Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26989

 1                          Wednesday, 30 January 2008

 2                          [Open session]

 3                          [Rule 98 bis]

 4                          [The accused entered court]

 5                          --- On resuming at 2.15 p.m.

 6            JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you please

 7    call the case.

 8            THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon

 9    everyone in and around the courtroom.  This is case number IT-04-74-T, the

10    Prosecutor versus Prlic et al.  Thank you, Your Honours.

11            JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

12            This Wednesday, 30 January 2008, I greet everybody in this room,

13    the counsel, accused and all the people who are assisting us.

14            Today we have to finish the 98 bis procedure, but before that I

15    want to give the floor to Mr. Scott who had asked for the floor.

16            MR. SCOTT:  Sorry, Your Honour.  My assistant has -- apologies,

17    Your Honour.  I don't think so.  I don't think so, Your Honour.  I'm

18    sorry.

19            JUDGE ANTONETTI: [Interpretation] All right.  Thank you very much.

20            MR. SCOTT:  But if you want me to say something, give me a moment.

21    I'll think of something.  Thank you.

22            JUDGE ANTONETTI: [Interpretation] All right.  Very well.  So we

23    have to finish the 98 bis procedure and the Defence phase of course.

24    Everybody understands it is the Defence who has today and Monday it will

25    be the Prosecution who will take the floor.

Page 26990

 1            So Mr. Sahota is ready, and I'm giving him the floor.  He's in

 2    front of the lectern, and he is now going to be able to present his

 3    argument for Mr. Pusic.

 4            MR. SAHOTA:  Thank you, Mr. President, Your Honours.  It is

 5    generally the advocate's duty to construe the evidence in the light most

 6    favourable to his client.  In the course of this 98 bis submission, I

 7    recognise that I must resist this temptation as my duty is to the

 8    contrary.  In fact, I do not intend to refer to the Prosecution's evidence

 9    at any length in the course of my submissions, and I have no cause to do

10    so because my submission is that there is no evidence that has been

11    presented to date by the Prosecution that a reasonable trier of fact could

12    find capable of supporting a conviction in relation to any of the

13    following counts on the indictment.

14            The first count, count 4, rape; count 5, inhuman treatment, sexual

15    assault; count 19, extensive destruction of property not justified by

16    military necessity and carried out unlawfully and wantonly; count 20

17    wanton destruction of cities, towns or villages, or devastation not

18    justified by military necessity; count 21, destruction or wilful damage

19    done to institutions dedicated to religion or education; count 22,

20    appropriation of property not justified by military necessity and carried

21    out unlawfully and wantonly; count 23, plunder of private -- plunder of

22    private or public property; count 24, unlawful attack on civilians

23    (Mostar); count 25, the unlawful infliction of terror on civilians

24    (Mostar); and finally count 26, cruel treatment (Mostar siege).

25            Your Honours, in relation to each of the counts that I've just

Page 26991

 1    identified, we submit that no evidence has been presented with regard to

 2    any of the possible modes of liability pleaded by the Prosecution in the

 3    indictment.  Your Honours, we say that because we recognise that the

 4    Tribunal's jurisprudence requires only that there need be evidence capable

 5    of supporting a conviction in regard to any one of the multiple forms of

 6    criminal responsibility for a Rule 98 bis motion to fail.

 7            Your Honours, I will return to consider each individual count in

 8    due course in part 2 of my submissions where I will look at the

 9    constitutive elements of each allegation in turn.  Our submission will

10    have two parts, and in the first part we will consider all the possible

11    modes of liability in relation to all the crimes charged in the indictment

12    together.

13            Before I move on to consider the modes of liability relied on by

14    the Prosecution, I would like to make this important observation in

15    relation to the counts that are not challenged by the Defence by way of

16    this Rule 98 bis application.  And I would like to clarify that the fact

17    that we do not challenge many of the counts in the indictment should not

18    be taken to mean that the Defence accept the Prosecution have adduced any

19    credible or reliable evidence in connection to those counts or any other

20    counts on the indictment.  In other words, we the Defence for Mr. Pusic

21    are not making any admissions to the effect the Prosecution have proved

22    any element of their case beyond reasonable doubt.

23            Your Honours, I do not intend to develop that point any further

24    now.  I recognise that the issue -- or that issue is most appropriately

25    addressed in our closing arguments, and I'm also confident that the

Page 26992

 1    Prosecution also recognise that this Rule 98 bis procedure is not a forum

 2    for either party to advance their closing arguments.

 3            Having said that, I would like to move on to the first part of my

 4    application and outline my submissions as to the various modes of

 5    liability that are pleaded by the Prosecution.

 6            Your Honours, the Prosecution accumulatively charges Mr. Pusic for

 7    the crimes alleged in counts 4, 5, 19, 20, 21, 22, 23, 24, 25, and 26

 8    under what we identify as three different modes of liability.  As there is

 9    no attempt by the Prosecution in the indictment to clarify which of these

10    possible modes of liability specifically refer to my client, Mr. Pusic, I

11    will assume that they intend, the Prosecution intend, to rely on every

12    possible mode of liability open to them.  The three modes of liability

13    that we have identified are firstly responsibility for knowingly and

14    wilfully participating in a joint criminal enterprise in telling the

15    accused's individual criminal responsibility under Article 7(1) of the

16    Statute of the Tribunal.

17            The second mode of liability is also under Article 7(1) of the

18    Statute of the Tribunal for having planned, instigated, ordered or

19    otherwise aided and abetted in the planning, preparation, or execution of

20    the crimes charged in the indictment.

21            The next mode of liability, Article 7(3) of the Statute for crimes

22    committed by the accused's subordinates whilst he was holding positions of

23    superior authority.

24            I will now turn to address each of these modes of liability in

25    turn beginning with the theory of joint criminal enterprise under Article

Page 26993

 1    7(1).  Your Honours, I may also use the term "common plan," and the terms

 2    "joint criminal enterprise" and "common plan" may be used interchangeably

 3    during the course of my submissions.

 4            Your Honours, the Trial Chamber will of course be aware that the

 5    Prosecution have pleaded all three categories or types of joint criminal

 6    enterprise defined in the Tadic appeals judgement in the indictment.  We

 7    are not entirely sure how type two JCE applies to this case as it normally

 8    relates to a system of ill-treatment and the joint criminal enterprise in

 9    this particular case is phrased in such sweeping terms that at first blush

10    type two liability does not seem appropriate but that is not an argument

11    that I do not wish to advance in the course of these submissions.

12            The Tadic appeals judgement which I'm sure that you are familiar

13    with at paragraph 227 established three requirements, legal requirements,

14    actus reus or objective elements that must be proved in order to establish

15    liability under any type of common plan or joint criminal enterprise be

16    that type one, type two, or type three.  The requirements are firstly, the

17    existence of a plurality of persons.  They need not be organised in a

18    military, political, or administrative structure.  Secondly, the existence

19    of a common plan design or purpose which amounts to or involves the

20    commission of a crime provided for in the Statute.  There is no necessity

21    for this plan, design, or purpose to have been previously been arranged or

22    formulated.  The common plan or purpose may materialise extemporaneously

23    and be inferred from the fact that a plurality of acts in unison to put

24    into effect a joint criminal enterprise.

25            The third requirement is the participation of the accused in the

Page 26994

 1    common design involving the perpetration of one of the crimes provided for

 2    in the Statute.  This participation need not involve the commission of a

 3    specific crime under one of those provisions, but may take the form of

 4    assistance in or contribution to the execution of the common plan or

 5    purpose.

 6            Your Honours, our submissions rest on the second limb of this

 7    test.  We say that no evidence has been presented by the Prosecution from

 8    which a reasonable trier of fact could conclude that Mr. Pusic was party

 9    to or a member of the common plan or joint criminal enterprise.  At this

10    point I would emphasise that the Defence for Mr. Pusic does not accept

11    that the Prosecution have adduced any credible or reliable evidence that a

12    common plan or joint criminal enterprise involving any of the accused ever

13    existed.  However, for the purpose of this Rule 98 bis submission, our

14    submission is that if for the sake of argument a common plan can be shown

15    to exist, no evidence has been presented that Mr. Pusic was party to or a

16    member of that common design.

17            Your Honours, I would now like to turn to the indictment and to

18    paragraphs 15 to 17 to briefly examine how the Prosecution define the

19    objectives of the joint criminal enterprise and what, if any, explanation

20    they provide to establish Mr. Pusic's liability for membership within the

21    common plan.

22            I don't intend to read paragraphs 15 to 17 verbatim.  I'm sure the

23    contents are firmly embedded in everyone's minds.  I would note that the

24    common plan or joint criminal enterprise in this case has been defined in

25    extraordinarily broad terms.  The temporal scope is that the common plan

Page 26995

 1    is said to begin before the 18th -- on or before the 18th of November,

 2    1991, and to extend to about April 1994.  That is the language used by the

 3    Prosecution.  The objectives of the common plan are twofold, and I would

 4    refer to the objectives as the two limbs of the common plan.

 5            The first limb, to summarise, the objective is to ethnically

 6    cleanse parts of Bosnia of Muslims and non-Croats.  The second limb is to

 7    annex those areas to the Republic of Croatia, or to create a new Greater

 8    Croatian Republic.

 9            Your Honours, we take the view that the Prosecution must produce

10    evidence to support both limbs of this formula, and our first submission

11    is that no evidence, direct or indirect, has been presented that proves

12    that any of the accused, not just Mr. Pusic, any of the accused were party

13    to a joint criminal enterprise that had that particular objective,

14    annexation to the Republic of Croatia or the creation of a Greater

15    Croatia.

16            Your Honours, paragraphs 15 and 16, the Prosecution then set out

17    in detail the individuals they believe to be participants in this common

18    plan, and in addition to the accused, this list is wide-ranging, and it

19    includes Franjo Tudjman, the former president of the Republic of Croatia,

20    together with his minister of defence, senior generals, and Mate Boban the

21    president of the Croatian Community.  Furthermore, included in the list of

22    participants is any individual, we submit, potentially working within the

23    civilian or military administration in Herceg-Bosna.  That includes any

24    individual working within the armed forces, security, and intelligence

25    sources, not just in Herceg-Bosna but also in the Republic of Croatia.

Page 26996

 1            Your Honours, I'm not about to proceed to read verbatim the

 2    contents of paragraph 16.  It's quite clear that the scope of the joint

 3    criminal enterprise in terms of the list of participants is wide-ranging.

 4            At paragraph 17 the Prosecution then proceed at length to set out

 5    the manner in which each of the accused is said or alleged to have

 6    participated in this common plan.  We can, in my submission, glean one

 7    very important detail from the indictment at paragraph 17, and that is the

 8    stipulation in the fifth sentence that all the accused participated as

 9    leaders of the joint criminal enterprise or common plan, and that is a

10    point that I would return to in due course.

11            My submission is that the Prosecution's summary of the ambit of

12    the JCE, paragraphs 15 to 17, does not include any clear or concrete

13    explanation as to how the Prosecution intend to prove the common plan

14    arose and how they intend to prove that the accused became party to it or

15    members of it.  In particular, at no point in the indictment do the

16    Prosecution specify whether the common plan is express or whether it is to

17    be inferred from the actions of the accused.

18            I'd like to move on from the indictment now as I want to consider

19    whether there has been any direct or indirect evidence, documentary or

20    testimonial, that has been presented to date by the Prosecution that is

21    capable of proving that Mr. Pusic was party to or a member this alleged

22    common plan or joint criminal enterprise.

23            As regards direct evidence, our submissions are straightforward.

24    We say that there has been no direct evidence presented from which the

25    Trial Chamber could find that Mr. Pusic was party to or a member of the

Page 26997

 1    common plan or joint criminal enterprise.

 2            What then of inferences, inferences that could be drawn from

 3    indirect evidence?  Our position is the same.  We say there is no indirect

 4    evidence from which reasonable inferences could be drawn that Mr. Pusic

 5    was a member or party to the joint criminal enterprise or common plan.

 6            If in the course of the Prosecution's reply we are to be asked to

 7    draw inferences from indirect circumstantial evidence, then we would make

 8    the following three submissions:  Firstly, we remind the Chamber of the

 9    ruling in the case of Galic that findings at trial based on circumstantial

10    evidence must be the only reasonable conclusion available from that

11    evidence.

12            Secondly, and this point relates to the issue of inference that

13    can be drawn from evidence of participation when defining eligibility for

14    membership of the common plan or joint criminal enterprise.  At this

15    juncture I would ask the Trial Chamber to note the last sentence of the

16    Tadic judgement at paragraph 227, subsection (ii). "There is no necessity

17    for this plan, design or purpose to have been previously arranged or

18    formulated.  A common plan or purpose may materialise extemporaneously and

19    be inferred from the fact that a plurality of persons acts in unison to

20    put into effect a joint criminal enterprise."

21            Your Honours, I would like to develop my submission by referring

22    you to the Brdjanin appeals judgement at paragraph 428.  Your Honours, we

23    accept that the Appeals Chamber in Brdjanin chose not to prescribe any

24    formula for defining liability for membership of a joint criminal

25    enterprise and has clearly ruled that joint criminal enterprise or JCE

Page 26998

 1    theory applies to large-scale cases as well as small-scale cases.  Your

 2    Honours, we also acknowledge that the Appeals Chamber further set no

 3    formal guidelines or requirements on the quantum of contribution that an

 4    individual must make to a particular JCE to be held liable for all crimes

 5    committed within its purview.

 6            Your Honours, we also recognise that it follows, given how that --

 7    given how JCE doctrine is currently formulated and assuming that the

 8    Prosecution seeks to maximise its chances of conviction, it follows that

 9    the broader, the canvas upon which the JCE is alleged, the more likely it

10    is that evidence can be adduced of an individual making some contribution

11    to its ultimate purpose.  Our submission, however, is that the Tribunal's

12    jurisprudence does not has not reached the point where to justify the

13    inclusion of the individual as a member of the JCE, all the Prosecution

14    have to do is to point to some contribution, however small, made to the

15    common plan or JCE by that individual.

16            The Appeals Chamber in Brdjanin has also after all made it clear

17    that JCE theory is not, and I quote, "An open-ended that permits

18    convictions based on guilt by association," and that quote can be found at

19    paragraph 428.

20            I would also invite the Trial Chamber to contrast the declaration

21    made by Her Honour Judge Van den Wyngaert at page 164 of the Brdjanin

22    Appeals Chamber decision to contrast that declaration with the dissenting

23    opinion of His Honour Judge Shahabuddeen, which can be found at page 170

24    of the same judgement.  The issue at hand, the question that was

25    addressed, is whether the principal perpetrators of a crime needed to be

Page 26999

 1    members of the JCE before an accused could be held responsible for crimes

 2    committed by those perpetrators.

 3            His Honour Judge Shahabuddeen took the position that a principal

 4    perpetrator must be a member of the JCE for another member of the JCE to

 5    incur criminal liability for crimes committed by that perpetrator and went

 6    on to define a very loose standard of membership, stating that merely by

 7    perpetrating a crime and acquiescing to the JCE or common plan a

 8    non-member could be assumed to then become a member of the JCE.

 9            The Appeals Chamber chose not to adopt this formula.  Judge Van

10    den Wyngaert felt compelled to issue a declaration clarifying her opinion,

11    and you will note that she was particularly skeptical of the low threshold

12    of membership for the JCE that was postulated by her colleague.  Her main

13    concern was that this would cast the net too wide and bring low-level

14    participants within the scope of the JCE.

15            Your Honours, this debate has little bearing on the binding ratio

16    of the Appeals Chamber's decision.  It is however in my submission of more

17    than academic interest on this case as it does reflect a genuine concern

18    on the part of certain members of the Appeals Chamber as to potentially

19    overly broad application of JCE theory; a situation that we say is the

20    case here and which underpins all our submissions.

21            We therefore ask you to read the passages carefully that we have

22    identified and make the following observation that the Appeals Chamber

23    considered and declined to make any finding to the effect that, and I

24    quote from Judge van den Wyngaert's declaration at page 164 of the

25    Brdjanin Appeals Chamber judgement, that "By perpetrating a crime within

Page 27000

 1    the common purpose and by acquiescing to the JCE, somebody who is outside

 2    the JCE may be assumed to become a member of it."

 3            Your Honours, I put my case no more strongly than that.  And

 4    should it arise that in the course of the Prosecution's reply the Trial

 5    Chamber is invited to draw sweeping and broad-brush inferences from the

 6    testimonial and documentary evidence that has been presented thus far, we

 7    ask the Trial Chamber to keep in mind the passages that we have

 8    identified.

 9            Your Honours, my third submission as we -- as we are dealing with

10    this topic of inferences to be drawn to establish liability for membership

11    to the common plan or JCE rests on one of the potential arguments that we

12    anticipate the Prosecution may choose to rely on.  This argument may take

13    this form, that by virtue of Mr. Pusic's posts and responsibilities and

14    the nature of his participation in the JCE, and you will note from

15    paragraph 17, the Prosecution make it absolutely clear that he is said to

16    have participated as a leader.  By virtue of that it is reasonable to

17    infer that Mr. Pusic was party to or a member of the common plan or JCE or

18    perhaps there may be some reliance on some variation of this theme.

19            We take issue with any such assertion.  At this point I'm just

20    trying to focus briefly on the label used by the Prosecution to describe

21    the capacity in which all the members of the alleged JCE are said to have

22    participated in the common plan.  I remind you once again of the words in

23    paragraph 17:  All the accused are said to have participated as leaders in

24    the joint criminal enterprise or common plan.

25            Your Honours, in our submission one of the defining

Page 27001

 1    characteristics of a leader is that he or she must have some

 2    decision-making authority.  Clearly defined authority either de jure or de

 3    facto or both, and what the Prosecution's final witness, Witness DZ, made

 4    very clear was that his impression was based on his extensive contact with

 5    Mr. Pusic, his impression was that Mr. Pusic had no unilateral

 6    decision-making authority.

 7            You may recall that Witness DZ used the phrase "lacked

 8    competence."  He used that phrase to describe how some of the ABiH

 9    prisoner exchange negotiators lacked the authority to make decisions.

10    Your Honours, this same expression applies to Mr. Pusic, and, Your

11    Honours, we remind you that Witness DZ made these assertions when he was

12    being led by Mr. Scott in his evidence in chief.  We are therefore not

13    asking the Chamber to question the credibility or reliability of his

14    evidence.  We are simply asking you to take it at face value at its

15    highest.  And our submission is that Witness DZ's evidence taken at its

16    highest cannot be interpreted to support the conclusion that Mr. Pusic

17    held a leadership position and that it cannot follow from that conclusion

18    that the inference that he was a party to or a member of the common plan

19    can be drawn.

20            Your Honours, the evidence of Witness DZ is critical, we suggest,

21    because it casts a shadow over the entire Prosecution case against

22    Mr. Pusic.  Witness DZ, after all, had regular and sustained contact with

23    him, more frequent and extensive contact than any other international

24    witness in this case.  Witness DZ was closely involved in most of the

25    relevant negotiations of prisoner exchange, as well as other aspects of

Page 27002

 1    Mr. Pusic's duties.

 2            Your Honours, I will now outline my last submission under this

 3    general heading of JCE liability, and this submission relates to

 4    Mr. Pusic's potential liability as a member of the common plan under the

 5    third category of JCE or JCE type three, also commonly known as extended

 6    JCE.  This submission relates to Mr. Pusic's liability for acts outside

 7    the common design even if they are committed by others, as long as those

 8    crimes are an actual and foreseeable consequence of the implementation of

 9    the common plan.

10            As we have seen, the objectives of the common plan or JCE are

11    defined in the indictment and have, as we choose to describe, two limbs.

12    The first limb, ethnic cleansing of parts of Bosnia of Muslims and

13    non-Croats.  Second limb, the annexation of those areas to the Republic of

14    Croatia or the intention to create a new Greater Croatian republic.

15            Your Honours, I would now like to ask you to turn to paragraph 230

16    of the indictment.  I would ask the Trial Chamber to note that the

17    Prosecution have decided consciously not to charge Mr. Pusic in regard to

18    events in Prozor in October 1992 and Gornji Vakuf municipality in January

19    1993.

20            Your Honours, it must be plain to everyone that these events must,

21    by definition, fall within the scope of the common plan or JCE that we

22    have just considered, and that if we apply the theory behind JCE type

23    three or the extended JCE, if we apply that theory, then in principle

24    Mr. Pusic should be liable for any events that took place in those

25    municipalities at the period stated, and that follows, Your Honours, from

Page 27003

 1    a quote that I will refer you to from the Brdjanin Appeals Chamber ruling

 2    at paragraph 423, and I quote:  "Liability for participation in a criminal

 3    plan is as wide as the plan itself, even if the plan amounts to a

 4    nation-wide system of justice and cruelty."

 5            We therefore submit that this exclusion clause, at paragraph 230,

 6    is an inconsistency which wholly undermines the Prosecution's case theory

 7    that Mr. Pusic was party to the common plan or JCE and this inconsistency

 8    lends further weight to our submissions because it follows that if Mr.

 9    Pusic was truly a party to this common plan, then by definition no such

10    exception to his liability could possibly be justified.

11            Your Honours, I will now move forward to consider the second mode

12    of liability, which is individual criminal responsibility pursuant to

13    Article 7(1) of the Statute.  In the interests of brevity, I do not

14    propose to address the particulars of every mode of liability under

15    Article 7(1).  In summary, it is the Defence for Mr. Pusic's submission

16    that no evidence has been adduced by the Prosecution that the accused

17    Mr. Pusic planned, instigated, ordered and/or committed or aided and

18    abetted the commission of any of the crimes set out in counts 4, 5, 19,

19    20, 21, 22, 23, 24, 25, and 26 of the indictment.

20            Your Honours, this submission applies whether Mr. Pusic is charged

21    on the basis of his own participation, his omission or failure to act

22    where there is a duty to do so as a co-perpetrator, indirect perpetrator,

23    or indirect co-perpetrator, or on the basis of his liability for aiding

24    and abetting.

25            The third mode of liability is Article 7(3), command

Page 27004

 1    responsibility.  The Tribunal's jurisprudence has established a

 2    three-prong test for criminal liability pursuant to Article 7(3).  The

 3    first requirement is the existence of a superior/subordinate relationship

 4    between the commander or the accused and the perpetrator of the crime.

 5    The second is that the accused knew or had reason to know that the crime

 6    was about to be or had been committed, and finally that the accused failed

 7    to take the necessary and reasonable measures to prevent the crime or

 8    punish the perpetrator thereof.

 9            Your Honours, we submit that the Prosecution has failed to meet

10    its burden with regard to all the elements that are required to prove

11    liability under Article 7(3), and in particular, in particular we say that

12    the Prosecution have failed to prove the existence of any

13    superior/subordinate relationship between the accused and any of the

14    offenders who committed any of the specific acts alleged in any of the

15    substantive counts that we have identified.

16            Your Honours, in Part 2 of my submissions I will now consider each

17    count in turn, examining the particulars of each count, the particulars as

18    set out the relevant paragraphs of the indictment.

19            I would like the Trial Chamber to consider counts 4 and 5 together

20    as the particulars for both allegations are similar.  Count 4 is the

21    allegation of rape, a crime against humanity, punishable under the Statute

22    Articles 5(g), 7(1) and 7(3) as alleged in paragraphs 15, 17, 38, 57, 59,

23    99, 109, 141, 211, and 213.

24            Count 5 is an allegation of inhuman treatment, sexual assault,

25    contrary to Article 2(b) and a grave breach of the Geneva Conventions of

Page 27005

 1    1949.

 2            Your Honours, I won't for the purpose of the following counts

 3    repeat the entire particulars of the offence because I am going to turn to

 4    each paragraph in turn.  However, before I do so I would also like to make

 5    clear that in the course of these submissions we make no admission as to

 6    whether any of these crimes actually took place or whether any credible or

 7    reliable evidence has been adduced in support of them.

 8            Your Honours, in relation to counts 4 and 5, as regards paragraphs

 9    38 and 39, we have no comment.

10            Paragraph 55 of the indictment only refers to count 5, and that is

11    the allegation of inhuman treatment and sexual assault.

12            You will note that the incidents that are set out in paragraphs

13    55, 57, and 59 do fall within the scope of the indictment as far as

14    Mr. Pusic is concerned.  Our submission is that no evidence has been

15    presented of any link, direct are indirect, whether adduced by documentary

16    or testimonial material, any link between Mr. Pusic and any of the

17    perpetrators of these crimes.

18            Your Honours, the same submission applies to all the other

19    particulars of these two counts.  Paragraphs 99 and 109 deal with events

20    in Mostar municipality --

21            JUDGE TRECHSEL:  I'm sorry if I interrupt but I wonder whether

22    there is a certain [Microphone not activated].

23            THE INTERPRETER:  Microphone, please.

24            JUDGE TRECHSEL:  What you said when you referred to --

25            THE INTERPRETER:  Microphone, please.

Page 27006

 1            JUDGE TRECHSEL:  I'm sorry.  Did you get anything of what I said?

 2    I thought that I detected a certain contradiction.  It's certainly my

 3    mistake, but you will set it right.  You have pointed to paragraph 230,

 4    according to which Mr. Pusic is not charged with any crimes in connection

 5    with events in Prozor municipality.  Now you have referred to paragraphs

 6    55 and this in vicinity which are Prozor.  So is that not out from the

 7    outset?

 8            MR. SAHOTA:  Well, Your Honour, if you look again at paragraph 230

 9    you will find see that the exclusion clause, if I can term it like that,

10    excludes Mr. Pusic from charges in the indictment in connection with the

11    events in Prozor municipality in October 1992 only and that is why I made

12    that reference.  The events that are outlined at paragraphs 55, 57, and

13    59 --

14            JUDGE TRECHSEL:  Thank you very much.  That's most helpful.

15            MR. SAHOTA:  Your Honour, I don't propose to necessarily take up

16    the Chamber's time by reciting verbatim the contents of each paragraph.  I

17    will, however, refer to the paragraph numbers just for the purposes of

18    clarity and clarifying that our submission remains -- remains that no

19    evidence has been presented of any link, direct or indirect, being --

20    having been established by the Prosecution to connect Mr. Pusic and any of

21    the perpetrators of the crimes that are set out in paragraphs 99 and 109

22    as they pertain to Mostar municipality, in paragraph 141, as that

23    paragraph pertains to Vojno camp.  In paragraphs 211 and 213, as those

24    paragraphs pertain to Vares municipality.

25            Your Honours, in our submission the only possible basis to

Page 27007

 1    establish Mr. Pusic's criminal liability for these offences is if we rely

 2    on the extended JCE or category of type three theory that these crimes

 3    occurred as a foreseeable consequence of the implementation of the common

 4    plan.  We say that JCE theory is not applicable to Mr. Pusic as there is

 5    no evidence that he was party to the common design.

 6            Your Honours, I also invite you to ponder whether the

 7    Prosecution's potential reliance on JCE type three liability or extended

 8    JCE liability in this case is really appropriate.  And I ask the

 9    rhetorical question whether JCE type three liability should really be

10    employed if, as in this case, the Prosecution's evidence taken at its

11    highest does not or is not capable of proving that my client, Mr. Pusic,

12    was a leader of this so-called JCE or common plan.

13            I also ask the Trial Chamber to ponder and consider whether by

14    proceeding in this matter by relying on JCE type three liability the

15    Prosecution is in effect in danger of raising the spectre of guilt by

16    association, and Your Honours will be aware of the Brdjanin Appeals

17    Chamber judgement paragraph 428 and their concerns with regard to that

18    possibility.

19            Your Honour, that submission applies to all the counts that I'm

20    now about to address.

21            Turning now to counts 19, 20, and 21.  I would deal with those

22    three allegations together because the particulars are once again similar,

23    and I would ask you to assume that each paragraph I refer, each paragraph

24    number, applies to all three counts unless I specifically state otherwise.

25            Count 19 is an allegation of extensive destruction of property not

Page 27008

 1    justified by military necessity and carried out unlawfully and wantonly.

 2    Count 20 is an allegation of wanton destruction of cities, towns or

 3    villages or devastation not justified by military necessity.  And count 21

 4    is an allegation of destruction or wilful damage done to institutions

 5    dedicated to religion or education.

 6            Your Honours, we have no comment in relation to paragraph 39.

 7    Paragraph 46 applies to Prozor municipality but does not apply to count

 8    21.  Paragraph 48 also doesn't apply to count 21 and nor does paragraph

 9    51.  Paragraphs 46 and 48 also don't apply to Mr. Pusic insofar as they

10    pertain to events that took place in October 1992.  Paragraph 53 applies

11    to all three counts.  Paragraph 66 to 68 do not apply to Mr. Pusic as they

12    pertain to events in January 1993, and those paragraphs relate to events

13    in Gornji Vakuf municipality.

14            The next municipality that we'll deal with is Sovici and Doljani.

15    Paragraph 82 does not apply to count 21.  Paragraphs 83 and 84 relate to

16    events in April 1993.  Paragraphs 97 and 116 pertain to Mostar

17    municipality, and both of those paragraphs do not pertain to count 21.

18    Paragraph 152 relates to events in Ljubuski municipality and detention

19    centre, specifically to the destruction of a mosque, and that pertains

20    only to count 21.

21            Paragraphs 162, 163, 164, 165, and 166 all relate to Stolac

22    municipality, and paragraphs 163 and 164 do not apply to count 21.

23            Paragraph 177 pertains to Capljina municipality and does not apply

24    to count 21, nor does paragraph 181, but paragraphs 179 and 180 do apply

25    to the same municipality.

Page 27009

 1            And finally with -- with regard to counts 19, 20, and 21 is

 2    paragraph 211, which pertains to Vares municipality.

 3            Your Honour, our submission in relation to all these offences, we

 4    haven't outlined the details of each particular of each paragraph because

 5    our submissions are identical, and our submissions are that there is no

 6    evidence linking the accused Mr. Pusic to any of the allegations that are

 7    set out in those paragraphs or particularised therein.  No connection has

 8    been established between Mr. Pusic and any of the perpetrators of those

 9    crimes.

10            The only possible liability or basis of liability for Mr. Pusic,

11    we submit, is through the exercise of JCE liability extended category or

12    JCE type three category that these crimes occurred as a foreseeable

13    consequence of the implementation of the common design and Mr. Pusic is

14    liable for foreseeable consequences because he was a member of the common

15    design.  Of course our submission is that JCE theory is not applicable in

16    this case as there is no evidence capable of supporting a conviction to

17    the effect that Mr. Pusic was in fact party to that common design.

18            Your Honours, count 22 and 23, again the particulars are similar

19    so I have chosen to deal with these two counts together, and again I would

20    ask you to assume that each paragraph reference applies to both counts

21    unless specifically stated otherwise.  Count 22 is an allegation of

22    appropriation of property not justified by military necessity and carried

23    out unlawfully and wanton think.  Count 23 is an allegation of plunder of

24    public or private property.

25            Turning to the relevant paragraphs of the indictment there is no

Page 27010

 1    comment that we wish to make in relation to paragraph 39.  Paragraph 46

 2    pertains to Prozor municipality but again relates to events in October

 3    1992, and so pursuant to the decision of the Prosecution at paragraphs

 4    230, Mr. Pusic is not charged with any of crimes committed at that time in

 5    Prozor.  Paragraph 57 also relates to events in Prozor municipality but we

 6    have a situation where Mr. Pusic is judged to be liable for events that

 7    took place in Prozor in July and August 1993.

 8            Paragraph 67 pertains to Gornji Vakuf.  Again it refers to events

 9    in January 2003, so it does not -- so that is a particular that does not

10    apply to Mr. Pusic.

11            Paragraph 85 pertains to events in Sovici and Doljani in April

12    1993 where Muslim property is said to be confiscated, stolen and plundered

13    and robbed by HVO members.  We submit there is no connection to Mr. Pusic

14    and any of the perpetrators of those alleged offences.

15            Paragraph 99 relates to events in Mostar municipality in May 1993

16    onwards continuing to April 1994 where HVO forces are engaged in the

17    alleged systematic expulsion and forcible transfer of thousands of Bosnian

18    Muslim civilians from West Mostar.  Again we submit there is no evidence

19    to connect Mr. Pusic to any of the alleged perpetrators of those crimes.

20    The same submission applies in relation to paragraph 100, which is also an

21    account of events in Mostar in May 1993.

22            Your Honours, at paragraphs 107 and 108 also relate to Mostar

23    municipality.  Paragraph 159 is relevant to events in Stolac in July 1993.

24    Paragraph 175 and 182 is relevant to events in Capljina municipality in

25    July and August 1993.  Paragraph 209 relates to events in October 1993 in

Page 27011

 1    Vares municipality, as does paragraph 211 and 213.

 2            Your Honours, our submission in relation to all the particulars

 3    that we have just outlined is that there is no evidence linking Mr. Pusic

 4    to any of these offences and no evidence adduced direct or indirect that

 5    links him to any of the alleged perpetrators of these offences.  Once

 6    again, we suggest that the only possible basis for liability open to the

 7    Prosecution is under the exercise of extended joint criminal enterprise

 8    theory or JCE type three.  And, Your Honour, our submissions in relation

 9    to that are -- are clear.

10            The last three counts that pertain to our submissions are counts

11    24, 25, and 26.  Once again, the particulars are similar.  We therefore

12    will deal with all three counts together.

13            Count 24 is an allegation, unlawful attack on civilians in Mostar.

14    Count 25, allegation of unlawful infliction of terror on civilians in

15    Mostar.  And count 26 is an allegation of cruel treatment that pertains to

16    the Mostar siege.

17            The particulars of those offences are set out in the following

18    paragraphs:  We have no comment to make as regards paragraphs 35, 36, 37,

19    and 39.

20            Paragraph 98 describes events in Mostar on the 9th to 10th of May,

21    1993.  We submit, Your Honours, that there is no evidence that's been

22    presented by the Prosecution to link Mr. Pusic to any of the crimes that

23    are set out therein, and no evidence presented to link Mr. Pusic to any of

24    the alleged perpetrators.

25            Paragraphs 110, 111, 112, 13, 14, 115, 116, 117 all describe

Page 27012

 1    events that took place in East Mostar from June 1993 to April 1994,

 2    specifically the siege of Mostar.

 3            Your Honours, our submission once again no evidence has been

 4    presented by the Prosecution to link Mr. Pusic to any of the crimes

 5    described therein and no evidence to link him to any alleged perpetrators.

 6    The only basis of liability we submit is if the Prosecution choose to rely

 7    on the extended theory of joint criminal enterprise or type three JCE, and

 8    we submit JCE theory is not applicable in this case because no evidence

 9    has been adduced capable of supporting a conviction to the effect that

10    Mr. Pusic was party to the common design at the heart of the JCE.

11            Your Honours, I would now like to draw my submissions to a close.

12    We've tried adopt a very systematic approach in developing our submissions

13    with reference to the indictment which we've analysed count by count,

14    paragraph by paragraph, particular by particular, and we invite and hope

15    the Prosecution will take a similar approach in their reply.

16            We also remind the Trial Chamber that the burden is on the

17    Prosecution to persuade the Chamber to the case that they have presented

18    satisfies the Rule 98 bis standard with regard to each individual count on

19    the indictment that is the subject of our application.

20            We'd also invite the Trial Chamber to remind the Prosecution that

21    this is not a forum for closing arguments and that the Prosecution should

22    only address the issues that we have raised in the course of our

23    submissions.

24            We trust and hope that we have made our position crystal clear,

25    but in order to recap, in essence we ask the Prosecution to answer two

Page 27013

 1    simple questions.  The first question:  What evidence is there that taken

 2    at its highest a reasonable trier of fact could find capable of supporting

 3    a conviction against Mr. Pusic for rape, count 4; inhuman treatment by way

 4    of sexual assault, count 5; extensive destruction of property, count 19;

 5    wanton destruction of cities, towns and villages, count 20; destruction or

 6    wilful damage to institutions dedicated to religion or education, count

 7    21; appropriation of property, count 22; plunder, count 23; unlawful

 8    attack on civilians, count 24; the unlawful infliction of terror, count

 9    25; cruel treatment, count 26.  We say that no evidence has been presented

10    that is capable of proving any of these allegations.

11            Our second question:  If JCE liability is the foundation of the

12    Prosecution's case in respect of any or all of the counts that we have

13    identified, then what is the evidence taken at its highest and given in

14    particular that Mr. Pusic is not charged with events that took place in

15    Prozor and Gornji Vakuf in the period specified, what evidence is there

16    that Mr. Pusic was a party to both limbs of this alleged common plan or

17    joint criminal enterprise?

18            We say that no evidence has been presented that is capable of

19    supporting a conviction on the basis of JCE liability.  And when we use

20    the term "evidence" let me also make this claim:  The Prosecution cannot

21    substitute inference for evidence and any inferences that they wish to

22    draw have to be reasonable.

23            Your Honours, that brings my submissions to a close.

24            JUDGE ANTONETTI: [Interpretation] Mr. Sahota, I would like to

25    obtain from you a precision, a clarification, if you will.  On many

Page 27014

 1    occasions you talked of a common plan and then of the JCE.  Is it the same

 2    thing, or are you presenting two very different notions or is it two

 3    different notions in your mind?

 4            MR. SAHOTA:  Your Honour, I did try and clarify in my submissions

 5    that the two terms were, as far as I was intending to make clear,

 6    interchangeable.  So when I use the term "common plan," you can take that

 7    means joint criminal enterprise and vice versa.

 8            JUDGE ANTONETTI: [Interpretation] Very well.  Last question for

 9    clarification purposes:  According to you, what is a common plan or the

10    JCE?

11            MR. SAHOTA:  Your Honour, that's a question that I'd leave to the

12    Prosecution to answer.  The burden is on them to prove their case.

13    They've set out the objectives of the common plan.  I've read the

14    indictment.  I've made my submissions, and, Your Honours, the answer to

15    that question is still a mystery to me.

16            JUDGE ANTONETTI: [Interpretation] Very well.  I am now looking at

17    all Defence teams.  Did everybody finish?  So the procedure of Rule 98 bis

18    with regard to the Defence is closed or finished.

19            The Prosecution will give us their position next Monday since they

20    need a few days to get ready.  So next Monday at 2.15 p.m., we are going

21    to hear you on this.

22            I don't know if somebody wishes to intervene on another topic.  I

23    will hand them the floor.  I see that Mr. Praljak raised his hand.

24            THE ACCUSED PRALJAK: [Interpretation] Your Honour, Your Honours,

25    of course I'm not going to comment, that's forbidden, but I'm just

Page 27015

 1    interested in one thing.

 2            During the presentation of the Prosecution evidence, a lot of

 3    technical matters were raised, technical topics broached, and now as it's

 4    the Defence case coming up now and the preparation of witnesses and their

 5    proofing, I have 200 witnesses that I want to bring in probably under 92

 6    ter for them to give their statement and then the Prosecutor can ask them

 7    what he wants, but telephonics, for example, the Croatian language, the

 8    question of water, electricity, things like that, we'd like some

 9    instructions and guidance from the Bench please.  Should I prepare experts

10    to come in to speak at length about what high frequency networks are, or

11    whatever, related to electricity and the water supplies and so on?

12            It's difficult for me to know what to do.  So could we have some

13    guidance, please, from the Trial Chamber or from the Prosecution how broad

14    the topics should be, because it would last a long time.  I don't mind,

15    but I think that some guidance and instructions would be helpful and some

16    general pointers.  Thank you.

17            JUDGE ANTONETTI: [Interpretation] Very well.  You've invoked two

18    subjects.  You mention that you will have 200 witnesses.  I -- I am

19    astonished by that number.  Two hundred witnesses is a lot of people.  And

20    you said that some people would be brought in according to the 92 ter

21    procedure, and it will go faster of course, but since we will have many

22    hearings, pre-trial hearings, two are planned, we are going to be able to

23    talk about the 200 witnesses at that point.

24            Now, with regard to some guidelines, the Judges will reflect upon

25    what you have asked.  You've asked us in fact to give you some guiding --

Page 27016

 1    or guidance in your defence strategy, but it's up to you and your counsel

 2    to see what should be done and which strategy you will use.

 3            Now, there's of course the time constraint, and the Chamber will

 4    give to parties under the reserve of Rule 98 bis to intervene.  Do not

 5    take from the words I am saying now, do not take them literally.  This is

 6    just theoretically.

 7            Now, if there is no acquittal, the Chamber, the Trial Chamber,

 8    will have to establish the time for the parties, and of course when we

 9    calculated that time, we will have to take into account certain factors,

10    and of course we will have to avoid between the six Defence teams

11    repetitions.  Of course that's very important.

12            Now, this will be done when we meet during those two Pre-Trial

13    Conferences, and of course we will be more able to know exactly how much

14    time is left for the parties, but for now I won't be able to.  I'm not

15    able to tell you anything.  The Chamber is made up of four Judges, and the

16    four Judges have to either render a unanimous decision or a -- or

17    otherwise, but for now we have not discussed it amongst ourselves.

18    Therefore, I cannot give you any more guidance on this subject.

19            Mr.  Scott.

20            MR. SCOTT:  Your Honour, I thought -- I thought of something to

21    say from the morning, from the first part of our session today and I want

22    to be very clear because I'm very much aware that everyone on all sides

23    and in the Chambers and registry has been working very hard in these past

24    days.  So what I am about to say is not meant as any form of criticism but

25    simply an inquiry.

Page 27017

 1            Counsel today, in fact, referred to the evidence of Witness DZ,

 2    and I realise that was only tendered just recently, but it would be

 3    helpful for the Prosecution to know about the admission of the exhibits

 4    related to that witness prior to their final submissions.  I'm sure -- I'm

 5    sure it's on its way but I'm just raising it.

 6            JUDGE ANTONETTI: [Interpretation] Yes.  Please rest assured that

 7    the decision is almost ready.  It will be rendered with my signature

 8    shortly.

 9            We were faced with a great deal of decisions.  We had to render a

10    great deal of decisions and from December up until today we have rendered

11    more than 130 decisions.  This is a record in terms of decisions.

12            I know that this one is perhaps lagging behind, but I would like

13    to remind you that Witness DZ appeared here last week.  So we cannot go

14    faster than music.

15            So everything is said now and I am closing this session, and I

16    would like to tell you that we will meet next Monday.  So the hearing is

17    resumed next Monday.

18                          --- Whereupon the hearing adjourned at 3.27 p.m.

19                          To be reconvened on Monday, the 4th day

20                          of February, 2008, at 2.15 p.m.