Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13641

1 Monday, 15 July 2002

2 [Open session]

3 [Martinovic Defence Opening Statement]

4 [The accused entered court]

5 --- Upon commencing at 3.39 p.m.

6 JUDGE LIU: Call the case, please, Madam Registrar.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-98-34-T, the Prosecutor versus Naletilic and Martinovic.

9 JUDGE LIU: Thank you. For the sake of the record, may we have

10 the appearances, please? For the Prosecution?

11 MR. SCOTT: Good afternoon, Your Honours, Kenneth Scott for the

12 Prosecution and with me at counsel table of course are Mr. Vassily

13 Poriouvaev and Roland Bos and Ms. Kimberly Fleming.

14 JUDGE LIU: Thank you. For the Defence of Mr. Vinko Martinovic.

15 MR. SERIC: [Interpretation] My co-counsel is Mr. Zelimir Par. I'm

16 so sorry, I'm lawyer Branko Seric, member of the bar of Croatia. Defence

17 counsel for Vinko Martinovic and with me is Mr. Zelimir Par, who is my

18 co-counsel.

19 JUDGE LIU: Thank you. For the Defence of Mr. Naletilic, please.

20 MR. KRSNIK: [Interpretation] Good afternoon, Your Honours,

21 Kresimir Krsnik, Your Honours, lawyer from Zagreb, Christopher Meek,

22 co-counsel and Nika Pinter, legal assistant. Thank you.

23 JUDGE LIU: Thank you. Are there any matters that the parties

24 would like to address to this Trial Chamber?

25 MR. PAR: [Interpretation] Good afternoon, Your Honours. If we

Page 13642

1 could go to a private session for a few minutes? Because I would like to

2 inform you about certain problems that the Defence has come across of

3 late.

4 JUDGE LIU: Yes. We will go to the private session, please.

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22 [Open session]

23 JUDGE LIU: Now we are in the open session. In this case, we also

24 would like to ask the Defence team for Mr. Vinko Martinovic to file us a

25 new list of the witnesses. For those who have difficulty to come at this

Page 13648

1 week, might come at a later stage. Is that agreeable, Mr. Par?

2 MR. PAR: [Interpretation] Mr. President, our witnesses are here.

3 We have a group here, we are still waiting for one, and then we shall have

4 six witnesses here. They are the -- on the list that we have filed. I

5 hope we shall comply with that particular sequence. We hope that the

6 witnesses will be relatively short and that we should be able to finish

7 this first group by the end of this week or perhaps in the very beginning

8 of next week. So far we have no problems.

9 JUDGE LIU: Thank you very much. Today we will start the Defence

10 case for Mr. Vinko Martinovic. We are expecting this case to be finished

11 by the end of September, which means more or less one witness for one

12 day.

13 Yes, Mr. Seric, your opening statement, please.

14 MR. SERIC: [Interpretation] Thank you very much, Mr. President.

15 We have split our opening statement in two parts. I will address

16 the Chamber and my learned friend in turn, to present the case from the

17 view point of Defence. With regard to the facts and general postulates of

18 the indictment. And Mr. Par will then tackle the charges in the

19 indictment themselves, in so far as that is possible, in view, and please

20 do not be angry with me if I say what I have been repeating from the very

21 beginning, in view of the general nature of the indictment. And the lack

22 of specificity in it. My lady -- Your Honours, Mr. President, nothing is

23 as it appears to be. Nothing is as simple as it can be, and vice versa.

24 It is a question for all times. Is life simple and then a man

25 complicated? Or is life complicated and a man sets out to simplify it?

Page 13649

1 We are halfway through a case which speaks about war. What is

2 war? Again, a question for all times. War is woven the history of

3 civilisation, the history of man, and the history of man is unfortunately

4 the history of warfare. We learned that in school. Unfortunately, all we

5 learn is years when a particular war happened, regardless of whether there

6 is a Punic wars, wars between Athens or Thebes or wars waged by

7 Austria-Hungary or France or any other war. All we learn is years. Yet

8 war is part and parcel of this planet. There is war between different

9 species of both birds and four-legged animals. There is war for survival.

10 There is war within one species waged for predomination, war for power.

11 The drive for powers, is, Your Honours, a destructive driver. It is

12 stronger than the sexual drive but it also can be stimulating.

13 Yet war conceived by human mind and put through by human hands is

14 the worst war of all, and it destroys all life. No rational being can

15 justify war as such, but if you're attacked, you have the right to defend

16 yourself. It is a natural right and a right in nature. It is a right

17 between species and between humans who are one of those species. Both in

18 relation to the community as such and in relation to an individual. I

19 need to say something about self defence. In our specific case, I claim

20 that the Croats acted in self defence. They therefore waged a just war.

21 Their actions were sensible, necessary and proportional reaction to

22 attack, as stipulated by Article 31(1) of the Statute of this Tribunal.

23 The indictment sets out to paint a situation as black and white but as

24 a -- there is nothing which is black and white, it was not so in Mostar

25 either. Life is woven of colours. It is more real than film, and it

Page 13650

1 needs to be presented here in the courtroom more realistic, as more real

2 and more tangible than we would see it on film because that is the only

3 way justice can be dispensed.

4 Last year, speaking in front of a learned colleague, Fourmy,

5 Mr. Scott agreed with me, I proposed that along side those Statutes and

6 the Rules of Procedure and Evidence we all seemed to use as another basic

7 document Shakespeare's comedy, Much Ado About Nothing. Not because there

8 is anything funny in this tragedy but because the title reflects the

9 situation and position of my client. He was not any special figure in

10 this war. He never had any special powers or authority. He was just an

11 ordinary man who joined the war literally from the street, and a few days

12 later, in the middle of May, 1993, he became, through the concatenation of

13 circumstances, a commander for a group of young men from the neighbourhood

14 who called themselves "Mrmak," because Vinko Martinovic had a dog who was

15 called that. Now, can you imagine, can you imagine, what serious unit it

16 is with a dog's name? Yet they were serious combatants, they were

17 combatants on the front line they guarded. They were 50 to 70 metres of

18 front line throughout the war. And Vinko Martinovic together with them.

19 And that was that. And a great deal of ado was raised about it. We shall

20 prove, Your Honours, that this "ado," and I'm speaking in inverted commas,

21 about him and about nothing, was created by the media. They wanted to

22 fabricate, to manufacture, a culprit. For very many things that went on

23 in Mostar, although he, to all intensive purposes, never made a step away

24 from his defence line on Bulevar, and the witnesses will say so in the

25 courtroom.

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Page 13652

1 Vinko Martinovic was just a plain, ordinary foot soldier without

2 any special role in the war, without any rank in the military hierarchy,

3 with the lowest degree of responsibility, and limited action on the --

4 along the narrow line of the conflict. The only thing that he can be

5 blamed for, and we shall prove it, Your Honours, was to pick up the rifle

6 and go to fight, to defend his street, his neighbourhood, his home and his

7 people. And how powerful was this farmer, as the ancient Roman said, is

8 best proven by the reaction of Hans Koschnik, the international governor

9 of Mostar. A month after his arrival, somebody wanted to take him to a

10 very nice restaurants. I've been to it. I know it, which is called

11 Stela, Stela, like a star, but he didn't understand that, and he said,

12 "Stela, nix Stela," "Stela will kill me." And just as Hans Koschnik was

13 duped by these fables, by these tall stories about the ill famed Stela, so

14 did this Prosecutor's office also take over the accusations trumped up by

15 Bosniak secret services, notably the AID, and unfortunately I cannot but

16 say it, with the assistance of some Croatian secret services who

17 presumably wanted to protect somebody else. And started persecuting Vinko

18 Martinovic. In other words, the Prosecutor's Office took up the position

19 of the Muslim side of the conflict and taking over, without reservation,

20 witnesses served on them of questionable past and present, who had been

21 subjected to the blackmail and undue influence of AID. And to conclude

22 this part, Your Honours, the problem of Bosnia and Herzegovina, believe it

23 or not, has always been insoluble, and we need to start from that. In

24 Bosnia and Herzegovina and in the international community, and before this

25 Court, we must start from the fact that in Bosnia-Herzegovina there are

Page 13653

1 today three separate and specific political, cultural and religious

2 entities which emerged in the course of history, who suffered man-made

3 interventions from all sides and that includes interventions in the name

4 of democracy, in the name of the international community, but which,

5 however, more often than not proved to be a demonstration of force. One

6 needs to understand, Your Honours, that they cannot and may not be

7 outvoting, that they may -- that one may not and cannot speak in inverted

8 commas on behalf of one side only. In Bosnia and Herzegovina, there are

9 Bosniaks or Muslims, we shall allow them to call themselves as they

10 please, and also Serbs and Croats. Isn't it natural that each one of them

11 aspires to clearly define and bounded systems of their own.

12 Bosnia-Herzegovina belongs to its citizens, that is true. But the reality

13 is that they are of three flocks and the solution of the political

14 question is a prerequisite for the economic, cultural, linguistic and

15 other solutions. There are not all that many models, Your Honours.

16 Bosnia-Herzegovina will either be a state in which all its citizens,

17 across the width and breadth of this territory, will be sovereign or they

18 will not be sovereign but in that case, cantonisation will have to be

19 embarked upon in order not only to recognise the cultural and linguistic,

20 particularity but also the territorial and political integrity. The

21 international community seems to vacillate between these two options and

22 the Prosecutor's Office seems to have a similar approach. Yet in some

23 instances, it is radical, because what it means is an unconditional

24 protection of the federation, which as we have seen has no federal units,

25 and is therefore under a question mark as such. And witnesses who have

Page 13654

1 testified so far and who will testify, who we shall hear in this case,

2 have become hostile, allegedly now. I wonder hostile to whom.

3 According to the Bosniak Muslim option, because they are victims,

4 and automatically, their option, their political option, is the only right

5 one.

6 Your Honours, I believe that this case will shed full light on

7 certain questions and that a formula will be devised for

8 Bosnia-Herzegovina so that Bosnia-Herzegovina does not remain, and I'm

9 paraphrasing now, a Croatian linguist, so that it doesn't remain Buridan's

10 ass.

11 With regard to the fact that the Defence is confronted with the

12 indictment, and the facts given in the indictment, then we would start by

13 saying what facts does this Defence agree with so that we don't have to

14 prove them so as to make the work of this Honourable Chamber easier. It

15 is correct that Croatia proclaimed its independence on the 25th of June,

16 1991. It is correct that the European Community recognised the Republic

17 of Croatia on the 15th of January, 1992. It is correct that

18 Bosnia-Herzegovina proclaimed its independence on the 3rd of March, 1992.

19 It is correct that the European Community recognised the Republic of

20 Bosnia-Herzegovina on the 6th of April, 1992. It is correct that the

21 Republic of Croatia recognised the Republic of Bosnia and Herzegovina on

22 the 7th of April, 1992. It is correct that the Republic of Bosnia and

23 Herzegovina became a member of the United Nations on the 22nd of May,

24 1992. It is also correct that on the 18th November, 1991, it was

25 proclaimed that the HZ HB existed as a separate political, cultural,

Page 13655

1 economic and territorial entity in the territory of Bosnia-Herzegovina.

2 It is indisputable that on 18 November, 1991, the existence of the HZ HB

3 was proclaimed. However, what is disputable is that it was supposed to be

4 a separate political, cultural, economic and territorial entity in the

5 territory of Bosnia-Herzegovina as is claimed in the indictment.

6 The Defence has already proven by a number of documents that have

7 been provided to it by the Prosecution, by witnesses, some of whom were

8 testifying under a pseudonym but some of them testified as public

9 witnesses, like Jozo Maric, Bozo Raic and also our expert witness, Davor

10 Marijan and it will be confirmed. The Defence has submitted an annex,

11 that is an analysed -- that is an indictment broken down, and I'm going to

12 follow the facts that the Prosecution has established and I'm going to

13 present the thesis of the Defence, the thesis that we are going to prove

14 in our part of this case.

15 The Prosecution claims that the purpose, the intent, of the HZ HB

16 was to establish closer links with the Republic of Croatia. It is not

17 correct, claims the Defence, that the purpose of the Croatian Community of

18 Herceg-Bosna was to establish closer ties with the Republic of Croatia in

19 the way claimed by the Prosecution. The intent is visible from the

20 decision on the establishment dating 18 November, 1991. When the Serbs in

21 Bosnia and Herzegovina and the Yugoslav People's Army carried out violence

22 against the Croatian people and the government of Bosnia and Herzegovina

23 could not protect it because it had not prepared for the Defence, we know

24 what Alija stated at the time, Croats organised themselves. They

25 organised their units. And during the defence, they established Croatian

Page 13656

1 communities as follows: Posavina, Herceg-Bosna, Central Bosnia, Usora

2 and Vrhbosna. As the enemy attacks grew stronger, in the area of

3 Herceg-Bosna, a need was felt to provide for the coordination of municipal

4 units and to organise the defence of the centuries-long Croatian homes.

5 For that purpose, the representatives of the Croatian people who were

6 legally elected in the multi-party elections in 1990, members of the HDZ,

7 at their session on 18 November, 1991, in Grude, made the aforementioned

8 decision.

9 The Prosecution claims that Croatian currency and the Croatian

10 language were used in the HZ HB. In the HZ HB, Croatian money was indeed

11 used, but we have proven and we will continue to prove, that it was used

12 to a lesser extent than the German mark, and therefore, there could be no

13 conclusion of the expansionist intentions of the Republic of Croatia in

14 the territory of Bosnia and Herzegovina. Another issue is the language.

15 The Croatian people have always used a Croatian language, which was also

16 used by the Muslim people, which resided in the territory of Herzegovina.

17 There was never such a thing as a Muslim or Bosniak language, and our

18 Witnesses MB and Slobodan Praljak and Stiepo Andrijic, Jozo Maric and many

19 others have testified to that effect.

20 The Prosecution claims that the Republic of Croatia made it known

21 that it supported the intentions and desires of the Croatian Community of

22 Herceg-Bosna. The Prosecutor claims that the Republic of Croatia made it

23 known that it supported the desires of the HZ HB. However, this is a very

24 simplified statement which cannot be confirmed easily. The Prosecution

25 exhibit P155 is a letter by Dr. Franjo Tudjman to Alija Izetbegovic and

Page 13657

1 the date of that letter is 5 July, 1999. This letter confirms everything

2 that the Defence of both Mladen Naletilic and Vinko Martinovic claim.

3 The Prosecution furthermore claims that the Republic of Croatia

4 granted dual citizenship to Bosnian Croats. This is correct. However,

5 the Republic of Croatia gave Croatian citizenship as dual citizenship. It

6 did not appropriate that part of the people. It did not just annex that

7 people into the Croatian corpus in the Croatian state. The Prosecution

8 claims that by the decision of 14 September, 1992, the constitutional

9 court of Bosnia-Herzegovina proclaimed the Croatian Community of

10 Herceg-Bosna illegal. It is correct that the constitutional court of

11 Bosnia and Herzegovina proclaimed the Croatian Community of Herceg-Bosna

12 illegal. However, the legitimacy, the authorities, and the power of the

13 constitutional court is not only disputable but the Defence is also going

14 to prove that the constitutional court via facta ceased to exist. It is

15 enough to ask ourselves this: If the constitutional court proclaimed the

16 Croatian Community of Herceg-Bosna illegal, how come that Alija

17 Izetbegovic, the talked to, negotiated with and signed agreements reached

18 with the representatives of something that is illegal, that does not in

19 fact exist? We have documents that we have only received only recently,

20 one or two days ago, and this documents are -- these documents are going

21 to prove exactly what I have just said.

22 Later on, the Prosecution claims that the international community

23 has never recognised the self-proclaimed Croatian Community of

24 Herceg-Bosna. The international community has never recognised the

25 Croatian Republic of Herceg-Bosna, which was self-proclaimed on 28 August,

Page 13658

1 1993.

2 What is actually correct? This is actually correct. But it

3 doesn't mean a thing, because this recognition was never asked for, but if

4 we wish to embark on theoretical discussions, then we can say that a state

5 is determined by principal elements as can be found in World Book of

6 Encyclopaedia, in 1990, and which says that the territory, population and

7 sovereign government are -- these are the terms that determine a state,

8 the term state generally means an area of land whose people are organised

9 under a sovereign government. Many authors claim that for a state, it is

10 not important that it should be recognised by other states. What is

11 important is that it recognises the international laws and that it is

12 subject to it. Therefore, the Croatian Community of Herceg-Bosna was an

13 organisation of defensive nature which was established so as to help the

14 Croats of Bosnia-Herzegovina to defend themselves from the JNA aggression

15 and throughout all that time it was illegal. The documents and the

16 organisation of the HZ HB and the HR HB and the HVO demonstrate that these

17 were only temporary organisations which were needed during the war.

18 Unlike the Serbs in Republika Srpska, which passed its own

19 constitution and created a whole new system of laws, the Croatian

20 Community of Herceg-Bosna mostly applied those laws which were in effect

21 in the Republic of Bosnia-Herzegovina. New laws and new regulations were

22 passed only to fill the gaps and to adapt the laws of the Republic of

23 Bosnia-Herzegovina where it was necessary. In essence, the laws of the

24 Republic of Bosnia and Herzegovina were implemented and applied unless

25 when there were valid reasons for their -- for those laws to be

Page 13659

1 supplemented. The HZ HB and the HR HB advocated the sovereignty of

2 Bosnia-Herzegovina and tried to find a solution for all the three peoples

3 trying to maintain the traditional status of Croats, the status of a

4 constituent people. The HZ HB established its institutions as a necessity

5 because of the collapse of the systems existing in the Republic of

6 Bosnia-Herzegovina. The Presidency had stopped functioning irrespective

7 of the things that we heard in this courtroom. This is not correct. The

8 Defence claims, has proven and will continue to prove that the Presidency

9 had stopped existing and functioning. The government ceased to exist. So

10 the indispensable elements of the statehood of one state, and that is the

11 government, the positions of the government and the implementation of

12 power in the entire territory of a state, from the centre, for all

13 practical purposes had ceased to exist.

14 It is a rhetorical question, when we ask: Did the presidency and

15 the government in Sarajevo have power in Banja Luka? They didn't. Did

16 they have power in Pale? Did they have authority over Pale? No, they did

17 not. And whoever says anything like that is lying. Were they controlling

18 the situation in East Herzegovina? No, they did not. In other words, the

19 agencies of authority in Sarajevo could neither communicate with the rest

20 of the state, nor did they have any control over it. And we have already

21 heard, Your Honours, from our expert witnesses that the banking system did

22 not work, there was no border control, there were no customs, taxes were

23 not paid, mail -- I mean it really sounds trivial reason but when you

24 speak about authority, a government in an area but the fact is that there

25 was no communication, that is mail was not delivered. Citizens trying to

Page 13660

1 communicate with their family members in other towns, in Brcko, in Zenica,

2 in Sanski Most, while living in Mostar, could not either call by telephone

3 or send them a letter. So in order to have life in Herzegovina and in

4 Bosnia, where Croats could have some say, where Croats could bring some

5 contribution to have this life go on more or less normally, one will to

6 set up institutions as a citizen's service. Likewise, one had to form the

7 HVO in the first place as a form of defence against the Army of Republika

8 Srpska and the JNA, and later on as an efficient and well organised

9 military force with two components, military and civilian. It was a

10 historical necessity and the logical corollary to the situation in which

11 the Croats of Bosnia-Herzegovina found themselves in.

12 We shall prove that. And it was logical that we -- that the

13 Croats needed to do that.

14 Mr. President, I do not know when you were planning to have a

15 break.

16 JUDGE LIU: Well, probably at 5.00. Then we will break for 30

17 minutes.

18 MR. SERIC: [Interpretation] Thank you very much.

19 We heard during this case so many things about the participation

20 of the international community which was a necessity, which was necessary,

21 which was indispensable, and had an impact on everything that was

22 happening in Bosnia and Herzegovina, in the territory of the former

23 Yugoslavia, and as a result of which we have today's situation, today we

24 are in this courtroom and I am addressing you in my present role. If

25 there hadn't been such a will, maybe we would never be here in this

Page 13661

1 courtroom.

2 What I'm saying is that it is absolutely certain that the

3 international community could, at any moment, stop the war, but what I am

4 claiming here is that it did have the power to do that, but the war as we

5 know lasted for four years and it was only because the international

6 community allowed it to last, either for its ignorance, stupidity, a

7 decision, or for some other reason. These are not my words. These are

8 the words of Adrian Hastings, a historian, a professor of modern theology

9 and the history of religions of the University in Leeds. Operations in

10 the Balkans would be extremely dangerous because one would have had to

11 control an incredibly mountainous and inaccessible area of a large

12 fortress against the enemy, whose strategy owed a lot more to Giap, the

13 Northern Vietnamese general who participated in the Vietnam War than

14 to a classical western military mission. Again, these are not my words.

15 The estimate that one would have needed about 100.000 soldiers was said by

16 Colonel McCaffrey [phoen], on 11 August, 1992, in front of the Congress

17 board for armed forces, and such facts were -- sounded discouraging for

18 the members of the board, who all witnessed and participated the war in

19 Vietnam. Only a mere comparison with something like that was a

20 discouragement for them. Paul Williams said, at a round table in

21 Budapest, which took place between 25 and 27 September, 1998, before a war

22 starts, two things have to be known. Firstly, there is no such a thing as

23 international community. It is actually a seven-member group of countries

24 which dictate the world and which are made of -- which is made of the

25 United States of America, Russia, France, Great Britain, Germany, Italy

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Page 13663

1 and the European Union. And secondly, according to Paul Williams, the

2 strongest interests of that group are very selfish. They are not

3 necessarily interested in preventing ethnic cleansing or genocide. They

4 are primarily concerned with their own interests. The main interest of

5 the United States was to preserve the status quo, to preserve the

6 territorial integrity of the Socialist Federative Republic of Yugoslavia.

7 Germany had an economic interest because an influx of refugees would have

8 been detrimental for it. The Great Britain wanted to preserve its status

9 of a great power, by the historical ties between Serbia and Great

10 Britain. The French wanted to maintain the balance of powers in Europe.

11 Russia, who had their own worries, but they also wanted to preserve the

12 image of a world power. The Chinese were playing up to the United States

13 because of their trade relations and the situation in Tibet. That is why

14 the international community wanted, at all costs, to maintain the conflict

15 in its original area, within the borders of Croatia and

16 Bosnia-Herzegovina, and prevent it from spreading on to Kosovo. However,

17 as the conflicts intensified, the seven-member group of states, all of a

18 sudden could not believe when it heard that in the former Yugoslavia,

19 there were concentration camps and the first reaction of the American

20 government was, "This is not true. This is not possible." The key,

21 decisive role was played by the so-called CNN factor. When the reporter,

22 Roy Guttman visited the Manjaca Camp on 19 July, 1992, that is the camp 25

23 kilometres south of Banja Luka, and when he published on the 2nd of August

24 in Newsday, distributed in 800.000 copies, a photo on the front page with

25 a title "a death camp in Bosnia," this started an avalanche. And there

Page 13664

1 were some pieces of writing according to which it was estimated that there

2 were about 30.000 Muslims and Croats in the camps only in the area of

3 Banja Luka.

4 As these scenes inevitably reminded the world of the Nazi final

5 solution to the Jewish question, the general public and the humanitarian

6 organisations got excited and they made pressure on the United States,

7 which actually started sanctions against Belgrade. These were the words

8 of professor Paul Williams from the round table discussion, "War in

9 Croatia and Bosnia-Herzegovina," which took place in Budapest in 1998.

10 The Defence furthermore claims that the Article 3 of the document

11 on the proclamation of the HZ HB, dating 18 November, 1991, proclaimed

12 Mostar as the capital of that community. The selection of Mostar as the

13 capital of the self-proclaimed Croatian community was ratified by a decree

14 published by the President of the HZ HB on the 8th of April, 1990, by

15 which he also established the Croatian Defence Council. The seat of the

16 HVO was in Mostar. The election again was ratified by a decree issued on

17 the 28 August, 1993, by which the HZ HB was renamed into the Croatian

18 Republic of Herceg-Bosna. Throughout history, Mostar was considered the

19 capital of Herzegovina and is the biggest town in the region. The area of

20 Mostar municipality includes, amongst others, the following villages and

21 neighbourhoods: Rastani, Bijelo Polje, Vojno, Potoci, Rudnik,

22 Ilici, Djikovina, Panjevina, Rodoc, Podhum, Zahum, and Blagaj.

23 Before the beginning of the conflict, Mostar municipality,

24 according to the 1991 population census, had the following ethnic

25 structure: Of its 126.628 inhabitants, 34.6 per cent, or 43.856 were

Page 13665

1 Muslims; 33.9 per cent or 43.037 were Croats; 18.8 per cent or 23.846

2 were Serbs; 9.9 per cent or 12.768 were Yugoslavs; and 2.4 per cent or

3 3.121 were others. The Defence agrees with these figures and finds them

4 indisputable.

5 The Defence furthermore claims that the Croatian Defence Council

6 already in October, 1992, was attacked -- Bosnian Muslims in the town of

7 Prozor. It is not correct and we are going to prove that the HVO did not

8 attack Muslims in Prozor. It was the other way around. However, one has

9 to analyse everything that preceded the escalation of the conflicts

10 between Muslims and Croats in Bosnia-Herzegovina.

11 Your Honours, we have heard, and we will hear, that the victory of

12 the ethnically based parties at the first multi-party elections clearly

13 said that the communism and the international Yugoslav spirit was a

14 surrogate which had not killed nationalisms, or to be more precise,

15 chauvinism. The Muslim Party of Democratic Action, the SDA, rallied

16 around it, the majority of the Muslim population and its goal was to

17 preserve Bosnia-Herzegovina as a separate political unity, irrespective of

18 the facts whether it is going to be incorporated into some broader state

19 creation and its other goal was to create ultimately a completely Islamic

20 society. The Serbian Democratic Party, the SDS, which was the party of

21 Bosnian Serbs, bore a -- had the same name as the party of Croat Serbs in

22 Croatia but it carried more weight, because both in ideological and

23 numerical terms, with regard to other two peoples in Bosnia-Herzegovina.

24 Both these Serbian parties in Croatia and in Bosnia and Herzegovina were

25 part and parcel of a Serbian political movement whose centre was in

Page 13666

1 Belgrade. Its goal can be reduced to a very well known statement about

2 all the Serbs living in one state, which corroborates the fact that they

3 did not recognise republican borders and that their main goal was to

4 create ethnic borders.

5 The party of Croats in Bosnia, the Croat Democratic Union, was

6 called the same as the party in Croatia. In contrast with the leadership

7 of the party in the period before the war, its voters made it quite clear

8 that they were looking towards Zagreb and the Croatian president. The

9 party advocated the decentralisation of government in Yugoslavia by

10 transforming the country into a confederation in order -- so that the

11 internal republican boundaries could be could be preserved and only if

12 such a confederation could not come true, then separation from Yugoslavia

13 would become the order of the day, providing for the equality of the three

14 constituent peoples.

15 The parties which won the elections organised the government,

16 following the model of the lasting division, which the serious analysts

17 at the time already found unnatural and incompatible with democratic

18 practices and lacking functionality. And then the first time they entered

19 the world historical stage the ethnic parties made it known that the views

20 regarding the future of Bosnia-Herzegovina did not coincide, and this

21 should not come as a surprise because the same held true over their

22 interpretation of the past and the present. The war in Croatia in

23 1991-92, on Bosnian affected the Bosnian and Herzegovinian Croats in the

24 same way as it affected those in the mother country. An attack Croatia

25 was seen as an attack on Croats. As such, and that is also how the

Page 13667

1 attackers were seen. Those were Serbs regardless of the republic they

2 came from. Some of the Bosnian and Herzegovinian Croats voluntarily joined

3 the war. The Bosnian and Herzegovinian Serbs on the other hand, joined the

4 war in Croatia in large numbers because they considered themselves and

5 their whole national body perceived as the guardians of Yugoslavia, the

6 participation of Bosnian and Herzegovinian Muslims in the war, on the Serb

7 side, was reduced to the activity of a part of the officers corps in the

8 Yugoslav army, the recruits serving the regular military service and

9 reservist organised in the Yugoslav People's Army. On the Croat side

10 there were volunteers in the corps of the national guard of the Republic

11 of Croatia, yet one would say that in either case, the percentage of those

12 joining voluntarily was not too high and especially it was not equivalent

13 to the role of Bosnia-Herzegovina as the beginning for the attacks of the

14 JNA on Croatia. The area of Bosanska Krijina and East Herzegovina served

15 as a support for attacks on West Slavonia. They also served as support on

16 South Croatia from the mouth of the Neretva to Prevlaka.

17 The commander of the Territorial Defence of Bosnia-Herzegovina

18 even paid out Bosnian Herzegovinian reservists without the knowledge or

19 approval of the presidency of the socialist republic as it was still

20 called of Bosnia-Herzegovina, using for this funds of the republican staff

21 of the Territorial Defence of Bosnia-Herzegovina.

22 It is very important to note that at that time, the republican

23 sovereignty of Bosnia-Herzegovina was such that it will be much simpler to

24 answer the question whether it existed at all.

25 As I have already said, a part of the Bosnian Herzegovinian

Page 13668

1 territory could not follow in the steps of the local population. And thus

2 largely became an area of attacks on the Republic of Croatia. Apart from

3 the use of the Bosnian and Herzegovinian territory, the Yugoslav People's

4 Army also attacked the Croats in Bosnia-Herzegovina, as confirmed by the

5 devastated by the destroyed Croat villages in East Herzegovina. The

6 symbol of this victimisation, the biggest of them, the village of Ravno

7 came to epitomise those sufferings and here we come across the first

8 question: Is Bosnia and Herzegovina an aggressor in Croatia's eyes?

9 Bosnia and Herzegovina is a theatre of operations from which the operative

10 army of the Yugoslav People's Army is attacking Croatia and it is made of

11 some of the local nationals who -- without the tongue in the cheek,

12 embraced the policy of the centre in Belgrade, with the exception of the

13 boundary areas inhabited by Croats and these are Posavina and west

14 Herzegovina, with Livno and Tomislavgrad. The rest of the Bosnian and

15 Herzegovinian boundary, deep in the rear, the war zone developed with at

16 least two operational actions. The territory of Bosnia-Herzegovina thus

17 played a highly unfavourable role for Croatia, with the extraordinary

18 operational basis, which the JNA did not manage to put to proper strategic

19 use. This fact again is attached little weight. The three constituent

20 Bosnian Herzegovinian people had a very clear cut attitude to the war in

21 Croatia. The Croats and the Serbs participated in it, whereas the Muslims

22 endeavoured to remain aside in line with the well known Izetbegovic's

23 statement, "This is not our war."

24 If we perceive Bosnia-Herzegovina as an area which functioned in

25 its territory as we know it today, and that is the period much time

Page 13669

1 between 1878 to 1918 and from 1945 to 1991, then we can conclude that

2 Bosnia-Herzegovina always survived, owing to special status it enjoyed.

3 It is significant that this status, this guarantee of survival, that is

4 indivisibility has always been outside the border of Bosnia-Herzegovina.

5 In the Austro-Hungarian monarchy, it was under the ministries. In the

6 socialist Yugoslavia, it lived off the balance between the Croat and the

7 Serb question and towards the end of this state, it was actually joined by

8 the Muslim question. In the late 1980s, this equilibrium, which until

9 that time kept Bosnia-Herzegovina in one piece became upset and in late

10 autumn of 1991 it ceased to exist.

11 The Prosecution namely claims that then the conflict, the armed

12 conflict ensued between the Croat Defence Council and the armed forces of

13 the Army of Republic of Bosnia-Herzegovina, which lasted until February,

14 1994. However, the war developments in 1992, already followed after a

15 political foreplay in the latter half of 1991. Mr. Krsnik's -- that is

16 Mr. Naletilic's Defence has already produced evidence to that effect and

17 those were our joint witnesses. However, I need to say that politically

18 speaking, that on the 24th of October, 1991, Bosnian Serbs founded the

19 assembly of the Serb people in Bosnia-Herzegovina, on the basis of the

20 plebiscite of the Serb people of the 9th and 10th October, 1991, on the

21 21st of October, Serb autonomous regions in Bosnia-Herzegovina were

22 verified and confirmed. The next step was made on the 21st of December,

23 1991, when it was decided to embark on the establishment of the Republika

24 Srpska of Bosnia-Herzegovina and that was put into effect on the 9th of

25 January, 1992. This set in motion the separation of the central

Page 13670

1 republican bodies of power in one part of Bosnia-Herzegovina and this

2 process was brought to its close -- to its end. After the Serbs, the

3 Croats of Bosnia-Herzegovina also demonstrated their need to organise

4 themselves in a republic, which was less and less of a republic with every

5 day. At a meeting of presidents of Crisis Staffs of the Herzegovina and

6 Travnik regional communities in Grude on the 12th of November, 1991, it

7 was decided that the Croat people in Bosnia-Herzegovina had to, at long

8 last, start pursuing resolute elective policy which would and should bring

9 about the realisation of our age-old dream about a joint Croat state.

10 Whereas the conclusions of the meeting, spoke about the strategy

11 of Bosnian Herzegovinian Croats and that was the establishment of a

12 sovereign Croatia within its both ethnic and historical possible borders,

13 six days later, there were denied by the decision on the establishment of

14 the Croat Community of Herceg-Bosna, which stipulated that the community

15 would respect the democratically elected government of the Republic of

16 Bosnia-Herzegovina, as long as there was the state independence of

17 Bosnia-Herzegovina in relation to another state or any other former

18 Yugoslavia. In the decision on the sovereignty of the Assembly of

19 Bosnia-Herzegovina of the 15th of October, 1991, says among other things,

20 that Bosnia-Herzegovina will develop as a civil republic and as a

21 sovereign and indivisible state. It will be neutral in the conflicts

22 between Serbia and Croatia, and it can remain in the Yugoslav community

23 only if Serbia and Croatia also remain in it, and that is a reflection in

24 point of fact of the Muslim option. For other peoples, that view was

25 already obsolete, was already outdated. Yugoslavia was bursting at its

Page 13671

1 seams and Bosnia-Herzegovina was a Yugoslavia in small.

2 For Croats and for Serbs, Muslims were not adversaries but neither

3 were they allies. And that was the situation until April 1992, when a new

4 page of Bosnian Herzegovinian history started. The time before the war in

5 Bosnia-Herzegovina was characteristic of the preparations of political

6 parties for the war. The intensity of these preparations was not always

7 the same. Basically, because the initial stages were different. The SDS

8 was in the forefront. A Serb party which was supplied with weaponry by

9 the JNA turned pro-Serb. The Croats also came by weapons through the HDZ,

10 in significantly smaller quantities than the Serbs, but sufficient to

11 gradually reduce the inferiority complex after the JNA had disarmed the

12 republic and territorial defence. True, with Muslims, the situation was

13 much less propitious, partly because they found themselves in the gap

14 between the political leaders and the people, and nonetheless, they also

15 started making some very early steps in that respect. The Muslim

16 Patriotic League, which was set up on the 2nd of May, 1991, could be

17 treated at that time only as a paramilitary party unit. After that, on

18 the 10th of June, 1991, in the Sarajevo police house, at a meeting of

19 leading Bosniak public figures, from all over Yugoslavia, was founded

20 under the umbrella of the SDA, the Council of the National Defence of the

21 Muslim People with the Patriotic League as its military wing. The

22 political stage in Bosnia-Herzegovina at that time was remindful of the

23 political scene in the kingdom of Yugoslavia from the time of the accord

24 between Dragisa Cvetkovic and Vladtko Macek, when the political

25 representatives of the Serbs and Croats solved the vital matters and the

Page 13672

1 Muslims were somewhere in the wings. The common aspect of this so-called

2 arms race was its -- was the ethnic principle which governed it.

3 Everybody armed himself separately.

4 At a military meeting of the Muslim Patriotic League in the

5 village of Mehurici, near Travnik, held on the 7th and 8th February, 1992,

6 it was concluded that they were available between 70 -- 60 and 70.000

7 armed members. Towards the end of February, the directive for the

8 defensive sovereignty was adopted and it shows clearly that the Patriotic

9 League considers as the destructive forces in Bosnia-Herzegovina the SDS

10 with the Yugoslav Army and the extremist wing of the HDZ. The chief

11 purpose of this directive was the protection of the Muslim people, the

12 preservation of the integrity of Bosnia-Herzegovina, with a view to

13 assuring once again the joint -- the coexistence of all peoples and

14 national minorities in the state territory of Bosnia-Herzegovina. Item

15 three of this directive calls on the people of Sandzak, Kosovo and

16 Macedonia to give proof of their solidarity with our just struggle and

17 engage immediately in combat operations and I'm talking about February,

18 1992, to immediately engage in combat operations, in order to tie up the

19 enemy forces and weaken its striking power in the territory of

20 Bosnia-Herzegovina. And the same time to establish contacts, cooperation

21 and coordination in joint operations with the Croat people in

22 Bosnia-Herzegovina against a common enemy. In relation to the beginning

23 of the month, this was a major head way because the extremist wing of the

24 HDZ is no longer mentioned.

25 And this would in a way be the end of the first part of my

Page 13673












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Page 13674

1 statement so that ...

2 JUDGE LIU: Yes. We will have a break and we'll resume at 5.30.

3 --- Recess taken at 5.00 p.m.

4 --- On resuming at 5.31 p.m.

5 JUDGE LIU: Before we start, Mr. Seric, would you please indicate

6 in your motions the -- what kind of protective measures your witnesses

7 will need during the proceedings? Because up to now, we haven't received

8 any requests for the protective measures.

9 MR. SERIC: [Interpretation] Your Honours, I believe that we have

10 already mentioned those, but in any case, I will repeat that in the course

11 of the day tomorrow. Our first witness does not require any protective

12 measures, and a number of others following the first one are going to have

13 a pseudonym, face distortion and voice distortion with the exception that

14 for witness number 2, we are asking for a closed session. His -- he is

15 supposed to appear before the Honourable Court on Thursday.

16 JUDGE LIU: I see. Yes. Madam Registrar?

17 THE REGISTRAR: I would just like to inform the Defence that if

18 protective measures such as voice distortion is required, audiovisual

19 needs 24 hour notice so that they can prepare the machines and everything,

20 and there won't be much delay. So just please inform me how many

21 witnesses exactly what order they will need the voice distortion.

22 JUDGE LIU: Yes. Another matter is that how long are you going to

23 take to finish the opening statement? It is our intention to have the

24 first witness tomorrow.

25 MR. SERIC: [Interpretation] Your Honours, it shall be so. Whether

Page 13675

1 we are going to be able to finish the first witness tomorrow, I don't

2 know, because it doesn't depend solely on the Defence. I believe that

3 we -- if we hadn't started with a delay, I would have finished my opening

4 statement today, and then my colleague, Mr. Par, would have finished

5 tomorrow. In any case, we will start with our first witness tomorrow, and

6 I believe that the Defence will finish the witness tomorrow as well.

7 JUDGE LIU: Well, as I said to Mr. Par on the last day of

8 Mr. Naletilic's trial, we said that the opening statement is just a

9 summary of the case, not a process of presenting evidence, and it's also a

10 one-sided view from the Defence side, that is the statement from your

11 side, and here you're addressing to the Judges, not a jury. The jury is

12 laymen. We have been sitting in this case for quite a long time. As for

13 all the background issues, we have got a rough idea of what you are going

14 to claim. So please be as concise as possible in your opening statement.

15 We really need to hear our first witness. Anyway, you may proceed,

16 Mr. Seric.

17 MR. SERIC: [Interpretation] I would like to continue, Your

18 Honours, by saying that during 1991 and 1992, the JNA pulled out the

19 troops and the material and technical equipment from Slovenia and Croatia,

20 and from these areas, the JNA started a war in order to encircle, to round

21 off the Serbian ethnic area. Fast successes were achieved in Eastern

22 Bosnia in the areas where the majority Muslim population. In the area of

23 Southwestern Bosnia, except for the successes in Kupres, Serbs achieved a

24 double failure in the Croatian areas around Livno. There were failures in

25 the attempt to occupy Sarajevo as well as in the Neretva Valley. Towards

Page 13676

1 the end of March, attacks and battles started in Bosnian Posavina. I

2 apologise, Your Honours. I have been reading too fast, because Your

3 Honour has told me to be more concise and that's what has made me be

4 faster. At this moment, it is very difficult for me to curtail my opening

5 statement which I have not only prepared but I also have written it down.

6 Especially in view of the fact that some things have not been said so far,

7 although we may have heard it directly or indirectly from witnesses. But

8 so far, our case has not been presented in this way.

9 In any case, our opening statement is not going to be as long as

10 some others have been.

11 In the area of Bosanska Krajina, where there was no major

12 resistance, the practice of ethnical cleansing started by opening

13 concentration camps, the practice which later on spread to other parts of

14 the Serbian Republic of Bosnia-Herzegovina. It seems that in this first

15 stage of the war, the JNA or the Army of the Serbian Republic of

16 Bosnia-Herzegovina, from the 2nd May onwards tried to occupy everything

17 that could be occupied in the areas accessible to tanks. In the areas

18 where tanks could not reach, either due to inaccessible terrain or due to

19 a major resistance, successes were considerably few and far between.

20 After the initial period, any success could have been achieved only

21 painstakingly with a major engagement of troops and material and technical

22 equipment. Such was the case in Bosanska Posavina and in Jajce. The

23 first stage of the war for Croats and Muslims was characterised by their

24 attempt to consolidate their defence lines. In the context of -- in this

25 context, the significance of Croatian successes is strategically more

Page 13677

1 important for a simple reason, it was tied to the successes of Croatia,

2 which for both threatened peoples was the logistical base and support. We

3 have to bear this in mind. Croatia was a logistical base and support.

4 The defence activities and operations of the Croatian Army, or better say

5 the national guard corps, on the borders with northern and, eastern

6 borders of Eastern Bosnia-Herzegovina meant a direct support to the Army

7 of Bosnia and Herzegovina in depth, because by their combat operations

8 they tied part of the Bosnian Serb troops and enabled, allowed for the

9 logistical and humanitarian traffic.

10 What I would like to say is that there is a great deal of

11 collective amnesia with regard to that fact, not only in Bosnia and

12 Herzegovina, but also in Croatia.

13 When Jajce and Bosanska Posavina fell, the war with the Army of

14 Republika Srpska was brought to an end. When Livno was defended together

15 with the part of the Verbas valley and part of Central Bosnia and

16 especially the success in the Neretva valley, which ended with the June

17 Dawn, the Croatian Defence Council reached a stalemate with the Serbs,

18 after which there were only position combat fightings, with the exceptions

19 of Orasje and parts of the battle front in Posavina. Several meetings

20 between the leaderships of Bosnian Serbs and Croats outside of Bosnia and

21 Herzegovina do not -- did not yield any concrete results. By summarising

22 the events in 1992, the chief of the HVO staff concluded that the forces

23 of the HVO, despite problems and difficulties, managed to control 70 per

24 cent of the free territory of Bosnia and Herzegovina and that by creating

25 its armed forces in the areas of HZ HB, the Croatian people defended

Page 13678

1 itself and the majority of Muslims. The Army of Bosnia and Herzegovina

2 had least reasons for satisfaction. At the end of 1992, it had under its

3 control the lowest ratio between their numbers and the areas that it

4 controlled.

5 The open Muslim Croatian conflict started with a foreplay much

6 before the first conflicts in Mostar and culminated in the final break-up

7 between the Army of Bosnia and Herzegovina and the HVO. The Presidency of

8 Bosnia-Herzegovina published a decree on the unification of the Bosnian

9 Herzegovinian armed forces on the 9th of April, 1992. On the 15th of

10 April, the HVO established its main staff, and there was also at the time

11 a very Muslim nature of Izetbegovic's regime. The structure of that

12 Bosnian regime, in which the SDA dominated and the HDZ was a subjugated

13 partner, accelerated the break-up of the Bosnian state. Until January

14 1993, Sefer Halilovic accused Croatian politician its for the conflict

15 between the Bosnian Army and the HVO. On 20 May, 1992, the HVO was

16 officially considered an integral part of the BH Army and the agreement

17 between Tudjman and Izetbegovic on the 21 July, recognised the HVO and the

18 BH Army as separate components of the armed forces of Bosnia and

19 Herzegovina, which will have a joint staff. The political breakup between

20 the armed forces of Bosnia and Herzegovina into

21 two parts, being the HVO as the Croatian force and the Army of Bosnia and

22 Herzegovina as the party -- Army of the SDA under the more pronounced

23 Muslim domination. The Vance Owen plan in 1993 was the last straw that

24 broke the camel's back because the Croatian party perceived this plan as

25 the plan that gave legitimacy to the power in the three provinces

Page 13679

1 according to the -- which according to the plan were Croat, but in these

2 provinces, the BH Army units refused to put themselves under the command

3 of the HVO and started fighting. After the Trebevic Operation by which

4 Alija Izetbegovic placed under his control the 9th Motorised and the 10th

5 Mountain Brigade, and by after which he put the government under its

6 control, the ideology of the Army of BH saw its final transformation, and

7 the Bosnian Muslim element became evermore pronounced. The Islamic

8 orientation of the army became stronger and Rusid Mominovic [phoen], the

9 head of the Department for Religious Issues, in the administration for

10 political issues of the BH Army claimed that as far as the Army of Bosnia

11 and Herzegovina was concerned, the Islamic community wanted not only to

12 cater to the needs of those people who believed in Islam but also that the

13 Islam and the Muslim traditions became the foundations for the creation of

14 the Bosniak Muslim state, especially if we wanted for the army to resemble

15 its state. The Islamic patriotism or the religious patriotism were

16 synonyms of the Bosniak liberation fight. The units of the 7th Muslim

17 Brigade and the

18 Black Swans were more radical in their Islamic fundamentalist motives.

19 These units constituted a -- the foundation for the parallel system of

20 command and the parallel chain of command used by Izetbegovic and his

21 associate, Hasan Cengic. The Washington Agreement in March, 1994, very

22 soon transformed the BH Army into a Muslim army so that the BH Army became

23 a SDA party army, independent of the control of any state bodies. So that

24 in April, 1994, the army administration for morale announced a research

25 project under the title of the personal role of Alija Izetbegovic in the

Page 13680

1 defence organisation of the people. On the 22 October, 1994, of the --

2 Alija was proclaimed the honorary commander of the extremist Islam --

3 Islamic fundamentalist 7th Muslim Brigade. The legality and the

4 legitimacy of the newly recognised state of Bosnia and Herzegovina relied

5 on the institutions such was the Territorial Defence which was transformed

6 into the Army of Bosnia-Herzegovina. The main staff accounted for only 80

7 per cent of Croats. Very soon, the SDA radicalised its position and

8 started pursuing a radical policy in the army and the police and started

9 claiming that Bosniaks were the main people in Bosnia and Herzegovina.

10 The SDA forged the history of the country, so as to provide for the

11 unitarian character of Bosnia-Herzegovina. Its ambition was to make

12 Bosniaks not -- if not its main -- if not its only factor then at least

13 its main factor.

14 On 18 March, 1992, Boban, Karadzic and Izetbegovic, under -- with

15 the mediation of Cutilheiro, adopted a declaration on the principles of

16 the new constitutional order and organisation of Bosnia-Herzegovina.

17 Bosnia and Herzegovina has to be an independent state made of three --

18 JUDGE DIARRA: [Interpretation] Can you please slow down for the

19 French interpreters?

20 MR. SERIC: [Interpretation] Bosnia and Herzegovina has to be an

21 independent state made of three entities, based on ethnic principles,

22 bearing in mind economic, geographic and other criteria, and the working

23 group has to base its work on the fight for the national, absolute or

24 relative majority in every municipality. The conflict between the HVO and

25 the BH Army was the fight for space. The Serbs occupied over 60 per cent

Page 13681

1 of the territory of Bosnia and Herzegovina by expelling Bosniaks and

2 Croats. Bosniaks found their refuge mostly in Central Bosnia, and this

3 changed the demographic balance, and when Bosniaks started settling in the

4 areas with the majority Croatian population, it was -- this was deemed by

5 the leadership of the HDZ in Bosnia and Herzegovina as taking the

6 territory away from Croats. This resulted in conflicts in Gornji Vakuf.

7 However, during the fierce fighting between the Army of Bosnia-Herzegovina

8 and the HVO, there was a cooperation in many other theatres of war in

9 Orasje in Northern Bosnia, in the region of Tuzla, in the area of

10 responsibilities of the 2nd Corps of the Army of Bosnia and Herzegovina

11 and in Sarajevo. Why am I saying this? This shows that this had the

12 nature of non-international armed conflict.

13 The Prosecution claims that the Croatian Defence council, already

14 in October, 1992, attacked Bosnian Muslims in Prozor. However, the open

15 Muslim-Croatian conflict, which characterised the year 1993, had its

16 foreplay from -- in the -- from the first days in Bosnia-Herzegovina. We

17 cannot ignore some facts. For example, in the public security station in

18 Bugojno, the war police was given ammunition but only the ammunition was

19 given only to Muslims, and they were told to hide it from the Croat

20 members of the police. At the time, in Gornji Vakuf, there were tensions

21 between Croats and Muslims. Although these two sentences that I have just

22 read, on the face of them, depict the situation at the end of 1992 and the

23 beginning of 1993, these two sentences were written much earlier, on the

24 2nd of April, 1992, in the regular daily report, in this case of an

25 unbiased command of the 30th Partizan division of the JNA, which

Page 13682

1 immediately before the beginning of the war in Bosnia and Herzegovina had

2 an area of responsibility from the Kupres Plateau, the valley of Vrbas

3 River to the general area of Janje. The distrust in the mutual

4 relations which was recorded by the military intelligence of the 30th

5 Partisan Division prevailed as a rule everywhere where the -- where there

6 were equal shares of the two or more peoples, i.e. where the number of

7 ones was not big enough to prevail over the other ones. In such areas,

8 one party could not convincingly impose itself on the other party.

9 We can say that in the -- in Bosnia and Herzegovina, there were

10 such uniform areas and pure ethnic areas, i.e. the areas in which one of

11 the constituent peoples showed a predominant or position or pronounced

12 prevalence. All the conflicts dated back to 1992, the conflicts which

13 preceded the open war occurred in such areas, to be more precise in the

14 area of Central Bosnia. The only exception to this rule is a conflict

15 in Sarajevo in the neighbourhood of Stup, which was a small Croatian oasis

16 in the area where Muslims were predominant people. It seems that

17 Uskoplje, in the general area of Gornji Vakuf, was the area where the

18 first open conflict between the HVO and the Territorial Defence took place

19 at the end of April, 1992, and this recurred on the 20th and 21 June,

20 1992. At the beginning of May, there was another conflict in Busovaca,

21 which reoccurred in the following month. In Novi Travnik, in the late

22 afternoon of the 19th of June, there was a conflict between the units of

23 the TO staff on the one hand and the units of the HVO and the HOS on the

24 other hand. There were some other tensions in Konjic and at the beginning

25 of August, a conflict broke out in Kiseljak. However, in this first stage

Page 13683

1 of tensions between Muslim and the Croatian sides, the date of 17 August,

2 1992, occupies a very special place. This is the day when the units of

3 the Territorial Defence of the BH broke -- stormed into the Croatian

4 settlement of Stup in Sarajevo. Due to the consequences suffered by the

5 Croatian community, this incident stands out from all other, all previous

6 conflicts, which were local. The chronology of the conflict between the

7 HV Army and the Army of Bosnia-Herzegovina starts with the incidents in

8 Prozor. They were preceded by the tensions which could be felt between

9 the HVO and the Territorial Defence of Bosnia-Herzegovina, throughout

10 October, primarily in Travnik.

11 I have just been warned that we have mistake in the transcript.

12 It seems that the transcript has it that it was the Croatian Army, not the

13 HVO so I'm asking for a correction here. The temperature was additionally

14 raised by the TV Sarajevo and its show called "Document," when it showed

15 the alleged massacre of members of the Territorial Defence in village

16 Lijesce, whereas the real protagonists of that incident were members of

17 the Travnik HVO. The massacre took place on the 15th of May, 1992, on the

18 Mount Vlasic. During that massacre, members of the HVO were tortured and

19 killed by Chetniks.

20 This was followed by shootings and an armed attack on Rastovci

21 village, in Novi Travnik municipality, and the person who was attacked was

22 an officer of the Central Bosnia staff, and his co-travellers, in Karaula

23 village, members of the Army of BH shot at the vehicle of the commander of

24 the Jajce HVO. The verbal conflict between the HVO and the BH Army in

25 regarding the petrol station in Novi Travnik during which the local

Page 13684












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Page 13685

1 commander of the BH Army allegedly said, "It is either the petrol station

2 or a war," preceded the killing of the commander of the Travnik Brigade on

3 the Travnik-Vitez road. And the HVO accused the members of the 7th Muslim

4 Brigade of that.

5 The aggravation of the security situation in the Central Bosnia

6 operative zone found regularly reflection through Gornji Vakuf in the

7 border areas of the Northwest Herzegovina operative zone, so that on the

8 21st of October, 1992, the main staff of the Croat Defence Council

9 reported that in Gornji Vakuf and Prozor, the situation was tense and

10 conflict could break out any minute.

11 In relation to this new situation, in a part of the operative

12 zone, all the necessary security measures were undertaken to prevent a

13 clash between the HVO forces and the forces of the armed forces of BiH,

14 especially in Gornji Vakuf and Prozor. Nevertheless the conflict did

15 break out on the 23rd of October and -- ending in the total rout of the

16 local ABiH units. The assertion that the Croat Defence Council has

17 suddenly attacked the units of the Army of Republic of Bosnia-Herzegovina

18 is very bold, but it is based on prejudice. At a meeting of the

19 representatives of the Croat Defence Council and ABiH, held on the 6th of

20 November, 1992, in Jablanica, ABiH representatives accepted the HVO's

21 request to replace their commander of the municipal staff of the Prozor

22 defence, which is a fact which plays quite an important role when one

23 analyses the conflict. Another major problem in the relations between the

24 Croat Defence Council and the Army of Bosnia-Herzegovina is the existence

25 of two parallel political and military structures in the central part of

Page 13686

1 Bosnia and Northwest Herzegovina.

2 It is a reflection of profound mistrust and divergent views on

3 the -- regarding the future of Bosnia-Herzegovina. One of the questions

4 to which historiography should provide the answer, is the amount of effort

5 invested by the SDA and the HDZ to solve the problem. This is well

6 illustrated by sentences voiced by one of the members of the War

7 Presidency of Novi Travnik municipality. The fundamental problem of Novi

8 Travnik, to authorities this is what this presidency member said. "The

9 HVO and ours regular," as is said, "there is collision and conflicts take

10 place and will continue to happen because the president of the government

11 is not admitted into the municipal hall without an ID. It is better to

12 split up rather than fight again. There were different offers to Muslims

13 and Croats to set down -- their government." I'm still quoting this

14 member of the presidency. "We have been trying to provide an equal number

15 of people to the government on a parity basis." End of quote.

16 The problem of dual authority is the crucial problem besetting

17 Croat and Muslim relations in Central Bosnia, the area in which the war

18 escalated. In his analysis of the causes of the conflict in Prozor, the

19 commander of the operative zone of Northwest Herzegovina rightfully

20 concluded that the only preventive measure that could put an end to such

21 conflicts was the prohibition to have two commands, two armies, two

22 logistic services. Along similar lines were thoughts expressed by the

23 commander of the 17th Krajina Brigade of the Army of Bosnia-Herzegovina,

24 who thought that one of the reasons for the failed defence of Jajce was

25 that one and the same town was defended by two commands. I believe

Page 13687

1 indubitably the best unknown attempt to resolve the problem of dual

2 authority was the command of the Minister of the Defence of the Republic

3 of Herzegovina, Bozo Raic, dated 15th of January, 1993, which we saw and

4 heard in this courtroom. Unfortunately, this was a thwarted attempt to

5 define the areas of responsibility and areas of jurisdiction which would

6 have given both sides a very clear picture of where they were. The

7 problem resulted from the conquer, from the territorial conquests by the

8 Serbs and ethnic cleansing, because huge masses of expelled persons and

9 refugees from those areas flowed into the area controlled by the Army of

10 Bosnia-Herzegovina and the HVO, disrupting the ethnic structure and the

11 balance between the members of two different groups, namely the majority

12 of the expelled persons -- and Your Honours, we must be aware of that --

13 came from the rural environment and arrived in towns, into the urban

14 environment, whilst bringing along, as their mental baggage, a completely

15 different way of thinking, and it is not unimportant that towns, of

16 course, had multi-cultural experience and the same would hold true of

17 Mostar but that was not the case in villages. So that in Mostar, not only

18 the ethnic, not only the demographic, but also the traditional, the

19 customary, the balance in customs, was also disrupted.

20 The Prosecution claims that on the 9th of May, 1993, Croat forces

21 launched a major military offensive against the Bosniak Muslim population

22 in the city of Mostar and the positions of the Army of Bosnia and

23 Herzegovina in that town.

24 After the negotiations in Geneva, the political and religious

25 leadership of Bosniaks, Muslims, in Mostar, published the Mostar warning

Page 13688

1 of the 5th of January, 1993, supporting Alija Izetbegovic and rejecting

2 the idea of the confederation. The Muslims of Herzegovina, and this is a

3 quote, "Are on their own turf and everybody should be clear about that,"

4 the letter says. It also says that the Bosniaks and the Muslims are faced

5 with an imperative division of Herzegovina into three ethnic provinces

6 with a Muslim province in the valley of the Neretva River, and it is also

7 said that if need be, all the Muslims will be mobilised. The letter was

8 signed by Zijad Demirovic on behalf of the SDA, Hadzisejdovic mufti efendi

9 Smajkic and lawyer Faruk Cupina president of the Council of Muslims of

10 Herzegovina. And it is as of that day that the tension began to rise and

11 the frequency of conflicts increased.

12 Bosniaks, Muslims, in the town hid a Zolja, which hit a van with

13 HVO soldiers. Arif Pasalic, commander of the army of 4th Corps of the

14 Army of the Republic of Bosnia-Herzegovina, said on the radio that Mostar

15 would be liberated of the non-Muslim populace, which is the strategy of

16 the policy of ethnic and religious cleansing. Following the instructions

17 of the political and military leadership, the Bosniaks, Muslims, began to

18 quit the Croat Defence Council. The soldiers of the HVO are intercepted,

19 harassed, injured. Their personal and the HVO property is seized from

20 them. Fear is sown among the non-Muslim population. Fuel is added to the

21 fire and the discord is sown within the Croats and the Bosniak Muslims who

22 were members of the HVO. The operative plan of attack on West Mostar and

23 its environment is in preparation, the command of the 41st Motorised

24 Brigade, that is the 1st Mostar Brigade, issued the order on the 20th of

25 April, Your Honours, on the 20th of April, 1993, to prepare for operation

Page 13689

1 and that order was signed by Midhat Hujdur as the commander. Pursuant to

2 that order the units of the Army of Bosnia-Herzegovina were to get ready

3 to act in the area of Cekrk, to shut down the axis road to Mostar, to

4 provide support for the units of the 2nd Battalion in the Benka [phoen]

5 secondary school area, the Avenija-Rudnik area and in the parking lot of

6 the Bijeli Brijeg and the Rondo and the faculty. The operative plan of

7 action against targets on the right bank of the Neretva was developed to

8 the minutest detail and we shall prove that. The beginning of the armed

9 conflict, as claimed by the Prosecution, between the army of the Republic

10 of Bosnia-Herzegovina and the HVO [RealTime transcript read in error "HV"]

11 As was 9th of May, 1993, when the Muslim Bosniak forces launched a fierce

12 attack on the barracks of the HVO, Tihomir Misic. The next day, in

13 Zenica, general Sefer Halilovic Commander of the Main Staff of the army of

14 the Republic of Bosnia-Herzegovina announced the final settling of scores

15 with Croats.

16 In the early morning on the 30th of June, 1993, between half past

17 2.00 and 3.00, the true conflict between Bosniaks Muslims and Croats in

18 the Mostar municipality erupted. In the area of Bijelo Polje, Muslims who

19 were members of the Croat Defence Council turned against their former

20 comrades in arms and allies in the resistance to the Serb aggressor and

21 comment my colleagues warn me that it says HV rather than HVO. That is

22 the Croatian Army and it should be the Croat Defence Council.

23 On the front line, facing the Serb aggressor, the Muslim members

24 of the Croat Defence Council, by and large, simply aimed their weapons at

25 Croats, members of the Croat Defence Council. One could hear a voice,

Page 13690

1 "Surrender your weapons, you've been surrounded by the Muslim army,

2 Zuka's men are all around you." Something is wrong with the politics.

3 You'll be released in a couple of days, when this is put right." We are

4 proving this and we shall prove it, Your Honours.

5 I'd like to add, in view of this question, the question of the

6 conflict between the Croats and the Muslims, that modern theologist Hans

7 Koschnik, who researches what is common to the world religions, has been

8 emphasising for years that there is and can be no peace if it is not first

9 established between religions and churches. Until the religions start

10 researching what is common to them all, especially with those who are

11 their neighbours, there will be no true foundation for peace.

12 This Prosecution affirms that during the period under

13 consideration, that is the period of the indictment, the authorities of

14 the Croat Defence Council introduced different forms of persecution of the

15 Bosniak Muslim civilian population. From the point of view of the manner

16 in which we shall present this case, and how we shall go about proving it,

17 we need to say that the crime of persecution needs to be understood

18 narrowly, and our client may be charged only in relation with other crimes

19 falling under the jurisdiction of the International Tribunal. One needs

20 to bear in mind the statute of the international military court and the

21 international military tribunal for the far east, stipulating that the

22 persecution must take place through the commission of other acts in the --

23 under the jurisdiction of these tribunals because everything is indicative

24 of the view expressed in international customary law on this issue. One

25 could also draw the attention to Article 7, item 1, the Roman statute of

Page 13691

1 the international criminal court, specifying that persecution need -- that

2 to show that there was persecution, it needs to be related to other crimes

3 falling under the competence of the international criminal court. In

4 other words, the crime, that is actus reus for the crime of persecution,

5 needs to be related to some other crime specified in the Statute of the

6 ICTY and to prove the extension -- existence of mens rea, the intent, our

7 client had to have committed a crime with the specific intent to deprive

8 the victim drastically of his or her fundamental rights only because he or

9 she belongs to a particular group or community. And clear evidence must

10 exist of such a discriminatory intent. And also the concrete intent but

11 also the general intent that our client, that the accused, was in

12 possession of the objective knowledge about the context within which he

13 acted.

14 The Defence has been proving and will prove and will show with the

15 witnesses we will be calling this week that that is not true, as far as

16 our client is concerned.

17 As for the claim of the Prosecution that Bosnian Muslims were

18 dismissed from their work, both from private and state-owned companies,

19 the Prosecution has not shown any proof that our client Vinko Martinovic

20 has done anything like it, but something like that does not represent

21 persecution as a crime against humanity. I think that now, regardless of

22 the fact that we are all familiar with this notion and that we are deeply

23 involved in it, I think that still, when it comes to my client's treatment

24 in this case, that we need to go into this -- into the notion of ethnic

25 cleansing.

Page 13692

1 The model of warfare, which unfortunately has become typical in

2 modern history, which has become standard, typical model in the

3 present-day warfare, in the history, the history of persecution and

4 phenomenon of ethnic cleansing are typical or ethnic definitions of the

5 state. This notion reflects ideological and linguistic relationship with

6 the Stalinist purges and similarities and kinship with the racist ideology

7 of national socialism. Ethnic cleansing, a term from a dictionary which

8 has not been printed anywhere. It has never been published and yet

9 exists. This definition is bureaucratically held and it seems to suggest

10 sanitation, sanitising measures of an area. It suggests, however, a

11 systematic action and also subsumed planning and execution. Mechanisms of

12 ethnic cleansing are limitless, boundless measures of supervision and

13 control of people from social and bureaucratic discrimination against

14 them, to police measures, to organised physical annihilation, bringing

15 along also conscious abolition, annihilation of human honour. Which of

16 that has the Prosecutor proved in relation to our client? We say nothing.

17 And we shall show with witnesses who will be appearing before this Court,

18 as I have said, this week and especially until our summer recess, we shall

19 prove that the case is reverse.

20 Article 2, common to all the Geneva Conventions, says that this

21 convention shall apply in case of a declared war or any other armed

22 conflict which breaks out between two or more high contracting parties,

23 even if one of them does not recognise the state of war, and if an armed

24 conflict breaks out between two or more states, international humanitarian

25 law will be applied automatically, irrespective of whether the war has

Page 13693

1 been declared or not, and irrespective of whether the parties to the

2 conflict recognise or do not recognise the existence of the state of war.

3 The only prerequisite for the implementation of the international

4 humanitarian law is the fact that there is an armed conflict. The armed

5 conflict, as a definition appears also in Article 3 of the Geneva

6 Conventions, regulating non-international armed conflicts, that is

7 conflicts between governments and rebels and insurgent movements. In case

8 of an armed conflict, conventions are not of much help because they do not

9 provide us with a definition of its meaning. In practice, there are now

10 and then some disagreements regarding the applicability of international

11 humanitarian law to internal conflicts. The only criterion which should

12 be applied should be the intensity of violence and the need to protect its

13 victims. I'm referring to internal conflicts. The problems, however,

14 arise when one of the parties to the conflict denies the application of

15 international humanitarian law, even if the fighting goes on.

16 For instance, it does happen that a state considers an area which

17 is occupied as its own and leaves the question of the application of

18 Geneva law open. In other cases, units of a state simply march into the

19 territory of another state and appoint a new government. These puppet

20 governments then proclaim that these foreign units have extended friendly

21 assistance and acted with the government's consent, even though this

22 government was formed only ex post. Is this then an intervention

23 following an invitation or occupation? How is one to apply international

24 humanitarian law? Through resolutions of the Security Council or should

25 we have third countries bring pressure on it? All the provisions of the

Page 13694

1 Geneva Conventions are contingent on two ideas, a combatant and a

2 protected person but they are not mutually exclusive.

3 So a combatant may become a protected person when he has been

4 wounded, when he surrenders or becomes a prisoner of war, without,

5 however, losing his combatant status. Additional Protocol 1 defines the

6 notion, it is Article 3, members of the armed forces of the -- of a party

7 to the conflict are combatants, combatants have the right to participate

8 directly in hostilities. It is no coincidence, Your Honours, that I

9 mention this in my opening statement because only combatants and

10 combatants alone are allowed to participate in hostilities. A combatant

11 is the only one who has the right to fight, who is entitled to use force

12 or even kill, and he will not be held personally responsible for it, as he

13 would be if he committed the same act as an ordinary citizen. However, a

14 combatant nevertheless does not enjoy full freedom of action because of

15 the means and methods he may use in waging a war are limited, are

16 restricted by international law, and it is these restrictions which are

17 the subject of international humanitarian law and especially the

18 provisions relative in particular to the two warfare which are also known

19 as The Hague law.

20 A protected person is any person entitled to special protection.

21 The Geneva law distinguishes between the wounded, sick, ship wrecked of

22 the armed forces and then civilians, prisoners of war, civilian internees,

23 civilians in the enemy territory and civilians in occupied areas. These

24 notions only apply within the rules relative to international armed

25 conflicts. In international armed conflicts, privilege status not

Page 13695












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Page 13696

1 recognised to anyone participating in the hostilities nor is there any

2 distinction between the categories of protected persons. It simply

3 distinguishes between those who use force and those who do not use it or

4 are no longer in a position to use it, such as the wounded, sick,

5 prisoners, population who does not participate in the fighting.

6 In order to draw the attention of the Honourable Court to what the

7 Defence is trying to prove, and that is that in Bosnia and Herzegovina,

8 and especially in Herzegovina, in Mostar, that is, there was no

9 international armed conflict, I must point out the difference between an

10 international armed conflict and a civil war.

11 A simple definition of a civil war is that it is an armed conflict

12 which takes place in the territory of one state, between the main party on

13 the one hand and the rebel party on the other hand. It is the case of a

14 breakdown of the system of government in a country, in a state, which

15 leads to the fighting between different contestants in the fight for

16 power. Article 2 of the Geneva Conventions from 1949 on non-international

17 armed conflicts, and its additional Protocol number 2, Article 1 of

18 the Geneva Conventions from the 8th of June, 1977, is applicable always

19 when the conflict between the government and the rebels takes place by

20 means of systemic hostilities and the use of armed force. This can be

21 found in the commentary published under the general editors, by Jean

22 Piquetet, 4th Convention, Article 3, pages 35 to 36.

23 Protocol 2, additionally explains that internal tensions and

24 conflicts, rebellions, isolated and sporadic acts of violence and other

25 acts of similar natures, themselves do not represent armed conflicts, and

Page 13697

1 therefore, cannot be subject to international humanitarian law. The

2 international humanitarian law distinguishes between two types of civil

3 wars: A non-international armed conflict of a high intensity, that is

4 Article 3, and Protocol 2, and other internal conflicts which are subject

5 exclusively to Article 3.

6 If there is an internal conflict, there is no legal foundation for

7 the application of the Geneva Conventions on the protection of war

8 victims. This rule has already been applied in the Tadic case before this

9 Tribunal. The key question is imposed here, and we are proving this in

10 our case. The first question is: How to treat the forces of the BH

11 Army? The question is whether these forces -- and they were a party in

12 the conflict -- and the question is whether these forces were the legal

13 armed forces of the state of Bosnia and Herzegovina. The answer is yes.

14 The answer is positive. The second question that imposes itself is the

15 following: Was the HVO the other party in the conflict, and whether it

16 was a legal armed force of BH? The answer is yes. The answer is

17 positive.

18 The third key question is: In the time relevant according to the

19 indictment, were the victims, the alleged victims, of the crimes, were the

20 citizens of Bosnia and Herzegovina? The answer again is positive. The

21 answer is yes. If the answer to all the three questions is positive,

22 then, Your Honours, it is impossible to implement the 4th Geneva

23 Conventions. It's Article 4 which says, "This convention protects those

24 persons who, at any time, in any way, find themselves, during a conflict

25 or an occupation, in the hands of the party to the conflict whose citizens

Page 13698

1 they are not." In this case, they were the citizens of the army that

2 belonged to the party in conflict. In this case, there was no occupation

3 because occupation consists in the partial or total occupation of the

4 territory of another state by means of an armed force. But in order to

5 treat an occupation of a territory as a war occupation, according to the

6 international law, that territory has to be really subjugated to the

7 authority of the hostile army, of the enemy army. So if we go back to the

8 three questions, we do not have an answer to that. For a territory to be

9 considered occupied, there should be a power established and capable of

10 maintaining itself under the enemy force, the enemy army.

11 There are no, almost no, civil wars which in one way or another

12 are not connected with international events, and only a few of them, in

13 the past century, were fought so to say behind closed doors. The impact

14 of a third state can have different forms and can go -- and can extend to

15 unarmed intervention. An international conflict then becomes a so-called

16 advocate war, which is very often waged in the interests of external

17 forces. Michael B. Agenhurst [phoen] wrote about that in his publication,

18 "Civil War," in the Encyclopaedia of International Law, number 3,

19 published in 1982, on pages 88 to 93.

20 Civil war becomes an internationalised by still non-international

21 armed conflict, poses before the international humanitarian law some very

22 peculiar problems. This has been mentioned by Hans Peter Gasser [phoen]

23 in his work, "Internationalised non-international armed conflict, case

24 studies of Afghanistan, Kampuchea and Lebanon." In 33, The American

25 University Law Review, published in 1983, particularly on pages 145 to

Page 13699

1 161.

2 If a state proclaims the state of war, the situation is

3 considerably different. Bosnia and Herzegovina did proclaim the state of

4 war, Your Honours. So the war was between Bosnia and Herzegovina on the

5 one hand and the Serbian aggressor on the other hand. Persons under

6 the -- in the power of the enemy are at the same time the citizens of the

7 one and same state, the state of Bosnia and Herzegovina, and that, Your

8 Honours, is the problem that needs to be solved. It seems that the

9 intention of the Prosecutor was to show that at the beginning of 1993, due

10 to the operations of the HVO, a confrontation with the BH Army was

11 inevitable.

12 The period between April and January, 1993, is the period of

13 military and political tensions between the HVO and the Army of Bosnia and

14 Herzegovina, that is between the HDZ and the SDA. During that time, there

15 were some failed attempts to move the relations from the stalemate

16 position, all these attempts were initiated by the Republic of Croatia.

17 Before any final judgement, we have to take into consideration some of the

18 characteristics of the events that took place between January, 1993, and

19 the end of 1995. The three constituent peoples in Bosnia-Herzegovina.

20 How to treat the fact that from the very beginning of the war, one of

21 these peoples had an intention to break the state, break up the state, and

22 how to treat the fact that two out of the three constituent people asked

23 for the same, at the same time. If the three constituent peoples wage a

24 war between themselves at the same time, the issue of the civil war is

25 rightfully raised. How to determine the modality of intervention of the

Page 13700

1 neighbouring states, neighbouring states, beyond their state borders?

2 Croatia is perceived as a state which carried out an aggression when it

3 helped the HVO by logistics and by troops. In some moments of the war,

4 Croatia provided logistical support, both to the HVO and the Army of

5 Bosnia and Herzegovina, allowing the establishment of its units in its

6 terrain. And the first voluntary regiment, Kralj Tomislav, even formally

7 made a strength of the BH Army, i.e. the Territorial Defence, from the

8 point of view of the Army of Republika Srpska, it is an aggression. From

9 the points of view of the HVO, this can be held against Croatia as well as

10 the -- on the example of the Muslim sacred warriors which the majority

11 of -- which came to the majority of the territory BH, via the Republic of

12 Croatia. We can also raise the issue of the aggression of Croatia in

13 Bosnia and Herzegovina. For example, in the summer of 1992 during the

14 fights for the corridor in Bosnian Posavina when the units of Bosnian

15 Serbs, who were reinforced by the rebel Croat Serbs of the Republic of

16 Serbian Krajina. What was the role of the international community? What

17 is the meaning of the resolution 713 of the Security Council of the United

18 Nations on the embargo, on the arms embargo for all the republics of the

19 former socialist Federative Republic of Yugoslavia? Does it entail the

20 moral responsibility, does it represent an expression or the form of

21 helping the best armed party, that was the Army of Republika Srpska? Does

22 it mean that the world, i.e. the great forces, from the point of view of

23 the HVO and the BH Army, participated in the war on the side of the Army

24 of Republika Srpska, in the war against the two other constituent peoples?

25 That it gave its contribution towards the way the war was waged? When the

Page 13701

1 world accepted the reality, the situation on the ground, did it not lay

2 the foundation for the division of Bosnia and Herzegovina? This is a

3 group of questions without any answers, and this group of questions also

4 involves the visit of the late president of the Republic of France, who

5 visited the protected UN areas.

6 Your Honours, was there a war against Bosnia and Herzegovina or

7 was there a war in Bosnia and Herzegovina? If we accept the statement

8 that it was a war against Bosnia and Herzegovina, would it not mean that

9 one people was more constituent than the other two? That means that the

10 Republic of Croatia and the Federal Republic of Yugoslavia are

11 equalised. That means that we forget that the Republic of Croatia and

12 Bosnia and Herzegovina had a common theatre of war in the area of Bihac,

13 and therefore the position of Croatia is considerably different than the

14 position of Yugoslavia towards Bosnia and Herzegovina, and what about the

15 honourable or non-honourable role of the UN Security Council and the

16 international community, whose shadow, like a nightmare lies over the

17 ruins of Bosnia and Herzegovina and Croatia?

18 We believe that the war in Bosnia and Herzegovina was a war

19 against Bosnia-Herzegovina, but also a war in Bosnia and Herzegovina.

20 This was sanctioned by the international community as well. The Army of

21 Republika Srpska, while trying to occupy, as big a territory as possible,

22 committed ethnic cleansing and crimes of major proportions. The armed

23 forces of the other two constituent peoples in the area committed a lot

24 less. However, there is an intention, a visible intention, to equalise

25 the HVO with the Army of Republika Srpska, and this would provide amnesty

Page 13702

1 for the Army of Bosnia-Herzegovina. This is not corroborated by any

2 facts. The Croatian Defence Council and the Army of Bosnia-Herzegovina

3 had some common traits. They waged a war against two other constituent

4 peoples, the break-up of the territorial integrity of the state, help from

5 abroad, ethnic cleansing, the destruction of the enemy property,

6 concentration camps, and committed war crimes. Is the generally accepted

7 advantage, so to say, of the Army of Bosnia-Herzegovina over the Croatian

8 Defence Council only in its name?

9 Furthermore, the Prosecutor claims that throughout the entire

10 relevant period, the Army of the Republic of Croatia, that is the HV,

11 supported the HVO, by sending its units to Mostar and other municipalities

12 of Bosnia and Herzegovina. There were no HV units in Herzegovina and in

13 Mostar. This is shown by documents. This is witnessed by witnesses.

14 There are many persons who returned to their native Herzegovina and Bosnia

15 to wage war against the Serbian aggressor who were previously members of

16 the Croatian Army, of the HV. But there were no organised units of the

17 HVO in Bosnia and Herzegovina, except for those which were in agreement

18 with the Split agreement between Izetbegovic and Tudjman which was made in

19 1992 in July. We have proven that, our witnesses have testified to that

20 effect, and they will continue to testify to that effect.

21 The 3rd Geneva Conventions, Article 3 -- 13, is about war,

22 prisoners of wars. At all times, they should be treated humanely.

23 Prisoners of war are members of the armed forces of one of the warring

24 parties who fell into the hands of the enemy party during an international

25 armed conflict. During their detention, they retain the legal status of

Page 13703

1 members of the armed force. The healthy war prisoners can be asked to

2 work, but they should not be sent to work in dangerous areas unless they

3 volunteer. According to the 4th Geneva Convention and the Additional

4 Protocol, civilians are all those who are not members of armed forces.

5 They cannot participate in hostilities. If they do so, they have to be

6 aware that they lose protection, and that force may be used against them.

7 The 4th Convention forbids -- puts a ban on the use of civilians

8 as human shield, in order to protect some areas or troops from an enemy

9 attack. Under -- in some circumstances, protected civilians may be

10 detained. The legal position of the detainees, which is mentioned in the

11 4th paragraph, and the treatment of these people is regulated by the

12 notion of a civilian, and as for the notion of the combatant, I don't want

13 to go into any greater details. The prohibited methods of combat are

14 prohibited and the -- and the combatants have to treat the enemies as

15 human beings. The fair behaviour is in agreement with the -- with the

16 rules of war. The enemy can be deceived by camouflage, the use of false

17 operations and misinformation, which we have had the opportunity to hear

18 and we shall hear again during this procedure. According to Article 51,

19 of the diplomatic conference and Article 48 of Protocol 1, civilian

20 population or individuals cannot be the object of attack.

21 The Prosecutor claims that the subunits of the Convicts Battalion

22 attacked Bosnian Muslim population, civilian population, in the areas

23 under the occupation of the HVO and the HV, and that they participated in

24 the operations of the so-called ethnic cleansing. That the units --

25 subunits of the Convicts Battalion acted, either as part of the troops of

Page 13704

1 the HVO and HV, or in the coordination -- in coordination with those

2 armies.

3 The subunits of the Convicts Battalion are members of the HVO and

4 acted together with them. Wherever there were HV units on the Bulevar,

5 and that Vinko Martinovic collaborated with them or coordinated his

6 activities in the operations of ethnic cleansing, the Prosecution has not

7 provided any evidence to that effect, and throughout the presentation of

8 the Defence evidence, the Defence is going to prove that the -- the fact

9 that the truth is contrary, Vinko Martinovic actively supported the

10 nationalist ideas of Bosnian Croats. This is what the Defence claims, and

11 very soon, you will hear that the Vinko Martinovic, are -- our witnesses

12 protected. I would like to mention their names but I can't. And you will

13 hear from them that not for a single moment, Vinko Martinovic had a

14 discriminationally intention and many witnesses will corroborate to that

15 fact. The Prosecution also claims that throughout the relevant time,

16 Vinko Martinovic had an effective and direct control over the members of

17 his unit. The Defence refutes that allegation. Article 7 of the Statute

18 says, "The person who has planned, ordered or committed or in any other

19 way assisted or supported the planning, preparation or the perpetration of

20 a crime mentioned in Articles 2 to 5 of this Statute is individually

21 responsible for a crime." In Article -- in paragraph 3, it says, "The

22 fact that some of the acts mentioned in Articles 2 to 5 of this Statute

23 was committed by a subordinate person does not exculpate the superior of

24 the criminal responsibilities if the superior knew or if there was the

25 reason -- a reason for him to know that the subordinate person was

Page 13705

1 prepared, getting ready to commit such a crime or that he has already

2 committed them, and the superior has not undertaken the necessary and

3 reasonable measures to prevent the perpetration of such a crime." It is

4 clear that the purpose of Article 7 is to ascribe individual criminal

5 responsibility at different levels. For crimes mentioned in Articles 2 to

6 5 of the statute. Article 7 implements the general principle of the

7 criminal law that an individual is responsible for his crimes and for his

8 acts and commissions. This Article prescribes that is an individual may

9 be held responsible for a crime or for an omission to punish the crime

10 committed by a subordinate person.

11 Article 7, paragraph 3, of the Statute, lays down the principle

12 which regulates the responsibility of the superiors, which is very often

13 referred to as command responsibility. Some of the legal issues which

14 rise in connection with Article 7 paragraph 1 and Article 7 paragraph 3

15 are considered in -- have been considered in other cases before this

16 International Tribunal. This Trial Chamber, I assume, is not going to

17 consider them again.

18 One has to emphasise the different nature of criminal

19 responsibility envisaged by Article 7 paragraph 1 and Article 7 paragraph

20 3, especially in connection with superiors, which is the most interesting

21 point for this defence. Article 7, paragraph 1, is relative to the

22 persons which are directly responsible for the planning, ordering, or

23 commission or assisting and supporting in a crime. Article 7 paragraph 1

24 covers those persons who personally engage in illegal activities and

25 superior who does not participate in the commission of the crime directly

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13 English transcripts.













Page 13707

1 but has ordered it or instigated such a crime. For example, a person who

2 orders a killing of a civilian person can be considered responsible in

3 accordance with Article 7 paragraph 1, as is the case with the political

4 leader who plans the execution of certain civilians or a group of

5 civilians and then puts a military commander to the commission of that

6 crime. The criminal responsibility of such persons, be it a military or

7 civilians, under such circumstances, is their personal, direct

8 responsibility, and is the result of their immediate connection with the

9 physical commission of the crime.

10 It can be said that the criminal responsibility of the superior

11 person for such concrete acts can be considered primarily responsible for

12 the commission of such acts, which arises from the general principles of

13 the responsibility of the participants. The general secretary in his

14 report describes a command responsibility as it has been prescribed by

15 Article 7 paragraph 3 of the Statute. I'm not going to quote because I

16 believe that the Trial Chamber is familiar with this Article.

17 Article 7 paragraph 1 says that the person who planned,

18 instigated, ordered, committed or otherwise aided and abetted in the

19 planning, preparation or execution of a crime shall be considered

20 individually responsible for the crime. The principle that an individual

21 can be held responsible for the planning, instigation, ordering,

22 commission or abetting in the crime firmly is -- is firmly based on the

23 international customary law. Article 7, paragraph 1, reflects the

24 principle of the criminal law according to which the criminal

25 responsibility is not ascribed only to those individuals who physically

Page 13708

1 committed a crime but it can also be extended to those who in different

2 ways participate or abet in the crime and in -- when this participation is

3 sufficiently connected with the crime, in keeping with the principles of

4 responsibility for being an accomplice in a crime.

5 Different aspects of participation in a crime can be divided into

6 the main participants and their collaborators. Therefore, the meaning of

7 Article 7 paragraph 1 is to ensure that all those who participate directly

8 in the commission of the crime or -- are held responsible.

9 Mr. President, I need another half an hour or so. Now it is

10 7.00. I do not know whether you want me to go on and thus finish my part

11 or should I resume tomorrow? I'm at your disposal.

12 JUDGE LIU: Well, altogether how long the opening statement will

13 last? Including the parts by Mr. Par?

14 MR. PAR: [Interpretation] Your Honour, I will need about one hour,

15 not more than that. I think it is within the time allotted to us. Today

16 we had the whole day and we intend to call our first witness today. Of

17 course we are aware of your concern regarding the time, but we think that

18 there is no real reason for it. We have envisaged to complete our case as

19 we have announced, that our witnesses will not take more than a day each,

20 or we think that on the average we do have a witness and a half per day.

21 The first witness, the introductory one may take a little longer, but

22 others, they will be all testifying to facts. No reason for them to take

23 too much time. You said we should finish by the end of September and we

24 shall do that. There is no reason for any concern regarding the time and

25 please allow us to organise our Defence in a manner we have already

Page 13709

1 announced. Thank you.

2 JUDGE LIU: Yes. I understand that different legal systems have

3 different ideas concerning the opening statement. In my jurisdiction,

4 generally speaking, in the opening statement, the party should not touch

5 upon the legal issues, while in the closing argument, the legal issues

6 will be brought up at that stage. But anyway, I hope you could reorganise

7 your opening statement overnight and we will try to finish it during the

8 first sitting tomorrow afternoon.

9 So we'll resume at 2.15 tomorrow afternoon.

10 --- Whereupon the hearing adjourned at

11 7.04 p.m., to be reconvened on Tuesday,

12 the 16th day of July, 2002, at 2.15 p.m.