Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16744

1 Wednesday, 30 October 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.16 p.m.

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

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

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

8 JUDGE LIU: Well, Mr. Seric, are you ready for your closing

9 argument?

10 MR. SERIC: [Interpretation] Yes, thank you.

11 JUDGE LIU: Yes. You may proceed.

12 MR. SERIC: [Interpretation] Mr. President, Your Honour Judge

13 Clark, Judge Diarra, Mr. Scott, Mr. Stringer, Mr. Poriouvaev, Mr. Bos,

14 good afternoon. Good afternoon, everybody in the courtroom.

15 In my life, I took the oath twice. The oath of a Judge in distant

16 1978 and the oath of a lawyer in 1995. Different and yet basically the

17 same, that I shall never place myself in the way of the justice. I was a

18 Judge in a first instant court and I was a Judge in the appellate court.

19 I was never a Prosecutor. I have to tell you, Your Honours, that as

20 somebody who read law, it was a surprise to me to hear how impotent was

21 the Prosecution in corroborating their claims, their inability to provide

22 you with evidence, Your Honours. They said on the contrary that the

23 Defence has not proven its claim, the Defence has not proven the innocence

24 of Vinko Martinovic and I must say that it is nonsense. I have not yet

25 heard in my practice and it is not an accident. It is not an error. I

Page 16745

1 have realised that this is a constant and permanent conduct of the

2 Prosecutor from the opening to the final brief. I've accused them, you

3 have to judge them, and the Defence is merely in the way.

4 I hope you will forgive me, Your Honours, gentlemen in the

5 Prosecution, but I'll be in your way a little bit more.

6 The story does not start with the disintegration of the former

7 Yugoslavia on the 25th of June, 1991, as is claimed by the Prosecutor.

8 The story starts a long time before that and it is not the disintegration

9 of the former Yugoslavia and it is not an error in this regard. It is an

10 error concerning the creation of Yugoslavia. The story starts in 1918

11 with the Versailles treaty when the kingdom of the Serbs, Croats and

12 Slovenes came into being, subsequently termed Yugoslavia. A despotic

13 autocratic kingdom of Yugoslavia which in fact represented Serbia.

14 So this former tiny kingdom in the Balkans believed that it had a

15 right to expand into the territories of other states which fell apart at

16 the end of World War I: The Austria Hungarian empire and the Turkish

17 empire. The territory where for over a thousand years other peoples have

18 been living without the right to independence and national sovereignty.

19 Your Honours, one must first address facts indicating that the

20 Office of the Prosecutor substitutes the thesis regarding the causes of

21 the conflict, the immediate cause, and the effect so as to presumably in

22 the name of the international community and in point of fact in the name

23 of the extremist part of the Muslim state party SDA and their leader Alija

24 Izetbegovic, persistently trying to offer us the thesis on the position of

25 the Muslims in Bosnia-Herzegovina as exclusively victims and the Croats in

Page 16746

1 Bosnia-Herzegovina as a betterance of the Republic of Croatia and its

2 army.

3 The time before the beginning of the war in Bosnia and Herzegovina

4 is characteristic of the preparations of parties for the war. The

5 intensity of those preparations was not always even, especially because

6 the initial stage was different. The Serb Democratic Party took the lead,

7 a Serb party which was supplied with weapons by the Serbified JNA. And

8 the Croats through the HDZ also came by some weapons but in significantly

9 smaller quantities than the Serbs; however, sufficient to gradually reduce

10 the feeling of inferiority after the JNA disarmed the republican

11 Territorial Defence.

12 With Muslims, their situation was the least favourable, partly

13 because they found themselves between the rock and the hard place of

14 various leaders and political parties, yet they started making steps in

15 this regard at a very early stage. They formed the Muslim Patriotic

16 League in May 1991, and at that time, one can -- they could be considered

17 only as a party military formation. In that arms -- that arms race

18 involved the ethnic principle too, because everybody was arming on his own

19 behalf, from the Serb ethnic areas, which in 1991 and 1992 -- which were

20 the place where the JNA had pulled out its material and its forces from

21 Slovenia and from Croatia, from these territories the Serbs started to

22 expand their territories. They achieved successes in eastern Bosnia in

23 areas with the majority Muslim population, in the area of the south

24 western Bosnia, apart from the successes in Kupres, the Serbs suffered

25 dual failure in Croat territories and areas.

Page 16747

1 They failed in their attempt to take Sarajevo and in the valley of

2 the Neretva, and towards the end of March, hard fighting started and

3 lasted for several months to conquer Bosanska Posavina. In the area of

4 Bosanska Krajina where there was no major resistance, the practice of

5 ethnic cleansing started and the establishment of concentration camps; a

6 practice which shortly expanded into other parts of the Serb Republic of

7 Bosnia-Herzegovina.

8 In contrast with the Serbs, the first stage of the war in the case

9 of Croats and Muslims passed in an attempt to consolidate the defence

10 front lines. Within that context, the significance of Croat successes

11 strategically outweighed the successes of the BH Army for very simple

12 reasons. The -- Croatia followed because it served for both of those

13 threatened people the logistics bases and support. The engagement of the

14 Croatian Army, that is the ZNG along the northern and southern borders of

15 Bosnia and Herzegovina, with a mutual support of the HVO, also meant

16 direct support to the BH Army in depth because they tied up some of the

17 Bosnian Serb forces in these engagements and enabled the logistics and

18 humanitarian support. And in regard to this fact, one can see collective

19 amnesia, not only in Bosnia-Herzegovina but in Croatia too.

20 When Jajce and Bosnian Posavina fell, the war of the Croat Defence

21 Council against the army of Republic of Serbia literally came to an end,

22 having defended Livno, part of the Vrbas valley, and parts of central

23 Bosnia and especially after the successes in the Neretva valley, crowned

24 by the June dawn, the HVO more or less reached a stalemate with the

25 Serbs. And after that there was only some positional fighting, the

Page 16748

1 occasional exceptions being Usora and parts of the Posavina theatre of

2 war. Several meetings between the leaders of Bosnian Serbs and Croats

3 outside the BH did not yield any specific results.

4 We heard in this courtroom that the Army of Bosnia-Herzegovina had

5 the least reason to be happy. Towards the end of 1992, it controlled

6 the -- it had the weakest ratio between the number of the population and

7 the area under its control. The structure of that Bosnian regime in which

8 their party, the SDA, predominated and the HDZ was its subordinate

9 partner, expedited disintegration of the Bosnian state. Right until

10 January 1993, Sefer Halilovic blamed Croat politicians for the conflict

11 between the HVO and the Army of Bosnia-Herzegovina.

12 It is also important to mention that on the 20th of May, 1992, the

13 HVO was officially considered an integral part of the BH Army, and the

14 Tudjman-Izetbegovic agreement of July that same year recognised the Croat

15 Defence Council and the BH Army as separate components of the armed forces

16 of Bosnia-Herzegovina that would be linked up through their joint staff.

17 However, a political rift between these two armed forces took place. They

18 split in two parts, the HVO as the Croat force and the BH Army as a party

19 army of the SDA under an increasingly pronounced Muslim predominance.

20 The Islamic patriotism or religious patriotism were synonymous

21 with the Bosnian struggle for liberation, the formations of the 7th Muslim

22 Brigade and the black swans were nevertheless more radical in their

23 Islamic fundamentalist motives. And these formations provided the basis

24 for a parallel chain of command used by Izetbegovic and his confidant

25 Hasan Cengic. On the 18th of March, 1992, Boban, Karadzic, and

Page 16749

1 Izetbegovic, under the auspices of Cutilheiro adopted the declaration on

2 the principles of the new constitutional order and it says:

3 "Bosnia-Herzegovina should be an independent state made of three

4 constituent entities based on ethnic principles."

5 Your Honours, the conflict between the Army of BH and the HVO,

6 that struggle was the struggle for Lebensraum. The Serbs had captured

7 over 60 per cent of the territory of Bosnia-Herzegovina and expelled

8 Bosniaks and Croats. Bosniaks found refuge mostly in central Bosnia and

9 thus significantly upset the demographic balance and a settlement of the

10 Bosniaks in areas where the Croats were a majority were -- was seen by the

11 political and military leadership of the HVO as taking the territories

12 away from Croats, so a conflict in Gornji Vakuf ensued. However, even

13 during the fiercest clashes, the cooperation in many joint theatres of war

14 never stopped. From Orasje in the north of Bosnia through the area of

15 Tuzla, in the area of responsibility of the 2nd Corps of the BH Army, down

16 to the Sarajevo theatre of war, and, Your Honours, this shows best the

17 nature of non-international armed conflict.

18 If one looks at documents produced by the Defence, D2/60, D2/61,

19 D2/62, D2/63, D2/64 and D2/65, it becomes obvious that the Republic of

20 Croatia helped the Army of Bosnia-Herzegovina in materiel and in

21 manpower. So not only a rhetorical but also factual and legal question

22 arises. Is it not true that the Republic of Croatia was also involved on

23 the side of the Army of Bosnia-Herzegovina? The crucial question is: Had

24 the Republic of Croatia wanted and desired to undertake any form of

25 aggression against Bosnia-Herzegovina, would it have then proceeded to arm

Page 16750

1 its future enemy?

2 The open Muslim-Croat conflict which marked 1993 was preceded by

3 something that dates back to the earliest days of war in

4 Bosnia-Herzegovina. For instance, at the Public Security Service in

5 Bugojno, the war militias were issued with ammunition but only the members

6 of Muslim ethnicity, and they were told to conceal that fact from the

7 members of Croat ethnicity. In Gornji Vakuf, there was a tension between

8 the Croats and the Muslims.

9 It seems that it was precisely in the area of Uskoplje, that is in

10 Gornji Vakuf, the first conflict between the HVO and the Territorial

11 Defence broke out, and it was as early as late April 1992, and that it was

12 repeated on the 20th and 21st of June, 1992. In the beginning of May,

13 it -- a conflict broke out in Busovaca and it was repeated the next month.

14 In Novi Travnik, a conflict took place and there was also interethnic

15 tension in Konjic; and then in early August, a conflict broke out -- the

16 conflict broke out in Kiseljak. Yet, at that first stage of the

17 Muslim-Croat intolerance, a special place belongs to the 17th of August,

18 1992, when the units of the Territorial Defence of Bosnia-Herzegovina

19 broke into a Croat locality of Stup in Sarajevo. That incident was

20 different from earlier conflicts, and one is therefore justified to ask at

21 which level, at which Tier of responsibility was this conflict caused.

22 The chronology of the conflict, which the public knows, starts

23 with the conflicts in Prozor. The conflict was predicted and planned by

24 the Army of Bosnia-Herzegovina. The deterioration of the security in the

25 area of central Bosnia -- in central Bosnia, found its reflections

Page 16751

1 regularly in the peripheral areas of the operative zone of northwest

2 Herzegovina. And on the 21st of October, 1992, the main staff of the HVO

3 reported that in Gornji Vakuf and Prozor the situation was tense and that

4 a clash could break out at any time, at any moment.

5 In the light of such situation, in a part of the operative zone,

6 all of the security measures available were undertaken in order to prevent

7 a conflict between the forces of the Croat Defence Council and the armed

8 forces of Bosnia-Herzegovina, especially in Gornji Vakuf and Prozor.

9 However, the conflict broke out on the 23rd of October and ended in a

10 complete rout of the local BH Army's units.

11 The claim that it was the HVO which had launched a surprise attack

12 on BH Army units in Prozor is a pretty bold one, but is based on a

13 prejudice. At a meeting of HVO and ABiH representatives of the 6th of

14 November, 1992, in Jablanica, the representatives of the BH Army agreed

15 to -- agreed to go along with a request of the HVO to replace the

16 commander of the municipal staff of defence in Prozor, and that fact is

17 not without significance when in the analysis of the conflict. Another

18 serious problem in the relations between the HVO and the BH Army is the

19 existence of two parallel political and military structures in the central

20 part of Bosnia and north-east Herzegovina. There is dual authority.

21 However, the major problem was the result of the Serb conquests

22 and ethnic cleansing, because vast numbers of refugees and displaced

23 persons poured from those territories into the areas controlled by the BH

24 Army and the HVO and it upset the ethnic structure and the balance between

25 the members of two different groups. Namely, most of the expelled persons

Page 16752

1 came from the rural environment into the urban environment, urban milieu,

2 bringing with them a completely different mind set and way of life. It is

3 not important -- it is important to say that towns and cities had

4 multi-cultural experience with Mostar at the forefront of such experience.

5 This was, however, not the case with the rural areas so that especially in

6 Mostar, not only the ethnic and demographic balance but even the balance

7 in traditions and customs was also upset.

8 After the Geneva talks, the political and religious leadership of

9 the Bosniak Muslims in Mostar issued the Mostar Warning in January 1993,

10 supporting Alija Izetbegovic and rejecting the concept of the -- of

11 confederation. The Muslims of Herzegovina are on their own turf and

12 everybody should be clear about it, the letter says. It also says that it

13 is imperative for the Bosniaks and for the Bosniaks and Muslims to divide

14 Herzegovina into three ethnic provinces. This letter was signed by Zijad

15 Demirovic on behalf of the SDA, mufti of Herzegovina, Hadzi Sead Efendi

16 Smajkic, and attorney Faruk Cupina the President of the Muslim council of

17 Bosnia-Herzegovina. And it is then that the tension and ever-more

18 frequent conflicts take place.

19 The Muslims use zolja to hit a van with HVO troops. Arif Pasalic,

20 commander of the 4th BH Army, announces on the Radio that Mostar will be

21 liberated from the non-Muslim population. And what else is this but the

22 strategy of the ethnic and religious cleansing policy? According to the

23 instructions of the political and military leaders, the Bosniaks, Muslims,

24 leave the Croat Defence Council and the front lines intercept HVO

25 soldiers, harass them, inflict injuries on them, and seize the personnel

Page 16753

1 and HVO property. Fear spreads amongst the non-Muslim population, tension

2 is incited, and the rift in the HVO between the Croats and Bosniaks

3 Muslims.

4 The operative plan for the attack on West Mostar and its

5 surroundings is prepared. The command of the 41st mechanised Brigade

6 orders to prepare for combat on the 20th of April, 1993. This order is

7 signed by Midhat Hujdur as the commander. The order said that the BH Army

8 formations were to get ready to engage in the area of Cekrk, to close the

9 communication Rodoc-Mostar, provide support to the 2nd Battalion in the

10 area of Benka secondary school, Avenija Rudnik and in the parking lot at

11 Bijeli Brijeg, Rondo, and on the university grounds.

12 The operative plan against targets on the right bank of the

13 Neretva was developed down to the least detail. The beginning of the

14 conflict between the BH Army and the Croat Defence Council in Mostar took

15 place on the 8th of May, 1993; however, the preparations started as early

16 as March and April, 1993, Your Honours. Davor Marijan our expert witness

17 testified about it. We have also seen documentation corroborating this.

18 It was then when the Bosniak Muslim forces launched a fierce attack on the

19 Tihomir Misic HVO barracks. And the very next day, General Sefer

20 Halilovic, the Commander of the Main Staff of the BH Army in Zenica

21 announced the final -- the definitive showdown with the Croats.

22 Nevertheless, the real conflict broke out in the early hours of the

23 morning of the 30th of June, 1993, between half past 2.00 and 3.00 in the

24 morning, when Muslims, members of the Croat Defence Council, in the area

25 of Bijeli Brijeg turned their rifles away from the Serb aggressors and on

Page 16754

1 to the Croats.

2 I believe that it has been accepted that during the course of, and

3 at certain stages of the events in the former Yugoslavia, there were one

4 or more international armed conflicts. And it is submitted that these

5 conflicts co-existed with one or more internal armed conflicts, the last

6 of which was the conflict which involved my client, Vinko Martinovic.

7 Further on, while it has been accepted that an internal armed conflict can

8 turn into an international armed conflict, the Prosecutor did not prove

9 beyond reasonable doubt that facts exist in this case that there were

10 grave breaches of Geneva Conventions and as reflected in Article 3 of the

11 Statute of this Tribunal.

12 The Appeals Chamber, Your Honours, in Prosecutor versus Tadic,

13 clearly drew a distinction between an internal armed conflict which turns

14 into an international armed conflict, and an international armed conflict

15 which co-exists with an internal armed conflict which may or may not turn

16 into an international armed conflict, depending on some variables. I'm

17 not going to comment on the decision of this Chamber; we can all look at

18 it ourselves. It is clear that the general provisions of the Geneva

19 Convention apply only to international armed conflicts in the sense of

20 conflicts between states or conflicts in which one state occupies the

21 territory of another state.

22 We all know the meaning of provision -- of the provisions of

23 Article 2 of the Geneva Conventions. Although it is believed that

24 individuals who represent a non-state organisation may be responsible for

25 grave breaches of the Geneva Conventions as participants in an

Page 16755

1 international armed conflict, we submit, Your Honours, that this is only

2 the case in which such an organ is the alter ego of a state and that it

3 represents the state, it acts on behalf of the state. The Prosecution's

4 purported distinction from the case of Nicaragua versus United States is

5 not legally relevant, and whether or not the intervention is a direct or

6 not, the legal question remains the same, and that is: Was Vinko

7 Martinovic, as the accused, acting on behalf of a party to an

8 international -- to the conflict? The purpose of the principle of unity

9 of identity is to establish that a state is indeed the party in question.

10 The Appeals Chamber in Prosecutor versus Tadic did not reject the

11 basic principle which is in conformity with the findings in the U.S.

12 versus Nicaragua, only the specific test to be applied. It is submitted

13 that the Prosecution has failed to establish beyond all reasonable doubt

14 that the HVO was acting on behalf of the Republic of Croatia in the sense

15 of having overall control over those forces at the relevant period and in

16 the conflict in which my client, Vinko Martinovic, participated on the

17 front line in Mostar. On the contrary, the evidence suggests, Your

18 Honours, that the HVO participated on behalf of the Croatian Community of

19 Herceg-Bosna in its own right, as a non-state entity. That organisation

20 cannot be completely identified to the Republic of Croatia, and it is

21 different from it.

22 While it has been accepted that an international armed conflict

23 might emerge from an internal armed conflict where the troops of a state

24 intervene in the internal armed conflict, it is submitted that only those

25 entities or individuals acting on behalf of a state may indeed be parties

Page 16756

1 to that international armed conflict. Individuals acting on behalf of a

2 non-state entity, this includes Vinko Martinovic, will continue to act

3 within the context of an internal armed conflict which develops in

4 parallel to the international armed conflict. And as such, these

5 individuals could not be held responsible in terms of the general

6 provisions of the Geneva Conventions.

7 Not only do we believe but we also claim, Your Honours, that the

8 Prosecution has failed to establish beyond all reasonable doubt the

9 intervention of the troops which act on behalf of a state within the zone

10 of conflict where Mr. Martinovic was on the front line. In any event,

11 such an intervention would not have affected Mr. Martinovic's legal status

12 in the conflict zone, since he acted on behalf of a non-state entity and

13 therefore he could not represent a party to the conflict in terms of the

14 provisions of the Geneva Conventions. Moreover, the Prosecution has

15 failed to establish beyond all reasonable doubt that the Croatian

16 Community of Herceg-Bosna acted on behalf of the Republic of Croatia, as

17 opposed to having acted on its own behalf in the context of a specific war

18 in which Mr. Martinovic also took part.

19 The fact that assistance was given to -- by a state to a non-state

20 entity does not imply that such a non-state entity can be identified with

21 the state. Indeed, as testified by Davor Marijan, and we also have proof

22 that such assistance was given to the Army of Bosnia-Herzegovina, and this

23 doesn't imply the unity of identity. The international humanitarian law

24 draws a distinction between two kinds of civil wars: A non-international

25 armed conflict of a high intensity, Article 3, protocol 2; and other

Page 16757

1 internal conflicts which are exclusively subsumed under Article 3. If

2 there is an internal conflict, there is no -- there are no legal grounds

3 for the application of the Geneva Conventions on the protection of victims

4 of war. There is a sentence to that effect in the Tadic case.

5 How should one treat the BH Army forces? Were those forces -- and

6 they certainly were a party to the conflict, were those forces legal armed

7 forces of Bosnia-Herzegovina? The answer is positive; the answer is yes.

8 Was the HVO, as the other party to that same conflict, a legal armed force

9 of the -- of Bosnia-Herzegovina? The answer is positive; the answer is

10 yes.

11 Were the -- another crucial question. At the relevant time, the

12 time relevant to the indictment, were the alleged victims, alleged with

13 regard to the indictment but also factual but -- because they were factual

14 victims, so were the alleged victims citizens of Bosnia and Herzegovina?

15 The answer is positive; the answer is yes.

16 And we have, Your Honours, positive answers to all these three

17 questions. Then it is impossible to -- absolutely impossible to apply the

18 4th Geneva Conventions since Article 4 says:

19 "This convention protects persons who, at any moment or in any

20 way, find themselves in an instance of a conflict or occupation in the

21 hands of a party to the conflict in the hands of a party to the conflict

22 or an occupational force that they are not citizens of."

23 The Geneva Conventions of 12 August, 1949, in the common article

24 provide some criteria for the existence of a non-international armed

25 conflict, which this Court has ignored in the case Prosecutor versus

Page 16758

1 Blaskic as a mere formality and something of no importance. We believe

2 that this ignorance will be rectified by the appeals court. According to

3 that article, Article 2, in order for an international armed conflict to

4 come into existence -- I don't know whether this has been heard before

5 this Chamber, Your Honours -- there has to be a will to wage a war, and

6 animus belligerendi. Animus belligerendi on the part of at least one

7 party to that conflict. Such a will, not even in 1993, was shown or

8 declared by either Bosnia and Herzegovina or the Republic of Croatia.

9 They did not declare that they were in the state of international armed

10 conflict with the other side.

11 Already, in 1992, Bosnia-Herzegovina declared that it was in the

12 state of war with Serbia, Republika Srpska, and the Serbian Democratic

13 Party. And that was the cause for this conflict to be pronounced as an

14 armed conflict between Bosnia and Herzegovina and the socialist federative

15 Republic of Yugoslavia and this was pronounced in the case Prosecutor

16 versus Tadic. Why does it concern us? It concerns us because in the

17 relations between Bosnia and Herzegovina and Croatia, there was never such

18 a declaration on the part of any of the sides.

19 Also, you have to bear in mind, Your Honours, that there are some

20 criteria which exist in the classic war law, according to which it can be

21 fairly reliably established whether an armed conflict has come into

22 existence between two sovereign states, which it didn't in this case. In

23 such a situation, it would be normal for both sides to terminate their

24 diplomatic relations. However, Croatia and Bosnia and Herzegovina have

25 maintained those relations ever since 1991, when they established them and

Page 16759

1 when they mutually recognised each other. So these diplomatic relations

2 have never been terminated, they were not terminated even during the

3 conflicts between the BH Army and the HVO.

4 Moreover, in an international armed conflict between two states,

5 some kind of bilateral international contracts are either suspended or

6 cancelled, but you can verify it has been published in all the official

7 gazettes, both in Bosnia and Herzegovina and in Croatia - we have those,

8 they have been delivered to us by the Prosecution - several bilateral

9 contacts between Croatia and Bosnia and Herzegovina were signed in 1992,

10 in 1993, and later on, and they continued to be observed.

11 Moreover, the following question has never appeared. Citizens of

12 one state in the other outside military operations were never treated as

13 the citizens of a hostile state. The Prosecutor presented evidence to

14 that effect. It was the Prosecutor, not the Defence, Your Honours.

15 Neither BH citizens in Croatia were treated as enemies. They were

16 extended all the help, humanitarian help, as any other refugees.

17 Likewise, the citizens of Croatia, where the legal authorities in Bosnia

18 and Herzegovina were still active, like for example in the besieged

19 Sarajevo or in the region of Tuzla, were not treated as the citizens of a

20 hostile state. The situation was somewhat different in the areas which

21 were affected by the armed conflicts. However, this only corroborates the

22 Defence claimed that it -- the war was a civil war.

23 Besides, trade relations were neither abolished or -- nor

24 terminated, which would also be typical of an international conflict.

25 Croatia and Bosnia-Herzegovina, if they were indeed waging a war against

Page 16760

1 each other, would it not have been logical that all the trade relations

2 stopped? However, this did not happen.

3 Your Honours, another interesting question pertaining to

4 international war law which has not appeared in this courtroom and it

5 always appears whenever there is an international armed conflict. The

6 Republic of Croatia and Bosnia and Herzegovina never undertook any acts to

7 confiscate the moveable property of the other state.

8 The Defence submits that all the time, throughout the war, a

9 distinction was maintained between the Croatian Army and the military

10 component of the HVO, and there were also different insignia on the

11 uniforms. What leads to a certain confusion is the presence of soldiers

12 who had previously been soldiers and officers of the Croatian Army and who

13 joined the HVO. These were, however, citizens of Bosnia and Herzegovina,

14 persons who were born in Bosnia and Herzegovina and who returned to their

15 home state after the war had ended in Croatia, in order to fight the

16 aggressor. The following witnesses testified to that effect: Slobodan

17 Praljak, Bozo Rajic, Witness NB, Milan Kovac, Zeljko Glasnovic, Witness

18 NE, Witness NM, Witness NO, Witness NP, and expert witness, Davor

19 Marijan.

20 In the course of 1993, indeed, certain HV units were sent to the

21 areas of Bosnia and Herzegovina where they participated in some war

22 operations in very small members. However, not in Herzegovina. And they

23 never engaged in any acts of authority which would have been essential for

24 an occupational force. If the Croatian Army units had launched an

25 aggression against Bosnia and Herzegovina, if they had been an occupier,

Page 16761

1 then they should have engaged in exercising some sort of authority in the

2 areas where they were. However, not only the Prosecutor did not provide

3 evidence to that effect, but the Defence proved that the contrary was the

4 fact. So it cannot be said that this presence was occupation.

5 As regards protected persons, we believe that the victims of the

6 alleged crimes cannot be considered protected persons for the purpose of

7 the 4th Geneva Convention, since the alleged perpetrator, Mr. Martinovic,

8 was not acting on behalf of a party to the conflict and it was not an

9 occupation. This arises clearly from what I have just said.

10 The Defence cannot admit that Vinko Martinovic acted in the

11 context of an international armed conflict, and that is another rhetorical

12 question. And since Mr. Martinovic could not -- did not need to be aware

13 of the legal nature of the conflict, it is respectfully submitted that the

14 Prosecution has failed to prove that Mr. Martinovic knew of the

15 circumstances giving rise to an international armed conflict, and

16 therefore, he could not have the appropriate mens rea for offences in

17 terms of Article 2 of the Statute.

18 As far as command responsibility is concerned, we respectfully

19 submit that the doctrine of command responsibility applies only to

20 commanders in armed conflicts between states, and it cannot be applied to

21 a superior in a non-state entity involved in an armed conflict with

22 another non-state entity. This conclusion necessarily arises from the

23 fact that command responsibility is a doctrine pertaining to customary

24 international law, and that the Prosecution has failed to show the

25 practice and opinio juris which would support the extension of that

Page 16762

1 doctrine to such a conflict. Moreover, we submit that the Prosecution has

2 not proven beyond all reasonable doubt all the essential elements of

3 command responsibility.

4 And while there is a common practice supported by opinio juris

5 which supports the principles of command responsibility which are applied

6 to armed conflicts between states or armed conflicts in which one state

7 occupies the territory of another state, the practice accompanied by the

8 opinio juris for conflicts between non-state entities and a state or a

9 non-state entity within the territory of one state, has not been

10 established. The Prosecutor has not proven the common and general

11 practice to extend these principles in the following way. We believe that

12 the principle nullum crimen sine lege has to be applied. And that the

13 count for command responsibility is not based on facts. Likewise, we

14 respectfully submit that the Prosecution has failed to prove beyond a

15 reasonable doubt the essential elements of command responsibility.

16 The Prosecutor has not proven beyond any -- all reasonable doubt

17 the relationship between the superior and the subordinate which would

18 reflect the de jure and the de facto effective control. In the absence of

19 a normal military structure of education and of a command chain, we submit

20 that what should be applied is the principle that is applied in the case

21 of civilians which also do not belong to a traditional military

22 organisation, and are not subordinated to the customary discipline and

23 obligations arising from that discipline.

24 We submit that in the case of a commander who doesn't belong to a

25 national army, the principle of command responsibility has to be applied

Page 16763

1 in a limited sense. That is, the elements of that principle have to be

2 interpreted in a restrictive way and established by unambiguous evidence

3 and not only through inference. It is suggested that the Prosecution has

4 failed to satisfy this beyond all reasonable doubt.

5 The burden of proof lies with the Prosecutor, and it is up to him

6 to establish beyond any reasonable doubt that there is a real possibility

7 of control over the alleged subordinates. We believe that the extension

8 of the responsibility of the superiors to a quasi-military unit depends on

9 whether the Prosecutor has proven beyond all reasonable doubt such a

10 degree of control of the superior which would be similar to the control of

11 the superiors in a normal military structure. This has been established

12 by the committee on international law with regard to civilians and it has

13 been accepted by the -- this Tribunal in the Celebici case and in the case

14 of Bagilishema before the trial for Rwanda, and such a position is a

15 guideline. But not only that, it also serves for this principle to be

16 applied within the limits of the international customary law which is

17 firmly established on the practice of the military conflicts between

18 national armies.

19 As regards the civilians -- as civilians, I would like to remind

20 the -- Your Honours, to pay attention to the position of the Trial Chamber

21 in the Celebici case. There are testimonies to that effect before this

22 Trial Chamber by Witnesses MM, MN, MO, MQ, MS, and MT, who were all

23 soldiers under the command of Vinko Martinovic. However, that has also

24 been confirmed by the Prosecution witnesses, Allan Knudsen and Witness Q

25 who slept in a civilian flat not far from the base of the unit and this

Page 16764

1 was also confirmed with Witness NO, who issued immediate orders to the

2 accused Vinko Martinovic.

3 It is submitted that the Prosecution has failed to prove beyond

4 all reasonable doubt that Vinko Martinovic, in his capacity as the

5 commander of a small unit, who had the task to defend only one stretch of

6 a very long street, that as such, he had the possibility to control the

7 activities of his unit in a manner comparable to a proper military

8 commander, save when those troops were with him on front line. The

9 evidence shows that after the fighting the troops could put their arms

10 aside, or some of them could even take their rifles home, and then they

11 were absolutely beyond Vinko Martinovic's control.

12 Likewise, the Prosecution has failed to prove beyond all

13 reasonable doubt that when the men moved away from the front line,

14 Mr. Martinovic had any effective control over them.

15 Furthermore, the Prosecution has not proven that the alleged

16 crimes were committed by men under Mr. Martinovic's command. The

17 Prosecutor relies heavily on allusions to Stela in inverted commas. We've

18 heard this, Stela this, Stela that, Stela here, Stela there. However,

19 very few of those witnesses said Vinko Martinovic. And it is not

20 accidental that that was so. The Defence has produced adequate evidence

21 to introduce reasonable doubt concerning the hearsay statements of persons

22 claiming to have worked under Stela, then also, further on, even in the

23 absence of evidence of the improper use of Stela's name. The mere

24 reference to that name, or rather nickname, is insufficient proof to

25 satisfy this Tribunal beyond all reasonable doubt that the perpetrators

Page 16765

1 operated under Mr. Martinovic's command. One would have to establish

2 exactly who those individuals were and through independent evidence to

3 establish that those -- to establish that such individuals were indeed

4 under Mr. Martinovic's command.

5 Testimonies of Witnesses AA, BB, QQ, WW, YY, MM are totally

6 unreliable and may not be the foundation for establishing guilt beyond all

7 reasonable doubt. On the other hand, if the Prosecution relies only on

8 allusions or references to the nickname, that is to Stela, then one is

9 left wondering whether such allusions are based on a general command

10 relationship or perhaps some other motive.

11 Your Honours, please, pay attention to testimonies by Witnesses

12 AA, BB, EE, QQ, and MM which were intolerant, one-sided, and partial

13 testimonies. I will quote two obvious examples. Those others I analysed

14 in our written final brief. Well, then, Witness QQ, told us a strange

15 story about some prisoner Karso which is completely inconsistent with what

16 other witnesses said, and it is also inconsistent of the statement of that

17 same witness which he gave to this Tribunal on the 18th of March, 1999,

18 because he never mentioned that event on that occasion.

19 That same witness describing his past military activities, said he

20 couldn't remember the HVO units that he belonged to. He could not

21 remember its commander. And when referring to Vinko Martinovic, he said

22 that he saw him in different places and on various occasions. However, he

23 described neither the circumstances nor gave us any specific information

24 about that. He was unable to locate the building which housed Vinko

25 Martinovic's unit's headquarters, and he was even unable to describe it,

Page 16766

1 however vaguely. And the location where he said that the alleged murder

2 of Ziko Karso had taken place, that location was never in the area of

3 responsibility of the Vinko Skrobo unit.

4 The same witness, QQ, described how that same day, that is 26th of

5 July, 1993, an incident, the 26th of July, Your Honours -- an incident

6 took place involving uniformed detainees armed with wooden rifles which is

7 completely inconsistent with all the other evidence produced by the

8 Prosecution referring -- addressing that particular event and notably, the

9 testimony of Witness AF. At the same time, he could not give a single --

10 the name of a single detainee with those wooden rifles. He said that they

11 had been killed but could not say where. At a later stage, he recalls

12 some names but they did not match the names produced by the Prosecutor

13 through Witnesses OO, PP, and IJ.

14 Moreover, Exhibit P434 on its page 3 shows that on the 26th of

15 July, 1993, not a single group of detainees worked anywhere in the area

16 which made part of the zone of responsibility of Vinko Martinovic's unit.

17 And after all, it has never been established whether this man, Ziko Karso,

18 ever existed at all. Where is his body? How has it disappeared, and

19 where? There is not a single shred of evidence that the Prosecution could

20 produce -- come up with. But it is important to know that Witness QQ had

21 his first contact with Prosecution investigators whilst in prison as a

22 prisoner, and shortly after that he was released from this prison, which

23 adds further doubt regarding the credibility of his testimony.

24 Witness MM talked about an event which took place on the 29th of

25 September, 1993, when she was allegedly evicted from her flat, after which

Page 16767

1 she was taken to the separation line and then sent free to the east side

2 of Mostar. And that that had allegedly been done by members of the unit

3 under the command of the accused Vinko Martinovic.

4 It is incredible, Your Honours, and I put it to you, it is

5 absolutely unbelievable that somebody could come to the door of a flat,

6 expel the flat, expel the tenants, resort to force, and even introduce

7 himself at that. It would be the same as if a bank robber, for instance,

8 burst into a bank and pointed his arms at tellers and then looked at the

9 camera and said, "Hands up, this is a bank robbery, turn over all the

10 money and everything that you have in your safe. Look at me, I'm Branko

11 Seric, I'm John Smith." The Defence says something like that does not

12 happen in real life; it defies all logic. So the reasonable doubt remains

13 that that incident ever took place, not to mention that it happened -- not

14 to mention the way as described by the witness.

15 Defence witnesses testified about the misuse of the name of Stela,

16 and this makes us doubt reasonably whether those persons indeed were under

17 his command at the time when crimes were committed.

18 Furthermore, if we take that the evidence of the Prosecution about

19 subordination and -- is true, which the Defence does not accept, such

20 evidence is nonetheless not sufficient to affirm that there was a command

21 relationship, that is a relationship between a superior and subordinate,

22 between Vinko Martinovic and the alleged perpetrators. We also deem that

23 the Prosecutor has failed to prove beyond any reasonable doubt that the

24 accused had any specific knowledge about the injuries inflicted by his

25 subordinates.

Page 16768

1 The Prosecutor relies on statements about Stela but he has not

2 proven that Vinko Martinovic could know that his name was being used in

3 this manner. In itself, this makes us doubt and this is -- such doubts

4 are further encouraged by witness statements who said that Stela's name

5 was frequently used by those individuals even when they were not truly

6 under his command. This is indicative of a reasonable doubt as to whether

7 the Prosecutor's evidence really has to do anything with Vinko Martinovic.

8 Witnesses MM -- Witness MM, you can find all the pages quoted in

9 our written, final argument. Witness MN, Witness MO, Witness MQ, MS, MT

10 also confirm that there were instances when different groups

11 misrepresented themselves, impersonated other groups, when engaging in the

12 persecution of Muslims and plunder of their flats. This is also

13 corroborated by document P626 and by Witnesses NO and NV.

14 We also deem that the Prosecution omitted to prove that Martinovic

15 knew or had reason to know about injuries, and I'm referring to the

16 position of the Chamber in the Celebici case, but you have it all quoted

17 in our final argument in its written form. We believe that the Defence

18 has proven that there was reasonable doubt as to the existence of

19 knowledge of offences committed by Mr. Martinovic's subordinates. That

20 is, whenever Mr. Martinovic learned anything about that, such information

21 did not indicate his subordinates.

22 Under Article 28 of the Statute: "In order for persons not

23 actually effectively acting as military commanders to be criminally liable

24 for the acts of subordinates, it must be established that the superior

25 either knew or consciously disregarded the information clearly indicating

Page 16769

1 that his subordinates committed or were about to commit such crimes."

2 We deem that this principle has been adopted -- is proper and it

3 was applied correctly by the -- by the Tribunal in the case of Kayishema,

4 prefect, holding the position of civilian leadership in a Rwandan

5 Prefecture. In the case of civilian leaders, or leaders of a military

6 type, but who do not command in actual or in effective military way, the

7 Prosecution had to demonstrate first beyond all reasonable doubt that the

8 accused had the necessary information at his disposal, and secondly, that

9 information was clearly based on the indication that breaches of

10 international humanitarian law had been committed, and this information

11 clearly showed that the commission of international -- that the offence --

12 that the violations of international humanitarian law had been committed

13 by his subordinates. However, the Prosecutor has failed to prove items 3

14 and 4, as we have just shown. And at any rate there is reasonable doubt

15 as to whether all these elements took place.

16 Although the third item concerned -- the third element of command

17 responsibility concerns the omission; it is up to the Prosecutor to prove

18 it. That is, the Prosecutor needs to prove beyond any reasonable doubt

19 that there were such circumstances. We deem that the Prosecutor not only

20 has failed to prove beyond any reasonable doubt that the accused had

21 failed -- had omitted to take the necessary steps relative to the

22 violations of international humanitarian law. The Defence, on the

23 contrary, has indicated the reasonable doubt and has offered also clear

24 proof showing that Vinko Martinovic did not sit calmly after receiving

25 such information, but quite the reverse, that he actively did what he

Page 16770

1 could to see that his name would not be implicated in any such case.

2 Mr. President, I don't know whether we shall have a break now or

3 when shall we have it? Because I'm moving to another topic.

4 JUDGE LIU: Yes. We will break here and we'll resume at 4.00.

5 --- Recess taken at 3.30 p.m.

6 --- On resuming at 4.02 p.m.

7 JUDGE LIU: Well, Mr. Seric, I was advised by the interpreters

8 that you have to keep space of your delivery, because they had a hard time

9 to follow you. You may proceed, Mr. Seric.

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

11 do apologise to the interpreters. However, since the time is restricted,

12 and we've lived with this restriction since the 10th of September last

13 year, we tend to forget about the interpreters. Because of that, I do

14 apologise to them. I will try to treat them more correctly and to slow

15 down, and yet we have to finish it by the end of this day, because after

16 me, Mr. Par will also have his final argument.

17 Your Honours, I shall be very brief speaking about the

18 persecutions, and I will say that the lack of any discrimination on the

19 part of my client is best illustrated by Witness NO. He testified

20 about -- he testified that criminals imitated Stela and did not

21 discriminate between groups when plundering. He said that literally those

22 criminals did not loot or expel only the Muslims; they did it to Croats

23 too.

24 When describing the attack on a bus, he said, and I quote, "When

25 the old woman realised that they were Croats, she said, 'My children, my

Page 16771

1 sons, we are Croats too,' and one from the group answered, 'Sit down, you

2 hold hag. Nobody is asking you whether you're a Muslim or Croat. This

3 ain't no population census.'"

4 The Defence claims that Vinko Martinovic never had any

5 discriminatory intent and the Prosecutor did not produce any evidence to

6 demonstrate that the accused even knew the general context within which

7 his alleged offences took place and the kind of connection between his

8 acts and the general context. Furthermore, the Prosecutor has failed to

9 offer a single proof that Vinko Martinovic ever identified himself with

10 the ideology, policy, or plan on -- in the name of which the alleged

11 crimes were committed or even that he supported them, let alone that he

12 consciously took the risk of participating in implementing such ideology,

13 policy, or plan.

14 We, in particular, Your Honours, wish to point out the fact that

15 Vinko Martinovic was just a plain soldier, and you have seen evidence to

16 this effect. As such, he commanded a small -- the smallest unit in the

17 HVO, which was responsible for the smallest possible part of the

18 separation line. He did not cooperate at all with the authorities. He

19 never, not once, attended a single meeting, be it a political or a

20 military meeting. He is an individual who only has primary education and

21 has no knowledge as to what is ideology, what is policy, what is a plan,

22 let alone the character of some ideology or a policy. And he never,

23 absolutely never, ever, received an order that would have to do with

24 ideology, policy, or plan in the name of which the would be crimes, the

25 alleged crimes, might have been committed.

Page 16772

1 The Defence has been proving and we have proved the absence of

2 mens rea of the criminal intent on the part of the accused, the absence of

3 the discriminatory intent, through witnesses who were down to the last --

4 who were Muslims down to the last one, witnesses whom Vinko Martinovic

5 helped in different ways throughout the war, both he and members of his

6 family. This is also confirmed by all the soldiers in the unit that he

7 commanded. And the absence of the discriminatory intent was also

8 testified to by Mr. Zoran Mandelbaum, president of the Jewish community in

9 Mostar.

10 Your Honours, I have to address a detail which was brought up the

11 day before yesterday -- before yesterday. It was a complete failure, but

12 it amounts to a provocation when the Prosecutor draws a line of equality

13 between Franjo Tudjman and Slobodan Milosevic, when he draws a sign of

14 equality between the Serb aggression and the Croat defence and he said

15 himself that he was representing the interests of the international

16 community, because then we have to ask ourselves what are we talking about

17 when the Prosecutor allegedly on behalf of the international community

18 speaks about the deceased as if he were a living witness, then even if he

19 put it mildly, it lacks taste, and one cannot even justify it buy the

20 cynicism of the closing argument. Obviously, he is sorry that the man is

21 deceased, not because he has -- he respects the dead but because he cannot

22 charge him.

23 The deceased is not the only witness for the Prosecution. The

24 witness also brings up the name of Janko Bobetko whom we neither saw nor

25 heard in this case, and the Prosecutor says that Janko Bobetko affirms

Page 16773

1 that our expert witness is lying. This intent of Prosecutor to disqualify

2 a witness who testified here before you is so dangerous that it does not

3 exist legally. I mean it lacks complete probative value. So I wonder,

4 Your Honours, is there a single court on earth that would venture to

5 accept such line of thinking and such rhetoric as a conclusion and include

6 it in -- and include it in your judgement? This is a setup, Your Honours,

7 par excellence. When we speak about the international community, Your

8 Honours, it is absolutely certain that the international community could

9 have stopped the war at any given time because it obviously had enough

10 strength to do it.

11 And when the Prosecution says that it is representing the

12 interests of the international community, we still do not know what is the

13 definition of this term, its term. The Prosecutor has shown repeatedly

14 that in point of fact, this interest was the interest of one party to the

15 conflict, namely the Muslim side.

16 The chief interest, the object of protection, should always,

17 however, be man, and the principle -- and the main ethical principle

18 should be: What you do not want done unto you, do not do unto others.

19 But look at the double yardstick of this international community as

20 represented in the Security Council of the United Nations. Almost half of

21 the members do not want a permanent international criminal court. Why?

22 There are few wars which the international community could follow on

23 television day by day, as was the case with the wars in Croatia and Bosnia

24 and Herzegovina, and yet, in spite of such media presence, unheard of

25 until that time, and the fact that the war in Croatia and especially in

Page 16774

1 Bosnia-Herzegovina has not been studied systematically either by

2 historians or by sociologists who would, regardless of all sorts of

3 experts who paraded before this Court, give a complete and composite

4 insight into the backdrop of this war in order to draw from this practical

5 lessons that would raise the level of understanding about the political

6 options and thereby bring about a March objective and more just, more fair

7 decision of this Court.

8 Your Honours, do not remain at the level offered to you by the

9 Prosecution. It is a one sided, a lop-sided picture, unobjective, and I

10 will even venture to say biased, partial, so much that it represents the

11 option of the SDA and Alija Izetbegovic. A realistic understanding of

12 this war and especially the conflict between the Army of

13 Bosnia-Herzegovina and HVO is an important element to be included in your

14 future judgement. Regrettably, your judgement will follow -- law will

15 come about long before all the official documents in archives of all

16 parties to the conflict and especially in the archive of the Army of

17 Bosnia-Herzegovina become available to us. And this will really make your

18 job much harder but precisely because of that, think why this part of

19 documentation is not available to us.

20 I put it to you that this is because it -- you would clearly see

21 that the Army of Bosnia-Herzegovina is not an innocent lamb, that the

22 Muslim party to the conflict was not a victim but a culprit, and even in

23 relation to the HVO, the one who started the conflict. All wars,

24 including the one which is the subject of this case, are basically

25 similar, from the point of view of the nature or unchangeable

Page 16775

1 physiognomy. And therefore, one can easily recognise in them, even

2 perhaps in different combinations, the violence, and above everything

3 else, Clausewitz's paradoxical trinity of wars which according to him is

4 made of the age-old violence, hatred, and hostility which can be viewed as

5 a blind, natural force, the interplay of chance and probability within

6 which the creative spirit can move freely and elements of subordination

7 which are the instruments of policy, which make the war subject

8 exclusively to reason. Some historians tried to affirm that the war in

9 Croatia and the war in Bosnia-Herzegovina was caused by the allegedly

10 untimely recognition of Slovenia, Croatia, and Bosnia-Herzegovina by the

11 international community. Believe me, that is not true.

12 These wars were the result after well-planned and long time

13 prepared policy which corresponds -- which suited the local political

14 needs in Belgrade. There were several causes why the international

15 community didn't understand all that, all that that had existed and that

16 had happened in Yugoslavia. Many saw Tito's Yugoslavia as the only

17 successful model of the third way, and a multi-cultural idyll. All of a

18 sudden, primitive ethnic nationalists started to destroy that, and against

19 the globalising world, they wanted to create claustrophobic villages to

20 suit their primitive interests. Some people saw the former Yugoslavia as

21 a complex state, a movie-like state, in which the frames of the east, of

22 the west, the north, and the south, the Latinic and the Cyrillic mosques

23 and churches, and customs and cuisines replaced each other with a

24 tremendous speed, where coffee could be had at one place and only 100

25 kilometres further down, one could have a Dalmatian food. But this view

Page 16776

1 did not take into account all the relevant sociallogical elements. There

2 was no need to dispel that myth of a good life.

3 Regardless of what your judgement may be, Your Honours, one cannot

4 confine members of one people into a unitarian state. There is no

5 marriage without a mutual wish to stay married. There is no marriage

6 without mutual respect, the respect for one's individuality, for one's

7 identity, for one's integrity. If somebody is being abused, then that

8 person cannot be happy and marriage will fall through, and there is no

9 truth or there is no governor or there is no high commissioner that can

10 save such a marriage.

11 Can we then hope, Your Honours, that reason will -- common sense

12 will prevail? Because common sense is what we have in common. Common

13 sense is what penetrates the nature, and we can work to change and create

14 nature. We can use its laws and we can create tools. Everything in

15 nature is different and one person differs from another by gender, by the

16 colour of his skin, strength, age, and although common sense is what makes

17 a man a man and it exists in all people, still there is difference in the

18 strength, the speed, and the quality of human reactions.

19 The consciousness is the product of the common sense. Its level

20 and degree differ from one person to another. And the material conditions

21 of life, the religions and other ideologies, the class distinctions also

22 shape a human being. A child, when born, becomes a slave or a free

23 person, is a German or English or an Irish or a Croat or a Serb a Catholic

24 or a Methodists or an Orthodox, and for those reasons, one group

25 persecutes another, deprives it of its right. And for that reason,

Page 16777

1 formally and actually for material financial interests, bloody wars have

2 been waged.

3 Unfortunately, when one learns history at school, one learns about

4 when wars happen. One learns about the history of wars. And we

5 unfortunately are here today because one such war. Unfortunately I say,

6 but again I believe that common sense will prevail because it is the

7 common sense that makes us accept differences among people as natural and

8 historical facts, but at the same time to oppose and reject every theory

9 and practice which discriminate a human being as a human being. A human

10 being has the right to cherish his differences.

11 Your Honours, before this Tribunal, before this Chamber, the

12 Prosecution brought a number of witnesses who were nationally and

13 religiously biased and who had a one-sided interest. For example, Witness

14 O is the political leader of Muslims - the Prosecutor himself said so -

15 and his credibility was questionable. And his world view is of Islamic

16 fundamentalism. Sead Smajkic was not a brave man, as the Prosecutor said.

17 He is a religious preacher and he wanted to be a leader and he thought

18 that by publicly testifying here, he would be able to manipulate his

19 future. And he, by testifying here, he sent a message to his Muslim

20 brothers.

21 These same witnesses, when they were in the position to decide

22 whether to charge Martinovic or not, and since he was the only one who is

23 being tried for the conflicts in Mostar, there is a tendency to charge him

24 with everything that happened in Mostar, and the Prosecutor buys that and

25 I thought so, until two days ago, when he delivered his closing argument.

Page 16778

1 Today, I see that it was not that he bought that story but that it is a

2 part of his world view, a part of his thinking, when in his closing

3 argument, he showed us the footage of Jeremy Bowen, in which he showed us

4 that people were crossed a wooden bridge in Mostar, at the same time we

5 hear shooting, and in which it says that on the other side of the river,

6 Vinko Martinovic was standing with his people as if there had been nobody

7 else there but Vinko Martinovic.

8 Then I dare say that this is nothing but propaganda, worthy of

9 John Wayne and his role when he played a Vietnam war hero. But in this

10 case, we don't know who the Viet-cong is, who American soldiers are, and

11 maybe the Prosecutor himself wanted to play John Wayne's role. And when

12 the Prosecutor said that if Vinko Martinovic had not had discriminatory

13 intent then he should be released, Your Honours, but this is exactly what

14 the Defence claims and says. Release this man. Let him walk free.

15 Your Honours, you are a Trial Chamber of the United Nations of the

16 world community, which applies law by force through you. A human being,

17 as soon as he was created, was persuaded by the snake to eat fruit from

18 the tree of good and evil. We have all had that fruit and all of us here

19 in the courtroom have to live with our evil and with our good, and we are

20 always tempted. Please show common sense. Don't show any -- that you

21 were influenced by the prejudices that the Prosecution wanted to instill

22 in you. Please be professional and have a cool head.

23 Your Honours, the crimes can only be committed with a direct

24 intent. They cannot be done as an accident, and we have managed to prove

25 that such an intent has not existed in the accused, there was no mens

Page 16779












12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts. Pages 16779 to 16784.













Page 16785

1 rea. Vinko Martinovic was a common foot soldier, without any particular

2 role in the war, without any rank in the military hierarchy. He had the

3 lowest level of responsibility. His actions were limited to a very narrow

4 front line. His only guilt was that he took a rifle and he went to fight,

5 to fight for his street, for his neighbourhood, for his house and for his

6 people. He really loves his people; believe me when I say that. He loves

7 his native town of Mostar, but also he respects all of his neighbours in

8 Mostar, Bosniaks, Muslims, Serbs, Jews, and others alike. And they

9 themselves have testified to that effect in this case. He defended

10 himself when he was attacked, regardless of who it was who attacked him.

11 I believe, Your Honours, that you have satisfied yourselves that

12 my client is a very ordinary man, that he only completed elementary

13 school, that he refused any rank, that he believed that the most

14 honourable thing was to be a foot soldier and nothing else. I believe

15 that you were able to fully see the role of my client in the unfortunate

16 conflict between the BH Army and the HVO, and that our evidence was enough

17 to create such a picture for you, although we have had many more witnesses

18 who could have additionally confirmed that the truth is what the Defence

19 has been able to prove.

20 Our client has addressed you, Your Honours, in a letter in which

21 he opened your -- his soul to you. He presented some of his personal

22 views, and he expressed his belief that you would understand that his only

23 guilt was that he belongs to a people, to the army of that people, which

24 had a legitimate right to defend its territory from the aggressor, from

25 any side it may have come.

Page 16786

1 Your Honours, in the history of war waging, there were always

2 attackers and those who were attacked. And those people who didn't know

3 how to and who didn't have the skill to defend themselves, have

4 disappeared in the course of history. A little while ago, Your Honours,

5 we witnessed the situation in which Carla Del Ponte, the chief Prosecutor

6 of this Court, declared on the 4th of October of, 2002, that she had some

7 means available to her and that she -- her only goal is the fair and

8 expeditious criminal Prosecution, and that for that reason, she had

9 reviewed everything available to her in the light of the global strategy

10 of the Prosecution, and with regard to the investigations and criminal

11 prosecution.

12 The Prosecutor declared that my client belongs to a group of those

13 at a lower level of responsibility and as such, does not suit the new

14 criteria set out by the new strategy of the indictment, and that is why

15 she issued a request to withdraw the indictment, that the Prosecution

16 raised against Zoran Marijanovic.

17 Your Honours, imagine that if the Prosecutor had those criteria

18 before, then Vinko Martinovic, a common foot soldier, and just for a brief

19 period of time a commander of the lowest unit in the military system, then

20 Vinko Martinovic would not be here today, I wouldn't be addressing you

21 today, you would have never seen him. He would simply not be accused.

22 Your Honours, you have to bear in mind, you have to simply bear in

23 mind, that every day policy, regardless of who it is about, whether it is

24 the day-to-day policy that will decide who will appear as accused before

25 this trial, it seems that the answer to that question is yes. I hope that

Page 16787

1 something like that, such policy, will not influence your final decision,

2 that it will not be either the day-to-day policy or prejudices that will

3 influence your decision.

4 Patrica Wald, the Honourable Judge of this Court in an interview

5 to the Croatian news agency said that there are misconceptions about this

6 Tribunal as an institution which is supposed to build the norms of

7 international law. According to her, this Tribunal should only deal with

8 political and military leaders, such as Milosevic, Karadzic, and Mladic.

9 The Prosecutor also said the other day that our -- that if we were

10 in Mostar, and if the new strategy was applied, then yes we would be in

11 Mostar and my learned friends caught -- I should tell you that the

12 courtroom would be full, but it is for us to speculate and only speculate

13 who would it be who would be sitting in the courtroom. True, the truth

14 against lies seems like an easy fight. Because according to a proverb,

15 the truth always wins, but is it really so? Is it really so all the

16 time?

17 The Defence had at its disposal the truth, but only the truth. We

18 did not have a single document. For example, we asked from the office of

19 President Mesic, the Office for Cooperation with this Tribunal, from the

20 BH authorities, we asked for all of them to send us some documents, but we

21 have never -- never -- received anything. The notorious transcripts which

22 have appeared before this Trial Chamber, the Office of the President of

23 the republic have had them at their disposal. However, there is not a

24 single conversation, a single meeting, at which he was present. He made a

25 selection and he has delivered them at his own will, and in that way, the

Page 16788

1 President of the Republic of Croatia, Stipe Mesic, contaminated these

2 transcripts as evidence.

3 When witnesses started arriving and arrived throughout the case,

4 that is Prosecutor's witnesses, and when we confronted them with the

5 different things that they said, and when overnight, all of a sudden, they

6 remembered what had happened eight or ten years ago, and when we

7 confronted them with the truth, then we were not allowed to do so, and we

8 wanted to do -- to use the truth because that is all that we had. So why

9 did the Prosecution call these witnesses? When cross-examining these

10 witnesses and when we tried to discredit them, then we were not allowed to

11 do so, as if they were bears in the Yellowstone Park. Why? Because they

12 were victims, as if victims don't lie.

13 In my professional career, I was the President of a Trial

14 Chambers, and believe it or not, I can corroborate that by statistics that

15 I have prepared, in over a thousand cases, there were at least that number

16 of victims with their families. And in every case, those victims lied or

17 at least exaggerated. One has to be blind not to see that this has also

18 happened in this case.

19 There were a number of instances when we showed documents to

20 witnesses which contradicted their words, and then the question can be

21 raised whether it is the documents who are false or whether it was the

22 witnesses who lied. According to the Prosecution, everything is possible;

23 two things can co-exist at the same time in the same place. This is

24 contrary to the laws of physics. This is only possible if one applies

25 tricks and black magic. When the documents provided to us by the

Page 16789

1 Prosecution were exculpatory, then those documents were proclaimed false,

2 then these documents were not speaking the truth. And when they were

3 charging the accused, then the documents were okay. They were true.

4 Do you remember, and I believe you will remember, Your Honours,

5 what Isabella said to Lord Angel in Shakespeare's Measure for Measure?

6 THE INTERPRETER: Interpreters comments Your Honours counsel Seric

7 is quoting from Shakespeare and from Measure for Measure, and the

8 interpreters cannot interpret Shakespeare into English.

9 JUDGE LIU: Well, we will have that checked at a later stage.

10 You may proceed.

11 MR. SERIC: [Interpretation] You will pronounce such a judgement

12 against Shakespeare. [interpretation].

13 [quotation inserted subsequently]

14 "No ceremony that to great ones ‘longs,

15 Not the king’s crown, nor the deputed sword,

16 The marshal’s truncheon, nor the judge’s robe.

17 Become them with one half so good a grace

18 As mercy does …

19 Why, all the souls that were, were forfeit once;

20 And He that might the vantage best have took,

21 Found out the remedy …


23 I would to heaven I had your potency …

24 …I would tell what ‘twhere to be a judge,

25 And what a prisoner.

Page 16790

1 So you must be the [first] that gives this sentence,

2 And he that suffers. O! it is excellent

3 To have a giant’s strength; but it is tyrannous

4 To use it like a giant."

5 End of quote from Shakespeare.









14 And finally, Mr. President, Your Honours, Judge Clark and Judge

15 Diarra, put aside the politics that I myself have burdened you with. Put

16 aside the international community that I've tried to portray for you and I

17 have burdened you with that as well. Put aside the policies of the new

18 states which have emerged from the former Yugoslavia. Put aside the

19 presidential transcripts. Put aside the late Franjo Tudjman, Gojko Susak,

20 Mate Boban, let them rest in peace. Put aside history. Put aside the

21 fixation of the Prosecution by some banovina, Alija Izetbegovic, his

22 understanding or misunderstanding of the historical, sociological,

23 cultural aspect of our small people in our small state or states. The

24 time is now and today to look at our client and look at him and nothing

25 else but him and his case. He really hasn't got anything to do with any

Page 16791

1 of these things. He is here by accident. Denude the accusations against

2 Vinko Martinovic, and when you see that there is no fabric to those

3 accusations, that there is no fabric, that there is nothing around these

4 accusations, then you will see, and you will have to say, the emperor is

5 naked.

6 None of the things that Vinko Martinovic has been charged with

7 have been proven beyond all reasonable doubt, and you have to apply the in

8 dubio pro reo principle and you have to set him free. Do you know, Your

9 Honours, that in Croatia and in Herzegovina, this trial -- this Tribunal

10 is always compared with Dante's inferno and it is said that whoever enters

11 here should forget all hope. So whoever is charged by The

12 Hague will be convicted and will be convicted hard and long, and the

13 Prosecution wants to prove that. And the Prosecution is asking for 35

14 years for Naletilic and 25 years for Martinovic. Please convince us that

15 there is hope for those who appear before this Tribunal. Give us hope.

16 JUDGE LIU: Thank you very much.

17 Mr. Pa?

18 MR. PAR: [Interpretation] Your Honours, my learned friends, I wish

19 to speak about Vinko Martinovic, Stela, and acts that he's charged within

20 the indictment and the evidence produced during the case.

21 I wish to speak from the point of view of the accused, in a way,

22 in which Vinko Martinovic might address this Court if he were -- if he

23 came out to testify. I believe that will be the language understandable

24 to this Court. If you ask me why Vinko Martinovic is not testifying

25 himself, the answer is that that is because he trusts us and believes that

Page 16792

1 we, his defenders, will convey his words and because he does not want to

2 answer the Prosecutor's questions. He does not want to compete with the

3 Prosecution. He does not want to think about traps in leading questions.

4 He does not want to put himself in a situation where he might be provoked

5 by false allegations. And we understand him.

6 As his defender, I will try to present his view on every count of

7 the indictment, because I also believe in the international criminal

8 court, because -- and because we speak the same language as any

9 international criminal court deemed of that word in the world. This is

10 the language of criminal law, the language that everybody needs to

11 understand. This is the language of common sense.

12 I do not think that this criminal Tribunal in The Hague should be

13 above other courts. I do not think that the judges and the counsel in

14 this Tribunal should in any way be above the standards of any other

15 serious professional in criminal law. Quite the reverse. I think that in

16 this Tribunal, justice will be dispensed only if we, all of us who

17 participate in this case, behave in line with the rules of our trade. And

18 the basic rule of our trade says that the judgement must be based on

19 evidence which is above any reasonable doubt.

20 And how do we understand this? To my mind, it means that in the

21 case of severest crimes, wherever in the world the decision on the guilt

22 is taken by laymen, by jury, by jury persons, and these juries, include

23 pensioners, car mechanics, house wives, not some superlawyers. They know

24 what is beyond any reasonable doubt. It is what nobody doubts. An

25 ordinary man without legal education has to know why is somebody being

Page 16793

1 brought to trial, what he's accused of and why he is acquitted. This is

2 the chief idea behind fair trial.

3 My client is entitled to know what he is accused of and on the

4 basis of what he is being tried. Today, before this Court, I wish to

5 present his views, his questions, and his argument, what he has to say

6 with regard to what he is being charged with, and I expect, answers from

7 the Court in their judgement and my client expects to understand it. He

8 expects a fair trial, a trial which will say, for things that have not

9 been proven beyond reasonable doubt, he is set free, he is acquitted. As

10 it is the position of this Defence that the Prosecutor has failed to prove

11 any single count in the indictment beyond any reasonable doubt, let us

12 then go through the indictment and I will speak of the doubts raised in

13 relation to each one of the counts.

14 In the second amended indictment of the 20th of September, 2001,

15 the Prosecutor of the International Criminal Tribunal charges Vinko

16 Martinovic, an HVO soldier from Mostar, with the commission of a number of

17 crimes, crimes against humanity, grave breaches of the Geneva Conventions,

18 violations of the laws and customs of war. In terms of their substance,

19 these acts incorporate the persecution of Bosnian Muslims, unlawful

20 labour, inhumane treatment of prisoners of war, torture, murder

21 alternatively -- alternatively qualified murder, forcible transfer of

22 Bosnian Muslims, destruction and plunder of their property. All these

23 crimes were allegedly committed between April, 1993 and the end of January

24 1994 in Mostar during the armed conflict between Croats and Bosniaks in

25 that city.

Page 16794

1 Vinko Martinovic is indicted for these crimes both pursuant to the

2 principle of responsibility of superior authority and the principle of

3 individual criminal responsibility. The 15 months of hearings are behind

4 us. The evidence has been produced, and we've also heard the Prosecutor's

5 final argument. What does the accused Vinko Martinovic have to say in

6 answer to that? What does his Defence have to say in response to that?

7 Count 1, persecution. Under this count of the indictment, Vinko

8 Martinovic is charged with persecutions on political, racial, and

9 religious grounds, qualified as a crime against humanity. The acts of

10 commission relative to this count are the crucial point of the indictment,

11 because they practically incorporate all the other acts indicated in the

12 indictment. And I'd like now to -- us to pause and think about this legal

13 qualification. The Defence believes that the legal qualification under

14 count 1 -- in count 1 is untenable in a situation when in this indictment,

15 once again and as a separate count, we have the charges from count 1,

16 namely the commission of this crime under count 1, that is persecutions,

17 and it says the persecution -- the expulsion of Muslims, plunder, torture,

18 incarceration, human shields, and the like. And after that, all this is

19 once again qualified as separate -- as separate acts under different

20 counts.

21 What does that mean? It means that for one and the same act, we

22 may be -- we may account twice. We can be punished twice, once when we

23 call -- when we qualify a particular act as persecution and a second time

24 when that same act is qualified as inhumane treatment and the like.

25 And I'd like to know which is the accused whom I could explain in

Page 16795

1 some sensible way that he can be punished for one and the same thing

2 twice, and which jury would accept that? Perhaps in some systems, it

3 could be qualified in this way, but the accused and the victims come from

4 a system where such a thing does not exist, and that is one argument that

5 must be heeded. The position of this Defence is that an accused before an

6 international court may not be placed in a position which will be more

7 difficult than would be the one if he were tried in the country where the

8 alleged crimes were committed.

9 We are promoting the international criminal law and I go along

10 with that, but precisely because of that, I am appealing to you not to

11 turn the international criminal court into an American court or some other

12 court. I appeal to you to promote it along the principles of justice and

13 fairness, because these are principles that everybody can understand. And

14 we, as Defence counsel -- well, we were chosen by our client precisely

15 because of that, so that we could defend him in a manner that he can

16 understand, rather than find himself before a foreign court with foreign

17 lawyers who are interpreting to him foreign jurisdiction, and he is thus

18 left aside from his own Defence. That is, he has no manner of voicing his

19 own defence. We think that the jurisdiction and law of the country of

20 origin of the accused is valid for this Tribunal, that it may not be

21 underestimated, be it when we are talking about the procedure, legal

22 qualifications, or punishment.

23 And therefore, the objections of the Defence go to the vagueness

24 of the indictment of the international Prosecutor and the legal

25 qualifications, and these objections are of a lasting nature. We firmly

Page 16796

1 believe that the Court should not allow the Prosecutor to introduce in the

2 international criminal law the practice or the system of a multiple

3 charges, multiple counts for one and the same crime. We are still talking

4 about this first count, the persecution, so let us see what is it that the

5 Prosecutor highlighted in his case against Vinko Martinovic. The

6 Prosecutor said that Vinko Martinovic played a pivotal role and that he

7 was a generally known executor of persecutions, or as was said in the

8 closing argument of the Prosecution, ethnic cleansing in Mostar in 1993.

9 On the opposite side of this thesis, the Defence says that Vinko

10 Martinovic objectively could not be that individual, nor did he take part

11 in this. The Defence's evidence has shown that quite the contrary, Vinko

12 Martinovic protected his Bosniak -- his Muslim neighbours against

13 persecution. The Defence's evidence has shown that during the period

14 referred to in the indictment, Vinko Martinovic had no military or

15 political powers that could be related to the planning, instigating, or

16 committing any strategic actions in Mostar, let alone in the broader area

17 of Herzegovina. The Prosecutor has not produced a single evidence to

18 indicate that Vinko Martinovic was anything more than a soldier on the

19 front line who, without any rank, led a group of fellow combatants along a

20 front line some -- about a hundred metres long.

21 If one has that position, one cannot act strategically, one cannot

22 instigate, one cannot encourage, one cannot engage in systematic

23 persecution. Who is it that Vinko Martinovic met with? Who is it that he

24 planned with? What did he plan? Whom and how did he instigate? What

25 powers was he vested with? The Prosecutor has not answered these

Page 16797

1 questions. He has offered us no proof for that particular tale.

2 What did we hear in the Prosecutor's closing argument in this

3 regard? The Prosecutor told us that unfortunately, this war had

4 introduced a new term, and that is "ethnic cleansing," which ought to be

5 synonymous with types of persecution carried out in wars which followed

6 the disintegration of Yugoslavia. So the Prosecution's thesis is that in

7 the Croat-Bosniak conflict in Mostar in 1993, the HVO applied the method

8 of ethnic cleansing and that the accused Martinovic participated in it.

9 This thesis was served to us by representatives of international

10 organisations, people in white clothes of European monitors, who, during

11 luncheons with leading political and military commanders of all the

12 parties to the conflict, gathered information about the nature of the

13 conflict. And on such occasions, they made a mistake. And that mistake

14 is called they could not see the forest because of -- for a tree, they

15 couldn't see a forest. They did not see that it was no -- it was not a

16 special method but that the war which in 1991 in Croatia, and then in 1992

17 in Bosnia and Herzegovina, was started by Serbia, Montenegro and the JNA,

18 that that war was actually called ethnic cleansing. The name of that war

19 is Ethnic Cleansing. That war, that aggression, had no other purpose in

20 mind, pursued nothing else. Everything in that war was subordinated to

21 that goal: Ethnic cleansing.

22 From the territories they wanted for themselves, the Serbs started

23 expelling the non-Serb population. And in this manner, they determined

24 the nature of the war waged in Bosnia and Herzegovina. When this process

25 started -- once this process started, it became unstoppable.

Page 16798

1 And in the spring of 1993, this war -- that war made its way to

2 Mostar. Am I to mention here the famous decision of the Security Council

3 of the UN, which, during the fiercest Serb aggression against the Muslims

4 and Croats, prohibited the Muslims and Croats to purchase weapons to

5 defend themselves? This decision was tantamount to a death sentence of

6 thousands of Croats and Bosniaks, and told the Serbs, "Go ahead, finish

7 your job." And so ethnic cleansing was legitimised. What perhaps was not

8 clear then to international monitors was clear to every individual

9 inhabitant of Bosnia-Herzegovina around whom shells were falling at that

10 same time. That inhabitant understood perfectly that the fighting about

11 no-man's land had started and that every one of the three peoples had to

12 find room for itself, because that was the formula imposed by the Serbs

13 and endorsed by the international community.

14 It is not my intention to analyse the role of the international

15 community but simply to point out at two different views related to

16 persecution and ethnic cleansing. One of these views, a view from above,

17 from the Prosecutor's Office, and a view from below, from the angle of

18 ordinary people who survived that war and who testified here.

19 The Prosecutor says it does not matter who started the war, we

20 won't now talk about the Serb aggression here. But it is important,

21 because the one who started it imposed the pattern of the war. In this

22 count of the indictment, it is said that the persecution was carried out

23 on the racial, ethnic, and religious grounds. The Prosecutor even says

24 Stela hated Muslims, and the chief proof of that is that some witnesses

25 had heard him call them "balijas." And for the Prosecutor, that is the

Page 16799

1 chief proof in the eyes of the Prosecutor that there was a discriminatory

2 intent. International experts and monitors must have come by information

3 that Serbs, Croats, and Muslims in Bosnia hated one another and therefore

4 killed one another.

5 We heard witnesses from Mostar, Prosecutor's witnesses and

6 Defence's witnesses. None of them said that Muslims, Croats, and Serbs in

7 Bosnia-Herzegovina hated one another before the war, and in particular, we

8 did not hear that in relation to Vinko Martinovic, Stela. We did not hear

9 that he hated anyone, just because he was a Muslim or a Serb. The answer

10 to that question, to the question about hatred in relation to a

11 discriminatory intent, is something that every inhabitant in

12 Bosnia-Herzegovina also knows, and the answer is not hatred but fear.

13 The Bosniaks and the Croats did not go to war in Mostar because on

14 the 9th of May, 1993, they started hating one another, but because an

15 ethnic war had been raging around them for a long time by then, and

16 because the critical amount of fear of the other had already amassed in

17 them. They did not see then their people living next to them as their

18 Muslim neighbours or Croat neighbours but as potential enemies. And that

19 word, "Balija," that the Prosecutor persists in using as a -- the pivotal

20 evidence about discriminatory behaviour needs to be demystified, Your

21 Honours, in this courtroom, once and for all. I really got a headache

22 listening to witnesses, Muslims and Croats alike, interpreting, explaining

23 to this Court what the word "balija" means. And it is very simple. It is

24 an insult. It is a word which is offensive to Muslims. And at the same

25 time, during that same period of time, Serbs were called Chetniks, and

Page 16800

1 Croats Ustasha. And these were all insults meant for Serb and Croat. And

2 that is how insulted one another and called Serbs, Croats, and Muslims

3 that war year of 1993. Why? Because villages and towns were ablaze

4 around them.

5 Can one really expect that they were to be polite at the time? A

6 war cannot be waged from an office. One cannot forget the circumstances

7 under which things were happening, how things looked then and how they

8 could look now. One pretty usual insult cannot make us try somebody by an

9 international court. In the media at the time, on all the three sides, in

10 newspapers, on TV, these derogatory terms were used every day. I do not

11 justify that, but I also cannot allow somebody to make a mountain out of a

12 mole hill.

13 Your Honours, maybe we can have a break now, and I propose to

14 continue after the break. Thank you.

15 JUDGE LIU: Yes. We'll resume at quarter to 6.00.

16 --- Recess taken at 5.17 p.m.

17 --- On resuming at 5.47 p.m.

18 JUDGE LIU: Yes, Mr. Par. Please continue.

19 MR. PAR: [Interpretation] Thank you, Mr. President.

20 We are still on count 1 and we are talking about the role of Vinko

21 Martinovic, Stela, in ethnic cleansing. The Prosecutor says that Vinko

22 Martinovic was a military commander with a key role in the persecution of

23 Muslims in Mostar. Was it really so? What did witnesses have to say

24 about that? Did any of the witnesses confirm that, or was it the

25 Prosecutor who testified to that effect? Who was actually Vinko

Page 16801

1 Martinovic in Mostar in 1993?

2 Vinko Martinovic, with a rank of a foot soldier in the HVO, in a

3 unit called Mrmak and later on Vinko Skrobo, his duty was a commander.

4 The strength of the unit was 50 to 70 men. The task of the unit was to

5 man the line near the medical centre and the length of that line was

6 between 80 and 100 metres. He didn't have any other duties. He didn't

7 have any other authority. He didn't hold any political or military

8 positions. Did he ever attend any significant military or political

9 meetings? He didn't. Was he a member of a political party? He wasn't.

10 So what kind of a key role did he then have in Mostar in 1993?

11 That is what every reasonable person would ask. There is one thing, and

12 only one thing, that made Vinko Martinovic a key figure in Mostar in 1993,

13 and the reason is, actually, the fact that he is here in front of an

14 International Tribunal. So it would be good to make him responsible for

15 everything that happened in Mostar and bring this story to an end.

16 What is the link between that and the Jeremy Bowen's footage that

17 we were shown by the Prosecutor? Was he filmed by a film camera, either

18 him or his unit? Does the link arise from the fact that the footage shows

19 persecution of Muslims? And maybe that persecution should be ascribed to

20 Vinko Martinovic? How is the link established between him and hundreds of

21 nameless victims, expelled people, the photos of the families who were

22 victimised by the war? Where is evidence proving that -- has Vinko

23 Martinovic brought before this Tribunal to be found responsible for

24 everything that happened in Mostar? He is here to seek justice. He is

25 here of his own will. He has been promised a fair trial, and this is what

Page 16802

1 he requests. He demands to be tried based on evidence.

2 The Prosecutor himself, in his closing argument, gave us 17

3 highest-ranking military commanders who made decisions in Mostar in 1993.

4 The Prosecutor gave us the entire structure of the HVO. He explained to

5 us the political background of military activities that took place during

6 the conflict in Mostar. Among those names, he didn't mention the name of

7 Vinko Martinovic. Amongst the thousands of documents relative to the

8 political and military power in which different persons are mentioned,

9 there is no name of Vinko Martinovic. How come, then, that he is so

10 important? What makes him so important? What brings him here to this

11 Tribunal?

12 Vinko Martinovic is here because he is not important, because he

13 was never important, because he doesn't have any military or political

14 protectors or sponsors. And because of that fact that he is not

15 important, he was the scape-goat when somebody had to be sent to The

16 Hague. And now, what about the persecution of Bosniaks and Muslims in

17 Mostar in 1993? In the final brief, we have put forth our positions and

18 we said that Mostar, at the relevant time, was the place where a number of

19 refugees came, and we put forth the thesis according to which these newly

20 arrived refugees were the ones who carried out persecutions on both banks

21 of the river in Mostar. I don't have the time to belabour on that, but

22 you will find that in our final brief.

23 Our -- according to our thesis, there was no need for any

24 particular plan or order, ordering persecution, but rather that the

25 perpetrator of the persecution were the same people who had experienced

Page 16803

1 the same thing in their native villages. They had seen how this was done

2 and now, in the same way that they had once been expelled, they started

3 expelling others.

4 I would like to dwell upon the testimonies of Muslims, MA, MB, MC,

5 MD, ME, MF, MG, MH, MI, MK, and others. This I don't want to state for

6 the record, because the Prosecutor himself mentioned all these witnesses

7 as "some" witnesses. What did these witnesses have to say to us? Those

8 people were Muslims from the west part of Mostar, who were visited by

9 unknown groups of criminals who knocked on their doors in order to evict

10 them from their apartments. They all said one and same thing. They said

11 that they were expelled by people unknown to them, unknown because they

12 were not from Mostar, because it was war which had brought them to

13 Mostar. They had never seen them before.

14 The witnesses said that their neighbour Vinko Martinovic had

15 protected them, that they knew him as a person who didn't make a

16 distinction between Croats, Muslims, and Serbs. Why did they turn to him

17 for protection? Because he was the only soldier for whom they believed

18 that he would not leave them out in the cold, that they could turn to him

19 for help, that he was brave and strong, and that he was ready to engage

20 his physical strength, the strength of his unit, to protect his Muslim

21 neighbours.

22 How did he help them? He would come, together with his soldiers,

23 to protect them from those who wanted to evict them. He would give them

24 documents of his unit so that they could introduce themselves as persons

25 engaged in the HVO and that they could thus regulate some of their

Page 16804

1 affairs. He would go to other parts of the city to save members of these

2 people's family from persecution.

3 Witness MA and his family hid in the house of Martinovic's

4 parents, and he helped Muslims with money and with food that he gave

5 them. At their request, he would help them to join with their families

6 who lived in other parts of the town. He would help them if they wanted

7 to leave Mostar and go to other towns or to other countries. Vinko

8 Martinovic, in the situation where he found himself, against his own will,

9 in Mostar, in 1993, did the only possible thing. Every day, he helped his

10 neighbours, his Muslim neighbours, as much as he possibly could. He

11 couldn't help everybody, but in his neighbourhood, in the part of town

12 called Balinovac, owing to him, the most Muslims have remained, and they

13 personally came to this Court to explain how Vinko Martinovic had helped

14 them, when he had helped them, and we have all of their initials in our

15 final brief. Who were these witnesses? Who were these Muslims who

16 testified here? They were ordinary people, neighbours, from whom Vinko

17 Martinovic could not expect any favours in return. Nobody showed any

18 interest in them. Nobody could protect them. Nobody could help them out

19 of the dire straits. Nobody wanted to help them. And they themselves

20 could not find an escape from the situation that was so difficult for

21 them.

22 And what did the Prosecutor have to say to all this evidence? He

23 ignored it, as if this evidence didn't exist, as if it wasn't important --

24 even as if it wasn't a mitigating circumstance. Nothing. And all this

25 was very important for these people and it maybe even saved their lives.

Page 16805

1 I believe that this Trial Chamber will find their testimonies

2 important. Can we say that things didn't happen the way these people

3 testified? After their testimonies, can we say that Vinko Martinovic

4 systematically persecuted civilians, Bosniak Muslims, on religious

5 grounds? Was it Vinko Martinovic who did that when he hid a Muslim family

6 in the basement of his parents' house? Was it Vinko Martinovic who did

7 that when, during the most fierce conflict, organised a Muslim burial of

8 his neighbour's mother, at the time when such a thing was absolutely

9 inconceivable? Vinko Martinovic, for whom MA, MB, MC, MD, MF, and MH said

10 that he protected them and saved them.

11 The Defence presented a lot of evidence with regard to this count,

12 which shows that the name of Vinko Martinovic, i.e., his nickname Stela,

13 was used to disguise the real perpetrators of plunder and other crimes.

14 This is the way the Defence wants to answer, to rely to, the testimonies

15 of Prosecutor's witnesses who spoke about the role of Vinko Martinovic in

16 persecutions, i.e., of the participation of his soldiers in that

17 persecution.

18 Since my colleague, Mr. Seric, has already spoken about that

19 misrepresentation, I will not dwell upon that. I'm just going to point

20 out the Exhibit P626, in which we could see -- and the exhibit was a SIS

21 report -- in which we could see that many a group of criminals were

22 falsely introducing themselves by the name of Stelici. After that, we

23 also saw proposals as to how this should be prevented. And we also heard

24 testimonies by Muslim witnesses to that effect, who told us about things

25 that they had seen personally when groups of criminals came knocking on

Page 16806

1 their doors and falsely presenting themselves. For example, a witness was

2 describing a situation when Stela was personally present in his apartment,

3 when soldiers came knocking to the door of that apartment, introducing

4 themselves as members of his unit.

5 Witnesses were talking about situations when some refugees came

6 and said that it was Stela who had expelled them, and they said in Stela's

7 presence, so the person who had introduced himself as Stela actually

8 abused Stela's name. So these witnesses explained to us why was Stela's

9 name so suitable for somebody to say, "I am Stela," or, "I am a Stelici."

10 It was because he was famous for his bravery and strength. His name

11 became famous during the war with -- against the Serbs. So it was widely

12 believed that a mere mention of his name would produce a desired effect.

13 That is, either somebody would get really scared or they wouldn't dare

14 verify the introduction.

15 There are more details of that in our final brief. But what I

16 would like to emphasise at this point is the fact that this count of the

17 indictment charges the -- Vinko Martinovic with command responsibility,

18 and this is what the Prosecutor did during his case. He mentioned the

19 instances when Stela's soldiers were seen as participants in plunder and

20 persecution. In no such case did the Prosecutor establish a link between

21 the alleged events and Vinko Martinovic himself.

22 We believe that in such a situation, Vinko Martinovic cannot be

23 held responsible and charged with command responsibility if something did

24 not exist in his consciousness, if he didn't know that things were

25 happening, if he could not know that was happening, and if he didn't have

Page 16807

1 a duty to know that things were happening.

2 Maybe we could illustrate that with an example. Let's take, for

3 example, a modern army, NATO, for example, and if, for example, a soldier,

4 a NATO soldier, whose name for this purpose will be James Smith, has an

5 afternoon off. He leaves his barracks, goes to a pub or a bar wearing his

6 uniform, gets drunk, and there rapes a girl, whose initials for this

7 purpose will be MN. Will his commander - let's call him Miller - who had

8 stayed in the barracks, so will he be charged with that rape as his

9 commander? So will he be charged with command responsibility? I don't

10 believe so.

11 Let's now replace the names with some other names. Instead of

12 NATO, let's use the HVO. Instead of Smith, let's use Ernest Takac. And

13 instead of commander Miller, let's say commander Martinovic. Should

14 Martinovic be held responsible for something that Miller is not

15 responsible for? Should the legal situation be the same? It is the

16 position of this Defence that command responsibility is not an objective

17 responsibility, and that Vinko Martinovic should not be held responsible

18 for the things possibly committed by his soldiers during their time off,

19 the things that he didn't know anything about and was not in the position

20 to know anything about.

21 Since I do not have much time, perhaps I will not be able to

22 address all counts individually so that I'm moving to the 17th of

23 September, 1993, wooden rifles. The rest, the previous counts, they are

24 in the closing brief. If I have time, I'll come back to they will.

25 Ergo, counts 2 to 8. The date, 17th of September, 1993. The

Page 16808

1 indictment says Vinko Martinovic ordered to issue the prisoners with

2 wooden rifles and they were to move next to the tank, and we discussed it

3 here for several months.

4 It is the Defence's position that the story about the wooden

5 rifles, which allegedly were given to prisoners of war, was a story that

6 was told in Mostar and in Bosnia in relation to different locations,

7 central Bosnia, Santiceva Street in Mostar, and also witnesses have told

8 us it was transmitted, told and retold by those incarcerated at the

9 Heliodrom, via media, without ever being associated with Vinko Martinovic

10 and his unit. It was only when the proceedings were launched against

11 Vinko Martinovic that somebody tried to link this story with Vinko

12 Martinovic.

13 The Prosecutor mostly refers to a document P608, about a combat

14 action on 17th of September, and the testimonies of LP, JJ and the

15 investigators who have allegedly found a wooden rifle, which again

16 allegedly was used in that action. The Defence's position is that the

17 wooden rifle incident did not happen in Vinko Martinovic's unit. When

18 Witness PP was testify -- testified, he said that there were a number of

19 incidents involving wooden rifles. Witness AF stated to Apolonia Bos,

20 investigator of the Prosecutor, that prisoners with wooden rifles were on

21 Santiceva Street outside Martinovic's area of responsibility. This

22 investigator confirmed it during her testimony before this Chamber.

23 During the testimony of the Prosecution's witness Allan Knudsen, a

24 question was put about a number of incidents where prisoners were issued

25 with wooden rifles. Witnesses PP and OO mentioned different dates on

Page 16809

1 which that incident had taken place.

2 Document P608 says SIS report, secret police. There was an

3 operation on the 17th of September, 1993, and the order was issued to

4 Vinko Martinovic. The Prosecutor's document says Vinko Martinovic refused

5 to command the commander Mario Milicevic, Baja. The Defence says Vinko

6 Martinovic does not have the command responsibility on Bulevar on the 17th

7 of September, nor was he in command.

8 Document P612.1 says -- it's a Prosecutor's document -- all

9 individuals who on the 17th of September, 1993, were sent from the

10 Heliodrom to Vinko Skrobo, all returned on the 27th of September, 1993, to

11 the Heliodrom. This document is dated 28th of September, 1993, and it

12 tallies with information from the Heliodrom, that is the information found

13 in logbooks for the date of the 17th of September. There are the names of

14 prisoners sent to work at Vinko Skrobo unit on the 17th of September.

15 So the documents of the Prosecution referring to these incidents,

16 they speak about wooden rifles, about the command responsibility of Vinko

17 Martinovic on Bulevar and so on and so on, but these documents tell us the

18 contrary to what the Prosecution sets out to prove. And what does the

19 Prosecutor respond to that? He simply says document P612.1 is false.

20 That is what the Prosecutor told us in his closing argument.

21 Now, we ask ourselves: Who brought this false document to the

22 Court? The answer: The Prosecutor. Who here tried to persuade us that

23 this and other documents were authentic? The Prosecution's investigator

24 as a witness in this case. How is it that only now, in the closing

25 argument, we hear from the Prosecutor that a particular document is

Page 16810

1 false? Can we be told which other documents are also false too in these

2 17 binders? Doesn't the Defence have the right to say what is false are

3 the allegations of the Prosecution's witnesses, Allan Knudsen, OO, PP, JJ

4 testifying about these facts.

5 Can the Defence say, "Witness OO lied when he said there was a

6 wooden rifle in the museum," because we have established that that is not

7 true. Can the Defence say, "The wooden rifle brought by the investigator

8 of the Prosecution -- brought because this rifle was planted by AID?" Can

9 we say that the witnesses for the Prosecution a currently two active

10 officers in the BH Army, a foreign mercenary and the Prosecution's

11 investigator, and that is why we don't believe them?

12 The indictment claims that prisoners of war with wooden rifles

13 were forced to walk along the tank which was moving towards the enemy

14 positions and the purpose of this operation, said the Prosecutor, was to

15 provoke the fire from the positions of the BH Army, to open fire on

16 disguised prisoners so that the HVO man in the tank could identify, could

17 see where the enemy positions were.

18 And it suffices to look at the photograph of the Bulevar to

19 understand that such claims lack any ground whatsoever. What we are

20 talking about is the separation line on the Bulevar where, on one side of

21 this line, there are the HVO positions in fortified buildings and on the

22 other side of that same street, called Bulevar, are the positions of the

23 BH Army in fortified buildings. The distance between them? 20 to 50

24 metres. And that line remains unchanged for several months prior to this

25 event. Soldiers on one side know all the positions of the soldiers on the

Page 16811

1 other side. They know one another. They call to each other. They

2 negotiate. And it goes on and on for months on end.

3 And how, then, can we make ourselves believe that it was exactly

4 on the 17th of September, 1993, that it became unknown where the enemy's

5 position -- where the enemy positions were. And they needed to be

6 identified in this manner to allow the tank to go into action. The tank

7 which is intended to destroy buildings, and which was the reason why it

8 had come to the Bulevar, to fire on fortified buildings. The explanation

9 about the human shield, about the reasons -- the reasons of the -- to

10 explain why the prisoners were made to walk next to a tank -- beggars, any

11 reasonable explanation, and the whole story about wooden rifles doesn't

12 hold water. I do not have time to talk about the wooden rifle which we

13 received during the rebuttal case, and what we think about such an

14 unacceptable exhibit.

15 We said in our closing argument, and the Chamber has also had the

16 opportunity to see it at the time when this evidence, this type of

17 evidence, was produced. Wooden rifles -- I won't waste time with them

18 anymore. But in that same count, there is something which surfaced only

19 during the closing argument, and -- but that is something that I must not

20 forget. Namely, having closed his case, the Prosecutor decided to

21 withdraw the charge for the human shield, in which allegedly three

22 prisoners were killed. And the Court has then decided that the

23 Prosecution has failed to prove this charge about the human shield in the

24 area of Vinko Skrobo unit.

25 Nevertheless, in their closing argument, they mention the

Page 16812

1 responsibility of Vinko Martinovic for the death of Aziz Colakovic and

2 Enis Pajo who, according to the witness for the Prosecution, were killed

3 in a section of the Bulevar next to the dugout trenches. That is in the

4 area of the civilian police, not next to the health centre where the area

5 of responsibility of Vinko Martinovic was.

6 And precisely for that reason that it was known that those two men

7 had not been killed in Vinko Martinovic's area of responsibility, the

8 Prosecutor withdrew his charge for human shield. But now tries, through

9 the back door, to introduce once again two more dead souls, even though he

10 knows that they were not killed in Vinko Martinovic's area of

11 responsibility. But he nevertheless tries to add yet another charge.

12 The wounding of Senad Pajo was addressed in a similar manner. In

13 a document P5662 [as interpreted], item 2, it is said that that wounded

14 prisoner, Senad Pajo was taken away by Dinko Kenezovic from the Heliodrom

15 in some direction. It doesn't say where. He was taken away by Dinko

16 Kenezovic. We all know that Dinko Kenezovic is Vinko Martinovic's

17 soldier. And so the Prosecutor says since Dinko is Vinko's soldier, and

18 since he took Pajo away, then he must have taken him to Vinko and that is

19 where he was wounded then.

20 Perhaps we could even make -- bring ourselves to believe that, had

21 that same Prosecutor not said something completely contrary to this in his

22 closing argument, and that is what he did. Witness AF was taken to

23 Stela's unit, to Vinko Martinovic's, although he was taken to that unit by

24 soldier Luka Stojanovski who was a member of the military police. And

25 then the Prosecutor affirmed it does not matter from which unit does this

Page 16813

1 soldier who drives prisoners come; he can take them to any unit. Yes, he

2 can. But then, couldn't Dinko Kenezovic, couldn't he have taken Enes Pajo

3 to some other unit? Is that beyond reasonable doubt? And how is it that

4 one and the same document is interpreted in two completely different ways?

5 In counts of the indictment, you're referring to the manner in

6 which prisoners were used to work along the separation line, the

7 Prosecutor told us in his closing argument that it is a sensible

8 conclusion, I guess on the basis of all that we heard during there case,

9 forgetting that a number of witnesses, soldiers, and especially

10 prisoners -- Muslim prisoners of war, who testified here about how they

11 fared, they said that they were never prisoners on the front line.

12 However, we now use a different pair of eyes to look at that. And the

13 Prosecutor says, and it is a common sense conclusion that Vinko Martinovic

14 used prisoners to work on the front line so as not to expose his soldiers

15 to danger. Is that proof? Are such constructs a proof? And I wouldn't

16 have even mentioned it hadn't, in another place, in the Harmandic case,

17 the Prosecutor continued along the same -- in the same vein and says it is

18 logical to conclude that it was easier for Vinko Martinovic to let

19 Harmandic be killed or to kill him than to take him back to the Heliodrom

20 beaten up. What are such claims based on? The Prosecutor knows that it

21 cannot serve as a proof. But at the same time, he seizes the opportunity

22 to represent Vinko Martinovic as a criminal and to suggest that he had

23 some ideas in his head which are merely the figment of the Prosecutor's

24 imagination, and that is not permissible. That is not done.

25 I will have to move to the count involving Harmandic but before

Page 16814

1 that, I must tell the Court that in so far as the stay of prisoners -- in

2 so far as the prisoners were concerned, they should look at our closing

3 brief, what we had to say about that. I wish to underline that there were

4 a number of Muslim witnesses, witnesses who were prisoners of war, who

5 described to us how they had fared with Vinko Martinovic, Stela. And what

6 did they tell us? All of them said, "We felt much safer in that unit than

7 in other units, safer than at the Heliodrom." They said, "We begged Vinko

8 Martinovic to ask us to come to work in his unit so as not to be taken to

9 other units."

10 They stated that they had their meals in the lad Vina restaurant

11 together with the soldiers of the unit, that they moved about without any

12 guards or escort, that they went home to see their families, that they

13 went to have a bath and for a change of clothes, that they were paid for

14 certain jobs in kind, be it food or cigarettes. They said that none of

15 the prisoners were killed or wounded, that the physical labour around the

16 separation area were performed under conditions that were not

17 life-threatening. That is perhaps a characteristics statement of Witness

18 ME who described how Vinko Martinovic had helped me -- helped him to get

19 out of detention and to leave together with his family for a third

20 country.

21 This witness described to us how Vinko Martinovic had hidden him

22 in a house before he left Mostar, that he had even supplied him with a

23 weapon and ammunition for his personal protection, and that he had

24 undertaken everything to help this witness to put through his plan to get

25 rid of the imprisonment and go abroad. This witness said that literally

Page 16815

1 before this Chamber that Vinko Martinovic had saved his life.

2 Counts 13 to 18, Harmandic, alternative qualification, the

3 Prosecutor says manslaughter, if not then, then torture, battery. The

4 Defence's position, we object to this qualification for a simple reason:

5 The accused must know what he's being accused of. Is it manslaughter or

6 is itself ear injury? He has to know it because that will determine his

7 defence. I do not have time to go through that, but I point out once

8 again we cannot have alternative qualifications and because this makes us

9 infer that the Prosecutor is not really sure about what he wants to say.

10 We know the whole story.

11 A former policeman, according to the indictment, was brought to

12 Vinko Martinovic's unit and vanished. The Prosecutor says perhaps he was

13 killed, and perhaps he wasn't, but there is no doubt that he was beaten

14 up. The Defence says Harmandic was brought to the unit; Vinko Skrobo, on

15 the 12th of July, 1993. When he came, he was already beaten when he came

16 there because he had been beaten at the Heliodrom, both by prisoners and

17 by policemen. Proof, Prosecution's witnesses AD and AE, and they confirm

18 what? They confirm that he was beaten up at the Heliodrom.

19 So what is our thesis founded on? On Prosecution's evidence,

20 documents, P434, order for the release of prisoners of war to go to work.

21 Under 37, one can see the order issued to send prisoners to work, and the

22 person who took prisoners out on the 13th of July, 1993, was Miljenko

23 Cule. Cule, the commander of the first light assault battalion of the

24 military police. Why is the 13th of July important? Because we say that

25 the 12th of July he was at Stela's and returned and now somebody takes him

Page 16816

1 out from the Heliodrom on the 13th. Who is it? Miljenko Cule. The first

2 light assault military -- battalion of the military police, document

3 P434.

4 Document PP520 is a list of some prisoners from the Heliodrom and

5 the comment where they were taken and who took them. Under number one, we

6 see Nenad Harmandic, where he was taken; the first light assault; the

7 date, 13th of July, 1993; who takes him there, Miljenko Cule. These

8 documents show that the prisoner of war, Nenad Harmandic was taken on the

9 13th of July, 1993, from the Heliodrom, by a member of the 1st Light

10 Assault Battalion, Miljenko Cule.

11 The Prosecutor's Exhibit P774, the report on the death of

12 prisoners of war, under 56, and the subtitle is "List of Escaped Prisoners

13 of War," the first name on that list, Nenad Harmandic. Another document

14 which we received from the Prosecutor, it also has the Defence number

15 D2/14, special SIS report, the secret police, about the information

16 relative to the escape of Muslim prisoners from the Heliodrom. Under

17 number 15, it says a soldier of the 1st Light Assault, Miljenko Cule, took

18 Nenad Harmandic to work and the latter escaped.

19 So these documents are self-explanatory and they tell us that on

20 the 13th of July, 1993, Nenad Harmandic was taken from the Heliodrom for

21 work, a member of the 1st Light Assault Battalion, Miljenko Cule, and

22 Nenad Harmandic escaped. In other words, according to these documents,

23 nobody was killed, nobody was wounded, nobody was abused. There is no

24 Vinko Skrobo ATG and no Vinko Martinovic.

25 The Prosecution presented exhibits, Witness AD obviously is

Page 16817

1 concerned with Harmandic's lot, and she stated on the 12th of July, 1993,

2 I saw Nenad Harmandic in the Vinko Skrobo unit, and I heard that on the

3 same day, he was returned to the Heliodrom. And this is exactly what the

4 Defence claims. Nenad Harmandic was brought to the Vinko Skrobo unit on

5 the 12th of July, 1993, and was returned to the Heliodrom on the same

6 day.

7 On the following day, on the 13th of July, 1993, Miljenko Cule

8 took him from the Heliodrom to the 1st Light Assault and from then, Nenad

9 Harmandic escaped. The military police believes that it had been

10 prearranged by him and Miljenko Cule, we conclude that from the SIS report

11 which speaks about the way the escape was organised.

12 So the Prosecutor's witness and the Prosecutor exhibit give an

13 answer to the question as to how Nenad Harmandic disappeared. But now we

14 have an alternative qualification. If he was not murdered, then let's say

15 that he was beaten up. Evidence to prove that are Prosecutor's exhibits

16 and testimonies by Halil Ajanic, by Witness AD and AE, by Witnesses AF and

17 AM and by forensic expert Dr. Zujo.

18 The only key witness is Halil Ajanic. He allegedly saw what

19 happened, and he was here to testify to how Nenad Harmandic had been

20 beaten up. According to Ajanic -- actually about his testimony, we can

21 say that he is the person suffering from alcoholic psychosis, that he has

22 amnestic syndrome, and that he suffers from epilepsy. And we learned that

23 from the testimony of Dragan Begic, who is a psychiatric expert, who

24 testified here, and who explained in very great detail the quality of that

25 testimony. And he also said that the reliability of a testimony given by

Page 16818

1 such a witness is very dubious, that they cannot be trusted when they

2 provide information because they more often than not do not speak the

3 truth.

4 Witnesses AD and AE do not have any personal knowledge about the

5 destiny of Harmandic. AD allegedly learned about the destiny of Harmandic

6 from AF, and following that conversation, an exhumation was carried out in

7 order to identify Harmandic's body. The Prosecutor's witness AF denies

8 any such conversation had taken place and that he had provided AE with any

9 such information. So one Prosecutor's witness completely contradicted

10 another Prosecutor's witness. AF and AN testified as Prosecutor's

11 witnesses, and they said they had buried a body which could have been

12 Harmandic's body. But none of them were able to claim that for a fact.

13 AF did not know Nenad Harmandic.

14 Witness M said he didn't know who was it that he had buried. And

15 they also told us the story about two different events. So again we are

16 faced with a situation that the Prosecutor gives us another alternative,

17 for us to decide who was it that actually had buried the body.

18 The forensic expert Zujo participated in the exhumation of bodies

19 in Liska Park in Mostar, and he allegedly identified Harmandic's according

20 to the data provided by the family. This has been disputed by the

21 Defence, this expert testimony has been disputed. A new expertise was

22 given by Dr. Josip Skavic and what did Skavic tell us? Exhibit D2/25, Dr.

23 Skavic told us, "In the identification of the body of NN, under number 5,

24 I found -- came across a number of elements which make it implausible that

25 the body belonged to Nenad Harmandic." The elements that he mentioned was

Page 16819

1 an error in the height, the identification by clothing disputable.

2 Prosecutor's witnesses AF and M claim, for example, that Harmandic had

3 last been seen wearing white shorts. During the identification the body

4 was found to be wearing a pair of blue jeans. AF said that everybody's

5 lighters had been taken away at the Heliodrom. During the identification,

6 a lighter and a leather belt were found on the body. So these are the

7 disputable facts.

8 The identification based on the projectile which was found by the

9 body was disputed because Zujo could not say where the projectile was

10 found. So it is common knowledge that Nenad Harmandic, unfortunately, is

11 still missing. Documents say that he went missing on the 13th of July,

12 1993, from the 1st Light Assault Battalion of the military police, where

13 he had been brought by Miljenko Cule. Maybe this is the lead that should

14 have been followed up in order to establish the destiny of Nenad

15 Harmandic.

16 There were quite a number of hearsay testimonies by the detainees

17 who had heard about Nenad Harmandic and who testified about these stories

18 before this Court. The only problem is that this is all hearsay, which

19 originates from the same source, and it is Halil Ajanic. He is the one

20 who told the story at the Heliodrom. The story was then retold and ended

21 up in the courtroom. So Halil Ajanic is the source of all this hearsay,

22 and the -- a psychiatrist told us about the quality of Halil Ajanic's

23 testimony.

24 I do not have the time to belabour on other counts of the

25 indictment. I would just like to say something about the Vinko Skrobo

Page 16820

1 unit that -- because we believe that it is very important to establish the

2 area of responsibility of that unit so as to avoid a situation in which

3 Vinko Martinovic would be held responsible for something that happened

4 beyond that area of responsibility. We also believe that it is very

5 important to establish the time when that unit was established, because we

6 claim that on the 9th of May, Vinko Martinovic was not the commander of

7 that unit, that that unit did not exist on that day, and he cannot be

8 charged with the possible persecution on that day. The unit was

9 established later on.

10 Everything I didn't have the time to say in my closing argument

11 one can find in our final brief, and I kindly ask the Chamber to read it.

12 So in summarising all this, I would like to say that the Prosecutor has

13 failed to prove beyond all reasonable doubt any of the counts in the

14 indictment against Vinko Martinovic, and based on that, the Prosecution

15 (sic) suggests that the Trial Chamber should find Vinko Martinovic not

16 guilty on all the counts of the indictment and release him from custody.

17 This was all from the Defence. Thank you very much.

18 JUDGE LIU: Thank you, Mr. Par.

19 Pursuant to Rule 86 of the Rules of Procedure and Evidence,

20 tomorrow morning we will have the rebuttal argument. I would like to

21 remind both parties that in this respect, this Tribunal has adopted very

22 strict criteria for this procedure. According to the jurisprudence of

23 this Tribunal, the rebuttal argument must be related to the significant

24 issues arising directly out of the Defence final brief and closing

25 argument which could not reasonably have been anticipated. The

Page 16821

1 Prosecution could not repeat what has already been said in its final brief

2 and closing argument, with the sole purpose to reinforce its case. This

3 test will apply equally to the Defence team, with the understanding that

4 the Defence have already rebutted some points in the Prosecution's final

5 brief and closing argument yesterday and today.

6 Therefore, each party will have more or less one hour for its

7 rebuttal or rejoinder argument tomorrow.

8 Having said that, we will resume tomorrow morning at 9.00, in the

9 same courtroom.

10 --- Whereupon the hearing adjourned at

11 6.58 p.m., to be reconvened on Thursday,

12 the 31st day of October, 2002, at 9.00 a.m.