntary, they are not

23 used as any kind of basis for diminished

24 responsibility. We certainly suggest that Your Honours

25 should not allow that here.

Page 16288

1 Of course, as Dr. Goreta pointed out when he

2 was asked about his tendency to find diminished

3 responsibility, he said, "Well, this is just my

4 recommendation. The courts in Yugoslavia do not have

5 to accept it." In fact, we don't know how many times

6 it was accepted, but certainly before this Tribunal,

7 this Court does not have to substitute the judgement of

8 a psychiatrist for its own judgement, and we would

9 suggest, based on the evidence as a whole and common

10 sense, there is no reason to significantly reduce

11 Mr. Landzo's sentence because of any mental health

12 difficulties.

13 The Defence then goes on, I think, related at

14 another portion of their brief to claim that Mr. Landzo

15 has been rehabilitated. This is, in our submission,

16 also unbelievable in all senses of the word. The

17 Defence has presented much evidence that Mr. Landzo has

18 long-standing problems, problems and, indeed, a

19 tendency, and that he did engage in violent behaviour,

20 both before and after he was in Celebici. Given the

21 fact that one can't control what he does out in

22 society, we would certainly suggest he remains a

23 danger.

24 Similarly, apparently, as part of his

25 rehabilitation, the Defence now tries to claim that

Page 16289

1 Mr. Landzo is remorseful, but we ask you to consider

2 what actual evidence of remorse is there and when and

3 under what circumstances has it come about? Mr. Landzo

4 has said in his statement that he wants to apologise to

5 the victims, but, of course, a number of the victims

6 were here, and there was no attempt to apologise. In

7 fact, the Defence attacked the witnesses. In fact,

8 Mr. Landzo himself threatened a witness. When

9 Mr. Landzo testified that he tried to get money from

10 his attorney, that wasn't money for the victims of his

11 crime, that wasn't money for the families of the people

12 he killed who now have no means of livelihood, that was

13 money for Mr. Landzo and his own people.

14 When he testified, was there evidence of

15 genuine remorse? We suggest that there was absolutely

16 none. It appears that this remorse has just appeared

17 after the presentation of the Defence and after his

18 testimony and only in connection with his sentencing

19 proceedings. We suggest that Mr. Landzo's expressions

20 of remorse in which he says, "I am remorseful," is yet

21 another straightforward attempt to manipulate events to

22 his own advantage.

23 We also suggest that in evaluating his

24 rehabilitation, his remorse, his wanting to take

25 responsibility for what he's done, we look closely at

Page 16290

1 his written statement in which he describes much of his

2 life in great detail, except when you get to the part

3 about Celebici, and he says, "I did what I could to

4 protect my country and no one is perfect." The

5 Prosecution submitted it's unbelievable that someone

6 who, for months on end, killed or tortured or sexual

7 assaulted people --

8 MS. BOLER: I'm going to object. I suggest

9 there's not been any evidence of sexual assault --

10 JUDGE KARIBI-WHYTE: Let's hear your

11 submission.

12 MS. McHENRY: In respectful submission of the

13 Prosecution, Mr. Landzo, who has admitted that he

14 forced brothers to commit fellatio with each other

15 would certainly be encompassed as sexual assault. When

16 asked about his conduct or when describing his conduct,

17 all he can say is, "Well, no one is perfect."

18 Continuing with the Defence submission, the

19 Defence then asked that whatever sentence that

20 Mr. Landzo gets, he should get credit for the time he

21 served in Bosnia for what is referred to here as the

22 Bubulo case. This is, frankly, also ludicrous.

23 Mr. Landzo wants credit for time served for another

24 murder that he committed which isn't even charged here

25 or part of this case. The Defence then suggests, in

Page 16291

1 their written submissions, that Mr. Landzo has been the

2 victim of selective prosecution. I believe that as

3 Your Honours have already noted, this is not a matter

4 for this Chamber, much less a sentencing matter, but I

5 must go further and suggest that this argument is not

6 only unbelievable and unsupported, it's offensive, as

7 is the idea that his crimes are not serious enough to

8 be before this Tribunal.

9 Mr. Landzo's final argument in their written

10 submissions is that his sentence should reflect only

11 his mistreatment of eight detainees. This is

12 ridiculous, it's undisputed, even by Mr. Landzo that he

13 mistreated, in horrible ways, many, many, detainees.

14 Indeed, it would be impossible for any indictment to

15 include, individually, every single act of mistreatment

16 committed by Mr. Landzo in the Celebici camp. There

17 are just too many. Even he --

18 MS. BOLER: Your Honour, I'm going to object

19 again --

20 JUDGE KARIBI-WHYTE: What type of argument is

21 it? Why don't you let her make her argument?

22 Everything that has been said is the evidence which is

23 before the Trial Chamber, and you keep objecting to

24 what has been said in the Trial Chamber.

25 MS. McHENRY: There are just too many acts of

Page 16292

1 mistreatment to describe individually. The indictment

2 specifically charges Mr. Landzo with inhumane

3 conditions, including the creation of an atmosphere of

4 terror created by his numerous acts of mistreatment.

5 His sentence for the count of inhumane conditions

6 should reflect the enormity of what he did to the

7 detainees in the camp. Indeed, even if this were the

8 only charge in the indictment, in view of the

9 Prosecution, Mr. Landzo would deserve a life sentence.

10 In sum, Your Honours, under all the

11 circumstances, including the number of persons

12 personally killed by Mr. Landzo, the number of persons

13 personally tortured by Mr. Landzo, and the hundreds of

14 persons who are subjected to various forms of

15 mistreatment, including living for months in an

16 atmosphere of terror, the Prosecution believes that

17 Mr. Landzo should receive a life sentence.

18 The Prosecution also suggests, for the

19 reasons articulated in detail in the Tadic judgement,

20 which I will not describe in detail, that Your Honours

21 give a recommendation concerning the minimum amount of

22 years that an accused should serve. We submit that

23 Your Honours should recommend that under no

24 circumstances should Mr. Landzo be released in less

25 than 25 years.

Page 16293

1 Let me now, please, turn to Mr. Delic. My

2 argument on Mr. Delic will be shorter, not because his

3 conduct is less serious, to the contrary, but because

4 his arguments are fewer and generally are not arguments

5 of mitigation, but are, generally, legal arguments that

6 have previously been rejected before this Tribunal.

7 Mr. Delic's first argument is that any

8 sentence more than 15 years is illegal and a violation

9 of the nullen crimin principle. We would first point

10 out that given the former Yugoslavia had the death

11 penalty, any lesser sentence, including life

12 imprisonment, cannot be a violation of nullen crimen.

13 Further, in Erdemovic 1, the Erdemovic Chamber

14 expressly considered the nullen crimen argument and

15 rejected it. Although it's not binding on this Court,

16 there is nothing in the appellate decision or the

17 subsequent Erdemovic judgement to cast doubt on the

18 reasoning. Finally, we would note that the Tadic

19 Chamber implicitly rejected this argument in sentencing

20 Mr. Tadic to greater than 15 years.

21 Mr. Delic, as part of this, has made a number

22 of arguments concerning the sentencing in the former

23 Yugoslavia and, indeed, I believe we had pretty much a

24 whole day of testimony on this. As stated in its

25 submission, the Prosecution believes that of other

Page 16294

1 Chambers in this Tribunal and the Rwanda Tribunal have

2 found, the practice in the former Yugoslavia is not

3 binding upon this Chamber in any event, and there are a

4 number of reasons for this. One, as found by the Tadic

5 and Erdemovic Chambers, the main goals of punishment

6 may differ in International Tribunals. Another problem

7 is determining what the practice is. The Tadic Chamber

8 received reports in evidence, which we believe Your

9 Honours can take judicial notice of, concerning the

10 details of the practice in the former Yugoslavia. In

11 some respect, those details differ from that presented

12 by Mr. Tomic, but we would suggest, in any event, it's

13 not the details that are important.

14 Certainly, it is clear that in war crimes and

15 other serious crimes, including homicides such as

16 occurred in Celebici --

17 JUDGE JAN: Just a minute. I was reading in

18 Article 24 -- I was looking at Article 24, clause 1, in

19 determining the term of imprisonment, the Trial Chamber

20 shall have recourse to the general practice regarding

21 prison sentences in the courts of the former

22 Yugoslavia.

23 MS. McHENRY: Yes, Your Honour.

24 JUDGE JAN: To have recourse. You must look

25 at that.

Page 16295

1 MS. McHENRY: Yes, Your Honour. We have

2 always said and we said in our written submission, and

3 I believe all the Chambers before this Tribunal and the

4 Rwanda Tribunal have had recourse, meaning to look to

5 for guidance, but have stated that it is not binding,

6 that it may be instructive.

7 JUDGE KARIBI-WHYTE: I think that is meant as

8 having a recourse, as in resorting to, referring to.

9 MS. McHENRY: Yes, Your Honour. We believe

10 that it may be a reference and that it may be a guide.

11 Let me just try to find the quote, on pages 5 and 6 of

12 our written submission, among other things, in the

13 first Erdemovic decision, the Court found: "The Trial

14 Chamber considers that the reference to this

15 practice," the practice in the former Yugoslavia, "Can

16 be used for guidance but is not binding."

17 JUDGE JAN: Just thinking out loud, I thought

18 when it said "recourse" that it means more than

19 guidance. Isn't it so?

20 MS. McHENRY: Yes, Your Honour. We would

21 suggest that recourse does not, by its plain language,

22 indicate that it's more than a guide or a reference,

23 and as the Erdemovic Chamber found and as the Kambanda

24 case in Rwanda found, and the Rwanda Statute has an

25 identical reference, that the International Tribunal

Page 16296

1 for Rwanda shall have recourse to the sentencing

2 practices in Rwanda. In both those cases, the courts

3 found that such practices are not binding, and the word

4 "recourse" is not meant to indicate that they are

5 binding, but such practices are one of the factors to

6 be taken into account.

7 One reason for that, as one reason I've

8 already mentioned, is the difficulty in determining

9 exactly what the practice is. Another reason

10 articulated by the Chambers is that the main goals of

11 punishment may differ, appropriately, between this

12 International Tribunal and other Tribunals.

13 Going back, though, to the practice in the

14 former Yugoslavia, because we certainly agree that it

15 is relevant, it is clear that in war crimes and in

16 serious crimes such as homicide, an accused could

17 receive a sentence of death or 20 years or lesser terms

18 of imprisonment. It's also clear that a court did not

19 have to impose a death penalty before pronouncing a

20 20-year sentence but could just prove a 20-year

21 sentence. It's also clear that courts gave the death

22 sentence infrequently. One expert said, approximately,

23 two times a year, and the expert, Mr. Tomic, here said

24 less and only in extremely hard cases. 20-year

25 sentences, however, were given more frequently and were

Page 16297

1 not so limited.

2 The main factor in the practice in the former

3 Yugoslavia, we believe, is not in dispute and, indeed,

4 Mr. Tomic finally agreed to it, which was very

5 accurately and succinctly summarised in one sentence by

6 the Tadic court, which is "Imprisonment as a form of

7 punishment was limited to a term of 15 years or in

8 cases for which the death penalty was prescribed as an

9 alternative to imprisonment to a term of 20 years."

10 Mr. Delic then renews his legal argument,

11 this is in his written submissions, that he has been

12 improperly charged with both 7(1) and 7(3),

13 responsibility, both participation and superior

14 responsibility. The Defence has suggested that the

15 responsibility under 7(1) and 7(3) are mutually

16 exclusive and, in fact, alternative charges. The

17 Prosecution contends that they are not alternative and

18 that an accused may be found guilty under both theories

19 of responsibility. In this case, the accused,

20 Mr. Delic, had multiple roles and, in our submission,

21 has been properly charged with responsibility for his

22 multiple roles.

23 I would point out that it is often the case

24 that an accused can be found guilty under multiple

25 theories of responsibility, particularly in cases here

Page 16298

1 where you have a superior and his subordinates engaged

2 in a crime. In such cases, a superior can and should

3 be responsible for both his own direct participation

4 and for his actions and omissions regarding his

5 subordinates. Different interests are being protected

6 in the scope of the charges, and the ultimate sentence

7 should certainly reflect those different interests.

8 As noted by the Tadic court, when asked to

9 decide whether certain accounts are cumulative rather

10 than alternative, and I'll just make it clear for Mr.

11 Moran that I'm quoting, I believe, from the Tadic

12 decision, since I know he gets upset when the

13 Prosecution uses the word "technicality." As the Tadic

14 court found, an accused's ultimate sentence will not

15 depend on a technicalities pleading, but rather on

16 proven criminal conduct.

17 In this case, Your Honours could probably

18 find Mr. Delic guilty, both of those crimes with which

19 he was a direct participant and those counts charging

20 superior responsibility. Your Honours could, if you

21 believe it appropriate, merge those convictions for

22 purposes of sentencing.

23 Alternatively, if Your Honours wish, you

24 could find Mr. Delic guilty of those crimes with which

25 he was a direct participant and then exclude just those

Page 16299

1 murders from the superior responsibility counts with

2 respect to him but find him guilty of superior

3 responsibility for the other murders. In any case, in

4 arriving at his ultimate sentence, Mr. Delic's sentence

5 should be greater to reflect his multiple

6 responsibilities for the crimes.

7 In his submission concerning an appropriate

8 sentence, Mr. Delic then goes on to suggest that, in

9 this Tribunal, the protection of society in the

10 deterrence effect does not warrant a long sentence for

11 any -- the protection of society does not warrant a

12 long sentence for any accused, including himself. The

13 Prosecution would disagree and note, among other

14 things, that Bosnia-Herzegovina may likely have ethnic

15 tensions for a long period of time and in different

16 areas. Certain groups may continue to be a minority

17 and be in a position to be victimised. That's why it's

18 important that, in addition to the legitimate goal of

19 retribution, sentences for war crimes Tribunals should

20 be intended to deter and, indeed, Chambers in this

21 Tribunal and the Rwanda Tribunal have noted that these

22 retribution and deterrence are the most important goals

23 at arriving at just sentences before this Tribunal.

24 The Delic Defence suggests that the only

25 deterrence that should be considered relevant is that

Page 16300

1 of superiors. We would first note that, in fact,

2 Mr. Delic has been charged with superior

3 responsibility, but on a more general level, the

4 Prosecution rejects categorically, the idea that this

5 Tribunal should only be concerned with deterring

6 superiors. To the contrary. It is crucial that all

7 participants in a war, be they superiors or common foot

8 soldiers, understand that the laws of war mean

9 something and that everyone can be held accountable for

10 their crimes. To suggest that the conduct of

11 individual soldiers or guards, all of whom have the

12 power of life and death over others, may not be

13 influenced, or it's not important to influence them is,

14 in our view, fundamentally wrong and fundamentally

15 against one of the reasons why this Tribunal was

16 created.

17 The Defence then finally suggests in its

18 written submission, including the attachments, that on

19 a few occasions Mr. Delic assisted some detainees or

20 their families, and the Defence reports once in

21 November of 1992 when mistreatment was still

22 continuing, Mr. Delic interrupted a beating of a

23 prisoner by other guards and allowed the prisoner to

24 return to the hangar. The Defence also reports that

25 Mr. Delic once arranged for some soap to be given to

Page 16301

1 the prisoners. The Prosecution does not contest these

2 incidents, but believes that under the totality of the

3 circumstances, they are of little or no significance.

4 As noted by the Chamber in the Mummothey case

5 and cited in the Prosecution's closing brief, "It is

6 not an unusual phenomena in life to find an isolated

7 good deed emerging from an evil man, because of

8 convenience, caprice, or even a sudden gleam of

9 benevolence forcing its way through a callused heart,

10 even a murderer can help a child to safety."

11 Mr. Delic was a murderer, he was a torturer,

12 he was a rapist. He horribly mistreated numerous

13 detainees. Mr. Delic did these things himself and he

14 ordered others to do so. I emphasise again that the

15 evidence that Mr. Delic ordered others to mistreat

16 detainees was witnessed by a large number of victims

17 who testified, and there is no need to rely solely on

18 Mr. Landzo's testimony concerning this. As a superior,

19 Mr. Delic did everything possible to foster an

20 environment where others could and did mistreat

21 detainees on their own initiative with no consequence.

22 The detainees lived in deathly fear of Mr. Delic. I

23 think it is almost impossible for us to comprehend the

24 enormity of the power exercised by Mr. Delic, the

25 suffering caused by his actions and his omissions, and

Page 16302

1 the deprived nature of his conduct. Of course, there

2 are no significant mitigating factors relating to

3 Mr. Delic, including the lack of any remorse.

4 Mr. Delic's sentence should reflect the

5 enormity of his crimes as participant and as superior.

6 In the recommendation of the Prosecution, Mr. Delic

7 should receive a life sentence. In the recommendation

8 of the Prosecution, the Chamber's verdict should also

9 recommend that under no circumstances should Mr. Delic

10 be released before 30 years. Unless Your Honours have

11 any additional questions about Mr. Landzo or Mr. Delic,

12 Mr. Niemann will now speak about Mr. Mucic and

13 Mr. Delalic and respond to their submissions.

14 Thank you.

15 JUDGE KARIBI-WHYTE: Thank you very much.

16 THE REGISTRAR: The document which was

17 submitted this morning regarding the written statement

18 by Mrs. Delic should be numbered D112/3.

19 JUDGE KARIBI-WHYTE: You may proceed, Mr.

20 Niemann.

21 MR. NIEMANN: If the Court pleases. Your

22 Honours, I'm dealing first with the written submission

23 submitted to Your Honours in relation to the accused

24 Zejnil Delalic. Your Honours, I go through this

25 submission and address the various issues, some of the

Page 16303

1 various issues raised there. Some of them have been

2 adequately dealt with, either in our written brief or

3 in the course of the proceedings, and I don't think

4 bear repetition, but there are some matters I think,

5 Your Honours, that may be appropriate for me to discuss

6 in the course of this submission.

7 First and foremost, on the first page of the

8 written submission of the accused Zejnil Delalic, we

9 are assured that the information that's provided in

10 this submission, in this written submission, is

11 intended for the purposes of sentence only. I make

12 reference to that, Your Honours, because it would seem

13 that when you go further into the submission, that we

14 see that matters which were raised also as part of his

15 Defence would appear to have been raised as part of

16 mitigation of the penalty. I just draw that

17 distinction, that it seems that in the case of this

18 submission, those matters are being raised again for

19 that purpose. To some extent, I will touch upon them

20 very briefly to deal with the aspect of them being

21 raised in mitigation.

22 Your Honours, on page 6 of their submission,

23 they draw attention to the fact that in keeping with

24 general observations on sentencing, the sentencing of

25 an accused person who is convicted of having superior

Page 16304

1 responsibility must be determined on a case-by-case

2 basis, according to the circumstances of each case. We

3 don't refute that, Your Honours. We fully accept that

4 the case-by-case analysis is an essential feature of

5 any sentencing process.

6 But in saying that, Your Honours, we submit

7 that, although the case-by-case analysis is an

8 important part, one should not lose sight of the

9 general principles that apply in sentencing and in

10 sentencing a superior in this case.

11 Your Honours, questions arise when it comes

12 to sentencing of superiors, such as should the sentence

13 of the superior be less than a subordinate? Is it

14 appropriate that the subordinate receives a greater

15 sentence than the subordinate? After all, it can be

16 argued that the subordinate is carrying out the wishes

17 of the superior, that he's carrying out the orders of

18 the superior. The superior has an objective that he

19 wants to achieve, and he uses the subordinate in the

20 role of facilitator in order to carry it out. So the

21 superior has the responsibility to ensure that the acts

22 of the subordinate are carried out in order to achieve

23 his or her objective. That is a general principle,

24 Your Honour, that must apply in our respectful

25 submission, and so one must assume from that that the

Page 16305

1 superior knows what he wishes to achieve when he sets

2 out to obtain a purpose. If the subordinate is merely

3 carrying out those wishes, then is it appropriate that

4 the subordinate receive the greater sentence? Indeed,

5 I think that it's this rational that goes behind the

6 principle that superior orders are a mitigating

7 factor. They are not a Defence, but a mitigating

8 factor.

9 In our submission, Your Honours, one starts

10 with the proposition that the superior sentence should

11 be greater than the sentence of the subordinate, and

12 it's only that when one looks at the case-by-case basis

13 that do you then seek or do you then proceed, if

14 necessary, to mitigate the sentence. As I said, some

15 of the issues that were raised by Mr. Delalic in his

16 submission are matters that go to his Defence as well,

17 but can be legitimately raised by way of mitigation.

18 I'm not going to repeat all of them, but on page 7 of

19 Mr. Delalic's submission, he raises the fact that,

20 first of all, he wasn't present when a lot of the

21 crimes were committed. Well, Your Honours, what this

22 means is that it may be the case that he wasn't there

23 at the immediate time the crime was committed, so he

24 may not have been in a position to take immediate

25 action. He may not have known the full details of the

Page 16306

1 events in the way that an eyewitness may have seen it.

2 But then, Your Honours, we must ask the question what

3 steps did he take to prevent things from happening when

4 he knew, ultimately, that they occurred.

5 One of the next matters that is put is that

6 he didn't know in advance. Again, this may be so, but,

7 Your Honours, if there is a continuing course of

8 criminal conduct going over a significant period of

9 time, it's strange to suggest that he never knew at any

10 stage. In our submission, Your Honours, on the first

11 occasion, if he didn't know in advance, that may be a

12 matter which would be the basis of some mitigation of

13 the penalty, not entirely, because a supervisor has the

14 responsibility to put in train, means whereby he will

15 be informed, or means whereby these crimes themselves

16 will not be committed.

17 Your Honours, in relation to that, it's true

18 that not being present and not knowing in advance may

19 have some mitigating benefit for him in sentence. It's

20 interesting, Your Honours, when one looks at

21 Exhibit P116, which is the interview on television.

22 It's a video interview on television. Mr. Delalic is

23 specifically asked about the Celebici camp and the

24 conditions that are said to prevail there, and he says

25 that, "It's only TV Belgrade which says it's

Page 16307

1 notorious," and then he refers to the fact that

2 organisations such as the Red Cross had been there, and

3 he says, "The people are detained in the barracks.

4 Their rights and conditions are as was possible in such

5 accommodation. Their relatives can visit them. They

6 have regular meals. I think they are better fed than

7 our soldiers."

8 Your Honours, he certainly knew something

9 about the conditions at the camp at the time so that he

10 was in a position to speak of those events at that

11 time.

12 It's also been raised on page 8 of their

13 submission the fact that the conditions in Celebici

14 and, no doubt, the Konjic area in general, were hard at

15 the time. Having regard to the conditions that

16 prevailed, they did their best. Your Honours, this

17 isn't, in our submission, either a Defence or a plea in

18 mitigation. The position is, Your Honours, that if you

19 wish to take prisoners of war or civilians and put them

20 into camps and restrain them there, then, Your Honours,

21 you are obliged, under the Geneva Conventions, to

22 ensure that the conditions that are prescribed by those

23 conventions are maintained.

24 But irrespective of whether there are minor

25 breaches of the Geneva Conventions, there are such

Page 16308

1 vis-à-vis the conditions that apply. There was no

2 necessity for these people to be kept in tunnels, to be

3 deprived of water when water was available, for them to

4 be beaten and so forth.

5 On page 9, Your Honours, they go on in their

6 submissions to make reference to the fact that the

7 detainees were arrested in conformity with the law of

8 Bosnia-Herzegovina. In our submission, Your Honours,

9 there is no basis for this at all. There's nothing

10 that emerges from the evidence that suggests that is

11 so. We have no evidence at all that people were

12 notified of their charges. We have no evidence at all

13 that they were taken expeditiously before a judge. We

14 have no evidence at all that they were given access to

15 legal counsel. We have no evidence at all that they

16 had such rights as discovery or trial or sentence or

17 anything. All we now, Your Honours, is that they --

18 THE INTERPRETER: Could the counsel please

19 slow down for the benefit of the interpreters.

20 MR. NIEMANN: In my submission, Your Honours,

21 this treatment is, in no way, consistent with someone

22 who is being legally arrested and detained. They also

23 go on and speak of Mr. Delalic intervening in a

24 personal capacity to attempt to secure the release of

25 certain individuals. Your Honours, what this

Page 16309

1 demonstrates, in our submission, is that he had the

2 capacity and the authority in Celebici to take steps to

3 release certain prisoners, should he decide to do so.

4 There is then on page 10 of their submission,

5 a reference to the aim of the military action of the

6 JNA, et cetera. That was to eliminate the institutions

7 of legal government and to destroy Bosniaks and

8 Croats. Your Honours, when it comes to this whole

9 issue, what has been ignored by this is that there was,

10 in fact, a process of transition going on between the

11 breakdown of the federal state of Yugoslavia and the

12 emergence of the independent sovereign states, among

13 others, Bosnia-Herzegovina, Croatia, and so forth.

14 There were people contained in Bosnia-Herzegovina who

15 took a different political point of view, who desired

16 to be ruled by alternative political masters and who

17 sought to maintain their territory for that purpose.

18 So we're not assisted much, nor does it amount to

19 mitigation, for it to be suggested that somehow what

20 was happening in Konjic, by the forces of the army of

21 Bosnia-Herzegovina, was the only legitimate course

22 available.

23 Then it goes on on page 12 as an extension of

24 this argument to suggest that the reason why the people

25 were placed in Celebici was to put down what amounts to

Page 16310

1 an armed rebellion. Having regard to the two views

2 that were prevailing in Bosnia-Herzegovina at that

3 relevant time, a similar argument could be relevantly

4 advanced in relations to people detained in Omarska,

5 Keraterm, and Trnopolje. Your Honours, we are not

6 assisted in any way, by these comparisons, nor do they

7 amount, in our submission, to a mitigation. What is

8 significant is to examine the conditions that prevailed

9 there, to look at the people who were responsible for

10 the particular institutions, be they Celebici, Omarska,

11 Keraterm, or whatever, and to determine whether or not,

12 having regard to the conditions that prevailed, there

13 has been a breach of the Geneva Conventions in terms of

14 the conditions, or whether other crimes against

15 humanity have been committed.

16 On page 14 of the submission of Zejnil

17 Delalic, in relation to a submission made under the

18 heading of "Activities of Delalic from April to

19 November 1992," the submission speaks of the fact that

20 Mr. Delalic was absent from time to time. They

21 specifically speak of him being absent in May when he

22 was in Zagreb. They speak of his activities in

23 relation to the railway that was being constructed

24 between Pazaric and Jablanica. Your Honours, these are

25 matters which were reflected in the documents that were

Page 16311

1 recovered by the Austrian police in Vienna and confirm,

2 Your Honours, the very matters which the Defence now

3 seek to rely upon as a matter of mitigation.

4 On page 18 of their submission, the Defence

5 of Zejnil Delalic said that he has given substantial

6 cooperation with the Prosecutor, and in support of

7 that, they cite the two records of interviews in which

8 he participated in. Your Honours, the mere giving of a

9 record of interview is not, of itself, evidence of

10 cooperation with the Prosecution. Certainly, there are

11 circumstances when it can be, but it's not some

12 automatic thing that flows as a consequence of giving a

13 record of interview. It can be given for the purposes

14 of advancing their Defence. It can be given for the

15 purposes of endeavouring to persuade the Prosecution

16 not to proceed with the charges. In the case of the

17 record of interview of Mr. Delalic, it's the

18 Prosecution's contention that, in some cases, he was

19 evasive and, in other cases, where he spoke of the War

20 Presidency having responsibilities and being in charge,

21 we see when it comes to the trial that this, what we

22 say, true and correct position, was abandoned in favour

23 of some other confusing formulation inconsistent with

24 what he said in his record of interview.

25 The Prosecution says, Your Honours, that the

Page 16312

1 accused, Zejnil Delalic, has given no cooperation to

2 the Prosecution at all. If he had given cooperation to

3 the Prosecution, we certainly would have acknowledged

4 it. It would have been a matter which would have

5 advanced the Prosecution's task, either generally in

6 relation to this Tribunal or in connection with this

7 case. It's our submission that there is nothing that

8 can be pointed to by the accused, Zejnil Delalic, to

9 say that he has cooperated with the Prosecution. On

10 that basis, in our submission, Your Honour, there's no

11 basis for him to seek mitigation of the penalty on that

12 account.

13 There's also a reference to the fact that the

14 accused, Zejnil Delalic, provided the Prosecution with

15 numerous documents. Again, this is a decision that's

16 made on a tactical basis by his counsel for a whole

17 host of reasons and do not automatically point to the

18 fact that this amounts to a mitigation of the penalty.

19 In our submission, Your Honours, neither of those

20 matters give rise or justification to that basis.

21 There has been and there is, in this

22 submission on page 22, a sort of, justification, for

23 what occurred in Celebici made out on the basis that,

24 well, how bad it may have been, it wasn't as bad as

25 what happened in places like Omarska. Well, I repeat

Page 16313

1 and echo what I said earlier in relation to that, but I

2 add to it, that there's no evidence before Your Honours

3 at all about what happened in Omarska. There's no

4 evidence whatsoever what happened in the other camps.

5 The evidence before Your Honours is in relation only to

6 the Celebici camp. In our submission, Your Honours,

7 you're not assisted, in any way, by that submission.

8 Your Honours, we heard in relation to the

9 evidence called concerning the character of the

10 accused, Zejnil Delalic, that he had a moderate

11 attitude towards people of different ethnic backgrounds

12 and, in particular, I recall the evidence that he

13 didn't refer to people by name such as "Chetniks" or

14 other. I remind Your Honours of Exhibit P116. Again,

15 it's the television interview which is on video where

16 one sees the accused, Zejnil Delalic, speaking and

17 where, in describing the military actions that are

18 going on in Bosnia-Herzegovina at the relevant time, he

19 speaks in terms of the Chetniks, their tanks, and so

20 forth. I don't need to actually quote it in detail,

21 Your Honours. It's there to be seen. In our

22 submission, it's not correct to say that that was the

23 situation, that he would never use such terms.

24 Your Honours, in line with what my colleague,

25 Ms. McHenry, has said in terms of the Prosecutor's

Page 16314

1 recommendations, having regard to the role that he

2 played, having regard to matters that he has raised in

3 mitigation, it's the recommendation of the Prosecution

4 that the sentence in this case should be a sentence of

5 10 years.

6 I now turn, Your Honours, to the submissions

7 made by the defendant Mucic. Again, I will go through

8 the written submissions and address just some of the

9 issues that have been raised.

10 Mr. Mucic says on page 5 of his submissions

11 concerning the general question of sentencing that, and

12 I think it's better I read it, "Modern jurisprudence is

13 tending to come away from sentencing policy based upon

14 retribution and or deterrence and to concentrate on

15 education and protection as an alternative." My

16 colleague, Ms. McHenry, has taken you to what was said

17 in the Tadic case about this. It's my understanding of

18 the modern trends in sentencing that this is not the

19 case at all, that rehabilitation has been found not to

20 work and that the principle of the penalty being made

21 to fit the crime, sometimes described as just deserves,

22 is the appropriate basis upon which sentencing should

23 be approached. I say it in particular relation to this

24 Tribunal, because there may be a legitimate national

25 interest in countries pursuing a policy of

Page 16315

1 rehabilitation where those countries believe that

2 rehabilitation will be effective in reducing recidivism

3 and will benefit the community as a whole.

4 This Tribunal is in no position, Your

5 Honours, to supervise sentenced persons during the

6 period of time that they serve their sentence. The

7 Tribunal has a limited life in which it is to deal with

8 and address the issues in the former Yugoslavia, and

9 that the significant issue is that persons accused and

10 brought before this Tribunal and convicted of the

11 crimes charged, be sentenced in order that justice be

12 done and that the sentence that is imposed should

13 amount to appropriate sentence, having regard to the

14 justice of the matter.

15 Your Honours, on page 11 in their submission,

16 it said that, in speaking of Mr. Mucic, that if a

17 number of offenders are being sentenced together, the

18 fact that other defendants might be thought to be

19 deserving of a more substantial overall custodial

20 sentence than Mr. Mucic, it doesn't automatically mean

21 that he should receive a longer sentence. Your

22 Honours, the individual culpability includes his

23 position as a superior. In his own evidence, Your

24 Honours, he was able to ameliorate conditions in

25 Musala, according to the attachments, that there is

Page 16316

1 absolutely no reason why he couldn't have done the same

2 thing in Celebici. He knew what was happening in

3 Celebici. He could have taken action to stop it. His

4 acquiescence, in our submission, was seen as a sign of

5 his approval. He is more culpable, Your Honours, than

6 the mere guard who is instructed to carry something out

7 and does do it.

8 In our submission, Your Honours, if a

9 superior receives a light sentence or receives a lesser

10 sentence than subordinates who are merely carrying out

11 the wishes of the superiors, then this, in the eyes of

12 not only the subordinates but the wider community,

13 could be seen as an injustice, unless, again, it can be

14 justified on the basis of valid and appropriate

15 mitigating factors. Again, in my submission, Your

16 Honours, one must look at the general principle, and

17 only after that, one decides whether or not the

18 sentence should be mitigated to something less than

19 what the subordinate receives, if the mitigation so

20 deserves.

21 On page 12, there are a number of mitigating

22 factors set out in their submission. They make

23 reference, firstly, to the previous good character of

24 the accused. Your Honours, before this Tribunal, the

25 previous good character of persons, especially persons

Page 16317

1 who are in superior positions, is likely to be the

2 rule, rather than the exception. Indeed, for superiors

3 and people in higher positions who are charged in

4 relation to these types of crimes, it's probably going

5 to be exceptional that they will have a bad prior

6 criminal record or a previous bad character.

7 The next submission put to Your Honours on

8 page 12 is the lack of participation in direct acts of

9 unlawful behaviour. Your Honours, it's easy to have

10 one's feelings aroused by terrible stories of cruelty

11 and torture being inflicted upon innocent human beings

12 who are kept in circumstances of captivity, and for one

13 to determine a sentence based on the reaction that one

14 has to those sorts of descriptions, but that behaviour,

15 in most of the cases that have come before this

16 Tribunal, will be carried out by the subordinate, while

17 the superior either turns a blind eye, is not present,

18 or fails to intervene. But, again, Your Honours must

19 ask the question, "Who is more culpable in these

20 circumstances?"

21 The next issue of mitigation that is urged

22 upon Your Honours is the inevitable psychological

23 effect and long-term confinement and detrimental

24 effects upon the defendant and his immediate family.

25 Your Honours, the effects of a crime upon an accused

Page 16318

1 and his immediate family are the inevitable

2 consequences of the crime. They are not a mitigating

3 factor, in my respectful submission, at all. They are

4 the consequences of the crime itself. Once Your

5 Honours determine that the accused has committed the

6 crime, then, yes, there will be this impact, and it

7 will affect his immediate family, and one can feel

8 tragedy for it, but it is not a mitigating factor.

9 It's an inevitable consequence.

10 Your Honours, then it is said in his

11 submission that the particular feature that

12 incarceration in a country and a culture, to the

13 defendant, is a factor that makes such incarceration

14 more difficult and more punitive for any individual.

15 Well, that is a submission made in a vacuum. What is

16 it really saying? It's saying to Your Honours, "Well,

17 he's going to be in a country away from his home, and

18 it may be in a gaol which is less than as good as he

19 might expect in his own country or somewhere else." At

20 this stage, Your Honours don't have any idea where his

21 incarceration will take place, so it's quite impossible

22 for you to determine a sentence on the basis that he

23 may go to some place which has better gaol facilities

24 than others or have better conditions relating to the

25 treatment of prisoners than others.

Page 16319

1 Again, Your Honours, this is an issue that

2 goes close to the question of rehabilitation. The

3 whole question is, does the sentence that's imposed

4 upon the accused adequately reflect the offending that

5 has occurred, and is it just in those circumstances.

6 Your Honours really cannot hope to deal with that

7 question, because you simply don't know where the

8 accused will end up.

9 It's suggested on page 13 of the submission

10 that there's no credible evidence of active, direct

11 participation to a person in respect of any of the

12 violence or inhumane treatment. Your Honours, there's

13 lots of evidence of his participation in the inhumane

14 treatment. He was there. He saw the conditions. He

15 could have done something about it. He didn't do

16 anything about it. He knew that people were being put

17 down holes and incarcerated in these totally

18 unacceptable horrific circumstances, and he didn't do

19 anything about it. To that extent, he certainly

20 participated, Your Honours.

21 There's some evidence put before you that he

22 assisted others in escaping. Again, I say this is

23 evidence of the fact that he was in a position to do

24 something about it, could have done, but didn't, in

25 relation to the other unfortunate persons that were

Page 16320

1 left behind.

2 Your Honours, there was also mention in

3 relation to Mr. Mucic about the fact that he wouldn't

4 engage in referring to people by derogatory terms and

5 that he had an even and balanced attitude to all ethnic

6 groups. To balance that, Your Honours, I encourage you

7 to, again, look at the videotape of Exhibit P110 that

8 was mentioned by my colleague, Ms. McHenry, in her

9 submission, where Your Honours see, at length, where

10 Mr. Mucic has before him a Serb prisoner and where he

11 humiliates that person and forces him to sing verses

12 and quote animal names and so forth. In relation to

13 the question of whether or not he uses those terms,

14 there is a passage in that where Mr. Mucic is speaking

15 to this prisoner, and he says, "Raise the pistol

16 higher. Raise your arms. Are you a Chetnik, Risto?"

17 Your Honours can see that for yourself.

18 In our submission, Your Honours, the accused

19 Mujic knew what was happening in the camp. He was in a

20 position of responsibility. He could have done

21 something about it. He knew it was wrong. He sought

22 the people being tormented and humiliated. We have

23 even some video evidence of this, not that one would

24 have ever expected to see that. He could have acted.

25 He failed to act. In our submission, Your Honours, the

Page 16321

1 appropriate sentence in these circumstances is a

2 sentence of 20 years imprisonment. Those are our

3 submissions, Your Honours, unless I can help you with

4 any other matter.

5 JUDGE KARIBI-WHYTE: In which order is the

6 Defence making its submissions?

7 MR. MORAN: Your Honour, I think we're doing

8 it in the order of the indictment, but I'm not sure.

9 We're not?

10 MS. BOLER: I'll be happy to do it in the

11 order of the indictment.

12 MR. MORAN: I think we are doing it in the

13 order we presented evidence. I have a submission to

14 the Court, if we can take our break 20 minutes early

15 and shorten it a little bit, from a half hour break, to

16 break now, and then come back at 4.00, and then go

17 right through until we're done, because it might keep

18 things in --

19 JUDGE KARIBI-WHYTE: If we do it now and we

20 come back at 4.00, that means we may not break until

21 5.30.

22 MR. MORAN: Your Honour, I would be,

23 personally, a little shocked if we were still here at

24 5.30.

25 JUDGE KARIBI-WHYTE: That's the only

Page 16322

1 alternative. If we continue now and break at 4.00,

2 then it means we come back at 4.30 and then until

3 5.30. But if we break now, we will come back at 4.00

4 and continue until 5.30.

5 MR. MORAN: Yes, Your Honour. To some

6 extent, I think it's six to one and half a dozen to

7 another, but whatever pleases the Court. I was

8 thinking that we could do it now and maybe shorten it

9 for a few minutes because we only got two accused here

10 today, and then just continue on without a break.

11 That's my own suggestion.


13 MS. BOLER: I go along with Tom Moran. If

14 you aren't prepared to take a lengthy break at this

15 time, I would ask to be excused for about three

16 minutes, since it appears we are going in the order of

17 sentencing and that I will be up first.

18 JUDGE KARIBI-WHYTE: We will break now and

19 come back at 4.00.

20 --- Recess taken at 3.42 p.m.

21 --- On resuming at 4.05 p.m.

22 JUDGE KARIBI-WHYTE: Has the Defence decided

23 as to which way you're giving the submissions?

24 MR. MORAN: I thought we were going to go in

25 the order we presented evidence, but I see there's one

Page 16323

1 person missing in action, and in light of that, I'll go

2 first. I have no problem with that.

3 JUDGE KARIBI-WHYTE: Good. Then they can

4 join in when they come in.

5 MR. MORAN: May it please the Court?

6 JUDGE KARIBI-WHYTE: Yes. You may proceed,

7 please.

8 MR. MORAN: Your Honour, this is probably the

9 100th time I've stood behind this podium, during this

10 trial, and it's going to be the last time, I hope. The

11 next time we're all assembled here, the Court's going

12 to be delivering its judgement, and the only thing I am

13 going to do is stand up when the Trial Chamber

14 announces your judgement. What I'm going to do this

15 afternoon is first, right off, talk about a very few

16 things that the Prosecutor said. I'll probably take

17 about two minutes on that or three minutes on that, and

18 then I have a few other things I want to say.

19 The Prosecutor, Ms. McHenry, talked about

20 people being entitled to a lower sentence. Nobody is

21 entitled to sentences. That's for Judges to decide.

22 Judges, in the exercise of your discretion and your

23 wisdom, viewing all of the facts. She says your

24 expecting majority of the sentences will be severe. If

25 that, in fact, was what the Security Council had in

Page 16324

1 mind when this Tribunal was created, then in Article

2 24(1), they could have said the minimum sentence would

3 be 10 years or 20 years or 50 years or whatever.

4 That's not correct. The whole range of punishment,

5 from no punishment at all to whatever is available

6 under the Statute, we've talked about the issues of

7 legality and nullen crimin. I talked about that at

8 length in writing, you will read it. I'm not going to

9 talk about it anymore.

10 I have presented a little bit of evidence on

11 mental health. I think that we need to clear something

12 up. Mental health information can go to two different

13 things. One is whether or not a person is guilty of a

14 crime. If a person is insane, a person is not guilty

15 of a crime. The other thing you can look at is how

16 does a person's mental health status affect what the

17 Court should do in assessing punishment. I've

18 presented mental health evidence that I've had, as you

19 can see from the date, in my possession for over a

20 year. It helps you learn more about Mr. Hazim Delic,

21 to help you exercise your discretion.

22 How did Mr. Delic get into custody? It's

23 pretty straightforward. He got a call from the

24 ministry of the interior, the MUP, to report to

25 Sarajevo, and he went into custody. Yes, there was a

Page 16325

1 delay on getting him to the Tribunal, and one of the

2 delays may very well have been caused by the fact that

3 he is misidentified in the indictment. He has the

4 wrong date of birth. Paragraph 4 in the indictment

5 shows his date of birth as May 13, 1964. His actual

6 date of birth is May 14, 1960. The jurisdiction that

7 I'm familiar with wants to be darn sure if you are

8 going to be extraditing somebody, you have the right

9 guy. This Tribunal already has some experience on

10 that.

11 JUDGE JAN: Were there any other persons by

12 the name of Hazim Delic in the camp.

13 MR. MORAN: No, Your Honour. And no one is

14 suggesting that. I'm just suggesting that it's a

15 problem with identifying as a legal matter. It's a

16 decision that lawyers make. He reported to Sarajevo.

17 He was reported where he was told to report and he was

18 taken into custody. He didn't go into hiding, go

19 running across borders, anything like that. The

20 Prosecutor likes citing Erdemovic 1. It's been

21 overruled by the Appeals Chamber. It's clearly not

22 binding. If you want to look at it, fine, but it's not

23 authority. It's overruled. She asked you to take

24 judicial notice of evidence in the Tadic case. I would

25 ask you not to do that, and the reason I would ask you

Page 16326

1 not to do that is that no one has ever given it to me.

2 I don't know what it is. My client clearly ought to,

3 at least, know what the evidence against him is and I

4 ought to know that.

5 We talked about the principles of legality,

6 and Judge Jan, especially, I think you were asking

7 about Article 24(1) of the Statute, and looking at

8 Yugoslav practice. I think we have to draw a

9 distinction. I've raised two issues. Dr. Tomic, in

10 his testimony, raised two issues. One is the issue of

11 legality, that is, prior to the time this Tribunal was

12 created as an enforcement mechanism, is the maximum

13 punishment limited to what was available under Yugoslav

14 law? The other half of that -- that's a legal

15 question. The other half of that is look at the

16 practice to get a feel for what the Yugoslav courts

17 did, and that's -- the United Nations, the Security

18 Council told you to do that. It's not binding on you.

19 One, if I'm correct, may be binding. The other is

20 something to help you in the exercise of your

21 discretion.

22 I looked through the indictment again today,

23 and I didn't see any counts on genocide and war

24 crimes. In the Erdemovic appeals decision, the Appeals

25 Chamber made it clear that genocide and the war crimes

Page 16327

1 are the most serious offensives. I may be misquoting

2 the Court and if I am I apologise. Ordinary war crimes

3 are less severe because they do not attack humanity as

4 a whole. I think the Court needs to keep that in

5 consideration.

6 Article 7(1) and 7(3) liability. Article

7 7(1) is a crime of commission. You do something, you

8 order it, you do it yourself. You're an aider and

9 abettor. Article 7(3) is crimes of omission. You

10 didn't do something. I don't know how you can be

11 sentenced of both.

12 Ms. McHenry said my client showed no

13 remorse. Well, as a practical matter, my client has

14 pled not guilty. My client has told the Prosecutor to

15 prove it, and the Trial Chamber has not yet decided

16 whether or not the Prosecutor has proved it. I

17 couldn't let a client get up here and say, "I'm not

18 guilty yet and I'm pleading not guilty, but I'm sure

19 sorry for all those things I did." Under the procedure

20 we're using, it would just be essentially changing the

21 plea to guilty, and it's something that neither the

22 Prosecutor, nor the Trial Chamber, should expect.

23 With that, almost every time I've stood up

24 before here in the past to argue things, I've been

25 arguing the law. To me, the law is a very important

Page 16328

1 thing, and I think we had to focus on it in the past.

2 Every time I've done that, I've tried to be honest with

3 the Trial Chamber on what I think the law is, if it's

4 clear, and if it's not clear, what I think it ought to

5 be, and to draw the distinction between the two. But

6 that's an intellectual exercise.

7 Right now, I've thought about this, and I may

8 not be as articulate as I would like to be, but right

9 now is a time for me to talk to you and talk to you

10 from my heart about what I feel. You have to decide

11 the facts about what occurred in Celebici. But if you

12 decide those facts adverse to my client, you're going

13 to arrive at a sentencing decision. First, let me say

14 that there is no one in this building that has more

15 respect for the law of war than I do. I just added it

16 up today, 23 days, two months, and 23 days wearing a

17 uniform. I taught people about this. I care about

18 it. I think it's important. If I didn't think the law

19 of war was important, I wouldn't be here.

20 Now, having said that, all war crimes aren't

21 the same. You can look at a situation, the Einsatz

22 group, in cases where people went out and

23 deliberately engaged in horrible murders and war crimes

24 as a matter of policy. You have war crimes that are

25 ordered or condoned by high officials. I would submit

Page 16329

1 that those are more significant and they are worse and

2 should be punished more than crimes that are not of

3 that type, that are not the organised, deliberate

4 crimes against humanity and genocide.

5 In assessing punishment, I think you need to

6 look at a lot of things. One of the things I think you

7 need to look at is the training and background of the

8 offender. Another thing you have to look at is the

9 surrounding facts. In my written submission, I

10 referred to, I believe it's, eight factors that General

11 Peers found in his investigation of a US Army

12 atrocity during Vietnam, and I'm not going to go

13 through those factors with you on things where there is

14 a heightened possibility of war crimes.

15 What we have here, let's look at the

16 surroundings of Celebici, and if the Trial Chamber

17 believes, beyond a reasonable doubt, these things

18 happened, I'm not using this for an excuse, I'm just

19 saying it's something that should be considered in

20 setting punishment. It's clear from all of the

21 evidence that not only these four defendants, two here,

22 but the other two, they didn't have any training in the

23 jobs they were in. Esad Landzo testified he was

24 basically handed a uniform and a rifle and said, "Go be

25 a guard." Hazim Delic didn't have any training in any

Page 16330

1 kind of leadership. The guy was an assembly line

2 worker. Pavo Mucic, he is not a trained military

3 officer, trained leader. Zejnil Delalic, he's a

4 businessman. He's not a general officer. We're not

5 dealing with the Coldstream guards here. We're dealing

6 with a bunch of people who were thrown into a situation

7 without being trained to deal with the situation they

8 were in.

9 All of us that have come from places where

10 we're dealing with everything from soldiers to police

11 officers, to prison guards. We train them so that they

12 will know you don't do these things, and they will have

13 the discipline not to do those things. None of these

14 people had that.

15 The kind of fighting you had, this was

16 neighbour versus neighbour. This was a brutal, bitter

17 war, and it takes training and supervision from the

18 highest level down to the lowest level to keep people

19 from doing what they want to do.

20 Finally, let's look at the facilities at

21 Celebici for a second, that place right over there.

22 That's not a prison. That's a warehouse. For reasons

23 unknown to me, unknown, as far as I know, everyone in

24 this room, that was selected as a prison. People like

25 Hazim Delic had to try to work within that. Am I

Page 16331

1 saying that it's the kind of thing I would pick for a

2 prison if I were selecting and I had the ability to

3 select? No. I'm not saying that at all. But all of

4 those factors have to go into the consideration of what

5 sentence to give in the event that there's a

6 conviction.

7 None of these people here, especially my

8 client, were traffic policemen that drove 50 miles so

9 that they could go to a prison camp and torture and

10 murder people just for the fun of it. No one is

11 suggesting that. Mr. Niemann hasn't suggested that.

12 No one has suggested it here. These were people that

13 were put in a bad situation, and maybe they didn't make

14 the best of it, but it lacks the inherent -- I'm not

15 being articulate here today. I can't even think of the

16 right word. But it's something, I think, of a

17 different magnitude.

18 Post-traumatic stress syndrome, you've heard

19 more about post-traumatic stress syndrome than you ever

20 want to here. Dr. Prince told you that Mr. Delic

21 suffers from post-traumatic stress syndrome. Nobody is

22 asking you to use that to exclude any criminal

23 culpability or criminal responsibility that you find.

24 If you find, beyond a reasonable doubt, that he

25 committed crimes, I'm here to tell you, post-traumatic

Page 16332

1 stress syndrome is not an excuse. It's not a defence

2 but it sure might be important in deciding what to do

3 with him if you convict him of something. It sure

4 might be a factor that you ought to consider in

5 assessing punishment.

6 When you look at Mr. Delic as an individual,

7 what do you have? You have a guy that went to high

8 school, got drafted in the army, where he was for a

9 little over 13 months, infantryman, carried a rifle,

10 goes home, gets a job, starts to raise a family, and

11 then he got caught up in a war.

12 When it comes to the purposes of punishment,

13 deterrence, deterrence from a court like this comes two

14 ways. One, the fact that people can be labelled war

15 criminals, just that label itself deters people.

16 Secondly, sentences from courts like this and the

17 post-World War II courts, act to force or to convince

18 policy makers to train people, their soldiers, so they

19 don't commit war crimes, to supervise them so they

20 don't commit war crimes, to set up systems, the list

21 cases, the Von Leeb cases, Nuremberg. I've been to the

22 seminars where senior officers are taught about war

23 crimes. I've taught them. I know what they are told.

24 Just the labelling of a person as a war criminal, fear

25 of that convinces these policy makers, these people

Page 16333

1 that can make the decisions, make the choices, to make

2 the right choices.

3 Retribution, if you want just pure revenge,

4 there's nothing I can say. The Prosecutor seems to

5 think that's an important issue. Punishment for the

6 sake of punishment, I don't think, is very effective,

7 but then I'm a Defence lawyer.

8 Finally, and this is one other thing, on

9 Mr. Landzo's written submission, there are some written

10 statements that are purported to be made by Mr. Delic.

11 I haven't objected to those things coming in, because

12 his counsel has the right to think that those

13 statements may and somehow be mitigating as to

14 Mr. Landzo. If I tried to keep those out, I'd probably

15 be depriving him of his right to effective assistance

16 of counsel. All I ask is if you want to consider them

17 in setting Mr. Landzo's punishment, that's fine with

18 me. I ask you not to consider them in any way, shape,

19 form, or fashion, as they involve Mr. Delic.

20 The Prosecutor recommended sentences on every

21 one of the defendants, and the jurisdiction I'm from,

22 it's allowable. I don't do it with Judges. I figure

23 that Judges are trained, they're experienced, you know

24 what they are doing, and I find that I would be

25 invading your jurisdiction, your job, to tell you what

Page 16334

1 to do. I would just suggest that you think about those

2 factors I've talked about and arrive at a just

3 sentence.

4 Thank you very much, Your Honours.

5 JUDGE KARIBI-WHYTE: Thank you very much.

6 MS. BOLER: May it please the Court?

7 JUDGE KARIBI-WHYTE: You may proceed, yes.

8 MS. BOLER: Good afternoon. My name is Nancy

9 Boler, and I'm co-counsel for Esad Landzo. Lead

10 counsel Cynthia McMurrey is not present today in Court,

11 but she will be back in court for the verdict.

12 I know that it's probably not proper at this

13 time, but I would just like to say that I think that

14 Tom Moran gave just an excellent argument, closing

15 statement. In addition to what I'm going to say today,

16 I would like to adopt that as well. I echo his

17 sentiments.

18 Let me begin by saying that I'm the mother of

19 a son who's two years older than Esad Landzo was back

20 in 1992. Even without a personality disorder and

21 without a war on his doorstep, I cannot imagine placing

22 the responsibility of guarding 250 or so detainees on

23 someone so young and vulnerable. Esad Landzo had just

24 turned 19 when the war came to Konjic. He was

25 chronically ill and small for his age. You will recall

Page 16335

1 the testimony of the captain in the army, Witness DC-4,

2 who told you about the first time Esad Landzo tried to

3 join the TO. He said that Esad was just a child, and

4 he sent him back home.

5 One of the witnesses --

6 THE INTERPRETER: May the counsel be advised

7 to please slow down just a bit. Thank you.

8 MS. BOLER: The witness said that the

9 difference in his appearance in the courtroom today and

10 his appearance in 1992 was like night and day. You

11 heard testimony from (name redacted), people from

12 Konjic who knew Esad Landzo when he was young, and from

13 two physicians, Dr. Jajak from Konjic and Dr. Lamers

14 from here in The Hague about his chronic respiratory

15 problems. You heard about frequent hospital visits,

16 beginning when he was just a few months old, and about

17 the home remedies that his mother relied on, such as

18 wearing a pouch on his chest soaked in goat's fat or

19 pig's fat that smelled awful and did little to

20 alleviate his breathing problems.

21 He was a quiet, young man who found happiness

22 with his animals and with his art, and you heard no

23 testimony about violent acts of any kind prior to his

24 experience in the Croatian killing camp or at

25 Celebici.

Page 16336

1 Let me now address some of the arguments from

2 the Prosecution, both today and the written

3 submission. I'd like to echo what Tom Moran just spoke

4 about, in your comments, Ms. McHenry, about turning

5 themselves in. Esad Landzo, too, was the -- my

6 understanding is that his indictment was incorrect

7 also, and it was for a Senad Landzo and not an Esad

8 Landzo, and that this actually went to a Supreme Court

9 there in Sarajevo, and those things just had to be

10 worked out before the authorities could carry out the

11 extradition. So I do just have a quarrel with your

12 assessment that they fought their surrender to The

13 Hague. I just wanted to tell you those facts.

14 I do agree with the Prosecution's statement

15 that Esad Landzo acted under superior orders. We do

16 agree that sometimes he acted under orders, other

17 times, not. He told you that himself in his sworn

18 testimony.

19 Ms. McHenry also stated that he reported that

20 he enjoyed carrying out his orders. Let me just remind

21 the Court that Esad Landzo's early statements to

22 authorities, newspapers, counsellors, therapists,

23 whomever, must be considered in light of his depression

24 at the time and the diminished mental capacity that

25 each mental health expert found independently. I will

Page 16337

1 address the issue of the defence of diminished mental

2 responsibility in just a few minutes.

3 Also, I'd just make a brief comment about the

4 use of the term "long period of time" by Ms. McHenry.

5 I believe that there was presented by the Defence and

6 by some of the Prosecution witnesses that shows that

7 Esad Landzo was there for a maximum of six weeks at

8 Celebici.

9 The comment about an article that we

10 submitted as part of Dr. Goreta's materials, where

11 there were five major criticisms of forensic

12 psychiatry, the first being that psychiatrists always

13 disagree. That may be true most of the time, but in

14 this case, in the case of Esad Landzo, the mental

15 health experts, the psychiatrists, and the

16 psychologists agreed.

17 I'll go along with you on the jargon-ridden

18 testimony, but just to qualify that by saying that

19 medical diagnoses, psychiatric diagnoses are

20 complicated, and it necessitates the use of medical

21 terms and psychiatric terms. So perhaps I would just

22 quarrel with the term "jargon," but certainly agree

23 that it's complicated.

24 There was also mention of an attempt to

25 dictate the law and give conclusive opinions. I

Page 16338

1 believe that we bring mental health experts and that we

2 bring experts of all kinds to the Court, and we hope

3 that the Court seeks guidance from their opinions, not

4 that they were trying to step into shoes that they

5 should not have stepped into. We just believe that

6 that's part of the system.

7 As for Dr. Goreta finding diminished

8 responsibility in all 25 of his subjects and somehow

9 suggesting that it was a faulty study, let me just

10 remind the Court that all 25 of those people were in a

11 mental hospital, a psychiatric hospital, and if you

12 haven't personally been through a psychiatric hospital,

13 it's a tough thing to do. It's a sobering experience.

14 Clearly, those people were very sick to begin with.

15 Ms. McHenry also stated that there was no

16 reason to significantly reduce any sentence because of

17 Mr. Landzo's mental health difficulties. Clearly, this

18 flies in the face of what mitigation evidence is all

19 about and, of course, it's a reason to reduce,

20 significantly, any sentence that the Court may give. I

21 will adopt a word that Ms. McHenry used to characterise

22 some of the Defence arguments that we raised, and I

23 would just have to say that idea is "ludicrous." Of

24 course, it's mitigating evidence.

25 There was also a mention of credit for time

Page 16339

1 spent in Bubulo. We do submit that there ought to be

2 some credit for the co-accused who served time in

3 Bubulo. This event arose directly out of the time that

4 Esad Landzo was at Celebici, arose directly out of

5 events at Celebici, and we ask that the Court just

6 review the relevant information that we attached to our

7 written submission when considering whether or not to

8 give credit for time served for Celebici. Of course,

9 it goes without saying that we also favour and expect

10 that he will get time served for all of the time that

11 he has been in detention here awaiting the end of this

12 trial.

13 As to the written submission, the sentencing

14 submission of the Prosecution, on page 13, the

15 Prosecution states that there should be no mitigation

16 for substantial cooperation with the Prosecution.

17 That's the way they termed it. Ms. McHenry spoke a

18 little bit about that in her oral arguments as well.

19 We disagree and urge the Court to consider the attempts

20 made by Esad Landzo to cooperate with the Prosecution.

21 In his testimony, Esad Landzo, himself, gave evidence

22 regarding this matter, and we ask the Court to accept

23 it as mitigation.

24 We agree with the Prosecution's statement on

25 page 25 as follows: "The Prosecution believes that

Page 16340

1 Landzo's youth and personality problems, including the

2 evidence from the mental health professionals that he

3 was easily influenced, may be considered in fashioning

4 an appropriate sentence."

5 We disagree with the following statement that

6 he represents a continuing danger to society.

7 Professor Van Leeuwen states the opposite in his letter

8 to me, which I received about a week ago, and we

9 submitted it as a written statement in the sentencing

10 phase of this trial.

11 In addition, a review of Dr. Goreta's

12 testimony will also confirm that Esad Landzo has

13 rehabilitated and continues to make further progress in

14 his rehabilitation and is not a danger to society.

15 The Defence of Esad Landzo also objects to

16 the word "blames" in the statement on page 26, wherein

17 the Prosecution states that Landzo blamed his actions

18 on his mental condition, on his youth, on his parents,

19 on his physical health, on his superiors, and on his

20 prior attorney. There's been evidence put forth on

21 each of these matters, and it's clearly relevant

22 evidence as to both guilt, innocence, and to be used in

23 sentencing.

24 Regarding the reference on page 27 to our

25 belief that the prosecution of a camp guard should be a

Page 16341

1 matter for the courts in Bosnia and Herzegovina and not

2 for this Tribunal, I'm not going to belabour that

3 point. It's been covered thoroughly in written briefs,

4 but I just must strongly disagree with the Prosecution

5 when they state the following: "Furthermore, such a

6 submission clearly demonstrates the lack of

7 appreciation of or contrition for the pain and misery

8 caused to the victims of his crimes."

9 This is a legal argument, and it just can't

10 follow that by making this legal argument we're

11 demonstrating a lack of appreciation for pain caused to

12 the victims. This is absolutely false. Esad Landzo

13 took the witness stand and admitted his guilt to the

14 crimes that he committed. In his letter to the Court,

15 attached to our submission on sentencing, and in his

16 written statement, he expressed his genuine remorse,

17 his sincere apologies to the victims and their

18 families, and the profound guilty feelings that will

19 stay with Esad Landzo for the rest of his life.

20 Regarding the specifics of sentencing to a

21 certain number of years, I will leave it to what Tom

22 Moran spoke to you about with his witness, Dr. Tomic, a

23 couple days ago, who spoke almost all day about the

24 sentencing practices in Bosnia-Herzegovina at the

25 relevant time in 1992. We would join with the counsel

Page 16342

1 for co-accused that Your Honours, should you choose to

2 sentence the accused to prison, that you do not exceed

3 the 15-year limit in effect in Bosnia-Herzegovina in

4 1992 at the relevant.

5 In lieu of prison sentences, however, Your

6 Honours have wide flexibility and wide latitude in

7 sentencing, and I just want to urge you to strongly

8 consider alternative sentencing for the co-accused and,

9 specifically, for Esad Landzo. I urge Your Honours

10 that in lieu of prison sentences you also consider

11 probation, probating sentences of five years to ten

12 years probation. That could include electronic

13 monitoring. It could include counselling and therapy.

14 It could include public service, community service, the

15 right of review after each year of probation.

16 Dr. Tomic testified that these types of creative

17 sentencing will become a part of the Bosnian sentencing

18 laws currently being revised.

19 I want to talk for just a moment about the

20 defence of diminished mental responsibility. Let me

21 begin by saying that as early as in her pre-trial

22 brief, Cynthia McMurrey gave notice that she intended

23 to raise the Defence, but when the time came to begin

24 the presentation of the defence of diminished mental

25 responsibility in earnest, we couldn't help but notice,

Page 16343

1 by facial gestures and by body language, the initial

2 scepticism expressed by some of the persons in this

3 courtroom.

4 At this point, what it all boils down to is

5 you believe it or you don't. It's that simple. But,

6 unfortunately, the legal defence of diminished mental

7 responsibility isn't simple at all. It's a complex

8 defence, and our preparation for the presentation of

9 this defence was long and arduous.

10 As you are aware, this is the first time that

11 the defence of diminished mental responsibility was

12 raised in a war crimes trial. However, we brought four

13 mental health experts to testify before you. Although

14 there was some distinction in terminology, each reached

15 the same conclusion independently, that Esad Landzo

16 suffered from a severe personality disorder that

17 amounted to diminished mental capacity. This

18 translates, in legal terms, to diminished mental

19 responsibility for his actions during the relevant time

20 period in 1992.

21 Esad Landzo was unable to exercise his own

22 free will, and my final comment on the defence of

23 diminished mental responsibility is this: We believe

24 that the Defence of Esad Landzo met the burden of

25 proving this special defence of diminished mental

Page 16344

1 responsibility. However, if Your Honours do not so

2 find, then the same evidence must be considered in

3 mitigation. As the Court is aware, this is the

4 practice in numerous jurisdictions throughout the

5 world, and I adopt what Tom Moran said in his mention

6 of post-traumatic stress syndrome, that it is clearly

7 to be considered in mitigation.

8 Only one of the four accused, Esad Landzo,

9 chose to take the witness stand and give sworn

10 testimony. In so doing, he subjected himself to

11 rigorous cross-examination by counsel for the

12 co-accused and by the Prosecution, and he withstood

13 that rigorous cross-examination because he was telling

14 the truth. He was steady and consistent in his

15 testimony because he was telling the truth. He

16 accepted responsibility for the crimes that he was

17 guilty of, and he denied responsibility for the crimes

18 that he was not guilty of.

19 In keeping with the Trial Chamber's request

20 yesterday that we keep these closing remarks brief,

21 I've attempted to do so. After more than 18 months of

22 trial, Your Honours have voluminous amounts of evidence

23 to sort through. In the event of a guilty verdict, I

24 trust that your deliberations will yield a sentence

25 based, not only the negative things submitted by the

Page 16345

1 Prosecution, but also on the positive things submitted

2 by this Defence.

3 As you look at Esad Landzo in the courtroom

4 today, you see a person who has matured in many ways in

5 the six years since Celebici. Certainly, he has

6 matured physically. He was a boy in 1992. Today is a

7 young man. The detention unit is feeding him well.

8 But he has matured emotionally. He has shown his

9 respect for the Court by his manner in the courtroom

10 and even by his choice of courtroom attire, a sports

11 coat, a dress shirt, and a tie. He has matured

12 mentally. With the counselling and the therapy

13 provided by the registry, he has made immense progress

14 in his rehabilitation.

15 I trust that Your Honours will consider all

16 of the evidence before you and that we will come

17 together again in a few weeks to here the results of

18 the hard work that is before you.

19 Let me close by expressing my sincere

20 gratitude to this Registry, to this Trial Chamber, to

21 lead counsel Cynthia McMurrey, and to Esad Landzo for

22 giving me the opportunity to participate in these

23 proceedings. It's been an honour and a privilege.

24 Thank you very much.

25 JUDGE KARIBI-WHYTE: Thank you. You may

Page 16346

1 proceed, Mr. Morrison.

2 MR. MORRISON: If you please, Your Honours.

3 One thing that I have always found difficult to

4 comprehend is how it's thought possible that Judges,

5 particularly in multi-defendant and multi-indictment

6 cases, have the mental capacity and ability to

7 determine complex facts with complete discretion, and

8 yet when it comes to the question of sentence, there

9 are people who believe that some sort of judicial,

10 mental block takes place which prevents them from being

11 able to exercise the same form of intellectual

12 discretion as they did with the facts. That's always,

13 I've found, to be one of the great difficulties with

14 those jurisdictions that give such credence to the

15 Prosecution or, indeed, politicians trying to determine

16 what the sentence should be.

17 Judicial independence means just that. It's

18 the intellectual independence of discretion, and I know

19 I am confidant that in this Tribunal that discretion,

20 that independence, will find its prime voice. The idea

21 that deterrence and retribution has not formed part of

22 recent and continuing modern jurisprudence, I find a

23 remarkable assumption.

24 For many years now, the climate of sentencing

25 has changed. In the early part of the Victorian era in

Page 16347

1 the United Kingdom, children were hanged for stealing

2 sheep. That's now regarded as barbaric. As we go

3 through time and we look back in time, it is usually an

4 extended period of time, because jurisprudence moves

5 slowly, slower than political theory in many ways. But

6 as we move on, we see that society has a different view

7 and takes different account of how people act and how

8 they are motivated.

9 One of the principal reasons behind that is

10 there are things like psychology and psychiatry have

11 made great strides, and we are better able now, than we

12 ever were before, to know what motivates people and

13 what makes them tick. Of course, even in allowing for

14 that, there are certain elements of human behaviour

15 which are so distressing, so horrific, that whatever

16 progress is made in one direction, there's a

17 back-surge, in the same way that the tide comes in and

18 out, to prevent ideas taking hold before their time.

19 But their time comes, and modern jurisprudence is

20 moving away from sentencing policy based upon

21 retribution or deterrence, and it's moving into a

22 more enlightened criteria of education and protection.

23 I don't ask that this Tribunal abandon the

24 deterrence and retribution. All I ask is that in that

25 great ambit of discretion, which I started off by

Page 16348

1 saying was the cornerstone of this Tribunal, that that

2 takes its place and takes a prime place in Your

3 Honours' considerations. That's a general point but

4 it's, in my submission, an important general point.

5 I have some more specific points, of course,

6 so far as Mr. Mucic is concerned. Some don't relate,

7 necessarily and exactly, to matters heard in evidence.

8 Of course, questions of guilt or innocence are now

9 historical as far as these submissions are concerned.

10 But they go beyond, perhaps, even questions of

11 sentencing from purely evidential points of view, but I

12 submit that they need to be mentioned.

13 I know, although I wasn't present, that some

14 of the behaviour of Mr. Mucic during these proceedings

15 has caused adverse comment. I know that Your Honours

16 won't take that into account in the great scheme of

17 things, because it doesn't, as it were, emanate from

18 the evidence and isn't part of the decision you have to

19 make, but we would be all less than human if there

20 wasn't some subconscious strata of antipathy to

21 somebody who did not behave properly in a solemn

22 Tribunal.

23 If there is anything in Mr. Mucic's behaviour

24 during the proceedings that has caused you displeasure,

25 all I say is this: That anyone who has suffered

Page 16349

1 long-term incarceration pre-trial and during trial

2 suffers stress, to a greater or lesser degree. It

3 would be disingenuous to suppose one needed to call

4 psychiatric evidence of this, any more than one would

5 need to call medical evidence that it would hurt if you

6 hit yourself over the head with a hammer. It's part of

7 the human condition, and I ask you to take notice that

8 any man, and not a particularly well-educated or

9 sophisticated man, and Mr. Mucic will forgive me for

10 describing him thus, but it's accurate, may suffer the

11 sort of stress and the lapses in personal behaviour

12 which might, otherwise, be the hallmark of a simple

13 man.

14 I also draw to Your Honours' attention the

15 effect of what I call the Bubulo acquittal, which

16 formed part of the addendum to the Defence submissions

17 of Mr. Mucic. Although quite correctly, the

18 Prosecution did not rely upon the allegation that

19 Mr. Mucic was, in any way, involved. Even the mere

20 mention of such involvement raises a shadow of

21 suspicion. In order to completely remove that, the

22 determination of the highest court in Bosnia that

23 Mr. Mucic is acquitted in all respects of any

24 involvement in that is now before the Court to remove

25 that shadow of suspicion.

Page 16350

1 There has been great play made upon the

2 effect before this Tribunal of the persuasive force,

3 because it is only a persuasive force, of the law that

4 pertained in the former Yugoslavia, particularly, in

5 Bosnia-Herzegovina. I remind Your Honours respectfully

6 of the evidence of the conjunctive use of the word

7 "and" in Article 33, the importance of a subjective

8 approach to sentencing relating to the individual, and

9 that goes, again, against the objective elements of

10 deterrence and retribution.

11 We heard from Professor Tomic of a fairly

12 sophisticated prisoner regime that was apparent and

13 available in Bosnia-Herzegovina prior to the war.

14 There were a number of layers of detention from

15 juveniles through adults, in the same way that there

16 are in most societies that have a reasonably

17 sophisticated penal system.

18 Obviously, and I echo the words of my learned

19 friend Mr. Moran here, that if you have such a

20 reasonably sophisticated system, you must have

21 reasonably sophisticated and trained people to run it;

22 otherwise, the system itself is of no avail. It is

23 plain that if you set up a camp, such as Celebici, and

24 turn it in to what, effectively, is a prison, and you

25 then have people brought in, these aren't people who

Page 16351

1 have applied for jobs. These are people who are

2 brought in to run the camp. If they are not people

3 with the sophisticated training, the leadership, the

4 manned management and administration, to look after

5 such a camp, then defects are bound to arise, and

6 people are going to be under pressure.

7 Pressure comes in many ways and many forms.

8 For a simple man, and Mr. Mucic is, I repeat, in many

9 ways, a simple man, to put him in charge of such an

10 institution, if you find that he was so in charge of

11 such an institution, even for a short period of time,

12 is going to be an immense strain upon him. He is not a

13 trained leader. He is not a trained manager. It may

14 well be that in such circumstances, even a mature man,

15 even a physically strong man, seeks to disassociate

16 himself with those responsibilities, perhaps, by the

17 simplest way of all, by simply taking leave, by

18 disappearing, by going away.

19 The whole of the basis of our submissions has

20 to be and the whole of the basis of the Prosecution's

21 submissions at this stage have to be upon the

22 assumption, and, of course, it is only an assumption at

23 the moment, that the Trial Chamber will convict every

24 defendant on each count of the indictment and on the

25 worst possible basis, because it would be irrational to

Page 16352

1 approach it on any other basis.

2 Considering that, of course, the figures put

3 forward by way of suggestion from the Prosecution are

4 based upon that draconian assumption. Of course,

5 therefore, the Trial Chamber will take note of that.

6 First of all, if it takes note of the Prosecution's

7 submission by way of giving a quantum of sentence, it

8 will reduce such quantum in two ways -- I beg your

9 pardon, in three ways. First of all, if people are not

10 convicted on every count of the indictment, there is a

11 pro rata reduction for those matters they are not

12 convicted on.

13 Secondly, if they are not convicted on the

14 worst possible basis, and this is a matter entirely, of

15 course, for judicial discretion, there will be a

16 pro rata reduction for the basis upon which they are

17 convicted.

18 Thirdly, of course, it may well be that the

19 figures put forward by the Prosecution were not, in any

20 event, the figures that the Trial Chamber had in mind,

21 bearing in mind, of course, all the other matters in

22 mitigation, if they be accepted, put forward on behalf

23 of each of the four defendants.

24 That's a critical moment in this case,

25 because the indictment in this case contemplates

Page 16353

1 different bases for different types of convictions for

2 different individuals. It doesn't only allege acts of

3 commission. It alleges acts of omission, and actually

4 says in the particulars of all of the counts that

5 Mr. Mucic faces that he knew or had reason to know

6 whatever it is that is complained of.

7 I take this as an example. If, for any of

8 those counts or, indeed, for all of them, the Trial

9 Chamber is of the view that he is culpable by reason of

10 omission and culpable by reason that he didn't know but

11 that he simply had reason to know that such a thing was

12 happening or such an illegal act was occurring, then

13 that is a hugely different basis upon which to sentence

14 him than someone who deliberately and consciously goes

15 out to commit an offence, regardless of the

16 consequences.

17 I invite you, when sentencing, that if you

18 find that these are acts of omission, and if it's on

19 the basis that he had reason to know, i.e.,

20 constructive knowledge rather than actual knowledge,

21 then to approach the sentencing upon that very

22 different basis on each of the counts in the indictment

23 that he faces.

24 You are, and at the risk of sounding, in any

25 way, sycophantic, all experienced and senior judges.

Page 16354

1 It's self-evident that you wouldn't be here if you

2 weren't. I'm not going to go into any sort of detail

3 about the figures that one should approach in

4 sentencing. That would logically fly against what I

5 started off in my submissions, speaking about the

6 widespread discretion, of course, which you have. But

7 it would be amiss of me, bearing in mind that such

8 figures have been suggested by the Prosecution, to

9 ignore it completely. It may be thought that by

10 ignoring them I was somehow concurring in them, and I

11 certainly don't.

12 I mentioned in the written submissions the

13 case of Von Leeb. That's an important case arising out

14 of the Nuremberg trials after the Second World War.

15 Von Leeb was a field marshall. He was in charge of

16 500.000 men. It was in that area of operations between

17 East Prussia and Moscow in the former Soviet Union, and

18 I have invited Your Honours to take judicial notice of

19 this, that many historians found was an area where the

20 worst of the atrocities, outside of the annihilation of

21 the Jews and other people that took place, the worst of

22 the atrocities were committed by military troops

23 occupying territory. Von Leeb was the head of it.

24 If there was ever a more extreme example of

25 command responsibility, it's difficult to see it. He

Page 16355

1 was convicted on the basis of what was called the

2 Barbarossa jurisdiction order, which was an

3 order which purported to give junior officers the right

4 to shoot people simply because they suspected them of

5 committing offences. He was convicted on the basis

6 that he had passed that order through the chain of

7 command and, therefore, he had criminal

8 responsibility. He was sentenced to three years

9 imprisonment.

10 I refer Your Honours to Article 142 that we

11 dealt with with Professor Tomic. It is plain that,

12 although rather curiously, even when there's a

13 statutory minimum, and I know His Honour Judge

14 Karibi-Whyte, I think, if I'm correct, was slightly

15 taken aback by this, and, indeed, with respect, so was

16 I, that to see there was a statutory minimum and then

17 to find out that it isn't a statutory minimum at all,

18 and, frankly, judges have a discretion to pass a lesser

19 sentence, rather than --

20 THE INTERPRETER: We kindly ask the counsel

21 to slow down, please.

22 MR. MORRISON: But there is a statutory

23 minimum nominated, and it's five years. That's

24 regarded as five years strict imprisonment. When I

25 asked that you will recognise, that you will remember,

Page 16356

1 that strict imprisonment related not to the regime but

2 to the amount of imprisonment, the length of

3 imprisonment. In those circumstances, if five years

4 was seen as strict or harsh imprisonment in the former

5 Yugoslavia, that is one benchmark that you can operate

6 from in this case. I don't seek to fetter or suggest

7 any other figure, apart from those I've mentioned, but

8 simply to set them in the scale against the 20-year

9 figure advocated by the Prosecution.

10 Mr. Mucic, his worst offences hitherto are

11 poaching. That indicates, perhaps, that we are dealing

12 with a simple countryman. Those are the sort of

13 offences simple countrymen commit. There is evidence,

14 and it's set out in the written submissions, of him

15 helping other people in the camp. That is powerful

16 mitigation. It is rare, in any case, to have that sort

17 mitigation emanate from Prosecution witnesses, and I

18 know that Your Honours will give it all due

19 consideration when considering sentence, should you

20 convict in this case.

21 If there are any matters which I have not

22 dealt with which you think I should have dealt with, I

23 would invite Your Honours to, perhaps, suggest them to

24 me now. It's a practice we adopt in the United

25 Kingdom, and I can't get away from it. Normally

Page 16357

1 speaking, when a judge says, "I haven't got any

2 questions," it doesn't mean, of course, that the

3 advocate has covered everything. It means that he has

4 gone on for too long. But if there are any such

5 questions or any observations that Your Honours wish to

6 make, I will attempt, to the best of my ability, to

7 deal with them.

8 JUDGE KARIBI-WHYTE: I see no reason to make

9 any other suggestions than that. I think you have

10 covered the ground as much as anyone can.

11 MR. MORRISON: I'm very grateful for the

12 opportunity. Thank you.

13 JUDGE KARIBI-WHYTE: Thank you very much.

14 MS. RESIDOVIC: Your Honours, I hope that

15 this will be my last address to this Honourable

16 Chamber, because I believe that, after your decision,

17 Zejnil Delalic will no longer need counsel.

18 The closing arguments that we submitted in

19 our written submission addressed a number of issues

20 that were raised in the Prosecutor's submission.

21 Therefore, Your Honours, today I'm not going to dwell

22 on the general matters that we mentioned in our brief

23 having to do with the legal basis for sentencing and

24 the practice in the former Yugoslavia.

25 However, since today, in their final

Page 16358

1 arguments, the Prosecution addressed a number of issues

2 that we expressed in our submission, please allow me to

3 say just a couple of words which are, in my opinion,

4 relevant in the proper determination of the sentence in

5 this case in respect of the accused charged in the

6 indictment of the Celebici case.

7 Both the Defence and the Prosecution agree in

8 their written and oral submissions to the Tribunal that

9 the fundamental principle of anyone's criminal

10 responsibility, and that the basic guidelines, when it

11 comes to determining the appropriate sentence for the

12 accused, has to be the participation of a specific

13 person, of an individual, in the commission of a crime

14 and the basic characteristics of his personality.

15 We, therefore, refer you to these elements

16 and kindly ask you that when it comes assessing the

17 possible responsibility of Zejnil Delalic, to take

18 these elements into account.

19 In their final arguments, the Prosecution has

20 mentioned the gravity of the crime, while dealing with

21 this particular crime in general terms, and also in

22 respect of each of the accused. The gravity of a crime

23 is, by all means, one of the elements that affects the

24 appropriate sentence, and Celebici cannot be any

25 exception to that rule.

Page 16359

1 However, the Prosecutor has criticised today

2 the written submissions by Mr. Delalic and has stated

3 that we have no right to compare ourselves with other

4 serious cases, because this Court only has the evidence

5 that has been presented in the Celebici case. This is

6 contradictory to what the Prosecutor himself has stated

7 in his written submission by referring you to numerous

8 decisions reached at this Tribunal and numerous

9 decisions reached by other International Tribunals. He

10 has done so while discussing the gravity and

11 seriousness of the crimes committed.

12 The Prosecutor has, therefore, quoted the

13 Tadic decision, the Erdemovic judgement, and decisions

14 relating to the Rwanda Tribunal. In their written

15 submission, they even went as far as to claim that the

16 circumstances were identical. I quote, "When the victims of

17 the acts of Dusko Tadic in Kozerac had suffered the horrors of a two day intense

18 shelling and attack on the town which left behind 800 casualties."

19 I know, Your Honours, that you will take into

20 account other judgements and decisions by this Tribunal

21 and other relevant case law. My learned colleague,

22 Mr. Morrison, has reminded you of one of many such

23 decisions.

24 Let me remind you of the already quoted case,

25 the Tadic case, which was cited by the Prosecutor in

Page 16360

1 his submission. He claimed that in two days, 800

2 people were killed, in Keraterm and that in Srebrenica, within a

3 few days, 8.000 civilians were killed, the civilians

4 who had been under the protection of the United

5 Nations. In the case of Rwanda, 800.000 people were

6 killed. According to the indictment of the Prosecutor,

7 in Celebici, 13 people were killed. Out of that

8 number, and I do not wish to analyse this particular

9 issue, at least six deaths have nothing to do with

10 Celebici.

11 Therefore, I am faced with the question, "Why

12 has the Prosecutor tried, ever since the beginning, to

13 to overemphasise the gravity of the acts that were

14 committed in Celebici?" For me as a human person, any

15 murder is equally serious. For a victim, it is always

16 a tragedy. But remember the first day of our trial,

17 Your Honours, the 10th of March, '97, I reacted very

18 strongly to the comparisons with the Nuremberg trials

19 and the Tokyo trials. I believe that throughout the

20 trial you have reached the same opinion, that is, that

21 these trials have nothing in common.

22 My learned colleague Mr. Moran has spoken

23 about the accused, being charged with the least

24 serious types of war crimes

25 if one can use that legal description. We,

Page 16361

1 here, deal only with grave breaches of the Geneva

2 Conventions. There have been no crimes of genocide or

3 crimes against humanity in this particular case.

4 Therefore, Your Honours, you see that these

5 comparisons are not valid, and you cannot ascribe such

6 gravity, as it is proposed by the Prosecutor, to the

7 case in Celebici. I'm convinced that you will be

8 perfectly able to ascribe appropriate elements to this

9 particular case, the elements that have been

10 established through the evidence that has been

11 presented.

12 I wish to add further comments to what my

13 colleague Mr. Niemann stated today. He said that the

14 circumstances that we offered as important

15 circumstances, namely, the fact that citizens of a

16 particular state had come under aggression, because in

17 the words of my learned colleague, Mr. Niemann, it was

18 merely a transitional period. I could not believe my

19 ears, because I had listened to Mr. Niemann in his

20 other addresses before this Honourable Tribunal, when

21 he spoke the same way that I am speaking to you now,

22 that is, that the state of Bosnia-Herzegovina was a

23 recognised state on the 6th of April, that it was

24 admitted as a member of the United Nations on the 22nd

25 of May, and that it had a legitimate right, as a state

Page 16362

1 and as its citizens, to defend themselves.

2 This, Your Honours, has nothing to do with

3 the rebellion in Prijedor where the civilian population

4 came under attack of those who had rebelled

5 against that state. This, actually, may be the first

6 case in which the defenders or those who

7 had been attacked have been brought before a

8 court.

9 One other important fact that you have in

10 mind is something that was stated by the Prosecution

11 witness, General Divjak, and I will try to quote him.

12 I do not know much about history, and I can tell you

13 that he knows history quite well, but in as much as I

14 know about history, Sarajevo was, by and large, the

15 largest concentration camp after the Second World War.

16 From numerous other witnesses called, both by the

17 Prosecution and the Defence, you have heard that Konjic

18 was the fourth such city in Bosnia and Herzegovina.

19 You have heard about humanitarian tragedy that had

20 befallen this town, the town of Konjic, and I don't

21 think that I need to dwell on this issue any longer.

22 One of the issues that the Prosecutor drew

23 your attention to is that Zejnil Delalic and his

24 Defence did not cooperate with the Prosecutor. He has

25 explained that by the simple fact that Zejnil Delalic

Page 16363

1 had entered a plea of not guilty. According to my

2 reasoning, and I believe this is the reasoning of all

3 lawyers and all courts, that the assistance provided to

4 the Prosecution in reaching the truth and the assistance

5 to provide the Court with all relevant evidence that can be corroborated

6 and its veracity ascertained, is something that amounts to cooperation. An

7 innocent man cannot cooperate with the Prosecution by saying

8 that he's guilty. This would be absurd.

9 In our written submission, we indicated the

10 details of the cooperation of Zejnil Delalic with the

11 Prosecutor. You may know, and you may not know, that

12 Zejnil Delalic and Zdravko Mucic were the only

13 individuals who came to this Tribunal who had been

14 arrested before the Prosecutor issued an indictment

15 against them. Had anyone accused Zejnil Delalic, a man whom

16 you’ve come to know through witness testimonies, as a man who

17 has done something wrong, I'm sure that that person

18 would have come to the Tribunal.

19 Zejnil Delalic gave his first statement on 18 March, the indictment was

20 confirmed on 21st March, and it reached Germany where Zejnil Delalic was

21 arrested on 14 March. Zejnil Delalic informed the Prosecutor by

22 saying that he was ready to answer all his questions,

23 and he spent another two days in August in discussions

24 with the Prosecutor. Zejnil Delalic did not have to

25 provide any evidence to the Prosecutor. He had already

Page 16364

1 given it to the Prosecutor in May, and the Prosecutor

2 used that evidence. On the 27th of May, he suggested

3 that he should make available to the Prosecutor

4 everything that he had in his possession that may

5 amount to evidence. This is considerable and important

6 cooperation.

7 In January, before the Prosecution started

8 presenting its evidence, alongside with two letters, we

9 made available to the Prosecution a number of other

10 documents, and the Prosecutor admitted to this court

11 both orally and in writing, that the Defence of

12 Zejnil Delalic is providing huge amounts of

13 necessary information and evidence.

14 If Mr. Niemann is not aware of that, he may

15 very well ask about that from his learned colleagues

16 Ms. McHenry and Mr. Ostberg, with whom the Defence

17 cooperated over an extensive period of time. This

18 should be labelled as extraordinary contribution of

19 Zejnil Delalic to the determination of the truth in

20 this case.

21 The Prosecutor suggested today that Zejnil

22 Delalic, when he learned about certain things, failed

23 to respond. This is an allegation which cannot be

24 borne by any evidence. In Munich, Zejnil Delalic was

25 perfectly clear. He said that it was the first time

Page 16365

1 that he had heard of such incidents, and he said that

2 he was sorry if such things had, indeed, happened.

3 When he was in Scheveningen, he said, when

4 he heard about desperate individuals who were passing

5 through Konjic and Celebici, he said, and he said this

6 in the presence of relevant authorities at the time, he

7 said, "You must do something to prevent them from doing

8 something wrong." So that was the position of Zejnil

9 Delalic from the beginning.

10 His interviews, and we have heard Bajram

11 Delic, and we have seen the videotape of the interview,

12 the original piece of evidence that was offered by that

13 witness, the answers did not relate to the conditions

14 in the Celebici prison. His answers were in response

15 to a question as to his opinion about the enemy

16 propaganda, that is, the radio and television called

17 Serna. We heard this in evidence, namely, their

18 allegation that 5.000 people were in the tunnel in Bradina,

19 and this was later on denied, and it was proven that

20 nobody was in Bradina at the time.

21 Your Honours, what the Prosecutor wants to

22 say to you about Zejnil Delalic is contradictory to the

23 evidence that is before you. The Prosecutor is saying

24 something about the length, the period of time, over

25 which these crimes were allegedly committed. However,

Page 16366

1 the evidence tells you that Zeljko Klimenta, the last

2 victim in Celebici, and we are talking about the 26th of

3 July, and you know that as of August 10th, hundreds of

4 people were released from Celebici. You know that only

5 32 of them were later transferred to Musala. This was

6 the last crime before the beginning of August, and you

7 know that there were individual crimes that happened

8 during the night and so on, but I don't want to go into

9 details about that.

10 Zejnil Delalic may have heard something about

11 that from the Red Cross, and he acted promptly. On the

12 19th, the 24th and 28th of August, he conveyed the orders of

13 the superior command, and he definitely contributed for

14 a positive change of the circumstances.

15 We have evidence that was given by doctors

16 here in this Celebici case. We also have the testimony

17 by General Divjak, who knew about the situation, and

18 the statement made by Zejnil Delalic himself.

19 Therefore, the length and dimensions of the crime, as

20 they have been represented by the Prosecutor, are not

21 founded on evidence that's been presented in this

22 case.

23 The Prosecution further goes on and claims

24 that Zejnil Delalic used the term "Chetnik" when

25 referring to Serbs, but we have heard witnesses who

Page 16367

1 have testified to the opposite. Zejnil Delalic has

2 never, ever referred to Serbs as Chetniks, not even

3 in the evidence that has been mentioned in this regard

4 by the Prosecutor.

5 The Prosecutor may not know, and maybe this

6 is not important, but there were, indeed, Chetniks in

7 the Serbian army, and people who refer to themselves as

8 Serbs. Nikola Poplasen , who has recently been elected President

9 of Republika Srpska , commonly referred to himself as a Chetnik,a Chetnik

10 Duke. So does Seselj. and this is not something that he would tell to his

11 friend, to his wife, or to any other Serb. This is

12 something that amounts to an insult, but there are

13 people, again, who, as I said, refer to themselves as

14 Chetniks.

15 Therefore, Your Honours, and I don't think

16 that I need to repeat the testimony, and could not use better words about Zejnil

17 Delalic than our character witnesses, Branko Tomann, an Austrian citizen spoke

18 about him as a person. A Croat, Dako Ruzic,did so. A Serb, Nebojsa

19 did so. A Bosniak, Alija Buturovic, did so. Numerous other Prosecution

20 witnesses, and I'm not going to mention their names

21 now, all of them, even detainees in Celebici, spoke

22 highly of him. You have heard that Zejnil Delalic is a

23 cosmopolitan person, humane person, tolerant person,

24 who has never done anyone any harm and, on the

25 contrary, who has always endeavoured to do only good.

Page 16368

1 What, then, would be Zejnil Delalic's motive

2 to commit any of the crimes with which he has been

3 charged? That he did not have any responsibility in

4 regard to Celebici, that he had no business sitting

5 here for two and a half years, this is something I'm

6 not going to speak about.

7 Your Honours, courts all over the world are

8 faced with the difficult task of reaching verdicts.

9 The Court has to reach a verdict that is either an

10 acquittal or a conviction. This is something that you

11 are bound to do by your duty after you have dutifully

12 examined the evidence which is in front of you in

13 respect of all of the accused, including my client,

14 Zejnil Delalic. Only then, when the Court finds itself

15 ready and brave enough to publicly announce the

16 verdict, only then will my client, Zejnil Delalic, know

17 where he stands.

18 You have lots of experience, Your Honours, and I believe

19 that you will have enough courage, regardless of the pressure to

20 which the International Tribunal has been exposed, and I'm convinced

21 that you will reach a just verdict in this case, and in

22 the case of Zejnil Delalic, I'm sure it is going to be

23 a verdict of acquittal. Thank you very much.

24 JUDGE KARIBI-WHYTE: Thank you very much for

25 your submissions.

Page 16369

1 I am happy, as all of you are, that, at long

2 last, we are all making our final submissions in this

3 case. For almost two years now, we have been following

4 through our new Rules, new Rules which are an amalgam

5 of two strange bedfellows, we used to call them, and

6 which is a product of this institution and is unique to

7 it. You've all been following every inch, litigating

8 every point. I'm sure by now you have even lost count

9 of the number of motions you have moved and the number

10 of rulings we have made on the objections in these

11 proceedings.

12 As if this Trial Chamber is jinxed, we still

13 had to go through this particular procedure which we

14 now adopted. If you all remember, we were almost at

15 the end of our proceedings when the Rule relating to

16 sentencing was changed. We have to go back again and

17 find a way to enable you to include your necessary

18 evidence for punishment, as if we would never get out

19 of this trouble. I'm very happy we have found a way,

20 instead of having a pre-sentencing trial, to manage to

21 include a sentencing trial within a provision which

22 could have been done at a time you were collecting

23 evidence for the Defence or for the Prosecution.

24 In fact, my greatest happiness is that

25 without grudging anyone, you all rose to the occasion,

Page 16370

1 wrote the necessary memorandum, and got the necessary

2 witnesses to fit within this period, so that we could

3 comply with the Rules without creating unnecessary

4 problems.

5 On behalf of my colleagues, I thank you very

6 much for your efforts and for the endeavours which you

7 have made to ensure that your clients had the best

8 legal defence anyone can give them. I don't think they

9 could have got anything better than what you have

10 done. It is important in a matter of this nature to do

11 the best for them and then allow the Trial Chamber to

12 do its own side of the exercise.

13 We will try and do our best, and we are

14 hoping that when we deliver our judgement, and it will

15 be an integrated one, it's no longer a judgement and

16 then a sentencing after, it will be integrated in the

17 judgement. We're happy that you have given us every

18 opportunity and every assistance to make sure that we

19 did not fail in the temple of justice. My attitude and

20 I think is that of everyone here, we're only committed

21 to doing justice. It doesn't matter what those outside

22 or those inside think we're doing. It's a matter of

23 conscience, and we do justice to the best of our

24 ability. It is the traditional thing that whoever

25 loses has something else to say about justice, but

Page 16371

1 justice is all we want to do, and that is what, in

2 these circumstances, we are bound to do.

3 Sometimes it is usually thought that after so

4 long a proceeding, taking almost two years,

5 surprisingly this one is so fresh in one's memory, that

6 the two-year period looks like one year or even less.

7 You'll remember everyone's face. You remember the

8 nuances of each of the accused persons. You even

9 remember the witnesses who we heard, because they come

10 in so frequently that you tend to take it as a

11 household thing. We thank you very much for your

12 presentation, which has made everything very clear.

13 Unfortunately, I have no other case to do

14 here, and I'll miss everyone who have argued before

15 this Trial Chamber. I've always had a style of being

16 very taciturn. I don't like interrupting people. I

17 like it to go ahead. If, perhaps, you want to hang

18 yourself, it's all right. It doesn't matter. But I

19 think, generally, I have been very impressed with the

20 advocacy which I have met here. Apart from a few

21 difficult periods, things have worked very well. We

22 thank you very much, and in due course, we will have a

23 notice telling you when the judgement will be

24 delivered.

25 Thank you very much. This Trial Chamber will

Page 16372

1 now rise.

2 MR. MORRISON: Your Honour, just before you

3 do rise, and I know that I speak for more counsel than

4 one, on the question of the date of the sentencing,

5 plainly, that's an administrative matter. I know that

6 the convenience of counsel does not come high on the

7 list of organising such dates and for good reasons, but

8 I think there are a number of people, for a variety of

9 reasons, who would be pleased if the sentencing

10 procedure was not before the 10th of November. I

11 simply put that figure into the system. If it's

12 impossible, then so be it, but if the sentencing could

13 be after the 10th of November, I know that would make

14 life, administratively, much easier for a number of

15 counsel.

16 JUDGE KARIBI-WHYTE: Thank you very much for

17 making your request. I think we will take it into

18 account.

19 MR. MORRISON: Thank you, Your Honours.

20 --- Whereupon the hearing adjourned at

21 5.35 p.m. sine die