Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8818

1 Thursday, 2 June 2005

2 [Open Session]

3 --- Upon commencing at 9.05 a.m.

4 [The accused entered court].

5 JUDGE AGIUS: Yes, Madam Registrar, could you call the case,

6 please.

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

8 IT-03-68-T, the Prosecutor versus Naser Oric.

9 JUDGE AGIUS: I thank you, Madam, and good morning to you.

10 Mr. Oric, good morning to you and can you follow the proceedings

11 in your own language?

12 THE ACCUSED: [Interpretation] Good morning, Your Honour ladies and

13 gentlemen, I can follow the proceedings in my own language.

14 JUDGE AGIUS: Thank you. You may sit down.

15 Appearances for the Prosecution?

16 MR. WUBBEN: Good morning, Your Honours my name is Jan Wubben,

17 lead counsel for the Prosecution. Also good morning to my learned friends

18 of the Defence. I'm here together with co-counsels, Ms. Patricia Sellers

19 and Mr. Gramsci Di Fazio, and our case manager, Ms. Donnica

20 Henry-Frijlink.

21 JUDGE AGIUS: I thank you, Mr. Wubben and good morning to you and

22 your team. Appearances for the Defence?

23 MS. VIDOVIC: [Interpretation] Good morning, Your Honour. Good

24 morning to the colleagues from the team of the Prosecution. My name is

25 Vasvija Vidovic and together with Mr. John Jones I appear on behalf of

Page 8819

1 Mr. Naser Oric. With us are our legal assistants Ms. Adisa Mehic and our

2 CaseMap manager. Mr. Geoff Roberts.

3 JUDGE AGIUS: Thank you, Madam Vidovic, and good morning to you

4 and your team.

5 I'm sorry to disappoint you. I tried very hard together with my

6 staff to find another courtroom for this exercise, especially because of

7 what your requirements are, Mr. Wubben. I have to disappoint you. We

8 tried and tried. We even tried again this morning, but it simply won't

9 work. So we will need to carry out the exercise here in this courtroom,

10 which is not the ideal place for this kind of exercise. However -- yes.

11 Yes, I recognise Mr. Wubben.

12 MR. WUBBEN: Yes, Your Honour. Before the submissions start, the

13 Prosecution concedes that there is no case to answer regarding command

14 responsibility under Article 7(3) of the Statute for wanton destruction

15 and plunder of the hamlet of Bozici, that's a hamlet of Jezestica charged

16 in counts 3 and 4 and mentioned in paragraph 31, 35, and 36 of the

17 indictment.

18 JUDGE AGIUS: Is that all?

19 MR. WUBBEN: Yes, Your Honour. And I have another submission that

20 is in respect of the agreed facts and authenticated documents. Your

21 Honour, this morning I contacted Defence with a view to request a

22 Prosecution number. I receive it from Chambers, from the Registrar, that

23 there will be a package of P numbers tomorrow but the Defence confirmed to

24 me that they agree upon the admission of these agreed facts and

25 authenticated documents as such.

Page 8820

1 JUDGE AGIUS: All right. I thank you and incidentally, Mr.

2 Wubben. We will be requiring from you when you make your intervention

3 tomorrow an indication of where you believe you have adduced evidence

4 tending to prove the death of Mr. Bogdan Zivanovic, and that's for the

5 purpose of count 1. And the cruel treatment of Miloje Obradovic, and

6 that's in relation to count 2.

7 MR. WUBBEN: Yes, I will, Your Honour. -- Yes, I will include

8 that in the submissions tomorrow.

9 JUDGE AGIUS: Right. I thank you very much, Mr. Wubben. For the

10 time being we do not anticipate any other particular questions, not to be

11 excluded but we don't anticipate we will have any further questions to

12 ask.

13 Yes. Now, by way of introduction, this is going to be an

14 introduction of a couple of seconds, early next week, this coming week,

15 this Tribunal, pursuant to the amended Rule 98 bis will be handing an oral

16 decision as to whether the case should proceed as it is in its entirety,

17 on the basis of the existing second amended indictment or whether it's the

18 case of excluding one or more of the counts for the purpose of the rest of

19 the trial. Because of that, and precisely because we are taxed by the

20 amended Rule to possibly hear the submissions that you may have, as you

21 know, we issued a scheduling order reserving today for submissions to be

22 made by the Defence and tomorrow for submissions to be made by the

23 Prosecution, and that will be the ends of the story. On Wednesday of next

24 week, we anticipate to be able to hand down the decision. We would have

25 been able probably to hand it down on Monday but as I said two weeks ago

Page 8821

1 you have an important commitment related to your career, Mr. Jones, which

2 the Trial Chamber respects and wants to respect to the utmost and

3 therefore we would prefer to delay our decision until you are back on

4 Wednesday.

5 MR. JONES: I'm obliged, Your Honour.

6 JUDGE AGIUS: Thank you. And you kindly requested to take into

7 account the concession that has been made by Mr. Wubben earlier on this

8 morning relating to counts 3 and 4, as they relate to the village of

9 Bozici and the Trial Chamber would like to know what your submissions are

10 for the Rule 98 bis exercise purpose.

11 MR. JONES: Yes, thank you, Your Honour. May it please Your

12 Honour, to start I'd like to pass up a skeleton of the argument to help

13 you follow my submissions and I have three copies for the Bench, copies

14 for the Prosecution, and copies for the Chamber's legal officer, and in

15 fact I have extra copies if need be.

16 And that's really just to aid Your Honours as I go through the our

17 submissions.

18 Your Honours, our submission is that given the state of the

19 evidence at the close of the Prosecution case, eight long months after the

20 case began last October, we say that the Prosecution should have done the

21 responsible thing and withdrawn the entire case from Your Honours and not

22 simply Bozici, which is such an insignificant concession we have

23 practically forgotten it was within the indictment because I don't think a

24 single witness has mentioned it. History, I fear, will judge the

25 Prosecutors very severely for not doing so, for not withdrawing the case

Page 8822

1 and we trust and hope that Your Honours will do the right thing and

2 dismiss this case in its entirety because this is a case which does not

3 deserve to continue one moment longer.

4 Now, it should not be unthinkable for a submission of no case to

5 answer to succeed at this Tribunal. It's not unthinkable in national

6 systems. Any judicial system worth its salt and with confidence in itself

7 should not be afraid to dismiss a case when the Prosecution has not made

8 out a case to answer. And I would hope that this Tribunal is no less a

9 judicial institution and that more than ten years after the creation of

10 the ICTY, it has enough confidence in itself to be able to stop a trial at

11 the half time stage when in an appropriate case. And I trust Your Honours

12 will have the courage to do that because it takes courage to end a case at

13 the half time at the Tribunal because of the perception that this Tribunal

14 that an acquittal in any form is a failure of justice rather than it being

15 seen for what it is, the ultimate expression of justice for an innocent

16 man to be freed in an appropriate case at the close of the Prosecution

17 case. This is an application which should succeed.

18 As this case has unfolded month after month since last October,

19 those watching the trial must have thought to themselves, Surely there

20 must be more to this case than that crimes were committed against Serb

21 persons and property by unidentified perpetrators. But there isn't.

22 Observers following this case must be scratching their heads and thinking,

23 "Surely the Prosecution must have some proof, not simply that crimes were

24 committed, but that as required by Article 7(3) of the Statute, the

25 specific persons committing those crimes were Naser Oric's subordinates,"

Page 8823

1 but they don't have that proof. They haven't presented it. And surely,

2 people following this trial will think, the Prosecution must have evidence

3 that Naser Oric was told by someone of these crimes and that he did

4 nothing. Again there has been nothing of that nature to the point where

5 there is not a line of transcript or an exhibit that says that Naser Oric

6 was informed that any of the crimes in the indictment had been committed

7 by one of his subordinates.

8 I ask Your Honours to think of that for a moment. That is a truly

9 stunning fact. Answers must be given as to why such a case may be allowed

10 to proceed when a basic building block of Article 7(3) liability is

11 completely absent. We say this case has been misconceived from the start

12 and that it should be put out of its misery now.

13 So far, these deep flaws in the Prosecution case has been their

14 problem but now they ask you to allow the case to go on only omitting

15 charges relating to Bozici which, if you do, with the greatest of respect,

16 will become your problem or your responsibility in any event. And

17 questions will be asked as to why this case was allowed to continue past

18 this point. So that's why I would ask Your Honours before taking that

19 step to put the toughest, severest questions, to the Prosecution and I'll

20 be suggesting some of the questions since of course we can't put questions

21 to the Prosecution, which must be answered but to which there is no

22 answer, for indeed Your Honours will have to address these questions in

23 your reasoned decision which, as you've told us, you will be delivering as

24 a matter of -- which will be - my apologies - a reasoned decision which

25 natural justice requires to be reasoned.

Page 8824

1 Now it's an incredibly grave matter to put a man on trial for war

2 crimes, to take him from his family and home and accuse him before all the

3 world of being responsible for atrocities. We've had eight months of

4 evidence from a Prosecution team which is one of the best-equipped

5 Prosecution teams in the world. I'm speaking of OTP generally, but in

6 this trial we have five trial attorneys, a team of investigators, all the

7 facilities of OTP that one could imagine, access to every archive

8 potentially in the world, the right to demand cooperation from every

9 witness in the field, with the clout of being OTP behind -- behind them,

10 and so they should now be able to answer your questions very specifically

11 and not with vague assertions, generalities, possibilities, inferences,

12 but with concrete evidence. And here are some of the questions they must

13 answer: Where is the evidence that Oric's subordinates, people under his

14 effective control, committed the crimes charged in the indictment? Not

15 just that people committed crimes, civilians, displaced persons, fighters,

16 but Oric's subordinates. There is not a tittle of such evidence. All the

17 evidence has been of unidentified perpetrators with one or two exceptions

18 which I will deal with.

19 Where is the evidence that Oric knew or had specific information

20 that his subordinates had committed crimes? I would ask Your Honours to

21 put those questions to the Prosecution. There is none. There is no

22 evidence.

23 And where is the evidence that Oric did not take measures open to

24 him to prevent or punish crimes committed by his subordinates? There the

25 uncontradicted Prosecution evidence establishes that as regards plunder

Page 8825

1 and wanton destruction by civilians, no army, no authority, nobody, could

2 stop it.

3 Isn't that an appropriate case for dismissal at half time of those

4 charges?

5 I would ask how can the Prosecution even maintain this case with a

6 straight face when its own uncontradicted evidence of its own witnesses is

7 that Naser Oric could do nothing to prevent these crimes? And more

8 fundamentally one's moral conscience cries out for an answer to this

9 question which I posed in my opening speech: How can it be criminal for

10 poor, desperate, starving civilians to steal food to feed themselves and

11 their children? Because that's been the evidence of the Prosecution. I

12 know I would do it, I believe Your Honours would do it, I think any decent

13 human being would steal food to feed their starving children and wives and

14 themselves.

15 The Prosecution may require people to starve or be judged

16 criminals but Your Honours should not do so. And we will be saying that

17 plunder as charged in the indictment is nothing more than people doing

18 what they can to survive. And we say that it's shameful particularly for

19 the West which so spectacularly failed the people of Srebrenica to turn

20 around and call those who stole bread and livestock criminals. And if

21 it's wrong to condemn civilians for stealing, then how can it possibly be

22 right to hold Oric responsible, criminally responsible, for those acts?

23 Another question which the Prosecution must answer: Where is the

24 evidence that Oric aided and abetted or encouraged burning and looting?

25 The only evidence has been the opposite. The absolute opposite. That he

Page 8826

1 fiercely opposed it. So this is by way of opening obviously, in our

2 submission the Prosecution must give you clear-cut, convincing answers to

3 these questions or the case must end here.

4 And they will not be able to answer those questions.

5 Therefore for them to seek to continue to prosecute this case

6 rather than dropping it themselves is, we say, a scandal. As I say

7 history will judge the continued Prosecution of this case very harshly, to

8 coin a famous phrase, maybe not now or this year but next year and soon.

9 And down the years when people read the transcript of the Prosecution

10 case, they will see how little was there and they will be shocked that the

11 case was allowed to continue.

12 Before leading to some preliminaries and then the body of my

13 submissions I need to address one spectre that hangs over this trial which

14 is the spectre of moral equivalence which I addressed in my opening

15 speech. And I simply reiterate everything I said there about why this

16 case was brought. And I would now only say this, that if the Prosecution

17 make a virtue tomorrow in their submissions of bringing this case because

18 Naser Oric is a Muslim, then I say that brings shame on this Tribunal.

19 Because to pursue Oric because he's a Muslim is to deny his individuality

20 and to conduct an ethnically motivated Prosecution. It would be to turn

21 this Tribunal into nothing better than an ethnic lynch mob and I'd say

22 that it's judicial appeasement to indict a person to appease his erstwhile

23 Serb enemy. Beyond that I won't address the falsity of the premise of

24 moral equivalence except to point out this, that in every territory which

25 the Serbs occupied they destroyed every mosque while the Bosnian Muslims,

Page 8827

1 Croats, and Serbs loyal to the government left the churches alone,

2 including in Srebrenica.

3 But the greatest falsity is the presentation which the Prosecution

4 has made in this case of the fighting forces in Srebrenica and of the ABiH

5 as a Muslim army. You'll recall what General Sead Delic said on that

6 subject only this Monday, that he was offended to be called a Muslim

7 commander since his state, and army, were multi-ethnic,

8 multi-denominational, unlike the ethnically based parastate Republika

9 Srpska, and we have -- I should explain there is a PowerPoint presentation

10 which we will be making and hard copies will be available of the slides

11 afterwards and I thing -- believe we have the first slide to show. By way

12 of explanation this is to facilitate presentation so that I don't need to

13 read out full quotes or to provide references but that's the slide and you

14 can see there what General Delic said, that he is personally offended when

15 he is referred to as a Muslim or Bosniak commander.

16 I would -- I won't dwell on this theme but Your Honours have

17 repeatedly alluded to the importance of truth and reconciliation and

18 broader issues at this Tribunal. I would simply say that if this --

19 amoral theory that all sides to the conflict must be prosecuted to show

20 impartiality had been followed -- of -- after the Second World War, the

21 resistance fighters of the Warsaw Ghetto uprising would have found

22 themselves in the dock alongside Herman Goering and what message would

23 have that sent to the post Holocaust world. Bad politics lies behind the

24 decision to bring this case. But this case should be thrown out not

25 because it's immoral or bad politics but because the evidence is simply

Page 8828

1 not there.

2 Now, I move on to preliminary remarks. In fact, if Your Honour's

3 been following my skeleton that's by way of introduction. Just to set the

4 parameters of my submission, today, this is obviously not a closing speech

5 so we won't be addressing the case in its entirety by any means. And by

6 the same token, no points are conceded on those points which we do not

7 address, obviously. We know the Chamber has a duty to consider the case

8 in its entirety in any event.

9 The importance of the submission of no case to answer has been

10 addressed by Your Honour on an earlier occasion so I won't dwell on that

11 but it would be a huge waste of the Tribunal's resources to have months of

12 trial which are unnecessary. We also we ask Your Honours and of course

13 Your Honours are open minded as far as this application is concerned, but

14 for it to mean anything, everyone of us should all be keeping in mind that

15 as a possible result of this application, the application will succeed,

16 the case will end here, and we will all go home. It cannot be considered

17 a formality, just as the presumption of innocence is not something which

18 we merely pay lip service to.

19 JUDGE AGIUS: There is no application, Mr. Jones. As I said, this

20 is not party driven any more. It's a responsibility that we have and it

21 being a responsibility of the Trial Chamber to make sure that the accused

22 is not put in a position where he has to answer things that are not proved

23 on a prima facie basis broadly speaking within the standards for the --

24 recognised standards of Rule 98 bis. We will of course be going much more

25 deeper than the two of you have because we have the responsibility. You

Page 8829

1 have a responsibility towards your client. We have a responsibility

2 towards your client too and towards justice.

3 MR. JONES: Yes, of course. I'm obliged, Your Honour. I'll avoid

4 the word application and stick with submissions.

5 THE INTERPRETER: Interpreter's note could the booth please have

6 copies of Mr. Jones's speech? We haven't got the document at all.

7 JUDGE AGIUS: There is no copy of his speech.

8 MR. JONES: Yes, I haven't written out the speech.

9 JUDGE AGIUS: I don't think he is reading.

10 MR. JONES: I have bullet pointed notes.

11 JUDGE AGIUS: What we can give you, I suppose, is the three-page

12 notes or points.

13 MR. JONES: Skeleton, yes.

14 JUDGE AGIUS: That's what we have. Otherwise he didn't -- I

15 didn't understand that he has a written speech.

16 MR. JONES: No. I have notes obviously but they are not of the

17 nature which can be copied.

18 JUDGE AGIUS: Again, I don't know how much help that's going to be

19 to the interpreters because that's not what they meant.

20 MR. JONES: I do trust though that if Your Honours consider that

21 there is sufficient evidence or sufficient evidence on a particular charge

22 or some point which needs to be elaborated, that you will of course give

23 me the opportunity to address it.

24 JUDGE AGIUS: I would suggest that you address everything,

25 Mr. Jones because don't expect us to tell you beforehand what our decision

Page 8830

1 is going to be, particularly since we ourselves don't know what our

2 decision is going to be. So --

3 MR. JONES: It's in the spirit of not having to address the whole

4 case, that it was merely to --

5 JUDGE AGIUS: But what I can assure you is that what you don't

6 address, we will address. That's for sure. In other words, I, looking at

7 these notes, for example, I notice that compared to plunder and wanton

8 destruction et cetera, there is -- seems to be less when it comes to

9 counts 1 and 2. It doesn't mean to say that in our exercise we will give

10 to count 1 and 2 less importance than we will give -- it's up to you.

11 It's more or less, in coming from the jurisdiction you come from, you

12 should be in the position to know where your case is -- where the

13 Prosecution case, let's put it like this, is strong, and where it is very

14 weak or where it is extremely weak or non-existent. And --

15 MR. JONES: Yes, well, Your Honour it's particularly --

16 JUDGE AGIUS: I mean, if you had a jury here and you were

17 addressing the jury, yes, by all means, I would still hammer on, if I were

18 you, even or where the Prosecution case is very strong, because you need

19 to impress the jury. But with us, it doesn't work like that because we

20 are capable, like you are, to figure out where the case of the Prosecution

21 is very strong or where it is very weak or non-existent.

22 MR. JONES: Yes, Your Honour, it's simply this, that I am familiar

23 in my jurisdiction with a situation where if a judge has a particular

24 concern, if he doesn't particularly agree with one's submissions, then he

25 will give one the opportunity to address that and in fact invite counsel

Page 8831

1 to address a particular issue. And so it's really just to say that if

2 there is some part of my submissions where Your Honours plainly do not

3 agree or are not currently minded to agree, that you'll raise that with me

4 and give me the opportunity to address any concerns. That was simply it.

5 JUDGE AGIUS: All right. Go ahead.

6 MR. JONES: Yes. Now, I would invite Your Honours also, now that

7 the Prosecution case is closed, to go back to the opening speeches and to

8 read them again now with a benefit of having heard all the evidence. In

9 our submission you will see which of the parties really knew what the

10 situation was in Srebrenica in 1992, 1993, and what the Prosecution case

11 would establish. In the Prosecution opening speech, they made many

12 exaggerated and overblown claims as to what their evidence would prove.

13 To give one example, and a fairly basic one, going to the basic character

14 of our client, in its opening speech the Prosecution sought to blacken

15 Naser Oric's name and to show him as a swaggering warlord drunk with

16 power. We put that characterisation to several witnesses and you'll

17 recall that Dr. Mujkanovic rejected it, about as completely as one can,

18 and if one sees the next slide, we see Dr. Mujkanovic's reaction, "No

19 certainly not, there was no power to speak of in Srebrenica, to be

20 anything in Srebrenica where you could hardly survive. It was a

21 punishment rather than power."

22 And that example in my submission is very telling because the

23 Prosecution when it opened its case believed that its evident evidence

24 would establish all sorts of things which it simply hasn't done. And for

25 that reason, we say it's been misconceived from the start.

Page 8832

1 Now, I'd like to turn to the elements of the offences very

2 briefly. I'm certainly not going to it go through them in any length

3 because it's set out in our pre-trial brief. The counts are set out in

4 the indictment obviously, six counts, four crimes and two forms of

5 liability. The crimes being murder, cruel treatment, wanton destruction,

6 and plunder. And then the two forms of responsibility, obviously Article

7 7(1) instigating or aiding and abetting which is only applied to wanton

8 destruction and to plunder and then Article 7(3) command responsibility.

9 In our pre-trial brief we set out what we say the elements are and we can

10 just briefly review that on PowerPoint. First we have the elements of

11 plunder and I'm taking the charges in reverse order because I'll be first

12 dealing with plunder and wanton destruction and then the detention charges

13 even though that's in the reverse order of the indictment but I'm sure no

14 confusion will be -- will be caused.

15 So we have plunder, firstly, and as far as plunder is concerned,

16 our submission firstly is that crimes charged as plunder are in fact none

17 at all when one considers the defence of necessity which arises from the

18 situation as it was in Srebrenica. Now, every legal system in the world

19 recognises necessity created by circumstances as a defence to criminal

20 charges, i.e. one is allowed to choose the lesser evil. In this case,

21 theft over death by starvation. It's enshrined in Article 31(1)(D)(2) of

22 the Rome Statute for ICC. It's also set out in the US model penal code,

23 and we've also surveyed the jurisdictions of a dozen or so states and

24 it's -- I think it can be safely said it's a customary provision. In

25 Germany one has the concepts of Notstand I believe it is, necessity caused

Page 8833

1 by circumstances. And Malta is also one of the jurisdictions we surveyed.

2 JUDGE AGIUS: I think we can agree that you don't need to dwell on

3 this much longer because necessity is one of the basic principles of

4 criminal law in the area of criminal responsibility.

5 MR. JONES: Yes, thank you, Your Honour.

6 JUDGE AGIUS: It's recognised worldwide.

7 MR. JONES: We also says say that it's uncontested that the

8 Prosecution evidence has established over and again that there were

9 thousands of civilians literally starving to death in Srebrenica and that

10 they went out on these actions to get food. One witness put the necessity

11 of stealing food very simply, it's the slide 2.1.1 Mensud Omerovic, "We

12 could either die, starve to death or we could get killed trying to get

13 food, otherwise we would die anyway so we had to go in search of food."

14 That was the situation of thousands of civilians in Srebrenica. The

15 Prosecution bears the burdens of proof in this case so let them prove that

16 these civilians did not need to steal food to survive, that there was some

17 alternative open to them.

18 We say that any developed legal system has to allow this Defence

19 in light of what Your Honour has said I will pass briefly over the next

20 slide but mountain climbers lost in a storm may take refuge in a house or

21 may appropriate provisions. A developed legal system must have better

22 ways of dealing with such problems than to refer only to the letter,

23 particularly prohibitions.

24 Turning now to wanton destruction, and I'll come back to these --

25 I'll come back to each of the charges in relation to the evidence. At the

Page 8834

1 moment I'm just dealing with the elements of the crimes and where we say

2 that even the crimes themselves have not been shown. Then we move on

3 obviously to questions of Article 7(3) liability and Article 7(1)

4 liability. Wanton destruction must be large scale and not justified by

5 military necessity. The Prosecution has not shown in reach of these

6 actions, and when I say "not shown," I mean, obviously, to the standards

7 of proof required at this stage, that there has been large-scale

8 destruction. There has been no attempt at any sort of inventory to say

9 what was destroyed wantonly as opposed to what was destroyed during combat

10 operations, and by whom it was done. The OTP has to positively show the

11 absence of military necessity. It's an element of the offence rather than

12 it being for the Defence to show the presence of military necessity. Now

13 it can be necessary to destroy buildings which the enemy are using to fire

14 from, and it can be necessary to destroy property to deny the enemy

15 ground. That's recognised in the jurisprudence relating to this crime.

16 Now, I would just refer and I did alert my learned friends to a

17 couple of authorities which I would mention very briefly, but in the list,

18 Hostages Trial case before the US military Tribunal at Nuremberg in 1948,

19 it was stated quote, "Military necessity permits a belligerent, subject to

20 the laws of war, to apply any amount and kind of force to compel the

21 complete submission of the enemy with the least possible expenditure of

22 time, life, and money." In general, it sanctions measures by an occupant

23 necessary to protect the safety of his forces and to facilitate the

24 success of his operations. It is lawful to destroy railways, lines of

25 communication, or any other property that might be utilised by the enemy.

Page 8835

1 Private homes and churches may even be destroyed if necessary for military

2 operations."

3 And in the Von Leeb High Command Trial case before the US military

4 Tribunal at Nuremberg in 1948, the Tribunal writing of the arduous

5 conditions of the defendants, where their commands were in serious danger

6 of being cut off, said "what constitutes devastation beyond military

7 necessity in these situations requires detailed proof of an operational

8 and tactical nature".

9 I should add most of these defendants, if not all, were acquitted

10 even of scorched earth policies. Now the Prosecution dropped their

11 military expert and so Your Honours have not been presented with any proof

12 of an operational and tactical nature. Instead, and this is the

13 Prosecution's approach in this case, they will invite you to assume, to

14 guess, that any damage to property was unlawful. Just as they would

15 invite you - and I'll come to this later - but to assume that whenever

16 someone died in prison, it was murder.

17 Leaps -- you will be required to make leaps of faith in order to

18 keep -- keep this case on its weary feet.

19 As far as that assumption or that invitation to infer that any

20 damage must have been caused unlawfully, that simply does not have any

21 bearing on military reality. Now, murder, and that's slide 2.3, again is

22 not simply a matter of assuming that any death in custody must be a

23 murder. There are detailed provisions of actus reus, mens rea. Actus

24 reus, a death caused by subordinates of the accused, for a command

25 responsibility case, and mens rea, that those causing death possessed the

Page 8836

1 requisite intent. Now the Prosecution has not shown that the deaths

2 charged in the indictment were all murders and as I say it's not every

3 death that is a murder, nor every battery which results in death a murder.

4 There are varying degrees of homicides, involuntary and voluntary

5 manslaughter. Now, I would ask Your Honours to think of our own national

6 system. Murder is not charged lightly and people aren't convicted lightly

7 of murder. Detailed lengthy trials take place to examine the minutiae of

8 whether or not a particular killing is a murder. But as I say the

9 Prosecution has not attempted to prove that identified perpetrators acted

10 with the requisite murderous intent, that they substantially caused the

11 death of the victims, much less that those people were the -- were

12 specifically -- those specific people were subordinates of Naser Oric and

13 the other elements.

14 Cruel treatment which is on slide P2.4, the elements are set out

15 there, and, of course, the evidence shown that there were people who were

16 mistreated, badly mistreated in Srebrenica, but we say not by subordinates

17 of Naser Oric and we will come to that when we address Article 7(3).

18 The elements of Article 7(1) liability are on our slide 2.5. And

19 then command responsibility 7.3, that's P2.6. And these are three

20 cumulative requirements which can be summarised as subordinates committing

21 the crimes, knowledge or information that the crimes have been committed

22 by the subordinates and failure to take necessary measures. And again I

23 would ask Your Honours to be robust. In a national system one would not

24 brush over these requirements. They are cumulative and if there is not

25 sufficient evidence of any of those three elements, then the case has to

Page 8837

1 be stopped at half time.

2 Now, the evidence with regard to the third element of measures,

3 the failure to take measures to prevent or punish the crimes, the evidence

4 as far as that has been concerned has been of a lack of any proper

5 structure in Srebrenica at the relevant time, no judges, prosecutors,

6 military police, et cetera. That element we will address in closing

7 speech if we get there. It's not something I propose to address in these

8 submissions; I'll be concentrating on the first two elements. But we

9 would just illustrate the impossibility of prevention of plunder and

10 wanton destruction with reference to the evidence of Dr. Nedret Mujkanovic

11 describing what he termed the sociological phenomenon of thousands of

12 starving, desperate, terrified civilians who were out of control. That's

13 slide number 3, and I'll give Your Honours a moment to read that. It

14 describes the absence of any means for Srebrenica to function and then on

15 the next slide, yes, describes it as "a phenomenon that nobody who hasn't

16 experienced it can understand. Sometimes civilians would enter these

17 villages even before the troops and sometimes many of them were wounded,

18 many of them were killed, they didn't get hold of the food although it was

19 food they came in for in the first place." That phenomenon of thousands

20 of so-called Torbari streaming into villages before, during, and after

21 actions, has been plainly attested to by Prosecution witnesses so much

22 that it must be beyond dispute.

23 Even Serb witnesses, for example Slavoljub Zikic described the

24 scene in Fakovici on the 4th of October 1992 thus: "I think a civilised

25 nation may find it difficult to understand what I'm telling you. It was

Page 8838

1 seething from all sides," and he goes on. And he accepted, Mr. Zikic,

2 that no army could stop these civilians from getting food. The same

3 phenomenon was described in relation to all the raids. You'll recall it's

4 merely by way of another example how Mensud Omerovic described the scene

5 in Bjelovac on the 14th of December 1992, and that's slide 5. When asked

6 about lines kilometres long, he said "it was a long, uninterrupted column

7 of the elderly, women, children, as young as ten, and it was already

8 December," and he accepted that these were desperate people ready to kill

9 for food, ready to kill each other for food. And Dr. Mujkanovic also saw

10 the seen in Bjelovac and described it as "rivers of people, 2.000 people,

11 pushing towards those villages. It was impossible to describe the scene."

12 .

13 Indeed, we would submit that at this stage the close of the

14 Prosecution case, that their case on plunder and wanton destruction was

15 nullified was absolutely nullified by the up challenged and uncontradicted

16 evidence of their own witness, Dr. Mujkanovic, that no one could stop the

17 civilians and that Oric didn't aid or abet the plunder. And that's the

18 next slide, 6.1. This is a Prosecution witness an insider, to whom I put

19 the key questions of this trial:

20 "Do you think Naser Oric could have prevented civilians from

21 stealing those things during military actions?"

22 "Not only Naser Oric, nobody, nobody, could look after these

23 people. These people were left to their own means. Everybody was left to

24 look after themselves."

25 "So may I take it that the answer is, no, he couldn't prevent

Page 8839

1 that from happening."

2 "I said that there wasn't and could not have been any authority

3 or organisation, be it the War Presidency or an individual who could have

4 done that."

5 "Would the same apply for the destruction of Serb property?"

6 "There was no mechanism, no instrument that could have prevented

7 that from happening."

8 How can the Prosecution continue with this case on plunder and

9 wanton destruction when their own witnesses in unchallenged and

10 uncontradicted evidence have told you that?

11 If Your Honours recognise that reality, that neither Oric nor

12 anyone could prevent these crimes, you're not being soft or letting Oric

13 off the hook. You're simply being realistic and humane.

14 Now, that is by way of background. I'd like to deal with the

15 charges in more detail, starting, as I say, with Article 7(1) and charges

16 of plunder and looting. And for that, as I said by way of introduction,

17 the charges brought under Article 7(1), there is quite simply no evidence

18 whatsoever - and I emphasise that, no evidence whatsoever - that Oric

19 instigated or aided and abetted people to loot and burn. On the contrary,

20 only evidence is that he saw it as a problem and wanted to stop it.

21 If we see slide 6.2 and Dr. Mujkanovic, and "What was the opinion

22 of Naser Oric in that regard?" And this was obviously in relation to

23 these offences if they are such. "He had the same opinion, he was against

24 people burning houses but there was simply nothing that he could do. He

25 did not have a way of stopping them. It's not that he simply didn't

Page 8840

1 approve, he fiercely opposed this." Again, how can the Prosecution

2 seriously continue with charges under Article 7(1) that Oric aided and

3 abetted and instigated offences when their own witness who testified for

4 several days, who was an insider, worked in the hospital, spoke to many,

5 many people, gives that sort of evidence?

6 He also spoke, Dr. Mujkanovic of the distances between hamlets and

7 villages in this area. And thousands of people and the impossibility of

8 preventing damage to property. And again this is where the context is

9 even more important, the context of Srebrenica in 1992, 1993, even if this

10 were not enough. Remember, the population of Srebrenica was faced with an

11 impending massacres by the Serbs in this period, and that -- that's not

12 simply my assertion, that's been the evidence of many insiders, that

13 people feared that they would die, it wasn't a question of when but a -- a

14 question of if but when, and is the suggestion really that the fighting

15 forces of Srebrenica should have deployed every able-bodied man to join

16 arms and stand around these villages like some sort of riot police to

17 guard Serb property night and day? As our client said in interview, "What

18 idiot would do that when he would probably end up just getting shot from

19 behind by some civilian who wanted to get through? Not only that but the

20 result would no doubt have been that the enclave would have fallen in 1992

21 instead of 1995."

22 I turn now to Article 7(3) in relation to plunder and wanton

23 destruction. And as I've said there are the three elements and so no

24 question but that the Prosecution has to prove all three elements beyond a

25 reasonable doubt and at this stage satisfy Your Honours that there is

Page 8841

1 sufficient evidence to sustain a conviction. And as I said we will

2 address the question of subordinates firstly because we say we don't even

3 get on to the other elements. Now, in all the eight months of this trial,

4 with evidence being brought three hours and 45 minutes every day of those

5 eight months, there has not been evidence that a single crime was

6 committed by a single subordinate of Oric. For plunder, the clear

7 evidence has been that it was committed civilians. And if the Prosecution

8 is going to argue that an old woman stealing a chicken is a subordinate of

9 Naser Oric, then the law of command responsibility has broken all bounds

10 of sense and entered the realm of the absurd. In fact, there is already a

11 backlash against the extended notion of command responsibility as it's

12 been applied by this Tribunal. It is an exceptional form of liability,

13 command responsibility, and as such it has to be construed narrowly and

14 strictly.

15 Mainly we say, women and children and civilian men are not Oric's

16 subordinates. Plainly he had no effective control over these people. And

17 they were the ones when were going to get food on their own initiative.

18 You will recall the evidence of Mensud Omerovic, slide number 7, "Each

19 person on their own went trying to get some food for themselves and

20 families, entire families went, including women and children."

21 "So the armed forces did not organise you to join them in their

22 actions, operations."

23 "No, absolutely no."

24 Again, Prosecution witness uncontradicted evidence. And Hakija

25 Meholjic, Dr. Nedret Mujkanovic, and all the others who actually lived in

Page 8842

1 Srebrenica and who actually now the situation there said the same thing.

2 For the Serb witnesses in the villages where the actions took place, for

3 the most part, overwhelmingly, they know they were attacked, but for the

4 most part, and I'm willing to discuss exceptions, the attackers are

5 unidentified persons who cannot even competently be described as soldiers

6 never mind as subordinates of Naser Oric.

7 So it's the insiders, i.e., people who were in Srebrenica, who

8 were the persons who have been turned to for reliable information. Indeed

9 in any case based on command responsibility, that's the only way that a

10 case can be made out. And the insiders, every one of them in our

11 submission, have failed to confirm the most basic thesis of the

12 Prosecution. Judge Mensud Omerovic, Dr. Mujkanovic, Hakija Meholjic,

13 Becir Bogilovic, Ibrahim Becirovic, none of them have confirmed that any

14 crimes were committed by Oric's subordinates. And that in itself is

15 incredibly striking. Anyone in a position of power has enemies. Those

16 envious of his position, and even more so in war, and even more so when a

17 25 year old has any authority.

18 And if I may digress on this theme, wartime leaders, Winston

19 Churchill, Franklin Roosevelt, had fierce opponents. And it would always

20 be possible for some hate figure to crawl out from under a stone and to

21 point an accusing finger. But here you don't have a single insider

22 pointing an accusing finger at Naser Oric. So the only way you can get at

23 Article 7(3) liability for Naser Oric is with a fundamentalist hypothesis

24 that every man, woman, and child, every displaced person, every refugee,

25 out of tens of thousands of people, every displaced person with a gun who

Page 8843

1 was chased by the Serbs into Srebrenica and wandered about unregistered

2 and unknown, that he was a subordinate of Naser Oric. And that Oric,

3 God-like almost, knew of what every one of these people were doing at any

4 given moment. You would have to posit a thesis that absurd to get close

5 to Article 7(3) liability.

6 And that absurd, fundamentalist hypothesis is in any event

7 contradicted by the Prosecution's own evidence that many fighters even

8 were not under Oric's control. And so it would be a shame to go anywhere

9 near such a crude and false theory.

10 If I can approach this issue -- approach the issue this way in

11 order to make it clear. Firstly you'll find this on point 6 of my

12 skeleton. Sorry, if I can locate my skeleton.

13 First of all one has to distinguish between attackers and looters

14 and burners. These are different issues, attackers can behave properly as

15 fighters while others exploit the situation to come in and to loot and to

16 burn. And indeed time and again that has been the consistent evidence

17 given by witnesses. So for that reason one can't conflate and run

18 together the issue of who the attackers were and who the people looting

19 and burning were because there is no necessary identity at all between the

20 two of them. In fact it's intellectually lazy to do so but more

21 importantly it would lead to downright injustice, because all the evidence

22 is that civilians would go in both before, during and after actions. As

23 far as fighters are concerned, it's not a crime to conduct raids to get

24 ammunition and arms when the fighters desperately need those things and

25 when they are under siege. And the allowance to take war booty is part of

Page 8844

1 customary international law. And there is authority for that but again

2 it's probably not contested but in the ICRC's very recent publication on

3 customary international humanitarian law - it's published by Cambridge

4 University Press this year - rules of international humanitarian law,

5 customary rules are set out. Rule 49 is on war booty and it says this.

6 "The parties to the conflict may seize military equipment belonging to the

7 adverse party as war booty." And that provision exists in every military

8 manual in the world. So again if the Prosecution is going to suggest that

9 Srebrenica's fighters committed theft when they took arms and ammunition

10 from the enemy, the enemy that's killing them, then I say they've lost all

11 contact with reality. And we have evidence that war booty was seized in

12 every action.

13 So the Prosecution seeking to show, and they haven't succeeded

14 even on the most basic test, but to show that Oric commanded some of these

15 actions doesn't even begin to establish their case. They have to show

16 that in those actions, even if they were commanded by Naser Oric, which we

17 deny, that the looting and destruction was done by his subordinates. And

18 without military necessity and that he knew that his subordinates

19 committed the crimes and so on.

20 The Prosecution may invite you to consider that anyone wearing any

21 part of the military uniform is not only a soldier but a soldier in a unit

22 commanded by Oric. Again, a huge leap of faith which I trust Your Honours

23 will not make because there is no proof, there has been no proof of that.

24 The evidence has been that in 1992 and 1993, being in a uniform or not

25 says absolutely nothing about whether the person is a fighter or not,

Page 8845

1 never mind as to which units they are in. And again referring to my

2 skeleton, the first point, A, referring to the fundamental disorganisation

3 of Srebrenica's fighting forces in 1992, and 1993, again, all the evidence

4 of the insiders has come together on that point that the armed forces in

5 Srebrenica were improvised and completely disorganised in 1992, 1993,

6 without uniforms for the most part, without barracks, without weapons,

7 without salaries, without ranks, without badges, without insignia, without

8 anything which one would expect of an army. Quite simply, it was not an

9 army; it was a resistance against the Serb occupation.

10 Now the Serbs in the villages from whom we've heard who have

11 consistently emphasised that they were in their villages the whole time

12 and little aware of what was going on around them, were not in a position

13 to know how the forces in Srebrenica were organised because they were on

14 the other side of the enemy lines and that's emerged clearly from their

15 testimony. Now, because whether or not someone wore a uniform is no guide

16 to whether they are a fighter or not, for that reason it's impossible for

17 any of these Serb witnesses to say by sight whether someone was a soldier

18 or not or whether he was in a unit and therefore they are not in a

19 position, any of them, to say that these people were subordinates of Naser

20 Oric. Unless, of course, they could say I identified so and so at the

21 scene and then there is evidence that so and so was a subordinate of Naser

22 Oric. And that's the sort of evidence which you would expect in a trial

23 of this nature it's the sort of evidence which Your Honours would be

24 entitled to expect, that there is actually some link between these people

25 on the ground and Naser Oric. But again, there isn't. And you'll find in

Page 8846

1 all the other cases in this Tribunal, you'll find that chain of a crime

2 committed by someone, an identifiable perpetrator, that perpetrator being

3 placed in a unit under command of the accused, the accused then being

4 informed specifically that his subordinate who committed a crime and then

5 that he had done nothing. That's a real case based on command

6 responsibility. You have none of that here.

7 As far as documentary evidence is concerned on this matter, in my

8 submission, in our submission, an Article 7(3) case depends on insiders.

9 It cannot turn on documents which no witnesses accepted as accurate

10 documents purportedly setting out the structure of the armed forces.

11 JUDGE AGIUS: Wouldn't that be an argument for the final stages of

12 the trial, if the trial goes on?

13 MR. JONES: Yes, Your Honour. I merely wanted to --

14 JUDGE AGIUS: At the present moment, for the purposes of Rule 98

15 bis, if a document is such that for obvious reasons cannot be thrown out

16 completely, then it has to be accepted for what it shows on the face of

17 it. Irrespective of how much credibility we will give it in due course

18 but what I mean to say is this: If there is a document, however much you

19 disagree with it, which we cannot throw a priori because of obvious

20 reasons, which says there was such and such an attack on such and such a

21 day by such and such units under the command of Naser Oric, it's there.

22 Now, whether that is correct or not, whether it really happened, how much

23 weight you give to the document, whether it's been forged or whether it's

24 genuine these --

25 MR. JONES: That's entirely clear, Your Honour. As far as -- I

Page 8847

1 won't go into a discussion of specific documents in any detail but of

2 course that depends on what the witness has said about the document and,

3 for example, if a document purports to say that forces were in the

4 Srebrenica TO, and then General Delic says, well, in fact, it doesn't mean

5 at the time they were in that formation, that's his evidence, and that's

6 the Prosecution's evidence. And that in my submission, does have to be

7 taken into account.

8 JUDGE AGIUS: Certainly. What I meant to say is this: That if

9 there is a document, Mr. Jones, that says what I just said, I mean, which

10 is just -- I'm just inventing it, and even if there are 40 witnesses that

11 have come here and testified that Mr. Oric had absolutely nothing to do

12 with that operation, or that action, call it whatever you like, still we

13 have the document for the purpose of the Rule 98 bis we cannot exclude it

14 and we cannot weigh one against the other. This is the --

15 MR. JONES: I take it.

16 JUDGE AGIUS: I know that you know this. It's not a question of

17 trying to explain to you.

18 MR. JONES: Yes, taking the Prosecution at its highest, yes.

19 JUDGE AGIUS: Yes. Sorry to have interrupted you.

20 MR. JONES: Not at all, Your Honour.

21 I was going to move to another slide which is on the -- the issue

22 of the forces in Srebrenica being organised on a voluntary basis. It was

23 the evidence of Dr. Mujkanovic but indeed it was the evidence of Judge

24 Omerovic, Becir Bogilovic, all the insiders. It was left up to people to

25 decide whether or not to be a fighter. That since no one could actually

Page 8848

1 provide them with a gun or with food, that it was simply up to people

2 whether or not to participate. The result of that, in fact, I would also

3 just go on to slide 9 which was Dr. -- sorry, Judge Mensud Omerovic on the

4 same theme. "People who were armed, the combatants, did not live in

5 barracks. They lived with their families; precisely so, they lived with

6 their wives and children. They would stand guard to everyone knew when

7 the next operation would be," et cetera. The consequence of this in terms

8 of Article 7(3) is vitally important. Because unless you actually know

9 someone's identity, you cannot tell from their appearance whether they are

10 a fighter or a civilian and I trust that that's clear. In terms of the

11 characterisation of these fighting forces, Colonel Tucker when I put to

12 him the earlier quote from Dr. Mujkanovic agreed that the fighting force

13 in Srebrenica was a levee en masse, which has a feature of not being

14 formed into armed units, not being formed into units means not having a

15 single commander, and to be organised in the hierarchical fashion, which

16 is a precondition for Article 7(3) to apply, and without going into

17 detailed legal argument, levee en masse, I would simply say or referred to

18 in the Lieber Instructions, the Brussels Conference of 1874, Oxford

19 manual, Hague regulations, and the Geneva Conventions. It's a well-known

20 concept in international humanitarian law.

21 So in our submission, Article 7(3) and it's a legal submission,

22 cannot apply to a levee en masse for this very reason. It lacks the

23 feature of a command structure in which you can even speak of superiors

24 and subordinates, and we is see in slide 10.1, Colonel Tucker, an

25 experienced military officer and recipient of the military cross agreeing

Page 8849

1 that as far as he could tell, Srebrenica's fighters were levee en masse.

2 And then elaborating on what he said at some point about reports of some

3 people being forced to fight, he said, it's slide 10.2, "the vast majority

4 of people were volunteers. Only a very small number are being forced to

5 fight." And this was agreed to by Hakija Meholjic, Mensud Omerovic, Becir

6 Bogilovic.

7 Now this lack of organisation obviously goes to a number of

8 issues, effective control, knowledge, means to prevent or punish, but we

9 are approaching it now in the context of it being impossible to say on the

10 basis of mere appearance who is a fighter, who is a civilian, and if

11 someone is a fighter, what unit they are in.

12 And just on that theme, we have another slide, I'll go through it

13 very quickly, 11.1, Hakija Meholjic, "It is not an organised army, it was

14 not a real army, and I can claim that before God and the whole world that

15 this army was not organised." Then he went on also to say "there was no

16 bread, let alone ranks, there were no patches," the next slide, "no

17 markings, by which the troops could be distinguished from civilians."

18 That brings us to the issue of ribbons which is an a matter which

19 I would like to address. Before that, it may just be to make the point,

20 which has just been made more clearly, but we see the slide there at 12.1,

21 Ibrahim Becirovic who repeatedly referred to poorly organised units

22 throughout his testimony. He said at the time, "I didn't even think that

23 there were persons who could be referred to as commanders. In my view

24 those were still poorly organised groups." And he also went to say that

25 nothing operated in a coordinated manner. That's slide 12.2. "Nobody had

Page 8850

1 an obligation to go and help, this was not an organised structure that

2 could coordinate the activities of groups which existed in local

3 communities." That's absence of even an ability to coordinate never mind

4 effectively to control.

5 Now turning to the next heading in my skeleton, fighters not

6 soldiers, again it's perhaps a recapitulation on the same theme but all of

7 the insiders and I would count Colonel Tucker as an insider because he

8 spent time in Srebrenica agreed that one could only talk about fighters

9 and poorly organised groups around -- organised around men, Hakija's men,

10 Zulfo's men, Akif's men, Ejub's men, rather than an army with soldiers.

11 So that when Serb witnesses spoke of seeing soldiers there was no

12 consistent usage whether it meant a young man with a rifle or someone

13 wearing a bit of uniform, and they certainly were not able to say whether

14 any of these people belonged to any unit.

15 We see that also on PowerPoint slide 13 and 14 as well. I won't

16 dwell because I think the point is clear.

17 Colonel Tucker there saying that "the definition of soldier as is

18 understood in a democratic country, in Bosnia is not particularly

19 relevant."

20 In fact I would like to skip forward over C of my skeleton, that's

21 7(C) which I think I've already probably dealt with in sufficient detail,

22 the lack of reliable information on the Serb side regarding of the

23 organisation of fighting men in Srebrenica. The reality is and I'll just

24 take it very shortly, as I've said that Serbs in the surrounding villages

25 could not possibly know whether the people they saw in actions were

Page 8851

1 fighters or not. Some of them did claim to have some idea but by way of a

2 couple of examples, Slavisa Eric based the notion that Naser Oric had

3 commanded the attack on Jezestica on the fact -- well, on what he later

4 said was no reliable information whatsoever, "no valid data," were his

5 words. Nikola Popovic based his conclusion, if one can call it that, that

6 Naser Oric was involved in the action in Kravica on the fact that when he

7 came back months later there was graffiti which said Naser Oric. In my

8 submission that shows what passed for information amongst the Serbs in

9 these towns and villages was utterly unreliable and that the only credible

10 testimony is that for example given by C007, PowerPoint slide 17.

11 JUDGE AGIUS: Again, please, Mr. Jones, again, I need to remind

12 you, that for the purpose of rule 98, we are not interested in what is

13 credible and what is not credible.

14 MR. JONES: Yes, certainly.

15 JUDGE AGIUS: So when you put it to us what's credible is the

16 evidence of C007, but what Nikola Popovic said or what the other guy said,

17 that's not credible, that's not the argument that we want to hear today.

18 MR. JONES: Yes, I'm aware of that Your Honour and perhaps it was

19 an unfortunate choice of word. Of course, at the same time, I would

20 submit that if, for example, Nikola Popovic says Naser Oric commanded an

21 attack on Kravica. I know because I saw graffiti three months later which

22 said Naser Oric. That is a case where Your Honours can say that is not --

23 even taken at its highest, it doesn't take us anywhere.

24 JUDGE AGIUS: Definitely, but then don't try to draw comparisons.

25 MR. JONES: No, okay. Indeed. I would just draw attention to

Page 8852

1 what C007 said there, "Would it be right to say that for you a soldier is

2 basically a Muslim fighter whether or not he belongs to an army. How

3 should I know that a person is a member of an army or not? It's not

4 something that I can tell." And that, I think, is reflected in the

5 evidence this that was given by 99 per cent of the Serb witnesses, in fact

6 they really had no idea who had attacked them.

7 Now I come to my next point which again I can perhaps take shortly

8 if it's a matter which Your Honours concede but the evidence has been that

9 there were many groups of fighters or units which were not under the

10 command of Naser Oric. The Prosecution's own evidence has clearly shown

11 that, for example, well, firstly, that Hakija's men, Hakija Meholjic's men

12 were clearly both de jure and de facto not under Naser Oric. And that

13 Zulfo's men and Akif's men, Zulfo Tursunovic and Akif Ustic's men were de

14 facto not under the control of Naser Oric. And that there were many other

15 locally organised groups of fighters who were not under Oric. And the

16 consequence of this is terribly important because even if in a given

17 action one were to say, well, this able-bodied person with a rifle is

18 possibly a fighter, even if one could make that leap, it's for the

19 Prosecution to satisfy that you perpetrators of crimes were subordinates

20 of Naser Oric, and how do they say that you can be satisfied that that

21 wasn't one of Hakija's men or one of Zulfo's men or one of Akif's men or

22 one of the men of all these other units which were in the Srebrenica area

23 operating at that time? They can't simply invite to you skip over that

24 and to just assume the very worst for our client, that anyone who remotely

25 resembled a fighter was a subordinate of Oric. The independence of Hakija

Page 8853

1 Meholjic and his men was the uncontradicted evidence, evidence of Hakija

2 Meholjic himself, of Nedret Mujkanovic, of Becir Bogilovic, and I believe

3 everyone who testified on this matter.

4 We can see a couple of slides just by way of example on that.

5 Slide 18, and he was asked, "Would you agree that Hakija and his unit,

6 that Hakija was an independent commander, that is independent of Naser

7 Oric?"

8 "Yes, I would agree."

9 "And Hakija didn't report to Naser, did he?"

10 "No, he didn't."

11 "And neither did Hakija's men then, they were neither under

12 Oric's command and control."

13 "No, they weren't."

14 And that amounts to tens if not hundreds of men in Srebrenica, in

15 fact the units as we saw from Exhibit D299 was actually called the

16 Srebrenica unit, who were independent of Naser Oric's command.

17 We can see actually, or we did see that with Exhibit D299 and

18 General Sead Delic, the next slide, 19, agreeing that according to that

19 document, the Srebrenica unit under Hakija Meholjic was not with any

20 formation, including the Srebrenica TO. He confirmed that that was

21 correct. Hakija Meholjic himself was crystal clear about never being

22 under Naser Oric's command and that's slide number 20.

23 He did not accept Naser as commander. He did not -- Oric did not

24 issue orders to Hakija Meholjic and he did not reports to Oric. Very

25 clear, uncontroverted testimony. Becir Bogilovic, too, said how

Page 8854

1 throughout this time Hakija waged a policy of his own.

2 Looking at the time, I suppose we do have until 10.30.

3 JUDGE AGIUS: Take your time. Even if -- I don't know how much

4 more time you need. You can have the entire sitting, of course.

5 MR. JONES: I think I'll finish this heading of the independence

6 of various units and then that would be a good it time to take a break.

7 JUDGE AGIUS: Certainly. What I mean to say, if you want to go a

8 little bit beyond the 10.30, I don't think anyone is going to question

9 that. We will stop when it's convenient for you and then we will resume,

10 we will have the break -- provided we don't go beyond two hours. All

11 right?

12 MR. JONES: Yes. Overall my submissions may be longer than two

13 hours but I --

14 JUDGE AGIUS: Choose yourself the best time for you to have a

15 break.

16 MR. JONES: Thank you, Your Honour. I move to the independence of

17 Akif Ustic and his men, and again Dr. Mujkanovic said that Naser Oric had

18 no control of Akif's unit, that's on slide number 20, those were units

19 beyond his control. That was confirmed by Hakija Meholjic, we see that on

20 slide 21, that Akif Ustic went into action on his own initiative and,

21 according to his opinion, without Naser's knowledge. And Becir Bogilovic

22 also confirmed that Akif Ustic also had an independent command. We don't

23 have slide, but that was from the 22nd of March 2005. There is no need

24 obviously to take Your Honours through all that evidence. You've --

25 you're aware of it and you've heard it. And then we have evidence that

Page 8855

1 Zulfo Tursunovic and his unit were not under the affective control of

2 Naser Oric and that he ran his area of Sutjeska without even allowing

3 Naser Oric in without his permission. That's slide number 22.

4 Is it possible that Zulfo Tursunovic in fact acted as an

5 independent commander, at least in certain matters or certain actions? In

6 most of the cases, he ran an entire area and he wouldn't let anyone

7 interfere with his job. He ran the Sutjeska area and he wouldn't allow

8 anyone near. You couldn't go there unless you'd been invited there

9 specifically by him. That was the only way you could go.

10 Now, if Naser Oric wasn't even allowed into the area commanded by

11 Zulfo Tursunovic, it can hardly be said that he had effective control over

12 Zulfo Tursunovic and that Zulfo Tursunovic was his subordinate. And again

13 Becir Bogilovic confirmed the independence Zulfo Tursunovic, and that he

14 had an independent command, as he called it, in the area of Sutjeska.

15 This means there were large groups of men in the town of Srebrenica and

16 Sutjeska over whom Naser Oric did not have control. So if Hakija's men or

17 Akif's men or Zulfo's men committed crimes it's quite simply not command

18 responsibility it's not Article 7(3) liability, because they are not Naser

19 Oric's subordinates. And as I say you cannot simply draw the conclusion

20 least favourable to the accused, that anyone committing a crime is his

21 subordinate.

22 Finally, there are -- there was ample evidence of other

23 independent units in the immediate Srebrenica area. There was

24 uncontradicted evidence of Ibro Becirovic that a Becir Mekanic and Fadil

25 Turkovic had groups of armed men operating in the Sutjeska area who

Page 8856

1 clashed with Serbs, so who were engaged in combat actions against the

2 Serbs during this time and in this place. Becir Bogilovic also confirmed

3 that these units, he was referring I believe to Becir Mekanic's unit,

4 never entered the composition of the armed forces of Srebrenica. And

5 indeed it goes on and on. Ahmo Tihic and his unit from Skelani acted

6 autonomously from Oric. That was the evidence of Dr. Mujkanovic and

7 others. It's slide number 23.

8 Sorry, slide 23 deals with the independence of units even aside

9 from these named units which I've mentioned of Hakija, Akif, et cetera,

10 that there were a lot of local commanders who had autonomy. He said

11 "these men trusted their leaders and that's how they became commanders.

12 They were not appointed. They were self-appointed commanders who were

13 approved by the fighters who lived in certain localities, in certain

14 villages or in certain parts of the area. If the men didn't want to do

15 something, then they didn't do it."

16 So in this situation, Your Honours, just to summarise on the

17 above, we already have evidence of thousands of civilians going to Serb

18 villages for food, not under Naser Oric's control, a situation

19 incidentally created by the Serbs by keeping the place under siege. We

20 have displaced persons with weapons and bits of old uniforms from their

21 military service, drifting into the Srebrenica area without anyone even

22 knowing who they are, never mind controlling them. Those people were also

23 going in search of food and clashing with Serbs. We have significant --

24 well, poorly organised units but units nonetheless which were not under

25 Oric's control, Hakija's, Akif's Zulfo's, Ahmo Tihic's, Becir Mekanic's.

Page 8857

1 Plus in all of this we have local villages simply spontaneously resisting

2 the Serb advance. Now in all this morass, are Your Honours really going

3 to say that there was sufficient evidence for the unsupported, unjustified

4 and least favourable conclusion for the accused, namely that any given

5 person seen committing a crime is a subordinate of Oric without any hard

6 proof to that effect? And I would really insist on that, and on

7 Your Honours putting the Prosecution to the test on this. How on earth

8 can they be satisfied and how can they satisfied you with this mass of

9 armed and untamed humanity that a single act of plunder or destruction has

10 been done by one of Naser Oric's subordinates? They can't be satisfied

11 and you can't be satisfied.

12 Your Honours, I'll take the break there, if that's appropriate.

13 JUDGE AGIUS: Certainly, Mr. Jones. I think we can have a

14 30-minute break. You will have a well-deserved rest. Is that enough, 30

15 minutes?

16 MR. JONES: Perfectly.

17 JUDGE AGIUS: Thank you.

18 --- Recess taken at 10.25 a.m.

19 --- On resuming at 11.01 a.m.

20 JUDGE AGIUS: Are you ready to continue, Mr. Jones o are you like

21 some more time?

22 MR. JONES: No, no, no, that's fine, Your Honour. In fact my --

23 my initial estimate was that it would be around two hours and I think I

24 manage to be around it will be around two, two and a half hours. I

25 certainly won't go to --

Page 8858

1 JUDGE AGIUS: Just take -- take as much -- you have got the whole

2 day for you, I mean it's --

3 MR. JONES: Yes, yes, thank you, Your Honour.

4 JUDGE AGIUS: -- even if you need to stay beyond quarter to 2.00,

5 we'll stay.

6 MR. JONES: That's very kind. During the break, however, I've had

7 another look at my skeleton and seen that certain points don't need

8 recapitulation and so at this stage I'm actually at point 7 H, the

9 meaninglessness of uniforms as designating fighters in organised units.

10 And I'll just say a couple of points on that and then move on. And in

11 fact, I think -- I think I will keep my headphones on, actually, so I can

12 hear myself. Good.

13 Yes, there are certain points in the skeleton which I won't --

14 JUDGE AGIUS: Hearing yourself is a good thing, a good thing.

15 Make sure that you don't start arguing with yourself.

16 MR. JONES: That would be a very worrying sign. For some reason

17 it helps to have my voice -- yes.

18 Now, Your Honour, there are points which I think I've developed

19 sufficiently this morning. As far as uniforms are concerned, I really

20 just wanted to summarise by saying that the evidence brought by the

21 Prosecution establishes two things clearly, that one can be a fighter not

22 in any sort of uniform and secondly one can be in a uniform or a bit of

23 uniform and not be a fighter. I won't dwell greatly on those -- those

24 areas because you will have the PowerPoint slides where we have extracts

25 of quotations on that theme and because it's in the skeleton.

Page 8859

1 I would just briefly go to slide 26 which is Mr. Okanovic, a Serb

2 witness, who confirmed there that a uniform meant nothing, and that

3 someone could be wearing a uniform or a piece of uniform and not be a

4 soldier but simply possess it from military service and he agreed -- and

5 he agreed that people would wear uniform simply because it was warm and

6 well made and not because they were in any unit.

7 And the other slides on this theme are Colonel Tucker and it's

8 slides 24 and 25. We don't need to go through them I just say it for the

9 record, and Dr. Mujkanovic, slides 27 and 28, saying that as Dr.

10 Mujkanovic summarised it to speak about uniforms in Srebrenica is a futile

11 exercise. And of course I make that point to say that in any of these

12 actions saying that someone was in uniform and drawing inferences based on

13 that is meaningless. I do want to dwell a little on ribbons, the question

14 of ribbons and bands, and that's on -- in the skeleton, it's point 7 H and

15 then the bullet point which is entitled "absence of ribbon or identifying

16 feature in an action means that the persons were positively not an

17 organised unit." I can develop that a little, then I'll move on to

18 detention charges.

19 Now, Hakija Meholjic, General Sead Delic, and others said that the

20 only way to distinguish fighters from others in actions was by the use of

21 ribbons. Indeed, Hakija Meholjic said there were no other distinguishing

22 features among fighters. So, in fact, one can say, and it's the

23 Prosecution's own evidence on this subject from its own witnesses, that

24 persons not wearing ribbons in an action must be presumed not to be

25 fighters. If we see slide number 30, it's General Sead Delic, I'll just

Page 8860

1 read from that. Being shown Prosecution Exhibits, he said "All of those

2 who were in battlefield and took part in combat did not have the bands,

3 either around the head or around the arm were considered to be enemy

4 soldiers and as such were targeted." And then when he commented on P89

5 relating to Bjelovac, I asked him, "So according to this, and according to

6 what you said if you weren't wearing a yellow ribbon in Bjelovac, you

7 weren't a participant in the action."

8 And he answered, "It would mean that you didn't belong to that

9 part of the armed formations; hence, you were an enemy, and as such a

10 legitimate target." The point of ribbons is that that shows that the

11 fighters themselves could not distinguish between fighters and civilians

12 based merely on the clothes that they were wearing. And that is the final

13 demonstration, if you'd like, that wearing uniform is not a guide to

14 whether someone was a fighter or not.

15 That's why ribbons were needed.

16 So in our submission, for a case to go forward on any of the

17 charges regarding actions in Serb towns and villages you would need

18 someone as an identifiable fighter, that is someone actually wearing a

19 ribbon or a band committing one of those offences and then there would

20 need to be a demonstration that that person was a subordinate of Naser

21 Oric rather than a subordinate of any of these other formations which

22 we've heard about. And as we say the evidence does not get anywhere

23 close, and that's why we say those charges should all be dismissed.

24 I'd like to move on to the detention charges. And as -- as -- by

25 way of general introduction on the detention matters, it's clear that

Page 8861

1 people were badly beaten in Srebrenica in the prison. We don't deny that,

2 and we say it's tragic and terribly wrong that it ever happened and we

3 have every sympathy for those who suffered and for the families of those

4 who died. But we only say that these crimes are not attributable in any

5 way to Naser Oric. He was a fighter on the line. He was not a civilian

6 police chief or a prison governor in any sense of the word and that the

7 Prosecution evidence does not make out a sufficient case that he was

8 anything of that description. He is not responsible for anyone's murder

9 or for anyone's cruel treatment. Starting with murder, murder as I've

10 said this morning and as I'm sure we'll all agree, is the most serious

11 crime that exists in domestic criminal systems, and accordingly domestic

12 systems do not lightly convict persons of that crime, nor in systems which

13 know of the institution of a no-case-to-answer submission, a case is

14 permitted to go to the jury unless all the elements have been made out at

15 least to a prima facie standard. Not every death is the result of a

16 murder, nor is every beating which leads to the death of the victim a

17 murder. There are many forms of homicide which are not murder.

18 Now, at the ICTY, as a general rule in Article 7(3) cases where

19 murder is charged, you'll at least have the commander being informed of

20 killings, of murders, of massacres. You'll have, for example, a member of

21 the international community informing a commander of a possible massacre

22 here -- here or a massacre there. Or you'll have a subordinate informing

23 his superior that there might have been killings. And normally, in fact,

24 it's of terrible massacres, as for example happened in Srebrenica in 1995,

25 July 1995.

Page 8862

1 In Yamashita, the case which gave rise to the law of command

2 responsibility, the figures of murdered civilians were staggering. There

3 was 5.000 people in Batangas, 7.800 people in Laguna, 8.000 civilians

4 killed in Manila, as well as many other massacres. And then, it's to be

5 seen whether or not the commander looked into these reports of massacres.

6 But here the Prosecution has charged Naser Oric with 7 murders and there

7 is not one jot of evidence, that is to say not one line of testimony or

8 one exhibit which says that anyone ever informed Oric of these murders.

9 Not even that he was informed of killings possibly by his subordinates and

10 that he was put on notice to investigate, there's no proof that he was

11 informed that any of these people had been unlawfully killed, only that

12 Kukic, Dragutin Kukic, had died, and he was told, if it was Naser Oric,

13 someone allegedly being Naser Oric, that he died of a heart attack. The

14 fact is people do die of heart attacks and as a matter of law, it cannot

15 be said that someone dying of a heart attack in a prison puts one on

16 notice of a suspicious death. Obviously if there were two or three or

17 four heart attacks, that's one thing, but this is Srebrenica, 1992, when

18 people were dying of all sorts of ailments every day.

19 And that's one of the murders. One about the other six? Will

20 Your Honours really allow this case to continue with our client being

21 charged with six murders when he was never even informed that these

22 persons died? And just parenthetically, there was a -- an extract from

23 the interview with our client which was played referring to Mirzet being

24 involved in the killing. Mirzet Halilovic, as we've heard, was removed

25 from his post and died in January 1993, but that's not that -- that matter

Page 8863

1 is not one of the -- let me rephrase that. There has been no evidence

2 that any of these killings were attributable to Mirzet.

3 Now we set out the elements of murder in the pre-trial brief, and

4 there are specific actus reus and mens rea requirements. Indeed there is

5 authority from the ICTY and ICTR that premeditation is required for

6 murder, and I would refer to the Trial Chamber ruling in the Kupreskic

7 Trial Judgement at paragraphs 560 to 561. Apology, I don't have the date

8 of that Trial Judgement. But in that judgement they noted that -- in

9 Kayishema it was noted that "The standard of mens rea required is

10 intentional and premeditated killing. The result is pre-meditated when

11 the actor formulated his intent to kill after a cool moment of

12 reflection."

13 Now, we are not insisting. It's a matter for Your Honours,

14 really, as the guardians of the law as to whether premeditation is

15 required or not. But certainly murder as is commonly understood requires

16 a very high intentional element. The fact is in this case we haven't had

17 evidence of what the mens rea of the perpetrators was, and again it's a

18 leap of faith, an inference, an invitation to guess, that the perpetrators

19 had a murderous intent. So as far as the murders are concerned we say

20 that, with two exceptions which I'll come to, there is no evidence that

21 the deaths in question were even caused by any single, identifiable

22 perpetrator with the requisite mens rea, that as regards those exceptions

23 there is no evidence at all that the perpetrators were Oric's subordinates

24 and that there is absolutely no evidence that Oric ever knew or had

25 specific information from which he could conclude that his subordinates,

Page 8864

1 and I insist on that, that his subordinates committed murder. And that

2 therefore it is deeply wrong and unfair for Oric to have to respond to

3 charges of murder when the bare ingredients have not been met.

4 Now to deal briefly with the charges of murder, as we've seen with

5 Kukic, we agree that there is evidence that he was killed and that he was

6 killed by Kemo. There is some evidence. We do not say how credible it is

7 or where it leads. But firstly, arguably, it was caused when Kemo lost

8 his self control after an act of provocation and that neither death or

9 serious injury was intended, in which case, it is not murder. And the

10 next slide, 32.1, sets out the facts as recalled by Nedjeljko Radic. I

11 won't go over them, Your Honours will be familiar with the evidence,

12 but it's -- it's simply set out there. In conclusion of -- to which I

13 posed the question, "Did you get the impression from all this that Kemo

14 didn't mean to kill Kukic."

15 He answered: "I couldn't answer that. Probably not. If he'd

16 known this blow would kill him he probably wouldn't, although I'm not

17 sure. I don't know, really. I don't think -- I can't believe he was

18 inhuman enough to kill a man. Only Kemo knows for sure." We haven't

19 heard from Kemo, but in the U.K., certainly in many other jurisdictions,

20 those facts could lead to manslaughter based on provocation or diminished

21 responsibility. In many states in the US it would not be first degree

22 murder. I don't make a big point of the provocation point because

23 obviously it's not the -- the facts are not very sympathetic to that as a

24 defence. But Your Honours have to, of course, be very careful at this

25 stage not to allow charges to go forward on murder when it is quite

Page 8865

1 possible that no question of murder even on the level of subordinate

2 arises. In other words no evidence that a murder was committed. But then

3 secondarily there was no evidence that Kemo was a subordinate of Oric. On

4 the contrary, Dr. Mujkanovic affirmed that Kemo was not under Oric's

5 control or anybody's control. Hakija Meholjic didn't know what unit Kemo

6 was in, if he was in any. All that we know for sure from the Prosecution

7 evidence is that Kemo was from Pale and we know from documents that there

8 was an Independents Pale Battalion.

9 We can rapidly review this evidence. There on slide 33.1,

10 Dr. Mujkanovic refers to Kemo from Pale, "Was he a soldier or civilian?"

11 "I can't say whether he held any function, I don't believe so."

12 And then further, I think it's slide 33.2, he agreed that there

13 were a number of individuals like Kemo who were out of control and he

14 expressed an opinion that if Naser Oric tried to control Kemo, Kemo

15 probably would have killed him, confirmed that 100 per cent. Then in

16 answer to Your Honour's questions, slide 33.3 he said "Kemo didn't belong

17 to anyone." And then slide 33.4, "No one could have sent Kemo anywhere.

18 Kemo only belonged to himself, Mr. President." So therefore the only

19 affirmative Prosecution evidence on Kemo is that he was emphatically not

20 under the effective control of Naser Oric and therefore he cannot be

21 considered a subordinate of Naser Oric under Article 7(3).

22 Hakija Meholjic was asked about Kemo but he wasn't even sure if he

23 was a soldier and he said "I don't know which unit he belonged to."

24 That's slide 34.1. He's from Pale. He agreed that much. "Was he during

25 the war, 92, 93, a fighter, Muslim fighter, soldier, whatever."

Page 8866

1 "As far as I know he was."

2 So he wasn't even entirely sure on that point.

3 "Do you know which unit or formation or grouping or organisation

4 of soldiers or fighters he was in?"

5 "I don't know."

6 And that's the fact. He didn't know. He then went on to

7 speculate, "If he belonged to anybody, he belonged to the Potocari unit

8 and who his commander was, I don't know."

9 Hakija Meholjic also agreed that people did not necessarily belong

10 to the units in their villages. And as I say the -- in fact, the only

11 solid evidence which we have is that Kemo was from Pale and Exhibit D298

12 was, commented upon by General Sead Delic, confirmed that there was an

13 Independent Pale Battalion who was not within any TO.

14 Then we move on to the question of knowledge regarding the killing

15 of Kukic and the Prosecution evidence was that Kemo immediately covered up

16 the killing of Kukic by removing the body from the SUP and disposing of it

17 in some unknown location and then making it clear to the prisoners that

18 they were to keep it a secret and I'm looking at Radic's testimony 14th of

19 January 2005, pages 23 to 25. So there is no evidence with regard to

20 Kukic's killing that Naser Oric was informed of a murder, or even a

21 possible murder, much less one committed by his subordinates. In fact,

22 there was even evidence that the person allegedly Naser Oric had said,

23 "Why didn't you tell us that Kukic was ill? We would have arrange for a

24 doctor." So yes there was evidence that Kukic was killed but it's not

25 clear that Kemo had the requisite mens rea, there was no evidence that

Page 8867

1 Kemo was a subordinate of Naser Oric. And a fortiori there was no proof,

2 no evidence that Oric knew that a subordinate of his had committed that

3 crime, and that's in fact the death of Kukic, pretty much the only murder

4 charged for which any evidence has been brought of the details of the

5 actual death. If we turn to Jakov Dzokic, Jakov Dzokic's father testified

6 that he had not seen his son. Okay. He may well be dead, but that does

7 into the mean that he died in prison in Srebrenica between the 6th of

8 February and 20th of March 1993, as alleged in the indictment. No one

9 testified that Dzokic died in the prison. C007 last saw him alive in the

10 prison. And in fact Ilija Ivanovic testified that he had heard that

11 Dzokic was alive and had not died in the prison, and that's slide 36. In

12 answer to a question he said, "I heard specifically that he was alive but

13 I'd really like to know that he is. I heard he was thrown out of

14 Srebrenica by the Muslim defenders."

15 Even if Dzokic did die, there is no proof that Dzokic's death was

16 the result of murder and again neither Prosecution nor Your Honours can

17 just draw the inference least favourable to the accused namely that he

18 died as a result of mistreatment in Srebrenica and that it was murder

19 rather than death as a result of, say, neglect. And so surely you will

20 not allow a case to go forward against Oric on charges of the murder of

21 Dzokic, charges that Naser Oric is responsible for the murder of Dzokic, a

22 terribly serious charge, as a result of making guess after guess about the

23 facts of how Dzokic died, if he did die. That's surely deeply unjust.

24 And again, no proof exists whatsoever that if Dzokic was murdered, it was

25 by Oric's subordinates. And to avoid repeating that, that's true of all

Page 8868

1 of the alleged murder victims. There is no proof that they were murdered

2 rather than unlawfully killed with something less than the mens rea of

3 murder, absolutely no proof that the individuals who inflicted

4 mistreatment on these individuals were Oric's subordinates, people over

5 whom he exercised effective control. In fact all the evidence has been

6 that people from outside the prison came in and beat people. And again --

7 JUDGE AGIUS: Have you incidentally on this alleged murder, looked

8 at the evidence of Andja Radovic?

9 MR. JONES: Yes, Your Honour, she claimed that she was informed by

10 C007 that he had died, but C007 didn't confirm that when he gave evidence.

11 I have considered that, thank you, Your Honour.

12 So I would again invite Your Honours to pose these questions for

13 the Prosecution. How did they say are these people who did the beatings

14 and murders? And if they don't know, if they can't say who those people

15 are, how on earth can they say that they were Naser Oric's subordinates?

16 Dragan Ilic, yes, there was testimony that he died in the prison,

17 but again, as regards the actus reus of causing death, an element of

18 murder is that the act or omissions by the accused's subordinates have to

19 be a substantial cause of the death of the person. We know that the

20 people who came from Cerska, Dragan Ilic and Branko Sekulic, were in very

21 bad shape when they arrived in Srebrenica, so much so that C007 testified

22 that it would not have surprised him if they had died on the way to

23 Srebrenica.

24 So if they did die in prison there was every possibility that

25 their deaths were mostly caused from what they had suffered already,

Page 8869

1 combined with the lack of food and disease which was rife in Srebrenica

2 and from which everyone suffered. As far as the mens rea is concerned for

3 the murder of Dragan Ilic, we don't know anything about who beat Ilic and

4 what their mens rea was, and the perpetrator of any fatal beating of Ilic

5 being completely unknown, there is no evidence whatsoever, yet again, that

6 he was a subordinate of Oric. And a fortiari there is no evidence that

7 Oric knew specifically anything of Ilic's murder by his subordinates.

8 Mico Milovanovic. There was evidence that he in fact died in

9 Glogova on the 24th of December 1992, and not in Srebrenica at all.

10 That's D45 and D172. The fact that his wife hasn't seen him doesn't mean

11 that he died in custody in Srebrenica. As far as how Mico, if it is

12 indeed Mico Milovanovic, died, there is evidence of a Mico who died after

13 being beaten by a young man, 16 to 20 years old. But there is nothing

14 linking that beating with Mico Milovanovic and as far as the actus reus

15 and mens rea of murder are concerned, there is no proof that the beating

16 by this young man was the substantial cause of the death of Mico. In

17 fact, he died a couple of says afterwards, or that it was done with the

18 intent to kill, bearing in mind that this person was very young, may not

19 have even been capable of forming the requisite intent. And again, no

20 proof whatsoever that this very young man was a subordinate to Naser Oric.

21 Civilian from Sase. And again, I -- I -- I come back time and again to

22 this theme that the Prosecution is going to invite to you make huge leaps

23 in every one of these cases, to assume that any death was a murder, that

24 the persons who committed it from subordinates of Oric. Bogdan Zivanovic,

25 I will refrain from passing any comment on and await to hear from the

Page 8870

1 Prosecution what they say, why they say there is a case to answer.

2 Turning to cruel treatment, Article 7(3) responsibility for cruel

3 treatment, the position as far as that is concerned is the following:

4 Yes, the evidence is that people were beaten, badly beaten, and that's

5 obviously appalling and regrettable. But again we say there is

6 insufficient evidence for the case to go forward on cruel treatment under

7 Article 7(3). The evidence has not even made out a prima facie case that

8 Oric's subordinates committed the crimes, much less that he knew or had

9 specific information that his subordinates committed the crimes. That's

10 where I come to in the skeleton point 9(A), and this point obviously

11 applies to the murders as well but it's crucial the non-identification of

12 the perpetrators of beatings. I make six points in that regard. Firstly

13 a point I've made briefly, but that Article 7(3) is already a form of

14 vicarious liability which has to be handled very carefully. It requires

15 that Your Honours be sure that crimes were committed by the -- by

16 subordinates with the necessary mens rea and actus reus.

17 There are questions as to who the guards in the two facilities,

18 detention facilities, were but this is a different question altogether

19 from that of who beat and killed detainees because the evidence has been

20 the guards did not beat detainees and that people came from outside the

21 prison to do so. There was also a crucial distinction between visitors to

22 the detention facilities, unless visitors, persons who visited the

23 detention facilities, also beat people, the fact that the persons visited

24 the prison doesn't begin to answer the question of who committed the

25 crimes charged in the indictment. There is also a distinction between the

Page 8871

1 people who arrested victims, and those who subsequently detained them.

2 There is no chain of custody when it comes to persons who were in

3 detention. One can be arrested by the metropolitan police and then

4 delivered to Wandsworth prison. The two are different authorities and

5 it's not an answer to the question of who committed beatings or who is

6 responsible for beatings to point to who arrested or first detained a

7 victim.

8 And equally, and for the same reason, the bodies involved in the

9 exchange of prisoners is not identical with the authority who detained the

10 prisoners. In fact, the Prosecution itself expressly made that point at

11 one stage when Ms. Richardson said, there was an objection, "my objection

12 is being in charge of the prison is one thing, being in charge of the

13 prisoner is something else." These are all subtle but important

14 distinctions which Your Honours have to bear in mind. One can't simply

15 conflate all these issues together and say, well, there is evidence that

16 people were mistreated, there is evidence of another nature linking

17 someone vaguely to something to do with the prisoners, therefore there is

18 a case to answer. That's clearly insufficient. And finally, and I would

19 reiterate for the final time, Naser Oric has to be shown to know or have

20 specific information that his subordinates beat or killed people, and that

21 has quite simply not been shown and that ultimately, among other reasons,

22 is why the case must be thrown out on the detention charges.

23 I would like to conclude, now, Your Honours, by making this

24 observation, that the Prosecution's case so far has been based on multiple

25 suppositions, if you like, that -- or at least for the case to go forward,

Page 8872

1 that they will have to invite you to make suppositions of a nature that

2 this person might have committed the crime, and if he did the crime, he

3 might be a subordinate, and if he did the crime and if he's a subordinate,

4 then it might be that Oric should have known that this had occurred, and

5 it goes on and on. It's a bit like in mathematics, if one multiplies half

6 by half by half by half, pretty son you have a one in 64 chance that an

7 accused is responsible for a crime. That's very far from beyond a

8 reasonable doubt. It's also very far from being enough for this case to

9 go forward beyond the Prosecution case. It's no basis to allow a case to

10 go forward, to heap supposition upon supposition. The Prosecution must be

11 forced today's provide hard or to point to hard facts, concrete evidence,

12 which actually makes out a case which can go forward. And Your Honours

13 have a right to ask for that of the Prosecution.

14 There is a very final word. There are many issues which we have

15 not had the opportunity -- well, which we will not address at this stage

16 because it's simply not a closing speech. But one thing we have not

17 addressed is the situation as presented through Prosecution evidence that

18 Naser Oric faced as a 25, 26 year old commander, and in that regard I just

19 want to make two closing observations. First I want to recall what

20 Dr. Mujkanovic said about the situation in Srebrenica at the time of the

21 indictment, and it's slide 37. "If ever was hell on earth it must have

22 been Srebrenica in 1992 and 1993. And as you know, 1993, 1994, 1995, were

23 in actual fact something that bring shame to our civilisation, it was a

24 time of famine, a time of daily attacks, daily shellings, poverty, with

25 refugees flooding in from the general area." And then describing the

Page 8873

1 situation of a commander in that situation, Colonel Tucker spoke of what

2 this must have been like for a 25, 26 year old Naser Oric. It's slide

3 number 38, and I'll read that in full. "The people there, particularly

4 the refugees, they believed they were going to die. As I have described

5 previously, it was not a question of if, it was only a question of when.

6 Against this background, yes, there was a hero Naser Oric, but he had very

7 few weapons, he had very few soldiers. The Serbs had many weapons, the

8 Serbs had many soldiers, they didn't believe that he would actually be

9 able to help them and defend them, but they believed he was doing his

10 best." And I asked, as a military commander what that would be like to

11 bear, and Colonel Tucker replied "He was operating in a most adverse and

12 most difficult of circumstances and I cannot imagine having to operate in

13 such circumstances." End quote.

14 In this context and given the paucity of evidence against Naser

15 Oric we say it is very regrettable, to say the least, that this case has

16 been brought and that it has got this far. I genuinely do not see how it

17 can be said that there is a case to answer. As I said in my opening

18 speech, in our view, Oric's only crime was to decide that he would rather

19 die fighting the Serbs than to flee from their genocidal onslaught, and

20 they've never forgiven him for that. And I would just end on this quote,

21 which is the following: "They chose to die in freedom rather than cower

22 before an overpowering enemy. They refused to surrender, preferring to

23 fight to the death and thus preserve their honour even when they could no

24 longer defend their lives." And that was describing the Warsaw Jews who

25 is were killed in the Warsaw Ghetto uprising in April/May 1943. We

Page 8874

1 implore you to end this case now, unless I can assist you further.

2 JUDGE AGIUS: I thank you, Mr. Jones. Perhaps you could tell us

3 whether you have any submissions with regard to the killing of pigs in the

4 context of this search for food.

5 MR. JONES: Those were given to the Serb families in Srebrenica, I

6 believe, was the evidence of Hakija Meholjic.

7 JUDGE AGIUS: Yeah, but that's -- I wonder, Hakija Meholjic ...

8 MR. JONES: I have no submissions on that, Your Honour.

9 JUDGE AGIUS: I think he didn't -- they weren't killed in the case

10 of Hakija Meholjic. They weren't killed on the spot. They were taken to

11 Srebrenica and then given to the Serbs. Okay.

12 With regard to other things that there is evidence about, having

13 been taken by, I wouldn't say whether it's civilians or soldiers, I will

14 leave that open, of course, which were not military hardware, that is not

15 weapons, not arms, not ammunition, and not food and not clothing.

16 MR. JONES: It's --

17 JUDGE AGIUS: Households goods, for example, like --

18 MR. JONES: By civilians, well, Your Honour, the evidence was --

19 JUDGE AGIUS: If you have any submissions --

20 MR JONES: Yes, yes.

21 JUDGE AGIUS: -- because obviously I cannot --

22 MR. JONES: Yes.

23 JUDGE AGIUS: -- force to you make submissions.

24 MR. JONES: No. I have two submissions within that regard, that

25 the evidence of Dr. Mujkanovic was that even household items which were

Page 8875

1 taken, were taken so that they could be exchanged for food. And so still

2 the idea was to obtain food to survive.

3 As far as war booty is concerned, I would submit that it's -- it's

4 broader than simply arms and ammunition. I did have an extract from the

5 U.K. manual regarding war booty which actually enlarges the concept more

6 broadly so that it includes even papers and various other matters. It's

7 probably too elaborate to go into it now, but --

8 JUDGE AGIUS: No, I don't think it's --

9 MR. JONES: -- I would submit that war booty would be included.

10 And another matter which again I would probably reserve for later, but is

11 that there is evidence, too, that the Serb army had actually requisitioned

12 whole areas for their use and that in those circumstances for -- of the

13 fighters from Srebrenica to make use of those provisions requisitioned for

14 the enemy means that that, too, fall -- would fall within war booty. In

15 other words, if the enemy says everything here is for the use of our army,

16 you're entitled to take that from them.

17 JUDGE AGIUS: Okay. All right. So more or less that brings the

18 submissions of the Defence to an end.

19 You will start tomorrow?

20 MR. WUBBEN: Yes, Your Honour.

21 JUDGE AGIUS: You will start tomorrow. You will have the entire

22 sitting, except that we would ask you to leave possibly the last half hour

23 or so in case we need to come back to you on certain -- certain matters.

24 And that particularly to you, having heard your submissions. But after

25 your submissions, we may also need to go back to see whether the Defence

Page 8876

1 have any comments to make. All right?

2 MR. WUBBEN: Yes, Your Honour. Thank you, we will aim for that.

3 JUDGE AGIUS: I thank you, and we stand adjourned until tomorrow

4 morning at 9.00. We will make a last-ditch attempt to see if we can

5 change the courtroom. However, please do believe me that we really tried

6 hard and also please try again to see if we could -- we could possibly at

7 that Trial Chamber I -- sorry, Courtroom I because Courtroom III seems to

8 be more difficult. All right? Thank you.

9 Yes, Ms. Sellers. Do you want to say anything?

10 MS. SELLERS: No, I'm standing up because --

11 MR. WUBBEN: It's in full respect, Your Honour.

12 JUDGE AGIUS: I see.

13 --- Whereupon the hearing adjourned at 11.37 a.m.,

14 to be reconvened on Friday, the 3rd day of June,

15 2005, at 9.00 a.m.