Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16662

1 Tuesday, 29 October 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.02 a.m.

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

6 THE REGISTRAR: Good morning, Your Honours. This is case number

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

8 JUDGE LIU: Thank you very much. Good morning, everybody.

9 Mr. Krsnik, are you ready for your closing argument?

10 MR. KRSNIK: [Interpretation] Good morning, Your Honour. Yes, I'm

11 ready as always, but this time it won't be me who will start. It will be

12 my colleague Meek who will give the introduction to the closing argument,

13 and my colleague Meek will give you the global legal picture of this

14 case. And then I will take it from him and finish the closing argument.

15 Thank you very much.

16 JUDGE LIU: Thank you.

17 Mr. Meek.

18 MR. MEEK: Thank you, Mr. President. Good morning, Your Honours.

19 I've thought long and hard about what I can say this morning that might

20 perhaps change your minds or attempt to persuade you in one fashion or

21 another. But first Your Honours I must thank all the people who make this

22 Tribunal possible, those people who are never seen, never seem to have

23 their work satisfactorily recognised, I'd like to thank the translators,

24 the Court reporters, the technical crew, the UN security guards that help

25 us daily, the ushers, the Court staff, and Madam Registrar herself. I

Page 16663

1 would like to take this time to thank Your Honours for your attention and

2 especially for your patience. I trust that the latter will persevere for

3 a little bit longer in this case.

4 Further, Your Honours, I must thank the members of not only my

5 defence team but the members of the Vinko Martinovic Defence team,

6 Mr. Seric, Mr. Par, who have helped me to understand the facts of the war

7 in the former Yugoslavia and the facts of life as it was lived for those

8 unfortunate enough to have lived through such a horrific experience. And

9 I say that in the sense that it is difficult, as Your Honours may well

10 know, if not impossible, to ever have an understanding and a complete

11 grasp of the break-up of the former Yugoslavia and what transpired during

12 that break-up, before that break-up, and after that break-up.

13 First, Your Honours, the accused Mladen Naletilic would

14 incorporate and adopt the legal arguments which have been advanced in the

15 final brief of Vinko Martinovic, which concern international armed

16 conflict, persecution, and superior authority, as the same legal arguments

17 apply to Mr. Naletilic. While there may be some overlapping and duplicity

18 in the arguments advanced, we do incorporate and adopt these by reference.

19 Your Honours, as my learned friend Mr. Scott recently submitted to

20 this Trial Chamber a few days ago, I believe it was the end of last week,

21 this has been a hard-fought trial from both parties, from both sides.

22 From the country from which Mr. Scott and I come, this is only normal in

23 any criminal trial, when the liberty of an accused person is at stake.

24 And in the country from which we grew up practising criminal law, no

25 accused was ever penalised more severely for standing on his presumption

Page 16664

1 of innocence by pleading not guilty, by maintaining that innocence,

2 maintaining his right to silence, and fighting desperately the allegations

3 of the government. It is truly a notion that we, coming from America, are

4 not familiar with, that an accused would be punished more severely for

5 exercising his right to a trial.

6 So, Your Honours, when Mr. Scott states -- or the Prosecutor,

7 excuse me, states in the final brief, under sentencing guidelines for

8 considerations, that Mr. Naletilic did not cooperate with the Prosecutor

9 in any fashion, it must be a foreign argument to him and counter to

10 everything he was brought up with in the criminal procedure of the country

11 from which he comes; namely, Your Honours, it is fundamentally unfair to

12 punish any accused more severely due to the fact that he did not cooperate

13 with the Prosecutor. Why, I ask, would my client cooperate with the

14 Prosecution?

15 Would he cooperate to help the Prosecution deprive him of his

16 liberty? Would he cooperate with the Prosecutor to see that he lives the

17 rest of his natural life in a steel cage? I submit, Your Honours, that it

18 is completely natural and normal for any innocent person to fight for his

19 or her liberty. That liberty is the most precious of commodities and in

20 this specific case, unfortunately, it is a fight for the very life of my

21 client. Mr. Naletilic unfortunately does not have very good health, as

22 the record can attest, and nearly any term of incarceration for him,

23 should he be convicted, will be nothing less than a life sentence.

24 Briefly, Your Honour, on the subject of my client's health, the

25 Prosecution states in their final brief that according to the Simic

Page 16665

1 sentencing judgement, which just was rendered a few weeks ago, the ill

2 health of the accused is not a mitigating factor. However, Your Honours,

3 you should not be fooled by this half truth, as later in the same

4 judgement, the Trial Chamber stated clearly that ill health is a special

5 circumstance in sentencing considerations and may be taken into account.

6 Regarding sentencing, while I'm on this subject briefly, it is

7 submitted, Your Honours, that there must be some equality and some

8 proportionality in sentencing in this Tribunal. The record is clear, Your

9 Honours may take judicial notice that General Radoslav Krstic, the

10 commander of the drina corps, who was found guilty of genocide in the

11 Srebrenica massacres of up to 8.000 young Muslim men in a one-week period

12 in 1995, was sentenced to approximately 43 years. While in this case,

13 Your Honours, the Prosecution asks you that if convicted, Mr. Naletilic be

14 sentenced to 35 years. Mr. Naletilic was not charged in this case with

15 even one murder, let alone genocide, of which General Krstic was

16 convicted. A Chinese proverb says that if vengeance, if it is vengeance

17 you're seeking, dig two graves instead of one. It appears to me, Your

18 Honour and it appears to the Defence of Mr. Naletilic that in fact the

19 Prosecution in this case is seeking vengeance. And it is submitted, Your

20 Honours, that if Mr. Naletilic is found guilty, which we believe is not

21 proper under the evidence and the law, that this sentence requested by the

22 Prosecution is completely outside the bounds of any reason or logic.

23 Your Honours, another example of the Prosecution misstating the

24 evidence and shaving the truth or the law can be seen in the Prosecution

25 final brief, page 12 to 13, when it is stated that Prosecution Witness R,

Page 16666

1 the French journalist, as you will recall, had found it difficult to move

2 around Mostar. And that due to that difficulty, Mr. Naletilic gave him a

3 paper which allowed the witness to move freely around the Croat part of

4 Mostar. In fact, Your Honours, if you will look at the transcript

5 closely, if you will look at the evidence of Witness R closely, you will

6 see that Mr. Naletilic never -- never -- gave witness Witness R any

7 paper. He merely gave Witness R a name. Upon giving him that name,

8 Witness R was able to gain a laissez-faire pass, and he gained that pass

9 from an individual from Mostar, an individual who was in a high military

10 position with the HVO in Mostar by the name of Zlatan Jelic.

11 Mr. President, I would ask kindly to go into private session for

12 just a moment.

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

14 [Private session]

15 [redacted]

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Page 16667

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7 [Open session]

8 MR. MEEK: Your Honours, I must at this time ask you that if there

9 was anything that I personally did or that this Defence team of

10 Mr. Naletilic did during the course of this trial which might have

11 offended you in any manner, in any manner whatsoever, please accept my

12 apologies, the apologies from the Defence team, and please, Your Honours,

13 I beseech you, do not -- do not hold this against Mr. Naletilic.

14 Your Honours, it is truly a pleasure and it is my honour to

15 represent Mr. Naletilic. In my opinion, it is the highest calling of a

16 lawyer to represent a citizen accused of a crime. There is nothing higher

17 in the practice of law than standing between the citizen accused of a

18 crime and the might of the government, in this case the Prosecution. It

19 is not often -- no, it is very rare indeed that any lawyer has the

20 opportunity to represent a citizen accused in a war crimes trial, and as I

21 have stated, it is always a honour to represent any person accused by the

22 government. In this case, Your Honours, the Prosecutor for all practical

23 purposes, and by analogy, stands in the same shoes as the government. The

24 Prosecution in this Tribunal, not unlike the government Prosecutors around

25 the globe, has tremendous power and a seemingly endless supply of

Page 16668

1 logistical help. The Prosecution has a vast and huge means at her

2 disposal to accomplish the ends she desires. Behind the scenes of this

3 courtroom, Your Honours, there is an army of support staff for the

4 Prosecution. There are investigators, interpreters, translators, experts,

5 analysts, and a budget to back them up. Unfortunately, Your Honours, what

6 you see here -- what you see here, is what you get from the Defence. We

7 do have one investigator, part time, in Bosnia-Herzegovina, but we do not

8 have the resources at our hands that the Prosecution has.

9 However, and thankfully, the concept of equality of arms is sacred

10 in this Tribunal. Equally, sacred is the concept and the theory of

11 presumption of innocence and burden of proof beyond a reasonable doubt.

12 While the accused before this Tribunal do not have to, nor are they

13 obligated, to prove their innocence, from the perspective of an American

14 lawyer, I must confess that it sometimes seems that this is not the case.

15 For example, when one looks at the language of the Statute of the

16 International Tribunal, adopted 25 May, 1993, as amended 13 May, 1998, it

17 states, "Having been established by the Security Council, acting under

18 chapter 7 of the charter of the United Nations, the International Tribunal

19 for the Prosecution of persons responsible for serious violations of

20 international humanitarian law committed in the territory of the former

21 Yugoslavia since 1991."

22 From the mere reading of that language, it appears that those

23 citizens who find themselves as accused before this Tribunal have already

24 been prejudged. Why does the language state, "Persons responsible for

25 serious crimes or serious violations?" Why doesn't the Statute refer to

Page 16669

1 those persons alleged to be responsible? Further, Your Honours, Article 1

2 goes on to state, "The International Tribunal shall have the power to

3 prosecute persons responsible for serious violations." Again, Your

4 Honours, the language itself seems to presuppose a pre-judgment of those

5 accused coming before this Tribunal.

6 There are other examples to be found in the wording of the Rules

7 of Procedure and Evidence, but the point is simply that this Tribunal has

8 been viewed by some legal scholars, and observers, as being political in

9 nature and not a serious legal body. Some, in fact, might state that this

10 Tribunal is nothing more than an attempt to relieve and alleviate the

11 collective guilt of the United States, Europe, Great Britain and the

12 western world for not stopping the blood shed, violence, and tragedy in

13 the former Yugoslavia at a time when it was in the power of the west to do

14 so. As such, it is submitted that this Tribunal is often viewed as a

15 political institution with the Prosecution arm that has unfettered power

16 and where the institution itself is permeated with a "we must convict"

17 attitude.

18 Your Honours, one such commentator, Robert M. Hayden, professor of

19 anthropology and law, University of Pittsburg, and director at the centre

20 for Russian and east European studies in an article published in the

21 Cleveland state law review which was entitled, "Biased justice, human

22 rightsism and the International Tribunal for the former Yugoslavia"

23 observed that the ICTY delivers a justice that is biased with

24 prosecutorial decisions based on national characteristics of the accused,

25 rather than on the available evidence indicating exactly what he has

Page 16670

1 done." Certainly, it is submitted that it can be argued that

2 Mr. Naletilic would not be in this Tribunal at this moment for the last

3 two years or more, had not the Republic of Croatia and/or those in power

4 that deemed it expedient to serve him up to the OTP in order to save other

5 much-higher political, civic, or military figures.

6 When Mr. Hayden commentates or opines that in fact there is an

7 attitude in this Tribunal, in this institution, that we must convict, I

8 must point out one example. This example is the Kupreskic case. I

9 implore the Trial Chamber to look closely at the Kupreskic appeals case,

10 which I believe supports this notion. In that case, the Appeals Chamber

11 had the wisdom and courage, the independence and judicial integrity to

12 correct an obviously skewed judgement, a judgement that was rendered in a

13 Trial Chamber. There, Your Honours, three of the convicted accused were

14 released on appeal, after the Appeals Chamber found that no reasonable

15 finder of fact could conclude guilt beyond a reasonable doubt on the

16 evidence presented.

17 Further, Your Honours, in that case, the Trial Chamber had found

18 guilt on a charge never alleged in the indictment, no notice had ever been

19 given to the accused that he would be tried for such a charge. However,

20 Your Honours, in the end, justice was served in that instance. Likewise,

21 the international community was served, and I submit, Your Honours, that

22 the memory of the victims was also served. The memory of the victims of

23 the tragedies in the former Yugoslavia were served for a very simple

24 reason: Innocent men were not wrongfully convicted in that case.

25 We submit, Your Honours, that it takes an independent,

Page 16671

1 conscientious judicial panel to make such a decision in the face of what

2 we have all heard to be the cries of the international community for

3 justice. Justice at what price, Your Honours?

4 Mr. Hayden goes on to opine that, "Judicial decisions by the ICTY

5 render it extremely difficult, if not impossible, for an accused to obtain

6 a fair trial while the Tribunal has also shown a lack of interest in the

7 investigation of potential prosecutorial misconduct." Additionally, it is

8 questioned in that article just why the Tribunal actions that so clearly

9 violate fundamental fairness towards the defendants are not the subject of

10 much concern by those who profess to support human rights. The author of

11 that article, Mr. Hayden goes on to state that, "The politicisation of the

12 ICTY's Prosecutor's office is especially troubling, in light of the

13 extraordinary deference that the judges of the Tribunal afford the

14 Prosecutor."

15 Your Honours, when one considers the basic goals of a War Crimes

16 Tribunal, the question may easily be asked: How many people would really

17 afford the presumption of innocence to leaders such as Hermann Goering or

18 Slobodan Milosevic? How many would, Your Honours? Why give such

19 criminals a forum in the first place? Why spend money and time to hear

20 their stories? Thus, Your Honours, it may be said that if any trial is

21 worth conducting, then it is worth conducting fairly and courts that apply

22 the above principle rigorously become stronger, not weaker. In the same

23 vein, it is understandable that courts must display, by example, that they

24 are governed by law rather than by passions or politics of any particular

25 case.

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Page 16673

1 Justice Robert Jackson of the United States Supreme Court, one of

2 the architects of the Nuremberg Tribunal, in a speech he gave in April of

3 1945, concerning the greatly debated problem of what to do with the Nazi

4 leaders when and if they were captured, said that a political and military

5 decision could be taken to simply execute them, based on a number of

6 political, practical and policy considerations. However, Justice Jackson

7 then discussed the alternative option, to wit Justice Jackson said:

8 "If good faith trials are sought, that is another matter. All

9 experience teaches that there are certain things you cannot do under the

10 guise of judicial trial. Courts try cases but cases also try courts. You

11 must put no man on trial before anything that is called a court under the

12 forms of judicial proceedings if you are not willing to see him freed if

13 not proven guilty."

14 This was taken from the book called, "The Anatomy of the Nuremberg

15 Trials," published in 1992 by Alfred Knopf in New York.

16 What Justice Jackson was merely observing was that any body

17 that -- denoted a court of law should not be used to rubber stamp

18 convictions and sentences. That could be accomplished through political

19 channels, we all know that. A court of law, properly defined, must be

20 ready for a judicial trial based on the presumption of innocence and

21 always open-minded to the possibility of acquittal, for it must be

22 remembered that not every alleged war criminal, merely because he or she

23 is indicted, is guilty as charged.

24 Your Honours, I believe that history will judge this Tribunal by

25 the way this Tribunal judges the accused who are tried before it. It

Page 16674

1 will, Your Honours, in the end, be judged by the fairness in which it

2 dispenses justice and the process it affords the accused before, after,

3 and especially during the proceedings.

4 I must confess, Your Honours, that this last 14 months has been

5 difficult for me, coming from a country with a strong, albeit short,

6 history of judicial watch-dogging. This judicial watch-dogging operates

7 to ensure that the person accused by the government is accorded the

8 process due him before, until, and unless he is found guilty beyond a

9 reasonable doubt. There are basic, fundamental, civilised human rights

10 that he or she will receive a fair trial, the right to confront his or her

11 accusers, the right to know specifically the nature and extent of the

12 charges against him, and the right to not be convicted on any evidence

13 which does not rise to the level of beyond a reasonable doubt.

14 This has been difficult for me from the perspective of having to

15 sit by and watch as incredible, horrible hearsay evidence is admitted

16 against my client in both live testimony and in the form of documentary

17 evidence. Documents which are admitted with no real meaningful

18 foundation, no authenticity, no chain of custody, and no reliability -- at

19 least coming from the standpoint the safeguards under which I practise

20 criminal law in the United States, and the safeguards built into most

21 common law criminal jurisprudence.

22 Your Honours, I understand that this type of tenuous evidence is

23 admissible under the Rules of Procedure and Evidence, Practice and

24 Procedure, in this Tribunal, and I understand further, Your Honours, that

25 even when documents such as this are admitted, it does not automatically

Page 16675

1 follow that the Trial Chamber must give them any weight or will give them

2 any weight. However, it's still to me seems fundamentally unfair when

3 viewed in the scope of a criminal proceeding where a person's liberty is

4 at stake. For liberty, Your Honours, is like the air we breathe; we take

5 it for granted until we don't have it any longer or we begin to lose it.

6 Were this a case where the ultimate judgement is only for monetary

7 remuneration, for a personal injury or contractual damages, for instance,

8 then perhaps one could say it was more fundamentally fair given what was

9 at stake. However, it seems only just and fair to demand more credible

10 evidence than that routinely submitted by the Prosecution and accepted

11 into evidence by the Trial Chambers of this Tribunal. A glowing example

12 of this can be seen from the final argument of my learned colleague, Mr.

13 Scott, yesterday. My learned friend stated that he would recall in

14 substantial measure, six important Prosecution witnesses to give the

15 Chamber an overall feel of the case. While waiting with bated breath for

16 the recounting of these six important witnesses, it turned out that they

17 consisted of only two witnesses who one could actually say were fact

18 witnesses. Those two witnesses were Witness O and the mufti. Three

19 others were by and large witnesses who gathered their information from

20 other sources, LL was a Spanish officer, Van der Grinten a Dutch officer

21 with the ECMM, and Sir Martin Garrod a British officer. These military

22 witnesses came before this Tribunal and testified about events they never

23 personally observed. Their testimony was largely based on reports they

24 drafted from reports they received from the field. These field reports in

25 turn were based on informants unknown to the accused, unknown to the

Page 16676

1 accused's attorneys, and most likely unknown to the witnesses themselves.

2 Most of the reports they testified about and testified from were

3 classified C-2. Your Honours will recall that C-2 was the lowest class of

4 reliability when it came to reporting, and this was according to Witness

5 JJ, a military intelligence officer from Spain, or in layman's terms a

6 spy. That's what he was.

7 The testimony pointed out by my learned friend, Mr. Scott, that

8 was based on these three witnesses' own personal experience and

9 observation can be boiled down to dinner conversation or cocktail talk.

10 This is especially true, Your Honours, of Witness LL, whose testimony was

11 nothing more than mere speculation after a brief meeting with

12 Mr. Naletilic and Prosecution Exhibit 325, a document which in the body of

13 the same states that it was derived, "According to intelligence received."

14 We must ask, Your Honours, from where, when, and from whom was

15 this information received? Van der Grinten's testimony, likewise, was

16 based in part -- and part what the Prosecutor wants Your Honours to

17 believe was based on P484, a meeting with a Mr. Puljic. If Your Honours

18 will at Exhibit P484 with any kind of scrutiny, you will see that

19 Mr. Puljic had stated -- or excuse me, that Mr. Van der Grinten had stated

20 that Mr. Puljic, "Seemed to be more friendly than his HVO colleagues," and

21 apparently Van der Grinten and those working under him stated, "We think

22 he has told us the truth."

23 I wonder, Your Honours, what "We think he has told us the truth"

24 means. Does that mean that he could have told the truth? Does that mean

25 that he maybe told the truth? Does that mean he might have told the

Page 16677

1 truth? It certainly, Your Honours, doesn't mean that he told the truth

2 beyond a reasonable doubt, and yet we are daily and have weekly listened

3 to testimony such as this brought into this Trial Chamber in order to

4 convict Mr. Naletilic.

5 Sir Martin Garrod's testimony, which the Prosecutor eliminates is

6 derived from a lunch he claims to have shared with Mr. Naletilic at the

7 home of Witness NH, a defence Witness. If you will recall, Your Honours,

8 Witness NH testified that while Garrod and Naletilic had lunch at his

9 home, they had never lunched together at his home. Further, Your Honours,

10 NH shared with the Trial Chamber his observation that Mr. -- Sir Martin

11 Garrod, who NH saw frequently, liked "to have a glass too many and that it

12 was very nice to talk to him."

13 The mufti on the other hand, while not prone to excessive drinking

14 of alcohol, can certainly not be said to be unbiased in any fashion. And

15 if the Chamber remembers, the mufti could not even speak the truth about

16 the Islamic flag shown in a video of a celebration of the 44 Muslim

17 mountain Brigade of the 4th Corps of the Army of Bosnia-Herzegovina - one

18 of the most fundamental Islamic military organisations in

19 Bosnia-Herzegovina.

20 To put it very nicely and civilly, even Judge Clark was

21 disappointed with his reply concerning the Islamic flag.

22 What else -- what else, it must be asked, did the mufti distort or

23 fabricate in his testimony? On the other hand, Your Honours, Witness O

24 was only one of two Prosecution witnesses who could even place Mladen

25 Naletilic with Mate Boban. Yet the Prosecution still maintains that they

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Page 16679

1 were close associates and that Mr. Naletilic carried out Mate Boban's

2 orders. The only other witness to place Mate Boban with Mr. Naletilic

3 won't even be mentioned in this argument, as her testimony was completely

4 unbelievable and was further refuted by Witness NC, who was at the Easter

5 party at the Ero hotel in Mostar in 1993.

6 Finally, Your Honours, the sixth important witness my learned

7 friend spoke about was none other than President Franjo Tudjman. This

8 witness has come from the grave to apparently give evidence before this

9 lofty Tribunal. I ask Your Honours, how can it be deemed equitable, how

10 can it be deemed to be just, how can it be deemed to be fair for the

11 accused to defend himself against such blatant hearsay, which is

12 unchallengeable and is without any means to confront the witness? Yet the

13 Prosecution in this case relies most heavily on these purported

14 presidential transcripts to prove the existence of an international armed

15 conflict beyond a reasonable doubt.

16 At this point, Your Honours, I must address briefly the truly

17 important witnesses for the Prosecution in this case. Those important

18 witnesses, Your Honour, are the two thiefing, murdering, lying Germans,

19 Falk Simang and Ralf Mrachacz. One needs only to look at the foot notes

20 of the Prosecution's final brief to see that they are relying heavily,

21 heavily on the testimony of Falk Simang and to some minor, lesser degree,

22 Ralf Mrachacz. It must be remembered, Your Honours, that the testimony

23 even from Mrachacz was that it was Mladen Naletilic who was instrumental

24 in the turning in of this murderer to the German authorities when he

25 finally learned of what Mrachacz had done, and he only learned it later,

Page 16680

1 much later.

2 In the closing argument yesterday, my learned friend implored Your

3 Honours of the accused, "Don't let them have victory, don't let them have

4 their victory." My learned friend thereafter asked you to convict on all

5 charges but whatever you do, Your Honours, "Don't let them have their

6 victory." I simply ask Your Honours, what is dishonourable about this

7 Trial Chamber or any legitimate court of law, for that matter, entering a

8 judgement of not guilty if, upon due consideration of the facts and the

9 law, the Prosecution has failed to prove its case beyond a reasonable

10 doubt? What, pray tell, is improper about that? A reasonable doubt is a

11 real doubt, based upon reasonable -- based upon reason and common sense

12 after careful and impartial consideration of all the evidence in the

13 case. This should not, nor can it be based on sympathy, pity or

14 compassion, as my learned friend seemed to be asking of Your Honours at

15 the close of his argument yesterday.

16 Proof beyond a reasonable doubt is proof of such a convincing

17 character that you would be willing to rely and act upon it without

18 hesitation in the most important of your affairs. We all make decisions

19 in our life every day, all the time. We buy homes, we buy cars, we make

20 employment decisions. But would we hesitate if Falk Simang or Ralf

21 Mrachacz tried to sell us an used car for a life insurance policy, for

22 example? Would we hesitate? The issue, the final issue, is in fact

23 exactly that: Would you hesitate? If the testimony that you heard

24 creates any hesitation in believing, then there is a reasonable doubt, I

25 submit.

Page 16681

1 I would like to quote from a losing argument made by an American

2 lawyer by the name of Edward Bennett Williams in a trial, particularly

3 this closing argument made by Edward Bennett Williams concerns these two

4 star witnesses of the Prosecution. Mr. Williams said:

5 "I just want to say two last things. You know, I think in life

6 you can bargain for and buy almost anything. You can bargain for and buy

7 mansions and villas and priceless works of art. You can bargain for and

8 buy fine jewellery and all the creature comforts that you can conjure up

9 in your mind, but thank God there are some things you can't buy and you

10 can't bargain for. You can't buy or bargain for wisdom. You can't buy or

11 bargain for justice, because if you do, what you get is injustice. You

12 can't buy or bargain for love, because if you do, it isn't love that you

13 get. And you can't buy or bargain for truth, because it isn't truth that

14 you get. It's testimony with a cloud of suspicion hanging over it. You

15 can buy and you can bargain for testimony,"

16 and that is what the government did in this case, that is why

17 their case is in the state it is at the present time. This case is

18 entitled United States versus a defendant; this case is entitled the

19 Prosecution versus Mr. Naletilic. But I want to tell you something: The

20 United States will win this case. The United States will win this case.

21 I saw one day on the walls of a courthouse in the oldest

22 courthouse in England, the words, "In this hallowed place of justice, the

23 Crown never loses because when liberty of an English man is preserved

24 against false witnesses, the Crown wins." After travelling for over 22

25 years across America in courthouses all over that country, and now for

Page 16682

1 over a year in this Tribunal in The Hague, I can tell you, Your Honours,

2 that the Prosecution never loses, because when the liberty and reputation

3 of a citizen accused is preserved against false testimony, giving of false

4 testimony, the Prosecution wins. Justice wins the day against the false

5 testimony.

6 My father, Your Honours, was a lawyer, was a district court judge

7 for 16 years. His father, my grandfather, was a lawyer. My father's

8 brother was a lawyer. My father's sister was a lawyer. And my father

9 taught me this when I was but a child. He explained to me, "Chris, it's

10 easy to be a Prosecutor. The Prosecutor never loses." I said, "Dad, what

11 do you mean?" He said, "The Prosecutor never loses. If he tries a

12 case -- if he tries a case, and he gets a conviction, then he has won. If

13 he tries a case and the judgement comes back not guilty, then justice has

14 been served and he also wins." Having been both a Prosecutor and a

15 criminal defence lawyer, Your Honours, I submit that being a Prosecutor is

16 simply a much easier task than that which we have before us.

17 Your Honours, the Defence would implore the Trial Chamber to

18 disregard and give no weight to such tenuous, hearsay evidence in the name

19 of international justice and in the memory of the victims of the horrible

20 wars in the former Yugoslavia, as it would be a disservice for any person

21 to be convicted of such war crimes on evidence which is not credible and

22 which does not rise to the level of beyond a reasonable doubt in the names

23 of the victims and in the name of the international community. In fact,

24 Your Honours, the Defence submits most respectfully that in the very name

25 of the victims and the international community, this Trial Chamber must

Page 16683

1 afford these accused a fair trial in all respects. Indeed, the victims

2 and the international community demand no less.

3 Please consider, Your Honours, while you're deliberating the fate

4 of my client, Mr. Naletilic, how you would feel, how you personally would

5 feel, if you were the accused, or you had a loved one or a close friend or

6 family member who was an accused. Ask yourself, "How would I like it if I

7 stood accused and the Prosecution was bringing in hearsay evidence,

8 evidence based on rumour, innuendo, gossip, documents which we don't know

9 where -- which you don't know where they came from, documents that have no

10 authenticity. Please put yourself in the shoes of Mr. Naletilic when

11 you're deliberating his fate.

12 Where is Mr. Meek going with this, you might ask. Simply, Your

13 Honour, that probably -- no, most likely, the most important phase of this

14 trial is about to begin, the phase where Your Honours begin your

15 deliberations on the facts, apply them to the law, and while not -- I say

16 not paying lip service to the accused's fundamental right to the

17 presumption of innocence, also and always bearing in mind that the accused

18 has nothing to prove, has a right to silence, making the Prosecutor live

19 up to their burden of proof, their duty to prove each element of each

20 crime beyond a reasonable doubt. If you can do this based on credible

21 evidence, not evidence which is based on what the witnesses heard or knew

22 because everybody knew, based on documents which contain multiple hearsay,

23 rumour, speculation, and innuendo, in this case these documents are

24 largely coming from AID, and the Army of Bosnia-Herzegovina, and the

25 victims who want someone, anyone, to pay the price for their suffering.

Page 16684












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Page 16685

1 If you can do this, Your Honours, then we submit that at the end of the

2 day you will conclude, with clear consciences, that the Prosecution has

3 failed in its burden of proof, that there is a reasonable doubt as to the

4 accused's guilt, and therefore you will render a verdict of not guilty of

5 the charges leveled against Mr. Naletilic.

6 Your Honours, the burden of -- and quantum of proof in a criminal

7 case, and at this Tribunal, is on the Prosecution to prove beyond a

8 reasonable doubt, upon consideration of all the facts, evidence and

9 circumstances of the case, that the accused is guilty of the crimes

10 charged. Since the accused in a criminal case, and in this case, is

11 presumed to be innocent until the contrary is proved, this requires the

12 Prosecution to prove beyond a reasonable doubt every fact necessary to

13 establish the crimes were committed and that the accused committed them.

14 Proof beyond a reasonable doubt, Your Honours, excludes every reasonable

15 hypothesis except guilt of the accused. The burden to prove each and

16 every material element of a crime never shifts from the Prosecution to the

17 accused.

18 It is a fundamental, basic tenet in criminal law that the

19 Prosecution must prove the case set forth in the indictment in all

20 material parts beyond a reasonable doubt, and that the finders of fact in

21 their analysis of the evidence, viewed in the light most favourable to the

22 accused, must find, in order to convict, that all elements of each crime

23 charged has been established by such a degree of proof. The rationale

24 behind this rule is obvious, and this is a requirement, and it is very

25 important requirement to reduce the risk that an innocent person will be

Page 16686

1 convicted. And it must be and has been incorporated into the concept of

2 fundamental fairness, fair trial, and equality of arms. As has been

3 stated, it is better to acquit nine guilty men than to convict one

4 innocent man. For this reason, Your Honours, the Defence implores you to

5 put the Prosecution on strict proof of each and every element of the

6 various crimes charged before you convict.

7 When the dust settles, Your Honour, and at the end of the day,

8 after you have carefully evaluated all the evidence, both the testimony

9 adduced in this courtroom and the documents admitted, I ask you to return

10 a judgement that will be consistent with my client and international

11 justice winning against false witnesses, and that would be a judgement of

12 not guilty.

13 Your Honours, I must ask, and I would ask you to also ask this

14 question: If Mr. Naletilic was - as the Prosecutor alleges, and has

15 desperately tried to prove - a military or civic, civilian superior, and a

16 high-ranking HVO member, why was he never at any meeting of high-ranking

17 officials of the HVO or the Croatian Community of Herceg-Bosna? Why, for

18 example, was Mr. Naletilic, who it is claimed was a superior to

19 Mr. Martinovic, not sent a copy of Prosecutor Exhibit 562.2? If you look

20 at that Prosecution document, Your Honours, and if you look at a multitude

21 of other Prosecution documents that are similar to Exhibit 562.2, and

22 562.2, in fact, was a report concerning Mr. Martinovic and alleged

23 wrong-doings, this report was sent, was sent, Your Honours, to Mr. Jelic,

24 and the Defence submits for a good reason this report was sent to

25 Mr. Jelic. Your Honours, this report and the numerous other documents

Page 16687

1 entered into evidence by the Prosecution and accepted by this Trial

2 Chamber were sent to Mr. Martinovic's real commander, his real superior,

3 and it was not Mr. Naletilic.

4 Your Honours, this is but one example of documents speaking about

5 purported bad deeds of Mr. Martinovic, but these documents were never sent

6 to Mr. Naletilic, his alleged superior. We submit, Your Honours, that it

7 is illogical, ill conceived, and bordering on absurdity for Mr. Naletilic

8 to have been the commander or superior officer of Mr. Martinovic and never

9 receiving reports of alleged crimes or bad acts that Mr. Martinovic was

10 involved in in the city of Mostar.

11 In closing, I would ask the Trial Chamber to look at another

12 factor. If Mladen Naletilic is who they say he is, who the Prosecution

13 says he is, why is he not charged with war crimes in the conflict with the

14 Serbs in 1992 when he really did command the Convicts Battalion? There

15 were certainly no Serbs living in Mostar at the end of 1993. If he is who

16 they say he is, why do we not find him at meetings with high-ranking HVO

17 and high-ranking HZ HB officials? If he is who they say he is, why do we

18 not find him in any meetings with Franjo Tudjman? The Prosecution witness

19 who came back from the grave to testify against Mr. Naletilic.

20 If he is who they say he is, why do we not have documents from

21 Mate Boban to Mr. Naletilic?

22 If he is who they say he is, why was he not even a member of the

23 political party, the HDZ?

24 If he is who they say he is, why do we not have any documents

25 admitted into this Trial Chamber from Tudjman to him?

Page 16688

1 If he is who they say he is, why are there so many documents

2 signed by Ivan Andabak, not signed by Ivan Andabak "for" Mladen Naletilic

3 but just signed Ivan Andabak? Why, Your Honour, has there been no

4 evidence, absolutely no evidence, brought into this Chamber that

5 Mr. Naletilic allowed or authorised Ivan Andabak, the commander of the

6 Convicts Battalion in 1993, to sign his name? We submit, Your Honours,

7 it's because Mr. Naletilic never gave such authorisation, never had the

8 authority to give such authorisation, never had any knowledge that

9 Mr. Andabak was signing documents which still had stamped or typed on

10 them, "Mladen Naletilic, commander of the Convicts Battalion." Those

11 documents, we submit, arose from 1992 in the conflict with the Serbs.

12 If, Your Honours, Mr. Naletilic is who the Prosecution says he is,

13 why are there so many orders and reports coming to Ivan Andabak as

14 commander of the Convicts Battalion? The evidence has been clear, Your

15 Honours, that after Mr. Naletilic retired due to his ill health in the

16 fall of 1992, that many people still referred to him as "General" or

17 "commander." So what? My father was a district court judge. Many of his

18 friends were district court judges who had retired. And we all referred

19 to them as "judge" even after they had retired.

20 I have friends in America who are retired senators and I still

21 call them "senator" when I meet them. What evidence is it that somebody

22 would call Mr. Naletilic or refer to Mr. Naletilic as "general" after he

23 had retired? We submit there is no relevance to that and no nexus to any

24 of the connected charges that the Prosecution wants you to believe. I

25 submit, Your Honours, that ten years from now, if I run into one of you in

Page 16689

1 some airport or on the street, I'm going to say, "Judge. How are you,

2 Judge?" Whether you're still a Judge, whether you've been a Judge,

3 whether you're retired. When I do that, Your Honour, it doesn't mean that

4 you're still a Judge. We all know that.

5 Your Honour, the facts and evidence are simply just not present

6 for a foundation of a guilty verdict. While the Prosecution has tried and

7 attempted to lay on Mr. Naletilic's doorstep the ethnic cleansing which

8 occurred in Herzegovina in 1993, it is respectfully submitted, Your

9 Honours, that that dog just won't hunt. It did not happen. The Defence

10 respectfully requests that Your Honours enter the only proper legal

11 judgement based on the laws and the facts, and that is not guilty.

12 Your Honours, it is truly my pleasure to have been part of this

13 Tribunal. And it is truly a pleasure to have represented Mr. Naletilic.

14 Thank you very much.

15 JUDGE LIU: I think we will make a break here, and we will resume

16 the closing arguments after the break. We will resume at quarter to

17 11.00.

18 --- Recess taken at 10.13 a.m.

19 --- On resuming at 10.50 a.m.

20 JUDGE LIU: Yes, Mr. Krsnik. Please proceed.

21 MR. KRSNIK: [Interpretation] Thank you, Your Honours. I shall

22 start with my part of the closing argument, following up on the words of

23 my learned friend, Mr. Meek. May it please the Court, for the last time

24 in this trial I shall address you as the international criminal Tribunal.

25 It is my honour for the last time before you to say and summarise

Page 16690












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Page 16691

1 everything that has been happening in this courtroom over the period of

2 the last 14 months.

3 After the 14 months of the procedure, counting also the time of

4 last year when depositions were taken, at the end of this long, demanding,

5 strenuous, and stressful trial, the Defence is now aware of many things

6 and has concluded many things. First and foremost, we are now aware --

7 and I should immediately start talking about my client rather than wait,

8 as Mr. President has always said that my most interesting arguments came

9 towards the end, I'm going to change that. I have changed a lot of things

10 over the night from yesterday to today. I'm not going to repeat anything

11 that we have written in the closing brief. And after what we heard

12 yesterday, I'm just going to say something about the exhibits that the OTP

13 referred to yesterday.

14 The Defence, as I've already said, has become aware of many

15 things. First and foremost, that the name of my client, Mladen Naletilic,

16 has been abused, that in this courtroom, various circumstances were based

17 on everything, and the only thing that they were not based on is his

18 criminal responsibility. His place has never been in this courtroom. This

19 is the light at the end of the tunnel that I saw yesterday. I am sorry

20 that the -- we did not have more time, because there is so much more we

21 could have done, so many more witnesses we could have called if we only

22 had the time.

23 Why? Because for the first time in the history of this world, the

24 world justice is being done. We believe that we will be able to change

25 the mind set that prevails in this building. Why? Because of justice.

Page 16692

1 And now we come to the thing that I will mostly address, the thing that we

2 have become aware of, at the end of this trial, at the moment when I am in

3 the position to summarise the whole procedure. And whatever we said

4 during the trial, whatever we said in -- about the acquittal, whatever has

5 been said, I'm not going to repeat. I'm just going to say that the

6 Defence is aware of the counts in the indictment, the indictment is a

7 result of the unilateral approach of the OTP to the events which took

8 place during 1993. To be more precise, between April 1993 and February,

9 1994.

10 My colleague, Meek, has been the person who has inspired me

11 throughout this trial, because every day when we left this courtroom, we

12 started debating, and I started worrying, and every time I would say, "Is

13 this really possible? What are we to expect, if such a highly educated

14 colleague from a developed country does not understand things that are

15 absolutely notorious and well-known to us, the things that we have lived

16 with all our lives and for which we never expected we would have to

17 discuss them in this courtroom?" Obviously, my colleague, Meek, very soon

18 started understanding things from the more general to the more specific.

19 Why was I worried? Because my colleague, Meek, was not the only foreigner

20 in this courtroom, and I realised that it was taking him a long time to

21 understand things. How long would it have taken me if I was a Prosecutor

22 or a Judge in a case dealing with events that would have taken place a

23 long way from here? How long would it have taken me to understand? Why

24 am I concerned with that? I'm concerned because I have come to realise

25 the way the OTP works.

Page 16693

1 The OTP, according to the Statute of this Tribunal, has to be

2 objective. It cannot and it shouldn't present only the things in its

3 favour, only the things which seem to be true to them. However, this is

4 exactly what they did. We are aware, and we have the proof of that, that

5 the indictment was raised in 1998, and the OTP either created a picture or

6 was given that picture, and then in that picture, they started looking for

7 proof in order to be able to prove that the picture is true to the fact.

8 That was my first reason to be astonished, maybe because I come from the

9 Roman law. Although there shouldn't be any difference between the

10 Anglo-Saxon and the Roman law because both seek for the truth. This

11 Tribunal does not linger in the air beyond the -- beyond time and space.

12 It is here, on this earth.

13 We only have a certain procedure that has relied more on the

14 Anglo-Saxon law than on the Roman law, but this Tribunal, which seeks for

15 international justice, it has to respect all the legal norms that have

16 existed from the time of the ancient Rome to the present day, and the

17 legal principles from that time to today are always the same.

18 We need to find the truth, and then base our judgement on the

19 truth, whatever the truth may be. The OTP in developing the picture of

20 the truth, of their truth, even files the indictment and then the race for

21 evidence starts. How is one to prove that indictment? Well, if they are

22 short on evidence, then problems start, and then the Prosecutor's Office,

23 with the power unheard of in the history of legal civilisation, which acts

24 independently and is free of any control mechanism which exists in any

25 domicile law in any country in the world, the so-called control of the

Page 16694

1 indictment or a higher instance which will control the work of a lower

2 instance. And then if that is so, this is how things go. These

3 uncooperative, these don't know this. And I find myself in difficulties

4 because of...

5 Now, listen, we have realised that basically everybody cooperates

6 with the OTP in so far as that is concerned because the OTP has the access

7 wherever it pleases to gain such an access. In 14 months, together with

8 my two colleagues, sitting here and investing a superhuman effort, I had

9 absolutely no time to sit in the archives at the same time, be it in

10 Zagreb and even less so in Sarajevo, even less so in the President's

11 office, even less so in Madrid where SpaBat documents are, or ECMM. I

12 even don't have -- cannot afford it. I do not have an investigator to do

13 it, nor have I been approved one at the time when the proceedings

14 started. And moreover, Your Honours, I cannot get to the President's

15 office. The BH Army, I received a letter, which I have submitted to you,

16 and in which the Minister of Defence tells me that his deputy will not

17 allow him to authorise me to get into the BH Army's archive.

18 Moreover, we also received a letter from that man, the same man

19 from the Bosniak part in the Ministry of Defence, in the federation, I'm

20 talking about the ministry in the federation, the entity in

21 Bosnia-Herzegovina, the entity of the Croats and Muslims, if the minister

22 is a Croat, then his deputy must be a Bosniak or vice versa and another

23 letter which I have also submitted to you said that they had consulted the

24 OTP, and the OTP said, "Well, no, you can't really do things this way." I

25 mean, for me to be allowed the access to this, that I have to seek such an

Page 16695

1 access through the Tribunal, and at the same time, the gentleman from the

2 Prosecution get in where they please and how they please and when they

3 please.

4 As for -- as regards the army archives, I -- they procrastinated

5 by resorting to a political game. The HVO archive, again, I couldn't get

6 there because I couldn't be in two places at one and the same time. And

7 after all, nobody knows what the size of this archive is, how many

8 documents there are and what kind of documents are. But the OTP knows it

9 all, and now what? Imagine that you are on the stage and somebody

10 releases fog, and then from this fog emerges somebody that we are supposed

11 to see. It's usually on the stage. A kind of a show. And then through

12 this fog we see something emerging. And that is what the Prosecutor does;

13 they release fog. And now we are left to wonder what is it that they

14 offer us in this fog? Yesterday, the closing arguments were heard

15 happened after 14 months, and after daily questions of -- asked by myself

16 and my colleagues, is this it? Is this all? I kept saying, "Well, this

17 must be it. Because there can be nothing else because it does not exist

18 because it's simply not -- because one cannot simply fabricate something

19 that is not, that does not exist, one cannot invent a document even though

20 I'll come to documents later, but one cannot just invent a document to

21 show that Mr. Naletilic is a general. Why cannot it be invented? Because

22 we have established once and for all in these proceedings that every rank,

23 and because their ranks go began to be conferred in the HVO in 1994 and

24 every such rank had to be announced publicly. Otherwise, it was invalid.

25 So if a commander is being conferred upon a rank, it must be carried by

Page 16696












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Page 16697

1 the Official Gazette, which publishes every law and every decree. Well,

2 if it existed, do you think that the OTP wouldn't be waving with it? They

3 like to wave in the air with all sorts of documents and papers. But they

4 didn't because it doesn't exist because it never existed.

5 Do you really think that they would have failed to show any order

6 to prove that had my client bean the commander of the Convicts Battalion,

7 and let us at least -- let them at least tell us that there are documents

8 about his appointment to a particular post but they have not come up with

9 this. So how and why? And of course when it doesn't exist, you can say

10 freely, "Well, he was that." And is it really up to the Defence to

11 produce evidence about the HVO structure, about the structure of the

12 police? Why didn't the OTP do that and say, "Look, this is -- this is the

13 structure of the HVO. This is the chain of -- the command, let's call it

14 the chain of command and that's where Mr. Naletilic is it in this." But

15 they didn't do it because they are quite happy with this situation and

16 that's what the Prosecution always does when they release fog, because

17 they think they can make a quick buck from that. They think that by

18 showing us stories and documents or ignoring, disregarding, some very

19 important facts, they will produce some effect, even an albeit a small one

20 but it's somewhere there. And if it's there then perhaps it could be

21 here.

22 And just don't let him, please, get off.

23 Sentence him -- and perhaps it doesn't matter if it's a year or

24 what, it doesn't matter but just condemn him to something because you

25 can't think -- I can't lose -- I can't possibly lose, what would it be

Page 16698

1 after 14 months, after all these vast amounts of money spent, the money of

2 the international community, and I'm also a member of it and all of us

3 here, after all of this money that was spent, after all these little

4 things, what is it that has been proven? What was this argument that was

5 used and proffered to the world, Tribunal? None, no argument, not a real

6 tangible proof, not a single factual proof. And if that is so, then let's

7 put politics on trial and let's get into political stories. And there is

8 again not a single shred of evidence for that, and I do not know whether

9 the OTP is indeed asking this Court to try politics, to try political

10 attitude, political views, can't be, then let's talk about history and the

11 OTP, is that what the OTP is asking you, to try history, believing that

12 your judgement will change a historical fact or the course of history?

13 Your Honours, you will not be trying history, and even if you did

14 that, history cannot be changed -- judgements do not change history.

15 Historians, historiographers do that, not courts, not judgements, and why

16 is it -- is it the -- so much, why did we waste so much time to discuss

17 here some things which are common knowledge? Such as, for instance, that

18 the government of Bosnia-Herzegovina is a thing non-extant. Remember how

19 much time we wasted on this, and yet it suffices to open the Dayton

20 Accords and read it. And then it becomes absolutely clear that it does

21 not exist, and then it is absolutely clear that the Prosecutor cannot

22 write that the source of a document is the government of Bosnia and

23 Herzegovina, but he does it nevertheless, and does it persistently. Why?

24 Because he's concealing the true source and doesn't know what to name it,

25 and that is the AID.

Page 16699

1 But placing trust in your fairness, in your love for truth, it

2 will be fair for all the documents which are sourced to the government of

3 Bosnia-Herzegovina not to be even read, to refuse to read them, because

4 the OTP couldn't give you the source because it doesn't have it. How much

5 time did we waste, Your Honours, to show not Bosnia as many notably the

6 OTP which uses this word, because Bosnia doesn't exist. It has never

7 existed as Bosnia. It is a state which was recognised for the first time

8 in its history, which emerged for the first time, recognised, with its

9 external borders, external borders, not its internal political order, in

10 1992. And the moment when it was recognised with these external borders,

11 it disintegrated inside that very same moment.

12 We shall come to that later but in my closing argument, without

13 spending too much time on it, because I know that you will read it all, I

14 know that you will analyse it all, and in this closing argument, I do not

15 wish to tax your patience by repeating facts and especially not by reading

16 documents to you because I have other things to do and other arguments to

17 proffer, except to read some very questionable documents.

18 And let me conclude this subject. When this state disintegrated,

19 it has never come together to this day, never. And that is common

20 knowledge. It is a well-known fact. Everybody knows it. Everybody

21 except the OTP. Why they refuse to accept this fact, I've understood very

22 well, because it is the alliance and we shall speak about this further,

23 how did it come about and why the OTP is doing this.

24 Yesterday, in its closing argument, the OTP says the Bosnian

25 president, until the very last moment, until the very last second, there

Page 16700

1 is not even the minutest hope that they might become objective, because

2 the Bosnian president doesn't exist, Alija Izetbegovic was not one, nor

3 was there such a thing as the President of Bosnia-Herzegovina. I hope

4 that we've established even this widely known fact. There is an

5 institution which is called the President of the Presidency, and this is

6 rotating post, that is -- and I will ask the interpreters to help me. It

7 was the chairman of the Presidency, and that was a rotating post. And he

8 was the first amongst the equals, the primus inter pares when discharging

9 that office.

10 And there is no doubt that he has not been discharging lawfully

11 since 1992 when, during his second consecutive term of office, under the

12 then constitution and set of rules, he had to leave that post and didn't,

13 but we'll come back to that later. I hope there will be time for it, but

14 these are just a few sketchy details. What has been bothering me all this

15 time, all my discussion was Mr. Meek, all that I had gone through perhaps

16 we've really been wasting time going about, talking about these notorious

17 historical facts. And I've been asking Mr. Meek and my colleague

18 Mrs. Pinter to calm me down and I hope -- I hope you didn't misunderstand

19 me. I am a hot-blooded man. I react quickly. Perhaps that is how I was

20 brought up. And I will therefore respond even though perhaps I should

21 count to ten and say, "Well, easy, let's take it easy and we will clear it

22 up." But it always seemed to me that I didn't have enough time, and I was

23 so afraid that I never have time to explain it all because I realise how

24 many things I would have to explain. And I do hope that we've explained

25 it with the witnesses that we, the Defence, called, because otherwise, I

Page 16701

1 do not know what it would have looked like in the end had they not come,

2 had we not called here the highest -- the highest ranking political and

3 military officials of the HZ HB, this horrible product, this terrible

4 state, and at times I thought if somebody had seen me in this HZ HB, and

5 just imagine at the Heliodrom had I had a client in the military

6 investigative prison at the Heliodrom, the central military investigating

7 prison, what if I had been seen there? And the OTP knows it. And there

8 was yet another military investigating it prison in Ljubuski, and there

9 was the central military investigating prison and the other one. I went

10 there in 1993 because I had some clients - we could still do that at that

11 time. We lawyers from Croatia could operate in Bosnia and Herzegovina and

12 the other way around. And had somebody seen me there and had they come

13 down here to testify, would you believe that somebody said that "Well I've

14 seen you at the Heliodrom too," and points at me. So what?

15 Imagine now this feeling here in this courtroom with the picture

16 that is being painted by the OTP and then saying, "Listen, wait, I was

17 there because I was defending." I apologise to the interpreters, because

18 I was telling myself all the time, you know, slowly, take it easy, this is

19 your last chance, and yet I got carried away, so my apologies.

20 And by the time I explained what I was doing there, do you know

21 what kind of impression they would have got, especially in the early days

22 when we still were too young, too green, before we fully understood what

23 was going on and why couldn't I be at the Heliodrom and why couldn't my

24 client, Mr. Mladen Naletilic, be at the Heliodrom? Why not? There were a

25 couple of thousand soldiers at the Heliodrom and the central investigating

Page 16702












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Page 16703

1 prison was in two buildings, so of course, thousands of people came and

2 went. So what?

3 Are we really going to say before the world court -- can it really

4 be used as an argument here, well, they happened to be in the wrong place

5 at the wrong time, and that's how it is, that's the way the cookie

6 crumbles. And now you are to prove what you were doing there and what

7 were you -- and what were you doing there? And then again, somebody

8 says -- and now imagine somebody says that and says, "Ah-hah, you were not

9 there because of this but because you were a commander of such and such

10 unit," and then the ball starts rolling. And what about evidence? There

11 were many such balls, many such pictures, many testimonies, many attitudes

12 presented, never supported by any proof, by any argument, and I'm coming

13 to that.

14 What caused major problem for the Defence was that the indictment

15 is vague and unclear, and we had to infer what was it that Mr. Mladen

16 Naletilic was specifically charged with, at what time, on what day, did he

17 commit which one of the acts and which of the acts with which he is being

18 charged with, in which area did he act according to the indictment? Who

19 are the individuals that he cooperated with in planning of the

20 persecution, according to the OTP? Who are the individuals that he

21 helped? Whom did he instigate and whom did he fail to punish?

22 Your Honours, even as late as yesterday, that is at the very end

23 of this case, but it does not come as a surprise to me any longer. But my

24 client, Mladen Naletilic, and I learned that he was responsible for two

25 more waves of persecution. They have never been mentioned before.

Page 16704

1 Yesterday, for the first time, these two new waves of persecution were

2 specified referring to the dates of 13th and 14th of June, 1993, and the

3 29th of September, 1993. Nothing new and everything is perfectly fits

4 into the manner of operation of the OTP. But we ask whether one can

5 really -- when the case is at the end and at the moment when the closing

6 argument is presented, can one really at that point articulate clearly and

7 loudly what Mr. Mladen Naletilic is held responsible for?

8 Throughout, the OTP has been claiming something, and the Defence

9 would dearly like to know on what evidence -- what is the evidence

10 underpinning these claims? For instance, Your Honours, where is the proof

11 that Mr. Mladen Naletilic was Mate Boban's friend? When was such evidence

12 produced? Through which witness? Through which document? And even that

13 is not enough. It is even said that he -- that he voiced an opinion, but

14 they do not say "opinion". They mention racist statements.

15 Please, I will remind you of the incident in question. It is

16 Witness O who says that at some informal, or perhaps even a formal

17 meeting, at Mate Boban's, a man was present and listen how important he

18 is, it's only when he left he learned subsequently - and of course you

19 will see, but you must have already analysed his testimony that he learned

20 that it was -- it had been Mladen Naletilic. He must have been very

21 important if he learned that only later on, except that I do not know who

22 he talked to, who described and identified that man, and how did he learn

23 that that was Mr. Naletilic. But that was his testimony and allegedly

24 Mladen Naletilic said to him, and now please listen to this racist

25 statement, that in his view, Muslims were Croats of Islamic faith.

Page 16705

1 Well, right up to 1974, 92, and to this day, some people declared

2 themselves in this way, and throughout the history that was the only way

3 they could identify themselves, ethnically, and I do know. I fail to see

4 what is racist about it. I ask you, a German, a believing German, he's a

5 Muslim, and yet he's a German and he's been a German for generations.

6 What is his ethnic background, a German; and what is his faith, why,

7 Islam.

8 But that is how pieces are put together and that is how the OTP

9 puts pieces together, these are the testimonies and these are opinions,

10 and the evidence is no where to be found. We, the Defence, would dearly

11 like to know where from did the OTP get this information, because there is

12 absolutely no evidence that -- so that there was yet another operation in

13 Sovici and Doljani a couple of days after the death of Mario Hrkac,

14 Cikota.

15 We can recall a witness who testified about this operation. When

16 was that? A couple of days after Mr. Hrkac's death. Which of the OTP

17 witnesses or defence witnesses and which document was used to support this

18 claim? Not a single one. Yes, there is one. And he is called Falk

19 Simang, who when asked by Your Honours how did he get to Doljani answered

20 by road. And when Your Honours asked, "Well, where did this road go?" He

21 said, "Well, it got to Doljani." And I can remember how Your Honours

22 showed him a map because one cannot get to Doljani except through Sovici,

23 and he does not even know that such a place exists. Now, we can -- do we

24 conclude that he dropped by parachute or that he never was there? Well,

25 he didn't drop there by parachute, that we know, so he obviously was not

Page 16706

1 there because he could not go anywhere without his interpreter because he

2 didn't know a single word in Croatian, and he's the only one who said

3 something about the 23rd or 24th, and in point of fact -- no, I do not

4 even want to comment him because you heard his testimony. Today we know a

5 great deal more than at the time when he testified. A man who is ready

6 for money, for dollars, to kill once; the second time he does it to lay

7 his hands on a car, and a Skoda at that, and is not ready to lie? No,

8 no. You know, a murder is a severe crime but lying, no, no, he wouldn't.

9 Especially if he's been sentenced twice for life and when OTP delegations

10 went to Germany to talk him into coming here to testify.

11 He was also the only witness testifying to the fact that my client

12 was the commander of the Convicts Battalion in 1993. Him and Mr. Rudiger,

13 who was also given a life sentence for the same murder and for the

14 snatching of the same Skoda car. Your Honours, I would simply not go into

15 that. I realise only now why they were brought here, simply there was

16 nobody else. If the OTP had a choice, if they had had a choice, they

17 would have never called these two. They were forced to do that. This is

18 where we stand. The accused are here, the OTP knows that the accused

19 shouldn't be here, but let's play our game to the end and see what good

20 may come out of that. Can you please just imagine, for a brief moment,

21 for somebody to say that in May, Cikota was in Mostar together with him,

22 and not even to mention everything else that that witness said. Ralf

23 Rudiger, his colleague, his brother in crime, his fellow murderer, replied

24 to my question whether his trial could be renewed if the command

25 responsibility of Mr. Naletilic could be proven, so his reply was yes. My

Page 16707

1 opinion, to be honest, is that this wouldn't be so bad, because he still

2 stands a chance of redeeming himself before God. I'm talking about the

3 second man, but I don't have any hopes for the first person that I've

4 mentioned.

5 And now let's move on. We read the closing brief. We heard the

6 closing argument, and out of the 56 OTP witnesses, finally the OTP singled

7 out six of those who testified in order to prove Mr. Naletilic's guilt.

8 And the last one, the sixth on that list, is the person who has been dead

9 for three years, and testimonies by the dead are taken into account in

10 every legal system, that is a well-known fact, isn't it? Obviously I'm

11 talking about Franjo Tudjman, the President of the Republic of Croatia --

12 the late President of the Republic of Croatia.

13 The OTP, however, forgets one thing, and that is that it has been

14 said before this Trial Chamber on several occasions, and it has been read

15 in several documents, that it was the international community that asked

16 Franjo Tudjman to intervene in order to bring the conflict in Bosnia to an

17 end. The conflict between Muslims and Croats in Bosnia-Herzegovina, that

18 is.

19 Croats even gave him the power of attorney to represent them, and

20 whenever he represented them, he represented them on behalf of the

21 international community. And I believe that it is another well-known

22 fact, why would OTP want to distort that picture? They are the only ones

23 who can answer that question.

24 The most dangerous thing in any interpretation, in any speech, and

25 especially in accusing somebody, is to take things out of a context, to

Page 16708












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13 English transcripts.













Page 16709

1 take sentences out of a context, and then base, allegations about

2 somebody's guilt on these sentences taken out of the context. In that, it

3 doesn't really make any difference whether this is based on a transcript

4 of a conversation or a meeting or on another written document.

5 If it is indeed the OTP's position that proof for Mladen

6 Naletilic's guilt and for the existence of an international nature of the

7 conflict between Muslims and Croats are presidential transcripts; then by

8 respecting the rules of fair trial and the rules that every evidence

9 should be presented before the accused, the OTP should have called, as

10 witnesses, the participants of those meetings who are still alive. The

11 participants in these meetings would testify to the alleged conversations

12 which according to the OTP prove that Croatia was indeed involved in the

13 war between Croats and Muslims in Bosnia-Herzegovina and that by that

14 involvement, the conflict could be characterised as an international

15 conflict.

16 The OTP has had at its disposal all the possible mechanisms to

17 bring these witnesses before this trial, and it also had the burden of

18 proof to do so, but it was the Defence that did that, and you will

19 remember how impatient we were in waiting for the OTP to do things like

20 that. I remember Milan Kovac who mentioned that he was in Split at a

21 meeting with Mr. Tudjman. That is what the OTP put to him. And then

22 Mr. Kovac said, "No, I was never there." And then we waited for the OTP

23 to come up with some evidence, newspaper article or something like that,

24 but they didn't come up with anything, and now, about the presidential

25 transcripts, how were they authorised? Only through living witnesses they

Page 16710

1 could have been authorised. The Defence was the one that has done that,

2 and the OTP, on the other hand, has not done it, has not respected that

3 mechanism. And let's move on.

4 The OTP refers to President Tudjman and draws a parallel with

5 Slobodan Milosevic, and I really don't know how the OTP did that. We did

6 not hear any witness, we did not hear any piece of evidence that would

7 prove that there were agreements between Tudjman and Milosevic. If they

8 had wanted, they could have called Milosevic. He is here. He's in his

9 courtroom in this Tribunal every day and we heard him testifying in his

10 courtroom, but here, the OTP could say whatever they wanted to say but if

11 they wanted to allege something, they should have provided evidence to

12 prove that. Then they also said that both Tudjman and Milosevic played an

13 active role in Bosnia-Herzegovina but they failed to mention Alija

14 Izetbegovic in all that. Was there no Alija Izetbegovic? Did he not play

15 a role? Was he not important? Or the OTP deliberately failed to mention

16 his name in all that?

17 If the OTP was objective, then they could have made all of our

18 lives easier, especially bearing in mind the fact that they will not be

19 able to change history. They should have said yes, there were three sides

20 to this conflict, each of them with their own respective interests. There

21 was the Army of Bosnia-Herzegovina as the Muslim army, the HVO as the

22 Croatian Army, and the Army of Republika Srpska as the Serbian army.

23 Until the very last moment, the BH Army was deliberately ignored and it

24 was alleged all the time that all the attacks were attacks on civilians,

25 Muslims civilians, and at the same time, the BH Army had over 300.000 men

Page 16711

1 and at the same time, the HVO had the strength of about 30.000 men.

2 Alija Izetbegovic, who was deliberately ignored by the OTP for the

3 reasons known only to them, so that person, Alija Izetbegovic, in 1993 or

4 1994 - I apologise, if the year is wrong - but it is a well-known fact.

5 So in that year, he was tried, together with some other people, in

6 Sarajevo for fundamentalist ideas and an attempt to create a Muslim

7 state. In 1990, he ascended to power with the same people who he had been

8 tried with, when he came out of the prison, but now his policy changed.

9 He opted for a democratic Bosnia and Herzegovina. He was the only one who

10 wanted to do that, according to the OTP, who he -- he was the only one who

11 was worthy of that mission, and all the other peoples, i.e.,

12 representatives of the other peoples in Bosnia and Herzegovina, were evil,

13 and that same person had spent ten years in prison in the then Yugoslavia

14 because of his ideas, which had nothing to do with multi-culturalism and

15 multi-ethnic ideas.

16 He wrote -- he is the author of the Islam Declaration, and I'm

17 just going to quote one sentence from that declaration, for which he was

18 tried in Sarajevo. "We need to wait and us Muslims, we have to wait to --

19 in order to become a majority population in Bosnia, and when that happens,

20 we will create an Islamic state."

21 These are his words in the Islamic Declaration. So that same

22 person set up the SDA. He won in the elections, and everything was --

23 before that was forgotten, as if he had nothing whatsoever to do with

24 anything that had happened previously, as if the BH Army had nothing to do

25 with what had happened before. But we will move on to that later on.

Page 16712

1 And now, we have five witnesses that the OTP singled out and the

2 five that have remained after we have eliminated the last one, the sixth

3 one, Mr. Franjo Tudjman, and the OTP stresses their testimonies. But

4 these five witnesses do not have any direct knowledge about Mladen

5 Naletilic, about his role in the Convicts Battalion, whether he was the

6 commander of the Convicts Battalion, about his possible negative attitude

7 towards the Muslims, whether he was carrying out ethnic cleansing. One of

8 these witnesses, Grinten, on the contrary, pointed out that it was Mladen

9 Naletilic who tried to provide protection for two Muslim villages in the

10 heart of Herzegovina on the road from Mostar to Siroki Brijeg. Would this

11 have been done by the person who wanted to cleanse the Herzegovinian area

12 from Muslims?

13 The other four witnesses, I will talk about their testimonies in

14 detail later on, everything that the Defence said they would do, we did.

15 We brought before this Court the most prominent military and civilian

16 persons of the HZ HB, and they offered to this Trial Chamber the picture

17 of the events that had preceded these events, during the conflict, and

18 after the conflict. The Defence has called the witnesses who had answers

19 to all the key questions. The witnesses who participated directly in

20 decision-making, who had very important roles and who participated in the

21 decision-making process. So they were the one who is made decision. They

22 were the ones who implemented these decisions, and they testified in this

23 courtroom publicly. None of these witnesses confirmed the allegations in

24 the indictment about the role of Mladen Naletilic, and his position. They

25 did not confirm this as the witnesses to the events which are the subject

Page 16713

1 of the indictment, as -- and as the direct participants in the events

2 which are the subject of the indictment.

3 Therefore, we should say this: Following these testimonies, if

4 one undertakes a careful analysis, one will see that the OTP is not right

5 when they say that Mladen Naletilic was the commander of the Convicts

6 Battalion in 1993, i.e., at the time indicated in the indictment. I'm

7 going to be referring only to that time which is indicated in the

8 indictment, because I believe that nobody -- neither us nor the Trial

9 Chamber -- is interested in anything else but the things which are

10 specified in the indictment.

11 Further on, that the Convicts Battalion committed crimes in Sovici

12 and Doljani in April in 1993, under the command of Mladen Naletilic. Do

13 we have any proof that the Convicts Battalion committed any crimes at all,

14 that Mladen Naletilic had his subordinates over which he had the real

15 military and civilian power; that Mladen Naletilic had any military or

16 political role, that he participated in the persecution of Muslims from

17 Mostar in May and July, 1993; that he used prisoners of war as human

18 shields and in forced labour; that he tortured, abused, or in any other

19 way illegally treated the prisoners of war of the Muslim army; that he

20 personally ordered the destruction of Muslim property and setting their

21 property on fire; that during the conflict between the BH Army and the

22 HVO, that is, of the two armies of the same state, their conflict had the

23 nature of an international conflict.

24 In a nutshell, the Defence believes that the OTP, on which the

25 burden of the proof lies, that the OTP failed to prove beyond reasonable

Page 16714












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Page 16715

1 doubt that Mladen Naletilic had the role assigned to him by the

2 Prosecution and that he is responsible for the crimes that he is charged

3 with.

4 What is the quality of the OTP evidence and the thesis put forth

5 in the indictment?

6 The Defence is aware that the OTP has different views on the

7 events than the Defence does. But the Defence also has to say that the

8 OTP has not invested any effort in order to establish the facts. If the

9 Prosecutor had tried to do so, this Trial Chamber would have been given a

10 completely different picture of the events. It would have had totally

11 different persons as accused.

12 Your Honours, I believe that we have established, after hearing

13 three investigators from the OTP team, these three said to my question

14 that they never cooperated with anybody else but the government of -- or

15 the authority of Bosnia and Herzegovina. When I asked them who these

16 authorities were, when I asked them to name them, these three

17 investigators said it was the AID, the secret Muslim political police.

18 All three of them said that.

19 Now, I wonder how was it that the OTP carried out its

20 investigation? Let's imagine you have to go to Mostar, you don't speak

21 the language, you approach somebody and say, "I am from the ICTY. What

22 happened?" So how do you imagine that these investigations were carried

23 out? Let me tell you. It was really very simple. The AID organised and

24 prepared everything and offered as if on a platter, everything they found

25 suitable. At the same time, the Prosecution did not verify any of these

Page 16716

1 facts or evidence with the other side, because they didn't want to do

2 that. They should have wanted to do that if they had done that, then

3 these proceedings would not have lasted 14 months, my client, Mladen

4 Naletilic, would never be here. But let's say that even if Mladen

5 Naletilic was here and if the OTP behaved differently, then these

6 proceedings would last -- have lasted a maximum of two months. It was the

7 AID that brought the witnesses and offered evidence that the OTP just

8 accepted. Why? Because the AID wanted to mask their own crimes and they

9 did that by forging an alliance with the most powerful organisation in the

10 world, which chooses who to accuse, who not to accuse.

11 Let me draw a parallel which is very fresh in my mind. I am

12 clearly telling you here that Sovici and Doljani, which are the subjects

13 of this indictment, are just a story for little children. No civilian was

14 murdered, nobody was raped there, nobody was killed there. And something

15 that the BH Army did three months later, and the three months later the BH

16 Army massacred 35 civilians, they slaughtered their throats, they slashed

17 their throats, 35 civilians were massacred three months later, they took

18 women and children to the Jablanica camp. We heard testimonies to that

19 effect. Six-month-old babies, five-year-old children were exchanged a few

20 months later, and all the men stayed in the camp until the exchange which

21 took place in the -- in 1994.

22 And there is no indictment for that evil, for that crime, and I

23 assure you there never will be, and can you imagine how the people reacted

24 when they were listening to this procedure, how they must felt when the

25 OTP wanted to proclaim that atrocious place, the camp in Jablanica, a

Page 16717

1 refugee camp, and the operation which was the event during a terrible

2 massacre happened. They didn't want to mention, and there will never be

3 an indictment for that. And if that was not the case, would then,

4 Mr. Safet Idrizovic have given testimony here as a rebuttal witness, if

5 the OTP had been objective and if it had accused the BH -- criminals from

6 the BH Army, the alliance would have been interrupted and there would have

7 been no more witnesses in this case.

8 Let me not even mention all the things which happened in Konjic,

9 Prozor, Jablanica, long ago, long before the 16th of April, long before

10 the 9th of May. I believe that we have come to the break. The Croats had

11 already been cleansed, already incarcerated, both soldiers and the

12 civilians were in the various camps long before the 16th of April.

13 Your Honours, I believe -- I believe it is the time for our next

14 break, and I will continue after the break.

15 JUDGE LIU: Yes. We will break here and we will resume at 12.30.

16 --- Recess taken at 12.00 p.m.

17 --- On resuming at 12.32 p.m.

18 JUDGE LIU: Yes, Mr. Krsnik. Please continue.

19 MR. KRSNIK: [Interpretation] Thank you, Your Honours. During the

20 break, I went through my papers and I seem to have been carried away

21 again. There are very many things that I still have to say and I'm not

22 sure I'll be able to make it by the time of adjournment, but that's how I

23 am. Of course, two and a half hours, you must realise yourselves how

24 difficult it is to summarise all that happened during these 14 months.

25 But I place my trust in you and I hope that my closing argument and all

Page 16718

1 that I will say will certainly not be the basis on which you will pass

2 your judgement. You will pass your judgement on the basis of the evidence

3 and the sense that you will read into it.

4 We adjourned at a time when I was speaking about the crime in

5 Doljani committed by the BH Army three months after the events in Sovici

6 and Doljani referred to in the indictment. Desirous of illustrating my

7 using that example -- well, when the investigators arrived there, that is,

8 the AID brought witnesses for them, and told them about the events in

9 Sovici and Doljani on the 17th of April, because naturally they wouldn't

10 be mentioning their own crimes.

11 And there, that is how one begins to manipulate things. But not

12 only in that particular case. To my mind, the major manipulation was done

13 with the 16th of April because before the 16th of April, long before it,

14 before even January, 1993, not to speak about the events in 1992, the BH

15 Army launched attacks over a very large territory, both in central Bosnia

16 and in Konjic, in Konjic and Jablanica, cleansed the Neretvica valley

17 right down to Mostar long before the 16th of April, when Safet Cibo came

18 and he was appointed directly by Alija Izetbegovic himself as the wartime

19 president in disregard of all legal or any other powers, and series of

20 crimes were committed which I mentioned in my opening brief and about

21 which we heard from various witnesses, I will not waste my time on this.

22 And then they tried to cover it up with a so-called tu quoque defence and

23 we know what tu quoque Defence is as if a fool said well, He killed my

24 father, so I may kill his father. That's what it is. But only a fool

25 would defend himself or herself like this. But here insistence is made on

Page 16719

1 this principle in order to conceal what truly happened, because there are

2 always causal relationship, nothing has fallen out of the blue sky, and

3 nothing happened by accident.

4 And that is how an attempt was made to concept, to cover up the

5 events that I mentioned before, the events in Mostar. We heard witnesses

6 who were in camps on the eastern side, no indictment, there is no

7 indictment for these camps, nor will there ever be one. The persecution

8 of Croats on the east bank, 10.000 of them if it was a persecution or was

9 it a war, and there is no indictment, nor there will ever be one. And

10 that was all about the objectivity that I wanted to say, because had this

11 been objective then, this case would have looked completely different --

12 not only that it would have looked different, but my client would have

13 never appeared here.

14 Your Honours, it is your duty to decide, having heard the case,

15 whether Mladen Naletilic was a person who had committed a specific crime

16 on the basis of unambiguous evidence, that is only by individualising the

17 responsibility and only through the individualisation of responsibility

18 can we arrive at the truth but this individualisation of responsibility

19 needs to be established by you on the basis of evidence. I wish to point

20 out that the Prosecution does not justify, does not dispute, that there

21 were crimes committed during the conflict between the BH Army and the

22 HVO. The Defence does not think that a crime is justifiable.

23 The crime -- the Defence deems that those who committed the crime

24 need to be held responsible for those crimes on both sides. And those

25 victims cry out for justice. A victim will not be happy, will not rest

Page 16720

1 satisfied, if an innocent person is accused. What may not be forgotten is

2 that today, that is nine or ten years after the conflict, one needs to

3 make an effort and imagine a situation which reign at the time covered by

4 the indictment.

5 A war -- war is a special situation in which unfortunately the

6 sense of values change and people lose ability to take rationale

7 decisions. War entails victims. One loses one's next of kin, one's life

8 is constantly at stake, there is no safe place where one can look and

9 analyse the situation objectively. As a rule, one remembers the names of

10 the first victims of war. After that, one moves on to numbers and says,

11 "Well, this unit lost so many and the other one so many."

12 Now, can you please try to imagine Mostar, not on the 9th of

13 April, because that is not when the war started, that is also one of the

14 insinuations. The war started on the 30th of June, and on both occasions

15 the attack was launched by the Army of Bosnia-Herzegovina. Can you

16 imagine a city where shelling and gun fire are daily occurrences? Can you

17 imagine a situation when somebody is killed by a sniper bullet or by a

18 shell day in and day out? And I mean women and children and soldiers, in

19 the city of Mostar, and I mean equally on its east and on its west bank.

20 Can you -- can you imagine such a -- can you conjure up the image

21 of this Mostar and think about it? And here, insistence is made on the

22 finest possible processes of a state with a rule of law, the oldest

23 democracies and states which have been in existence for, I don't know how

24 many centuries, even when such a thing happens in their countries, many

25 more are suspended and a state of war is proclaimed, and here we do not

Page 16721

1 have a state. This state doesn't exist. So which police, what courts,

2 who -- what is going on there? Who is the one who can bring some order?

3 The greatness of the HZ HB and HR HB was in its attempt to try to

4 make some order in a state which is not. They adopted laws because there

5 were none. All the laws that there were available came from the socialist

6 period, the new assembly had not and had time to adopt them. The moment

7 when the state's external borders were recognised, of Bosnia-Herzegovina,

8 it disintegrated. There were no laws, there was no police in

9 Bosnia-Herzegovina. The Army of Bosnia-Herzegovina did not exist.

10 Fortunately, the HZ HB established some kind of defence shield.

11 It saved not itself but the whole population against the aggression, and

12 managed to provide some kind of order so that it could function normally.

13 Do we have this picture before our eyes? Here, the OTP, referring to

14 those situations, speaks as if it was some England -- as if it was London,

15 1945, and then such a nation democracies organising life in London. And

16 then they look at -- they scrutinise every tiny detail forgetting that

17 people were seeking -- were running for their life on all sides.

18 What happened in Mostar, briefly and clearly: Two armies were

19 fighting over positions. And what was the role of Mladen Naletilic, if

20 any, there? According to the Prosecutor, crucial one. What evidence?

21 The war lord in Herzegovina? On the basis of what evidence? According to

22 the OTP, the world is obviously black and white, except that in the

23 conflict in 1993, the Muslims were white and the Croats black. The

24 notorious good and bad guys but in the real world and we all know it very

25 well, there is no black and white, everything is grey, more or less, which

Page 16722

1 means that both sides to the -- both parties to the conflict were living

2 on the brink of death all the time. And both parties made moves which --

3 in which they take no pride now, ten years later.

4 If the Defence has showed what happened to the Croats during the

5 conflict with the Muslims, it didn't do it in order to justify anyone, but

6 to show that war is a terrible thing for everyone, the terrible things

7 that happened to everybody during the war and that it is not objective

8 what the OTP tries to show, that only one side was a victimised. Of

9 course, not trying to belittle in any way, not for a single moment, the

10 victims of the war and real victims on the side of the Bosnian

11 Herzegovinian Muslims, but that is one side.

12 The other side of it is whether Mr. Mladen Naletilic was indeed

13 what the OTP claims he was or is it -- was he simply selected by the AID

14 to be offered to the OTP as the crucial figure? When one carefully

15 analyses the evidence that the OTP backs its argument -- uses to back its

16 argument, it is not possible, one cannot really conclude judiciously that

17 Mladen Naletilic is responsible for the crimes he is being charged with.

18 So now I will quote to you an example, a document DD 1206.1.

19 I think -- yes, that's right. It is P, actually it is document

20 P206.1, which the OTP produced and they rather timidly produced it toward

21 the end of the case. It clearly says that on the 23rd of December, 1992,

22 Mario Hrkac, Cikota, was the commander of the Convicts Battalion. It is a

23 document from the archive, and then again, the Prosecutor doesn't stop

24 claiming the opposite in spite of this. Well, you can't do it. The OTP

25 can't say: "This is a good document if it fits into his picture and if it

Page 16723

1 doesn't, say not. How can we have from the one and the same archive when

2 we have this clearly document -- inculpatory document and it should have

3 been disclosed to us earlier, but of course it wasn't. But this document

4 doesn't say only this thing, it also says other things. It says that the

5 Convicts Battalion has 54 members, all the Defence has been claiming and

6 showing through its case.

7 It says other professional units, which again, the Defence clearly

8 showed in this courtroom that there were three, four professional units,

9 first Bruno Busic, Ludvig Pavlovic, Baja Kraljevic, and the Convicts

10 Battalion in 1992, and in 1993, the Convicts Battalion leaves as an ATG

11 for their operative zone, to the brigade such as the whole defence system

12 of the HZ HB, which in contrast with the BH Army, who were organised in

13 corps, the former was organised in operative zone, that is home guard, the

14 defence of one's village, town, hearth, field on the home guard principle,

15 and every such brigade had one ATG. And those three professional --

16 professional units.

17 We've heard a great deal about subordination, who comes, who goes,

18 the role of this and the role of that, who goes to the ground, who goes to

19 the front line, who is attached to whom, what are the chains of command,

20 and so on and so forth. But no, even after that, that does not matter,

21 but I hope that it will matter to the Chamber.

22 Furthermore, what is the document that confirms unambiguously that

23 Mladen Naletilic commanded the Convicts Battalion? Quite the reverse.

24 Which evidence was produced by the Prosecution to establish beyond any

25 reasonable doubt the responsibility of Mladen Naletilic for the conflicts

Page 16724

1 in Sovici and Doljani? Please, a name, just one name of one witness for

2 the Prosecution who proved the comprehensive, the all round command role

3 of Mladen Naletilic in Sovici and Doljani, one Prosecution witness who

4 would prove unambiguously beyond any doubt that he commanded the Convicts

5 Battalion.

6 Perhaps witnesses who recounted the events in Doljani, but it

7 happened on the 20th of April, when Mladen Naletilic was not there,

8 because after the 19th, when he came to get the -- his friend's son who

9 was with the Convicts Battalion, from day one, who was to take his

10 friend's dead son to his father, and we established that after 19th of

11 April, neither Mladen Naletilic nor the Convicts Battalion ever returned,

12 and I believe we've already shown the whole road covered by the Convicts

13 Battalion, what it was, where it was, and what it did.

14 So please, what evidence was produced here that Mladen Naletilic

15 had anything to do with civilians in Sovici? I showed you a videotape --

16 I showed you a videotape during Dr. Bagaric's testimony. It was a tape of

17 the gentleman in the Prosecution, and after him, all the witnesses who

18 were paraded through this courtroom, including the Prosecution's witness,

19 Safet Idrizovic, the exchange was agreed at the highest military and

20 political level. There was an exchange of the population between Sovici

21 Muslims on the one hand, therefore, and the Croats from Konjic, Jablanica

22 and so on and so forth, on the other hand. And what does Mladen Naletilic

23 have to do with this? But the Prosecutor keeps claiming the opposite, I

24 don't know, on the basis of what evidence.

25 The BH Army -- but excuse me, after the conflict which happened

Page 16725

1 and it's been described how I won't bother you with this, heads are

2 falling, there are clashes, what was the HVO to do to satisfy the

3 Prosecutor? To avoid any confusion. A person under arms, whether in a

4 uniform or not, and the BH Army liked to change dress and they all

5 frequently did it from civilian into uniforms and from uniforms to

6 civilians to show they were civilians when they needed that. So naturally

7 the military police would take them for investigation. Did anyone ill

8 treat them during that time? Well excuse me, why don't these gentlemen

9 prove it?

10 Did anyone ill treat them during that procedure? Please, let

11 somebody prove it, but what does my client have to do with it? Why, you

12 heard here clear evidence, people who took them to the investigating

13 prison in Ljubuski. What were they to do, to release them and say, sorry,

14 just kidding, a mistake. But of course, there is something which is

15 called military investigation because heads had fallen, heads were

16 rolling. But if somebody ill treated them during that, when they were

17 being taken in and in some further proceedings, well, let them be

18 punished. I have nothing against it. Quite the contrary. We've heard

19 that. But what evidence did we hear that my client had something to do

20 with it? We didn't hear who took them away, when, how and so on.

21 Look at the first statements they gave after coming out of those

22 prisons, camps, or returns home when they gave their first statements to

23 the AID. We did not produce them but we used them in our

24 cross-examinations. Whoever mentioned my client? It was all at a later

25 stage, having returned, they all put stories together. They watched

Page 16726

1 television or read newspapers. And it was then that they learned without

2 having ever seen him before, had they seen him before they would have said

3 it right away. What comes as a surprise again is that the Prosecutor also

4 claims that after the first operation in Doljani, Mladen Naletilic had

5 ordered the second operation, and ordered that there should be no

6 survivors and that that second attack followed a few days after the 20th

7 of April. Who is it that did not survive? Which are the houses that were

8 torched after that when we heard all that happened and everything that

9 happened on the 17th, 18th and 19, which were the witnesses testifying

10 here who could confirm that? Not a single one.

11 The Defence, in contrast, showed that Mladen Naletilic neither

12 commanded nor ordered the operations in Doljani on the 20th of April and

13 what is abundantly clear is that this operation did not take place on the

14 20th of April but the one that I mentioned earlier, the 30th of July,

15 1993, and that is when the BH Army attacked Doljani and committed the

16 massacre that I spoke about. That was the second operation in Doljani.

17 Yes. But it was committed by the BH Army, and yet it's said it liberated

18 Doljani. I don't know from whom did it liberate it from. It liberated it

19 from all the civilians, presumably, whom they put in camps and some were

20 liberated of their lives.

21 Ergo, since there is no evidence for this, the Prosecutor

22 continues, even at the end of the case, persists in his claims basing it

23 on the testimony of just one witness, because even the witnesses for the

24 Prosecution did not confirm it, and that one we don't we know it, it is

25 Falk Simang, of course.

Page 16727

1 The Prosecutor persists in claiming, after all that he heard,

2 after all the documents that he saw, which were produced, which were

3 admitted, which their witness Safet Idrizovic gave to the OTP and we got

4 them at the end of the case, of course, because had we had them for our

5 cross-examination, it would have been completely different of course, but

6 what can we do? And it clearly says who sent buses, who ordered civilians

7 to leave Sovici and so on and so forth. I don't want to wear you down

8 with all this because it is all common knowledge.

9 Then why does the Prosecutor persist even though he has seen

10 documents signed by the command of the HVO as such, Mr. Petkovic, who

11 confirms that it was an agreement between Petkovic and Halilovic at the

12 highest political and military level. And this exchange did take place

13 but how the Muslims came to Jablanica but the Croats, by Jove, never

14 arrived at Konjic because there is nothing else. And then another

15 attempt. Well, perhaps it will pass muster. No. War doesn't break out

16 overnight. It always has its roots and its reasons, but these reasons are

17 certainly not those that the Prosecutor says they are, and that is that it

18 was the persecution policy which Mladen Naletilic ordered and carried out.

19 What was that policy? Let me say I could give you a hundred

20 examples, but also let me tell you that something else happened and that,

21 again, is common knowledge. In January, after the Vance-Owen Plan which

22 was to be implemented, the OTP calls it an ultimatum, and after that,

23 forgets to say that we had a witness here who issued that order. We heard

24 Bozo Rajic's testimony. He is the author of that order. And he is the

25 only person who can talk about that. It was no the OTP who was there in

Page 16728

1 Mostar, but it was Bozo Rajic who actually wrote that and who explained to

2 the honourable Chamber what had happened. What I ask from the BH Army I

3 asked from the HVO, and I acted in accordance with the agreement regarding

4 those provinces, and in that division of Bosnia-Herzegovina, and the

5 mediation of the international community starting with Cutilheiro to

6 Vance-Owen, what was happening?

7 In January of 1993, Muslims finally became aware that the

8 unitarian Bosnia-Herzegovina would fall through, and that is the only

9 thing that they ever wanted from the very first day until this very day,

10 and still today. And they realised that the international community would

11 divide Bosnia-Herzegovina, not Milosevic and Tudjman. They were just

12 small fish for the international community which eventually proved to be

13 truth. It was the international community who divided it because they

14 realised that the three peoples had to agree how they would live together

15 within the recognised external borders, and they realised that the only

16 way to do it was to divide Bosnia-Herzegovina. Finally Muslims realised

17 that the unitarian Bosnia-Herzegovina had ceased to exist and that it was

18 over, and the -- at the time, they had ten time stronger armed forces than

19 the HVO.

20 They created the positions for themselves and they wanted to

21 occupy the territories and they turned against the weakest body in

22 Bosnia-Herzegovina. Who was that in Bosnia-Herzegovina at the time? Who

23 was the smallest? Who was the weakest? Croats, of course. They

24 accounted for only 17 per cent at the time. Today they account for only

25 10 per cent. Where have the 7 per cent gone? You have heard our expert

Page 16729

1 demographer, an United Nations expert, who has answered that question:

2 Where have the 7 per cent of Croats gone in the meantime?

3 Would it be logical for the smallest people to turn against the

4 strongest people? Is there any sense to that? Of course, it was the army

5 with the Neretva 1993 plan that started the offensive. We heard the

6 testimony of Sefer Halilovic who was the main commander of the BH Army.

7 When was that plan launched? In January 1993 they cleansed the entire

8 area from Konjic and now they had to do it in Mostar. Why Mostar?

9 Because they couldn't get to the sea if Mostar wasn't theirs.

10 I won't belabour on that because I do not have the time to go into

11 the details of the Neretva 1993 but this is a fact. There is no doubt

12 about that, regardless of what the OTP may claim, regardless of what the

13 judgement that would interfere with the future course of history could

14 bring. We had just -- we heard testimonies by experts, historian who

15 explained it all too well to us, how the Bosniak nation came to be. It is

16 still in the process of being created. That process has not been

17 completed yet. The Bosniak nation is still being born. And in that

18 light, the way the OTP wanted and tried to represent things goes in favour

19 of supporting that myth of the creation of the Bosniak army -- nation and

20 that -- but there is a fact that the BH Army was the first to launch an

21 attack, on this is a fact beyond any dispute. Why else would it -- then

22 the meeting took place in Medjugorje on 17 May when Stoltenberg Tudjman

23 and Alija Izetbegovic met. What did they do there on the 17th of May?

24 They still implemented the Vance-Owen Plan. Nothing happened before

25 that.

Page 16730

1 And then the BH Army attacked on the 30th of June for reasons

2 known only to them, purportedly to liberate Mostar. From whom? Bijelo

3 Polje, Vrapcici, they again committed atrocious massacres, the HVO and the

4 BH Army were together in the trenches, the BH Army imprisoned all the

5 civilians in various camps. And that is when the war started, on the 30th

6 of June, this was followed by the Owen Stoltenberg plan which is an union

7 of three republics. That was the end of provinces.

8 And then there was a free for all to grab as many territories as

9 possible. If you look at the map and if you see how the HVO was

10 withdrawing at the time, you would be clear on how things happened. On

11 the one hand, on the left flank, from Kupres, the Army of Republika

12 Srpska; and on the other hand, the BH Army. That was a battle for

13 territory. The citizens of the same state, they were all citizens of

14 Bosnia and Herzegovina, and when the citizens of one state wage war for

15 anything, this time it was a war for territories, then obviously we end up

16 with a civil war. It is what Martin Garrod said. And we have to be clear

17 on that. Why would it take an international conflict to do that? Maybe

18 to thank the Republic of Croatia for accepting over a million of their

19 refugees, for spending over a billion dollars in order to provide for the

20 Muslim refugees in Croatia, for having armed them, for having stopped the

21 aggression launched by the army of the Republika Srpska, for having

22 accepted them, saved them and armed them.

23 And this purportedly was done by the country that had a de facto

24 plan of conquering them, on the following day. And this all happened

25 before the referendum, the underlying idea was for the Croats to vote in

Page 16731

1 the referendum. What if the Croats didn't vote? Hadn't voted in the

2 referendum? Bosnia and Herzegovina would have remained in Yugoslavia. It

3 would have never been internationally recognised. And the break-up from

4 Yugoslavia would have been called secession, and then both the HVO and the

5 BH Army would have been called terrorists.

6 However, when the referendum was over, and when the Croats voted

7 100 per cent in favour of Bosnia-Herzegovina, mind you these same people

8 are alleged to have had a plan of conquering that same state on the

9 following day. Then the tables turned and the policy changed. And then

10 the HZ HB was proclaimed, God knows what kind of a concoction, however,

11 the HVO was as legal as the BH Army. The Army of Republika Srpska was not

12 as legal as both the HVO and the BH Army. All the three were the armies

13 of one and the same state, you know.

14 I was surprised to hear yesterday that the Prosecutor claims that

15 it doesn't really matter who attacked whom first. I've been in criminal

16 law for 25 years. I've practised in other states, not only in mine. Let

17 me just give you an example. If two people fight in a pub, and when one

18 of them draws a weapon, does the other person have the right to self

19 defence? And now the Prosecutor claims that it doesn't matter who was it

20 the first who attacked. It does matter, if the Army of Bosnia-Herzegovina

21 was the first one who launched the attack, we heard witnesses who

22 testified to the fact that the first attack was planned for the 19th of

23 April, and then the 9th of May and so on and so forth. Then it is very

24 logical that in such a state of chaos where the fighting was carried out

25 in order to preserve every single house, when -- on the 9th of May, 70

Page 16732

1 Croats were killed by sniper fire. So there was street fighting in the

2 heart of Mostar, on the western side of Mostar.

3 And then we are surprised when civilians who wore civilian

4 clothes, but still they were soldiers but they just wore civilian

5 clothes. We heard Witness O who claimed he was a civilian but he was a

6 military commander, and he was responsible for crimes because he was the

7 one who pursued exactly that criminal policy of conquering territories and

8 creating a better position for the future negotiations. So what should --

9 what was the HVO supposed to do? They were supposed to make arrests and

10 to verify who was a soldier, who was not a soldier. This is what they did

11 on the 9th of May, and if they established that somebody was a civilian

12 they would release them. The only one -- the only ones arrested were the

13 members of the BH Army who were then investigated and prosecuted by the

14 military court. On the 30th of June, they reattacked and when the Muslims

15 from the western bank were called, as we heard from one witness, when

16 asked who was to blame for their lot, they said, Arif Pasalic, commander

17 of the fourth corps. So again, arrests were made in order to verify who

18 was a soldier, who wasn't, and they were then all released during July and

19 August, all those who were not members of the BH Army, and 448 and you

20 will now ask me how I know that figure, documents were found in Jablanica,

21 so the 448 were released because they were members of the BH Army. The

22 only document that says that they were 1500 is the document by the Red

23 Cross but we had a witness here who was testifying in a closed session,

24 who launched an initiative to release 700 or 800 people, and that is then

25 when they 448 remained and they were members of the BH Army.

Page 16733

1 The Prosecution ignores something that this honourable Chamber

2 shouldn't ignore and that is that no conflict, no operation launched by

3 the HVO was targeted against the civilian population. The Prosecution

4 claims that everything was targeted against the civilians, that is the

5 Muslim civilians. He ignores the fact that in any armed conflict, which

6 is necessary for this discussion to take place in front of you, Your

7 Honours, that there should be two sides to each conflict. And they indeed

8 existed. One of them was the BH Army and the other was the HVO. It was

9 not the Muslim civilians on the one hand and the Croat civilians on the

10 other hand. The fact that the atrocities of that war affected civilians

11 is only a misfortunate consequence of that war rather than a part of the

12 planned policy of the Croatian side to that conflict.

13 The Defence brought witnesses who have direct knowledge of the

14 beginning of the conflict in May, on the 9th of May, how the BH Army

15 launched the attack because that is very important for the decision of

16 this Trial Chamber, and the picture that they will get about that

17 conflict. We had a witness here, NP, who clearly said before all of you

18 what his role was with regard to Vranica and the role of the notorious

19 Juka Prazina, and even that even after that, the Prosecution persists in

20 their allegations.

21 Based on all the evidence regarding Mostar, can the Trial Chamber

22 now make a decision that will proclaim Mladen Naletilic responsible for

23 the events that took place on the 9th of May? Can you, Your Honours, find

24 him responsible for Heliodrom? If nothing else, we explored the issue of

25 Heliodrom to the tiniest detail. Was it Mladen Naletilic who set up

Page 16734

1 Heliodrom? Was it Mladen Naletilic who controlled it? Was it Mladen

2 Naletilic who sent people there? Mladen Naletilic never saw Heliodrom,

3 was never there, and I believe that we have been able to establish at

4 least that through all of our witnesses and through all the evidence

5 presented to you.

6 So the Defence respectfully submits that such a decision cannot be

7 made, and the burden of proof lies with the Prosecution and the

8 Prosecution has failed to produce evidence that would justify a conviction

9 on this count.

10 And now let's move on to documents, to some of the exhibits very

11 briefly. The exhibits are not consistent, mutually consistent, and they

12 are not consistent with the testimonies of the witnesses. The

13 Prosecutor's witnesses were not able to confirm the authenticity of the

14 documents because they didn't write it, and they didn't know anything

15 about the circumstances under which these documents were compiled. The

16 authenticity of any document can be confirmed only by the author of such a

17 document, who can also confirm the veracity of such a document, and that

18 is that that document has been signed by that person personally and

19 stamped by the institution which OTP witness could confirm the

20 authenticity of any of the documents? They bombarded us with piles and

21 piles of documents, of exhibits, and we have established what we have

22 established.

23 As far as the reliability of documents provided by SpaBat and

24 other international forces, Mr. Meek has referred to those, and we also

25 refer to those in our closing argument, and as for the source, as for

Page 16735

1 the -- in our closing brief, and Van der Grinten's source were usually his

2 interpreters and he didn't verify any of the contents. He just took the

3 contents for granted. And that is more or less how the international

4 observers compiled their documents. We heard a lot about SpaBat. We

5 heard Van der Grinten who -- we heard Garrod who was not in Mostar at the

6 time, referred to by the indictment. He was in Mostar very short -- for a

7 short period of time, then he went to Zenica and returned to Mostar only

8 in 1994. He doesn't know anything about what happened in Mostar in 1993.

9 The Prosecutor also quotes presidential transcripts. The position

10 of the Defence about the presidential transcripts is the same. The OTP

11 could only refer to those presidential transcripts which speak of the

12 territory mentioned in the indictment and the period of time mentioned in

13 the indictment; however, they didn't do that. The persons mentioned in

14 the transcripts talked about the reliability of these transcripts. When

15 we talk about the transcripts, we have to mention Mr. Pasalic, who said

16 that he didn't -- not that he didn't like what he read but he knows better

17 than the Prosecutor what the truth is, and what he was bothered with when

18 he testified, that is Mr. Pasalic, was the lies in the transcript and the

19 fact that some things were taken out of the context. And Mr. Pasalic, and

20 all the other people mentioned in the transcript, can say whether these

21 transcripts are authentic or not. It is not to -- up to the Prosecutor to

22 say that. The Prosecutor should have called the people who were present

23 at those meetings and they then could have said whether these transcripts

24 were authentic or not.

25 If the Honourable Chamber wants to rely any of their decisions on

Page 16736

1 any of these presidential transcripts, then they have to first verify

2 whether these transcripts are integral, whether they have been translated

3 properly, whether the translations are true to the Croatian originals, and

4 furthermore, the Trial Chamber will have to make sure that every

5 transcript has a beginning and a -- the end. Let me illustrate -- point

6 to the transcript PT 8 from an alleged meeting between Alija Izetbegovic,

7 Siljeg Boban, Susak and President Tudjman, which purportedly took place in

8 Tudjman's residence. That meeting took place on the 28th of March, 1993.

9 It hasn't been translated. So if the OTP wants to talk about the

10 ultimatum which allegedly the HVO imposed on the BH Army, then the

11 Prosecutor should have translated this transcript to the full. As things

12 stand now, only those parts have been translated that support the OTP's

13 thesis but not the integral document. The presidential transcript PT 8.1

14 is the transcript which was given to the Defence for the first time for

15 the cross-examination of expert Ancic in September 2002. He was the last

16 witness and we were left without the possibility to refute any of the

17 allegations found in that alleged transcript. However, let us say that

18 that transcript has also not been translated. The first 16 pages have not

19 been translated at all. I apologise. It is PT28. I'm talking about the

20 presidential transcript PT28.

21 And then, a part was taken from page 14 and in the English

22 version, it is the beginning of the entire document marked as PT28.

23 Somebody unknown to the Defence has compiled this transcript by shifting

24 the text from the -- from page 13 to page 1, and nobody knows - allegedly

25 these are the words of a president - nobody knows which president it is.

Page 16737

1 Pages from 0157968 to 0157979 have not been translated at all. And again,

2 nothing from 0157983 to 0157986, has been translated. The entire end of

3 the transcript is missing. In the English version, from page -- the last

4 three digits 991 to the page 801.

5 I have some other documents which I would like to show you as an

6 example of something that the Prosecutor referred to yesterday. I won't

7 have the time to show them all to you. Can we please turn the ELMO on? I

8 would like to show you some typical examples. Can we please have the ELMO

9 turned on? In the technical booth, can we please have the ELMO switched

10 on?

11 Why am I telling you all this? Because I believe, Your Honours,

12 that every document has to be double-checked by you, together with a court

13 interpreter, because you have to look not only at the English version but

14 also at the Croatian version because you have to make sure that everything

15 has been translated. Why am I telling you that? This is a typical

16 example. Look at the first page of this document. Then look at the

17 second page of the same document. This page ends in a number 52 and then

18 half of the page is missing.

19 THE INTERPRETER: We cannot hear the counsel unfortunately,

20 because he's too far away from the microphone.

21 JUDGE LIU: Mr. Krsnik, you have to speak directly into the

22 microphone, otherwise we could not hear you.

23 MR. KRSNIK: [Interpretation] Now, look, the entire page is empty.

24 Then there is an item 6 here and it says, "Documents to be sent to" -- can

25 you please follow the English version, in the English version you can't

Page 16738

1 see this empty page. It says here, "To the sent to the ZP Mostar, the ATG

2 Tuta and OS." And the translators, translated that as the intelligence

3 service. Why? I believe and I claim that this is the operative

4 headquarters. Why has this been translated in this way? No signature, no

5 stamp. And the date is the 29th December of 1993. And the ATG Tuta which

6 never existed for that matter, and on the 23rd of December, the Convicts

7 Battalion also didn't exist because that was after the reorganisation had

8 been carried out.

9 So let's move on to show you another typical document. Look at

10 this. There are a number of such documents. The contents in this case is

11 not important even though it's quite nice. This is Mr. Andabak, who is

12 requesting the punishment of a man who wanted to make a gift of a stolen

13 car to the Convicts Battalion. So quite curious. But here we see

14 Mr. Even Andabak's signature. You don't have to know Croatian to see

15 that. But what is typed is Mladen Naletilic, Tuta. Now look at the

16 translation. Look at the translation. Where does it say that we have the

17 handwritten signature of Ivan Andabak's? Now, I can show you the next

18 document. Again, Ivan Andabak, the next document, Ivan Andabak. And so

19 on, to your heart's content. Everywhere we have typed "Naletilic" of

20 course, but no where in translation, only "Naletilic." So please check

21 the document the, the two -- take into consideration, please go through

22 them with translators. That is why I said I did not really trust the bona

23 fides of the Prosecutor. And these are only minor characteristic

24 examples.

25 Your Honours, I have to conclude my closing argument. I have

Page 16739

1 another 15 minutes only. And it seems that as usual, I didn't prepare

2 properly because there are very many things which I have not had time to

3 say but I do not think that it is all that important because I'm sure Your

4 Honours that you will do that in your thorough analysis of these

5 documents.

6 So let me start taking -- bringing things to the end and to say

7 the HZ HB has absolutely justified its existence. In every document, it

8 points out that it is a provisional organisation, so thank God that it

9 existed because it saved many lives, because it has fed many people, it

10 was the only door to then Bosnia-Herzegovina such as it was at the time.

11 It never asked for international recognition. It never occurred to do so

12 but the international community, the moment that Mr. Mate Boban was

13 officially invited to official negotiations recognised his status just as

14 it recognised the status of Alija Izetbegovic as a representative of one

15 people only, which he exclusively called the Republic of

16 Bosnia-Herzegovina and therefore he named his army exclusively the army of

17 the Republic of Bosnia-Herzegovina and the same holds true of the

18 gentleman from Republika Srpska. In the Washington Agreement, they

19 recognised all the laws as de facto and de jure in Herceg-Bosna, they

20 recognised that the right to the confederation -- of the federation of the

21 Muslims and Croats with the Republic of Croatia. That was the

22 international community which recognised that.

23 It recognises all its laws as confirmed by the Dayton Accords and

24 these laws are still in force, some of them, not all of them.

25 What the Prosecutor is trying to say has nothing to do with the

Page 16740

1 reality or the truth. And let me gradually draw this to a close and say

2 that I am aware of the time allotted for the closing arguments. Of course,

3 I am not able to reproduce hundreds and thousands of transcripts or

4 documents and I could not do it in my closing brief, again because of the

5 limited number of pages, but I am confident that this Honourable Chamber

6 will not base its decision on some documents, on a sentence pronounced by

7 a witness here and there, but on the whole material of the case by

8 properly weighing the -- weighing the evidence produced and that it will

9 base its decisions in -- on the principle that governs all the criminal

10 cases, and which can be summed up as in dubio pro reo, which means when in

11 doubt, we decide in favour of the accused. Mladen Naletilic did not set

12 out to prove that he was not guilty. He did not assume the role of a

13 Prosecutor and the burden of proof. Mladen Naletilic offered a picture of

14 the events which unfolded during the time covered by the indictment, such

15 as it was, and in that picture, his role as the commander of the Convicts

16 Battalion, and as the chief figure carrying out Franjo Tudjman's policy in

17 the persecution of Muslims and the creation of greater Croatia is no where

18 to be found there, just as Greater Croatia is no where to be found,

19 because there were never such an intent as history shows. The Republic of

20 Croatia was the first one to recognise Bosnia-Herzegovina and all the

21 rest, I won't repeat all that it did. And the banovina, I know it is very

22 difficult to understand the history of those lands but when one doesn't

23 understand it then why doesn't he ask those who do understand it and they

24 will explain what is banovina, how did it come into being, and under what

25 circumstances? That banovina does not at all look like the HZ HB.

Page 16741

1 My client, Mladen Naletilic, cannot be found at any meeting,

2 anywhere. So what is this figure my client? He's not at a meeting of the

3 smallest possible unit let alone staff or brigade or Ministry of Defence.

4 So whence his power? Is it some magic wand? I presume it must be some

5 magic wand. Because I don't know, let me try to illustrate. How could

6 Mladen Naletilic -- let's take, let's take for instance he's the Convicts

7 Battalion's commander in 1993. Let's take that. Now, how is it that

8 Mladen Naletilic decided suddenly to attack Sovici? Now that we know that

9 there is an operative zone 1, second operative zone, main staff, Ministry

10 of Defence. And now he comes and what does it mean that he can go

11 wherever he pleases and attack whomever he pleases? Like Ali Baba and his

12 40 men? We have shown how the HVO structure functioned, and in that

13 structure, in 1993, my client is not to be found, and even if he were to

14 be found, nobody could say, and there were witnesses who spoke about this

15 for days on end, how the orders went through a chain of command, who held

16 the front lines, what happened to units which came to the front line, who

17 they were subordinated to and so on and so forth. Mladen Naletilic is not

18 to be found in any HDZ meeting. It is claimed here the HDZ knows who but

19 we heard testimony that he was never even a member of the HDZ let alone

20 attended its meeting.

21 And listen, what is the most important thing of all, when one

22 looks at the documents. Let's try and find a single one that my client,

23 Mladen Naletilic, is the addressee of a document to which the Prosecutor

24 refers?

25 And finally, Your Honours, the last thing I wish to say in

Page 16742

1 conclusion, in view of all the above said, the Defence suggests to the

2 Court the only possible sentence, and that is acquittal. I do not doubt

3 at all -- I do not doubt at all -- that if you find some evidence,

4 although the evidence -- the Defence doesn't see them but perhaps you will

5 look at them with a different eyes but we believe that you will -- that in

6 the name of justice, in the name of truth, you will acquit my client, and

7 I never doubted that.

8 And this acquittal -- yesterday I must say that I felt rather

9 moved, perhaps it was the only thing which was beyond the professional

10 attitude, that Mladen Naletilic is not going back as a victor. Victor

11 of? Are we talking here about a battle? About a sports match? Who is a

12 winner and who is a loser in this game? He will return to Mostar

13 acquitted and the victory will be the victory of the Statute and the Rules

14 of Procedure and Evidence. That is the only possible victor. Yesterday,

15 theatrically a photograph was presented and I don't know why. It was held

16 like this but has the Prosecutor ever said which year was it made? He

17 owns -- produces the effect to show it to everybody, do you know which,

18 when was it done? The OTP does know it but true to their style, they

19 don't say it. It is 1992, after the liberation of Mostar. Everybody who

20 had some merit had it, I don't know if that is the custom in other

21 countries but in coffee shops they put up posters of people of merit, and

22 it says, "Our victory," yes, the victory of the day of the liberation of

23 Mostar. Then -- but they end up in their style victor, over whom? What

24 does this poster have to do, has the OTP ever established when it was

25 done, even though we know that it was 1992 but since 1992 to this day

Page 16743

1 somebody perhaps still has it at his coffee shop. And why not?

2 I'd like to conclude by addressing you, Your Honours with a

3 comment that you made which gave me strength, I must say, and you always

4 instill me with strength, whenever I stumbled, whenever I was at the end

5 of my forces, you encouraged me, your comments, your suggestions, always

6 helped me to persist. When the witness Ancic testified quite recently you

7 will remember when it was said that it all depended on the lawyers skill,

8 you then bravely valiantly and one could see that you were speaking from

9 the heart, that it came from a man who loved the truth, that the Chamber

10 cannot be manipulated. That the performance is not the key, that skill is

11 not the key, that the only key is the evidence, and this set my mind at

12 peace. I felt calmer when I started my closing argument, especially

13 having heard the closing argument of my learned friends from the OTP. The

14 Defence believes this comment and believes that a good moving -- and

15 moving performance does not mean the accolade -- the applause at the

16 end of that performance. Thank you, Your Honours.

17 JUDGE LIU: Thank you very much. Tomorrow, we will hear the

18 closing arguments from the Defence counsel of Mr. Martinovic. So we'll

19 resume tomorrow afternoon at 2.15 in the same courtroom.

20 --- Whereupon the hearing adjourned at

21 1.45 p.m., to be reconvened on Wednesday,

22 the 30th day of October, 2002, at 2.15 p.m.