Tribunal Criminal Tribunal for the Former Yugoslavia

Page 52510

 1                           Monday, 21 February 2011

 2                           [Praljak Defence Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           [The Accused Pusic not present]

 6                           --- Upon commencing at 2.14 p.m.

 7             JUDGE ANTONETTI:  [No interpretation]

 8             THE REGISTRAR:  Good afternoon, Your Honours.

 9             This is case number IT-04-74-T, the Prosecutor versus

10     Prlic et al.

11             JUDGE ANTONETTI: [No interpretation]

12             [Interpretation] I'm starting over again.

13             I would like to welcome everybody in the courtroom, the accused,

14     I would also like to welcome the Defence counsel, as well as members of

15     the OTP, and everybody who is helping us in these proceedings.

16             We are continuing today with the closing arguments.

17     General Praljak will have exactly 30 minutes.

18             Mr. Praljak, you have the floor for your 30 minutes.

19             THE ACCUSED PRALJAK: [Interpretation] Good afternoon.  I extend

20     my greetings to everybody in the courtroom.  I especially extend my

21     greetings to the interpreters.

22             Your Honours, the training of police officers from

23     Bosnia-Herzegovina in Croatia, who were sent by the SDA as early as 1991,

24     the training of pilots of the BH Army in the Republic of Croatia, the

25     training and equipping of entire BH Army units in Croatia, the taking up

Page 52511

 1     of hundreds of thousands of Muslim refugees in Croatia, the organisation

 2     of ex-territorial education and schooling for Muslim refugees in the

 3     Republic of Croatia in the Bosnian language, which at the time didn't

 4     even exist, the uninterrupted supply of weapons to the BH Army,

 5     ammunition, oil, medication, food, and other necessary logistics for the

 6     BH Army in order to wage a war, the medical treatment of more than 10.000

 7     wounded BH Army combatants in Croatian hospitals, enabling thousands of

 8     Mujahedin to come and join the BH Army, regular logistic bases of the

 9     BH Army in Zagreb, Rijeka, Split, Samobor, throughout the war, and so on

10     and so forth, and all of this for free, never in the history of war has

11     one people, the Croats, provided so much help to another people, the

12     Bosnian Muslims, even when the latter turned their army, the BH Army,

13     against the Croats, the HVO, in Bosnia-Herzegovina.  Never in the history

14     of war has the commander of one army, the HVO, let convoys with armaments

15     and other equipment pass through to another army, the BH Army, even when

16     that army, the BH Army, used those armaments and all the rest to attack

17     those who let them receive it.

18             And what about the referendum of Croats for Bosnia-Herzegovina,

19     which was a precondition for the existence of that state, the recognition

20     of Bosnia and Herzegovina by the Republic of Croatia, the appointment of

21     the ambassador of the Republic Croatia to Bosnia and Herzegovina, the

22     signing of all propositions made by the international community on the

23     internal structure of Bosnia-Herzegovina, and the first ones to sign were

24     the representatives of the Croatian Community of Herceg-Bosna and the

25     Republic of Croatia.  That was the policy of Dr. Franjo Tudjman,

Page 52512

 1     president of the Republic of Croatia.  It was the policy of the

 2     Government of Croatia, the Parliament of Croatia and the Ministry of

 3     Defence of Croatia.  It was the policy of the HVO.

 4             To the Prosecution of this Tribunal, all these are elements of a

 5     joint criminal enterprise.  Such an indictment uses logic that is

 6     offensive even to the cognitive system of a pathogenic virus.  What kind

 7     of opinion and which positions precede such an indictment?

 8             Firstly, Simon Leach, a former police constable in Great Britain,

 9     member of the OTP team who investigated crimes committed by Croats in the

10     Lasva Valley, at some meeting in the Prosecution in 1996, produced a

11     piece of paper with names, the names of Franjo Tudjman, Gojko Susak and

12     Vice Vukojevic.  He interpreted and explained that these were the goals

13     that his investigation was led to.

14             Secondly, I quote from Willem Montgomery's book, "After the

15     Cheering Stops," page 114:

16             "The US special ambassador for war crimes, Pierre Prosper,

17     invited three American ambassadors from the region, from Serbia, Croatia

18     and Bosnia to come to The Hague in order to meet with the representatives

19     of the ICTY.  There are two memories rather impressive.  The first one

20     refers to the fact that we heard directly from Carla Del Ponte that the

21     official approach of her office is based on the position that all war

22     leaders of all parties are guilty of war crimes, and, further on, that

23     she considers which these specific crimes are and how their guilt can be

24     proved.  At that moment, it seemed, and it still seems to me, that such a

25     position is false for several reasons."

Page 52513

 1             Is Mr. Montgomery a credible witness?  What was the reaction of

 2     the other three?  The positions of Carla Del Ponte are not false for many

 3     reasons.  Her position is imperial arrogance, a degradation of law and

 4     its reduction to Communist purges and Nazi pogroms.

 5             Thirdly, in her book "La Caccia: Io e Il Criminali Di Guerra,"

 6     Carla Del Ponte says, on page 254:

 7             "One of the Prosecutors of the Tribunal, a Canadian, well known

 8     in his circle for his wit and anecdotes, had an aphorism that did a good

 9     job capturing the difference between the Serbs and the Croats who

10     attempted to obstruct the work of the Tribunal.  The Serbs are bastards,

11     he used to say.  In contrast, the Croats are perfidious bastards."

12             This Prosecutor of the Tribunal, the Canadian, is using hate

13     speech.  Del Ponte uses the phrase "he used to say," which means that it

14     was not a one-off witty remark, but a habitual chauvinistic and racist

15     characterisation of the Croats as perfidious bastards.  Carla Del Ponte

16     relays the words of one of the Prosecutors of the Tribunal without any

17     restrictions, which means that she completely agrees with that opinion;

18     on an ongoing basis, too, which we can infer from the language and the

19     phrase "he used to say."  The lack of any reaction to such a pro-fascist

20     manner of speech about one nation is something I cannot comprehend.  I'm

21     interested to know whether the indictment against me may have been

22     drafted under the impression of such an opinion.  If, by any chance, I,

23     Slobodan Praljak, had written or said anything like that, anywhere, at

24     any time, about any people or nation or group during the war in the

25     territories of the former Yugoslavia, I would have been sentenced to five

Page 52514

 1     years of imprisonment only for that.

 2             I really would like to know whether the saying "quod licet Iovi,

 3     non licet bovi" is something that is a valid rule here in this Tribunal.

 4     I really would like to know whether the international organisations,

 5     which established the Tribunal and which ensure that it is fair, support

 6     the position mentioned in the book, this book.

 7             The Prosecution has compared me to the Nazis and my activity to

 8     the Holocaust.  Well, let me then describe the role of Goering, which

 9     character, according to the Prosecution, I compare.  This Goering placed

10     his Jews - actually Muslims - in his country cottage and took care of

11     them.  He put his Jews in his apartment in Zagreb.  He fed them and gave

12     them medical treatment.  He exposed himself to sniper fire in front of

13     the JNA barracks at Grabovina in order to save the wives of his enemies.

14     He protected the captured JNA soldiers with his own body and saw to it

15     that they make it to their homes safe and sound.  He pulled out captured

16     Serb civilians from the Dretelj Camp, although he was being threatened

17     with weapons; not alone, though.  The camp was held by HOS members, who

18     were mostly Muslims.  He evacuated wounded Jews - actually Muslims - from

19     the hospital in East Mostar; not alone, of course.  He organised the

20     evacuation and accommodation of 15.000 Jews - actually Muslims - from

21     Stolac and the Dubrava Plateau, across the Neretva, and 3.000 of their

22     cars.  He didn't do that alone, either.  He transported a wounded Jewish

23     women - actually Muslim woman - by helicopter from East Mostar to split;

24     not alone.  He received a Jewish - actually Muslim - family with a child

25     suffering from leukemia near Uskoplje and transported them to Split to be

Page 52515

 1     treated.  He helped them to get Croatian citizenship in order to travel

 2     to Switzerland and be treated medically at the expense of the Croatian

 3     state budget; not alone, though.  He organised that the Salvation Road

 4     for Jews - actually Muslims - be built in order to be able to leave to

 5     another country, Goering's country, Croatia.  He didn't do it alone,

 6     though.  He guided them and fought with the Jews - actually

 7     Muslims - defending and liberating Mostar and Capljina and Travnik and

 8     Konjic and other places.  He didn't do that alone either.  He, of his own

 9     accord, let the captured Jews - actually Muslims - go who were captured

10     after the conflict in Rama or Prozor, and he prevented retaliation after

11     the Jews - actually Muslims - committed crimes in Uzdol.  He didn't do

12     that alone, and the same applies to Doljani and Grabovica.  When

13     necessary, he personally let through convoys transporting food for the

14     Jews - actually Muslims - as well as convoys with armaments, even when

15     the 3rd Corps of the BH Army, the 4th Corps of the BH Army, the 6th Corps

16     of the BH Army and parts of the 1st Corps of the BH Army launched an

17     attack against Goering, against the western borders of

18     Bosnia-Herzegovina, at the port of Ploce, after they had signed a truce

19     with the Serbs.  He didn't do that alone either, and so on and so forth.

20     I'll skip Goering's - that is Praljak's - behaviour in the courtroom, but

21     that behaviour makes one a war criminal according to the logic applied by

22     the OTP.

23             The Prosecutor quoted Goethe's Faust about the mirror that

24     we should look -- that you would use to look at ourselves.  My actus reus

25     are my mirror, my point and my very essence, because they follow from the

Page 52516

 1     mens rea of that one who we call Slobodan Praljak.

 2             Unfortunately, Judges Prandler and Trechsel refused to accept my

 3     150 witnesses who were supposed to testify about the activities and deeds

 4     of the accused Praljak, and about the general situation in which such

 5     deeds were necessary, but, unfortunately, not always sufficient, and I

 6     really fail to understand the legal procedure that forbids me to testify

 7     about Mladic's diaries.

 8             Do I regret the victims?  Yes, I regret all innocent victims of

 9     all war.  I especially regrets the victim of those 500 wars or so after

10     1945 that have taken place and still go on, despite all moralists'

11     speeches that we hear daily.  I especially regret every child that, in

12     reality, dies of hunger every four seconds.

13             Peace in dictatorship is a preparation for war.  The longer and

14     the worst the dictatorship, the more negative energy builds up and the

15     more blood and evil will follow later.  It doesn't matter whether we're

16     talking about Tito or Saddam.  And those who bring down a dictator and

17     who later try to diminish the evil that occurs according to the force of

18     the laws of physics, but those who made possible the dictatorship and by

19     their silence made it last longer.  The same applies to Yugoslavia after

20     Tito as well as to Iraq after Saddam.

21             What the Prosecutor calls nationalist is something the Croats

22     felt a necessity for freedom, both the freedom of the people and

23     citizens' freedom.  In this sense, I am a Croatian nationalist.

24             I do not renounce the policy of Dr. Franjo Tudjman because that

25     policy created the Republic of Croatia and made possible the survival of

Page 52517

 1     Bosnia-Herzegovina as a state.  I do not renounce the inherent sense and

 2     point in the legal establishment of the HZ-HB, the expression of the will

 3     of the Croats in BH to become and remain a sovereign and constitutive

 4     people in that state.  The HZ-HB, by its frail organisational structure,

 5     made possible the creation of the HVO, which in 1992 was able to defend

 6     the BH and the south of Croatia in 1993, prevented the implementation of

 7     the aggressive plans of the BH Army.  The Muslim policy and the BH Army,

 8     unable to regain the territories that were occupied by the JNA and the

 9     VRS, and that was due, to a large extent, to the weapons embargo that is

10     incomprehensible to an ethical human mind, moved to launch a

11     counter-offensive against the HVO.  By liberating areas from Croats, they

12     committed crimes at Konjic, Capljina, Doljani, Bugojno, Grabovica, Uzdol,

13     and elsewhere.  The facts are plain to see for the killed, expelled and

14     detained Croats.

15             Social relations are an area where the laws of cause and

16     consequence apply, whereas the spiral of evil, once initiated, does not

17     justify crime, but it does significantly reduce the possibility to

18     implement the law, whoever's task that is on paper.  It is always like

19     that, and everywhere.  The HVO defended itself from an aggression in

20     1992, in 1993, and 1994, and a commander's duty is not to lose the war.

21     My conscience is clear.

22             Legal proceedings are the interpretation of laws and facts in a

23     trial proceedings, as rhetoric, and, as such, does not seek to find the

24     absolute truth.  It seeks to find a probable truth beyond all reasonable

25     doubt, which can be contradicted hardly or not at all.  In an attempt to

Page 52518

 1     discover such truth, knowledge is not enough.  One needs to ponder, one

 2     needs to apply logic, one needs to apply rational and logical

 3     argumentation, data, facts, statements, and statistics do not mean a

 4     thing if they are not in a logical relationship with assertions.  Through

 5     connecting various types of knowledge can we get closer to the truth.

 6             In these proceedings, one requires knowledge from the field of

 7     sociology, sociology of war, knowledge about societies in which state and

 8     social structures are completely destroyed, in which individuals return

 9     to their natural state.  One needs to apply knowledge from the field of

10     war psychology as well as the knowledge of war skills, armament, and the

11     understanding of the real term of the military, and so on and so forth.

12     Possible mistakes in the interpretation of facts are probable and just as

13     well fatal.  Exaggerated and false reduction of terms and of logical

14     connections, making conclusions on the basis of false presumptions,

15     avoiding comparing similar systems and phenomena, arbitrary equalising of

16     terms "power" and "desire," which is so dear to intellectuals, arbitrary

17     accusations because the world is not how one wishes or conceives it to

18     be, these are all fields of possible logical errors in the final

19     assessment of facts.  I sincerely hope that the honourable Trial Chamber

20     will adhere to scientific methods and notions.

21             In the last century, millions of people were convicted in trial

22     proceedings pursuant to racial laws, for example, in the USA and

23     Pretoria, dictatorial, religious and Nazi laws in Germany, Serbia,

24     Slovakia, the independent state of Croatia, fascist laws which were

25     applicable in Italy, Communist laws which were applicable in the former

Page 52519

 1     Soviet Union and Yugoslavia, and so on and so forth.  The court rhetoric

 2     has been under the influence of unreasonable social and political powers

 3     for too long, and that is why it has been criticised; unfortunately, not

 4     loudly enough.  In order to not end up in moral desperateness, it is high

 5     time for it to become what it has to be, a moral and reasonable process.

 6             Do I have the right to hope?

 7             I would kindly ask the honourable Judge Antonetti to tell me how

 8     much more time I have.

 9             JUDGE ANTONETTI: [Interpretation] Madam Registrar, could you

10     please confirm the time.

11                           [Trial Chamber and Registrar confer]

12             JUDGE ANTONETTI: [Interpretation] You have five minutes left.

13             THE ACCUSED PRALJAK: [Interpretation] Enough.

14             Laws of this Tribunal may be what they are.  However, they do not

15     apply to the Americans.  For other peoples, laws of the Permanent Court

16     apply, and those laws again differ from the laws applied here at the

17     ICTY, the International Criminal Tribunal for the former Yugoslavia, laws

18     which are applied to me.  This abolishes a significant condition of the

19     court rhetoric, which is the principle of the equality of arms among the

20     participants in the trial proceedings.

21             And now I quote Perelman:

22             "In a relation where inequality is a significant and

23     characteristic of relations among people, there is no foundation for a

24     reasonable and judicious process."

25             And for the end, I'm not guilty, and I'm not referring here to

Page 52520

 1     the feeling of guilt, coldly, rationally, with a logical analysis that

 2     has been critically examined dozens of times.  I know I'm not guilty.

 3             Your Honour Judge Antonetti, if your judgement is the opposite of

 4     my conclusion, I will respect the general principle of challenging every

 5     opinion, conclusion, or attitude.  I shall reconsider my position on my

 6     own responsibility openly and courageously.  If I recognise a mistake

 7     after that, I shall serve my time because you are righteous.  I will know

 8     what I could have done better, how I could have done it better, where I

 9     could have done it better, and when I could have done things better, in

10     my thoughts and in my words, in what I did and in what I failed to do.

11     If, however, you do not convince me and if your interpretation of facts

12     is not a good-enough or a falsely application of sum of social sciences,

13     and what is not possible thus becomes possible, what is not simple thus

14     becomes simple, and the power to do something thus becomes just a

15     substitute for a desire or a wish, then I will be in jail only because

16     the Tribunal is might, and this wouldn't be anything new under the sun,

17     really.

18             My half hour is finished.  I would like to thank you for your

19     attention now and over the past several years.  Thank you very much.

20             JUDGE ANTONETTI: [Interpretation] And now I'm going to give the

21     floor to the Petkovic Defence, who are, I believe, prepared.  So I'm

22     giving the floor to Ms. Alaburic, who will present the argumentation on

23     behalf of the Petkovic Defence.

24             I am reminding her of her time, which is five hours.

25                           [Petkovic Defence Closing Statement]


Page 52521

 1             MS. ALABURIC: [Interpretation] Your Honours, good afternoon.

 2     Good afternoon to my learned friends from the OTP, the accused, the other

 3     counsel, and all of those who are with us at the moment.

 4             On behalf of the General Petkovic Defence, I'm going to present

 5     our closing argument.  I will be the only one to speak.  I have my

 6     co-counsel, Zoran Ivanisevic, who is currently in Zagreb, and we have a

 7     new member of the team, Mr. Guenael Mettraux, who is our legal

 8     consultant.

 9             On the screen, you can now see the title page, and you can see

10     who members of the Petkovic Defence team are.  They all participated in

11     the preparation of our closing argument.

12             Before I start my closing argument, I have to use the magic word

13     "Sanction" to launch the presentation that we have prepared for you,

14     Your Honours.  And before I start, I would kindly ask my associate to

15     distribute the binders that we have prepared for the Trial Chamber.  We

16     would kindly ask the assistance of the Usher.

17             Your Honours, we have the hard copy of our presentation for your

18     benefit to allow you to follow us and to check all those things that we

19     will be presenting, that we will try to explain to you.  The Powerpoint

20     presentation is also in e-form, so if any of the parties in these

21     proceedings is interested in obtaining the electronic form, you can

22     address the case manager of the Petkovic team and you will be provided

23     with an electronic version of our presentation.

24             And now I'm starting the closing argument on behalf of the

25     Petkovic Defence.

Page 52522

 1             Your Honours, certain crimes were, indeed, committed in the area

 2     of Herceg-Bosna.  Crimes should not be forgotten.  Victims have the right

 3     to receive justice.  Perpetrators must be punished, and accused have the

 4     right to a fair trial.  A fair trial is one of the basic human rights.

 5     Human right to a fair trial includes, inter alia, an obligation of the

 6     Judges to rely only and exclusively on evidence heard in the courtroom

 7     and to establish the facts only and exclusively on the evidence in the

 8     case.

 9             Victims of a crime have a legitimate interest in participating in

10     any proceedings against an accused.  The ICTY Statute, unfortunately,

11     does not provide such a possibility, like the ICC Statute.

12             The Prosecutor's invitation to Judges to think about the victims

13     and to listen to the voices of victims is not an invitation to a fair

14     trial, in our opinion, for at least three reasons.  The first one:

15     Judges in a criminal proceedings are not expected to protect victims, but

16     rather to decide about the criminal responsibility of the accused.

17     Secondly, Judges are not supposed to rely on the voices of anybody

18     outside the courtroom.  And, thirdly, Judges are not supposed to rely on

19     anything other but the evidence in the case.

20             The goddess of justice is blind, because the Tribunal has to be

21     impartial.  Judges must not harbour preconceived notions about the matter

22     put before them.  Judges have to decide the case exclusively on the basis

23     of their reasonable assessment of the evidence and the application of the

24     law.

25             Your Honours, I believe that we have a consensus in this

Page 52523

 1     courtroom on these principles, and I'm mentioning just in response to the

 2     Prosecutor's appeal for you to listen to the voices of the victims that

 3     we did not hear in this courtroom.  The Petkovic Defence will talk about

 4     victims in its final argument.  We will mention certain numbers in

 5     relation to the victims.  When we mention numbers, there is always a

 6     feeling of discomfort, because a crime against one person is no

 7     less terrible than a crime against 10 people.  We will not mention the

 8     figures to diminish or minimise the victims' suffering or the

 9     consequences of the crime.  Numbers are supposed to help us understand

10     the essence of the case.

11             Let's start with some general data about the crime bases.  The

12     table in front of you is based on paragraph 229 of the indictment.  Out

13     of the crime bases, we have singled out the crime of persecution because

14     the underlying act of that is a different crime, and we believe that if

15     you look at all the other crimes, you will gain a good insight into the

16     structure of the crime base.

17             The Prosecutor compiled his indictment for a total of 903 crimes

18     barring the Prosecution.  The majority of the crimes is relative to

19     inhumane acts, accounting for about 25 per cent.  What follows are crimes

20     of incarceration, with a share of 20 per cent.  The total share of crimes

21     relative to incarceration, and we're talking about bullet points 10

22     through 18, is about 54 per cent.  If we look at the crimes of

23     deportation and transfer together, they make up about 20 per cent.  And

24     if we add up all of the crimes that we have just mentioned, namely,

25     deportation, transfers, and crimes relative to imprisonment, pertaining

Page 52524

 1     to bullet point 6 to 18, we will see that approximately three-fourths of

 2     the total crime base is relative to the aforementioned crimes.

 3             If you look at the table, you will see that certain crimes have

 4     been marked in red.  Let us remember these crimes.  These crimes,

 5     according to the Prosecutor's final argument, make up an element of the

 6     JCE from the 1st of July, 1993.  Those are crimes which make up the JCE

 7     Forms 1 and 2, both detention and deportation, again from the 1st of

 8     July, 1993.  I would like to draw your attention, Your Honours, to the

 9     fact that there are no charges for attacking undefended towns, villages,

10     residential and other facilities.

11             Killings, Your Honours, is most commonly the essence of war, and

12     it is one -- the ratio is 1:10 at the expense of civilians.  Let's

13     analyse the killing and murder charges in this case.

14             The next table refers to killings, murders, and unlawful killings

15     as presented in the indictment.  All of the columns contain a reference

16     to a paragraph in the indictment and the number of victims as presented

17     in the indictment.  The total number of killed has been segregated into

18     four different groups.  The first group is made up of those who were

19     killed during combat or after combat.  The second are those who were

20     alleged human shields at the moment when they died.  The third group is

21     composed of those who were killed during an alleged unlawful labour.  And

22     the fourth group are those which, according to the Prosecutor, died

23     during the imprisonment.

24             Let's look at the first column, those who died during or in

25     relation to combat.  Out of the total number of victims which we could

Page 52525

 1     find in the indictment, and that is 242, 103 victims died during combat

 2     or immediately after combat or in relation to combat.  Therefore, less

 3     than one half of those victims were killed during or in relation to

 4     combat.

 5             On the following 10 pages, Your Honours, we have prepared for you

 6     a brief analysis of all the pieces of evidence that the Prosecutor

 7     presented in Annex A of his final brief, and all of them are in respect

 8     of murder, willful killing, and I don't intend to analyse every piece of

 9     evidence at the moment.  My learned friend from the Prosecution will be

10     provided with this analysis in an electronic form to be able to check the

11     veracity of our claims, but let me just present the results of our

12     analysis.

13             Paragraph 48 of the indictment, the village of Paljike.  Our

14     analysis indicates that the Prosecutor did not prove that there had been

15     murder committed there.

16             In paragraph 51, we see the village of Toscanica.  Our analysis

17     indicates that the Prosecutor failed to prove beyond reasonable doubt

18     that the crime of murder had been committed.

19             Paragraph 66, the village of Dusa.  Having analysed the evidence,

20     we conclude that the Prosecutor failed to prove the committed acts of

21     murder, although it is not disputed that a certain number of civilians

22     were killed during the attack on the village by the HVO.

23             Paragraph 66, the village of Hrasnica.  The Prosecutor failed to

24     prove that the crime of murder of civilians was committed.

25             Paragraph 77, the village of Sovici.  The evidence suggests that

Page 52526

 1     the killed persons were "hors de combat," and they are not a legitimate

 2     target of attack, as such, which means that the Prosecutor did prove that

 3     the crime of murder was committed.

 4             Paragraph 114 has to do with shelling and sniping in Mostar.  We

 5     analysed the evidence of until the 24th of July, 1993, and we established

 6     that the Prosecutor proved the murder of one victim, Arzemina Alihodzic.

 7     And in Annex A, we find no evidence on the victims of shelling which

 8     could be seen as the victims of the crime of murder.

 9             Paragraph 161.  Our analysis indicates that the Prosecutor proved

10     that the crime of murder was committed on Sanida Kaplan.

11             Paragraph 176, Domanovici.  Our analysis indicates that the

12     Prosecutor managed to prove that the crime of murder was committed.

13             Paragraph 177, the village of Bivolje Brdo.  Our analysis

14     indicates that the Prosecutor proved that the crime of murder was

15     committed, and the victim was Hasan Korac.  However, the Prosecutor did

16     not prove beyond reasonable doubt that the crime of murder was committed

17     against the 12 victims referred to in that paragraph.

18             Had we had sufficient number of pages and sufficient word count

19     for our final brief, we would have conducted a similar analysis as per

20     each charge of the indictment.  Unfortunately, we had an insufficient

21     number of pages, so we needed to focus only on matters which were of

22     importance for General Petkovic's Defence.

23             What was our aim in stating all this?  The Prosecution, in its

24     final trial brief, stated that the crimes of murders and willful killings

25     were not planned by the HVO or in the context of JCE, that these crimes

Page 52527

 1     were not part of the criminal common plan.  The Petkovic Defence agrees

 2     that the crimes of murder and willful killing of Muslims and Bosniaks in

 3     Herceg-Bosna were not part of some criminal common plan or a means to

 4     persecute the Muslim Bosniak population.  In other words, Your Honour,

 5     the aim of the Armed Forces of Herceg-Bosna was not to kill the Muslim

 6     population.  Given that the chief of the Main Staff is part of the

 7     military authorities, this fact alone is of crucial importance for the

 8     Defence of General Petkovic.

 9             The continuation of our closing argument, Your Honours, will be

10     dedicated to the topic of the joint criminal enterprise.  We will spend

11     significant time on that topic; I believe up to an hour.

12             To start with, by your leave, I'd like to put forth a few theses

13     which would serve as an aide-memoire needed to prove the elements of the

14     JCE.  I believe we are all familiar with those elements, so I won't go

15     into them, per se.

16             An important characteristic of a JCE is that there is a criminal

17     common purpose in existence.  This common purpose can be twofold.  The

18     purpose of it can be to implement a goal arranged as part of a

19     collective.  That is why we have the term "common purpose."  The second

20     goal could be to achieve something which is not criminal in and by -- by

21     and of itself, but that criminal goal is tempted by committing crimes.

22     Therefore, we need to view both the means and goals.  We also need to

23     have an agreement among JCE members about these criminal means and goals.

24             Having analysed the indictment, the opening statement of the OTP,

25     and their final trial brief, we established that the Prosecution, in its

Page 52528

 1     final brief, explains the concept of JCE and significantly changes the

 2     concept of JCE in its first form.  Secondly, we established that the

 3     Prosecution changed its thesis about the time of creation of the JCE,

 4     Form 2, as well as in terms of detention and persecution.  This will be

 5     the subject of our analysis in the next one hour, approximately.

 6             Let us have a look at what is the goal of the alleged JCE, as put

 7     forth by the Prosecution, and what were the means to be used in order to

 8     establish or achieve the goal, as defined by the OTP.

 9             The goal or the objective of the alleged JCE are, inter alia,

10     defined by the Prosecution in paragraph 5 of their final trial brief.  I

11     quote:

12             [In English] "The objective of this JCE was to establish an

13     autonomous Croat-dominated entity (the Croatian Community of

14     Herceg-Bosna) on the territory of BiH that would at some point be linked

15     to Croatia, whether by accession or another form of close association."

16             [Interpretation] Therefore, the Prosecution state that the

17     objective of the JCE was, first of all, to establish a Croatian entity in

18     Bosnia-Herzegovina and, secondly, that there should be close links

19     between that Croatian entity in Bosnia-Herzegovina and the Republic of

20     Croatia.  We will address those objectives from the legal point of view,

21     and I undertake full responsibility for the legal definitions offered.

22     We will also address this matter from the point of view of

23     Milivoj Petkovic and his understanding of the situation in 1992 and 1993.

24             To start with, let's have a look at the case law of this Tribunal

25     about the political goals of common purpose.  The first-instance

Page 52529

 1     judgement in the Martic case, in paragraph 442, states as follows:

 2             [In English] "The evidence establishes the existence as of early

 3     1991 of a political objective to unite Serb areas in Croatia and Bosnia

 4     and Herzegovina with Serbia in order to establish an unified territory.

 5     Moreover, the evidence establishes that the SAO Krajina and subsequently

 6     Republika SRK government and authorities fully embrace and advocated this

 7     objective and strove to accomplish it in co-operation with the Serb

 8     leadership in Serbia and in Republika Srpska in Bosnia and Herzegovina.

 9     The Trial Chamber considers that such an objective, that is to unite with

10     other ethnically similar areas, in and of itself does not amount to a

11     common purpose within the meaning of the law on JCE pursuant to Article 1

12     of the Statute.  However, where the creation of such authorities [sic] is

13     intended to be implemented through the commission of crimes within the

14     Statute, this may be sufficient to amount to a common criminal purpose."

15             [Interpretation] The Appeals Chamber in the Martic case confirmed

16     this position.

17             Let us conclude, therefore, that this Tribunal ascertained that

18     the political goals of unifying certain parts of Croatia and

19     Bosnia-Herzegovina with Croatia is not a criminal common plan.  If the

20     aforementioned goal is intended to be achieved by committing crimes, such

21     a plan may suffice to believe that there is a JCE in existence.  If we

22     apply this rule to our proceedings, we conclude the following:  The plan

23     to establish a territory in Bosnia-Herzegovina that would be primarily

24     populated by Croatia, with close ties to the Republic of Croatia, cannot

25     be seen as a criminal common plan.

Page 52530

 1             My learned friend, Ms. Nozica, reminded us that the current topic

 2     in Bosnia-Herzegovina now is the establishment of a Croatian entity, and

 3     Mr. Scott confirmed that by having said that the US ambassador in

 4     Bosnia-Herzegovina is against such an initiative, which is beyond

 5     dispute, and it is also something that is very important for us is that

 6     such an initiative is on the table and that nobody even attempted to

 7     pronounce it a criminal concept.

 8             Let us see what see what Mr. Petkovic thought about that

 9     principle in 1992 and 1993.

10             The first document, 4D2510, which is an excerpt from Mladic's

11     diary for the 29th of November, 1992.  Petkovic met Mladic in the

12     presence of General Morillon, under the auspices of UNPROFOR, and

13     Petkovic said this to Mladic and General Morillon, Let us try to come up

14     with a solution by having the three sides sit down at the table in

15     Bosnia-Herzegovina, let us stop to refer to Tudjman and Croatia all the

16     time.

17             The next document is even more important.  It is P2019, the notes

18     taken by Tihomir Blaskic during a meeting of the 21st of April, 1993.  We

19     saw it a number of times in this courtroom.  Let's look at it again.

20             Halilovic says:

21             "Your top politicians advocate the establishment of the Croatian

22     state on the territory of Bosnia-Herzegovina."

23             Petkovic's response is this:

24             "Well, you ought to be reasonable enough to know that Croatia

25     cannot go for the annexation of B and H territory, because in that case

Page 52531

 1     it would lose its own territory."

 2             What Petkovic had in mind were the Serbs in the Republic of

 3     Croatia who also wanted to carve out a part of Bosnia-Herzegovina

 4     territory for themselves.

 5             Mr. Petkovic had the following to say about this document at

 6     page 49677 and 49678:

 7             [In English] "Let me first say what I replied to Halilovic.  I

 8     said to him, You must be out of your mind if you really think that's the

 9     case.  Croatia is an integral part of its territory, the Serbian Krajina

10     which wishes to leave Croatia, and it is a crazy idea to think that

11     Croatia, given this unsolved problem, aspires to anything more; something

12     along those lines.  So I'm not sure whether it was -- how faithfully it

13     was recorded in that document.  But, anyway, as far as I'm concerned, I

14     was never in favour of the idea that part of Bosnia and Herzegovina

15     should join Croatia.  Instead, Bosnia and Herzegovina was a unified

16     country and stayed this way, only I'm sorry that nowadays they can't seem

17     to be able to run their own affairs."

18             The conclusion is that Petkovic at the time believed that nobody

19     in their right mind could seriously ponder an annexation of B and H

20     territory with Croatia.  For Petkovic, as a career military person, was

21     the beginning and the end of the story of Greater Croatia.  Hence, this

22     Defence will not touch upon that topic any further.

23             Let us look at what the Prosecutor has to say about the planned

24     means used to achieve the objectives of the alleged JCE.  In the

25     indictment, in paragraph 15, the Prosecutor defines those means, and they

Page 52532

 1     say that all such means are planned simultaneously and, at the latest, as

 2     of the 18th of November, 1991.  In the OTP final trial brief, they

 3     identified the alleged means of the JCE as follows:  They defined what

 4     the original or core JCE 1 is.  They state that it includes the crimes of

 5     persecution, deportation, and forcible transfer.  Next, they define an

 6     expanded form of the JCE Form 1, which occurred in mid-1993, according to

 7     the Prosecution.  Form 2, detention and deportation, is also taken into

 8     account.  And according to the Prosecution, it came about on the 1st of

 9     July, 1993.  In our belief, this amounts to a significant change of their

10     definition of JCE 1.  We believe that by having done this, the Prosecutor

11     confirmed that the 30th of June, 1993, was a turning point in the

12     relations of Croats and Muslims.

13             Let us look at the following table.  Here in this table,

14     Your Honours, we wanted to show you, in a simple and easy-to-read manner,

15     what the Prosecution state.  In red, you will see the core JCE.  These

16     are -- these also include crimes against property, but they can also be

17     found in the third form.  It is obvious from this table that the

18     Prosecution thinks that on 30 June 1993, in the area of Herceg-Bosna,

19     something happened that represented a drastic change in the relations

20     between the Muslim side and the Croatian side.

21             If you allow me to draw some conclusions from that, I will put

22     the following to you:

23             There is no evidence that Petkovic ever made an agreement with

24     anybody or joined any agreement, if such an agreement existed at all,

25     that any political goal in Herceg-Bosna would be pursued by criminal

Page 52533

 1     means, by committing war crimes.  The Petkovic Defence agrees with the

 2     Prosecution that 30 June 1993 was a turning point in the relations

 3     between the Croat and Muslim side in Bosnia-Herzegovina.  We differ,

 4     however, when it comes to the reasons for that drastic change in their

 5     relations.

 6             The Prosecution's position is that in mid-1993, the authorities

 7     of the Herceg-Bosna simply decided to evolve the nature and scope of

 8     crimes in order to establish a Croat-dominated entity in

 9     Bosnia-Herzegovina.  The Petkovic Defence's position is the following:

10     Herceg-Bosna was already established, up and running, as of April 1992.

11     Secondly, the Herceg-Bosna authorities were not planning on widening or

12     enlarging the territories under their control, which is corroborated by

13     Petkovic's report for the period from 14 April through 31 December 1992.

14     The document reference is P907.  He says that in 1994, the Herceg-Bosna

15     authorities had under their control 90 per cent of the territory planned

16     as a territory of the HZ-HB, or the Croatian entity, with the corrections

17     possible.

18             Correction of the year.  It's 1992.

19             In April 1993, the BH Army launched offensive actions against the

20     HVO, and until mid-1993, gained control over the entire Konjic

21     municipality, except for two small enclaves, and they continued

22     operations in two directions, Gornji Vakuf in the north and Mostar in the

23     south; and in Central Bosnia they had taken Kakanj and Travnik.

24             The fourth difference:  On 30 June 1993, in co-operation with HVO

25     soldiers of Muslim ethnicity, the BH Army took control over the whole

Page 52534

 1     area north of East Mostar toward Jablanica.  This was the alarm for

 2     taking special security measures.  This, Your Honours, was the event that

 3     marked the turning point in the relations between Croats and Muslims in

 4     Herceg-Bosna.  Everything that happened in Herceg-Bosna after

 5     30 June 1993 was not the consequence of a criminal plan, but rather the

 6     consequence of security measures that were forced upon the authorities by

 7     the situation on the ground.

 8             Let me repeat.  There is no evidence at all that anybody, on

 9     30 June 1993, planned crimes against the Muslim population and the

10     BH Army in order to achieve a political goal.

11             Let us take a look at what was happening on the ground.

12             The Prosecution witnesses mostly spoke about the Croats, that is,

13     the HVO, as the party that caused the conflicts, as of April 1993.  The

14     Defence tried to show that it wasn't the case, but rather that the

15     conflict started with the attacks of the BH Army and that they developed

16     as these offensive activities gained momentum.

17             There is an undisputed fact, though, that from April 1993, the

18     BH Army enlarged the territory under its control.  If we totally ignore

19     the question who the first was, who started the conflict, because we

20     cannot agree there, we will agree that the BH Army was in an offensive,

21     that it was taking new territories, and that the areas marked green here

22     are getting larger, whereas the areas marked blue, controlled by the HVO,

23     are getting smaller.

24             Let us look at map 4D561.  This is a map for the period of March

25     and April 1993.  On this map, which we know well, you will see that at

Page 52535

 1     that moment, there were conflicts in and around Konjic and Gornji Vakuf

 2     and that the BH Army attacked HVO forces in and around Vitez, the attack

 3     coming from Zenica.

 4             If you look at the connection between Busovaca and Kiseljak, you

 5     will see that it is no longer possible to travel between these two towns.

 6     That's why I wish to remind you of a document that we analysed here in

 7     this courtroom, which is 4D392.  This is a report of the

 8     Security Administration of the Supreme Command of the BH Army, dated

 9     18 January 1993.  The document says, I quote:

10             "The Security Sector estimates that the BH Army forces in this

11     area, in case of serious clashes, are able to fight back the HVO forces

12     successfully, under the condition that the road communications between

13     Busovaca, Kiseljak and Fojnica, as well as Busovaca, Vitez and Travnik,

14     are cut."

15             If we look at the sketch, then we'll see that the road between

16     Busovaca and Kiseljak had already been cut, which happened in

17     January 1993, and in April 1993, efforts are made to cut the road from

18     Vitez to Travnik or Vitez -- from Vitez to Busovaca.  The situation on

19     the ground, therefore, is exactly what the Security Administration of the

20     BH Army suggested in January 1993.

21             Let us look at the following map, IC1183.  We see the same area

22     as before, but in June 1993.  We see that the BH Army has full control

23     over Kakanj and Travnik.

24             Let's look at what happened in and around Mostar.  The map is

25     IC1184, the situation until 30 June 1993.  We see here that the BH Army,

Page 52536

 1     marked green, has under its control East Mostar, and there is no direct

 2     communication with their own forces in the north and the south.  But that

 3     wasn't much of a problem, because up until that time there was some sort

 4     of co-operation between the two armies in this area.

 5             Map IC1185, for the same period, shows a wider area.  We see that

 6     in and around Jablanica and Konjic, the BH Army has full control, except

 7     over two small enclaves marked blue.  One of them would disappear within

 8     a month.

 9             What is happening on the 30th of June, 1993?  Let's take a look

10     at map 4D622.  The BH Army put all areas north and south of East Mostar

11     under its control.

12             Let's look at map IC1186.  What does it look like if we take a

13     wider view that also shows Jablanica and Konjic?  East Mostar, after

14     30 June 1993, is directly linked with Jablanica, Konjic, and further on

15     to Central Bosnia.

16             We can draw the following conclusions:  Firstly, the evidence

17     clearly and unambiguously shows that the BH Army launched offensive

18     military operations, as of April 1993, and continually widened the

19     territory under its control.  Secondly, the Petkovic Defence does not

20     challenge the legality and legitimacy of the military actions of the

21     BH Army because war, or combat activity by armed forces, unfortunately,

22     are not an illegal means to achieve political objectives.  Thirdly, the

23     military activities of the BH Army are relevant in this case as evidence,

24     as proof that certain measures taken by the Herceg-Bosna authorities were

25     a reaction to and the consequence of the BH Army offensive, their actions

Page 52537

 1     and plans, rather than a criminal common plan agreed upon by the members

 2     of the alleged JCE.

 3             And thus, Your Honours, we are getting to the crucial date in

 4     this case, 30 June 1993, the date when the order to isolate and disarm

 5     the Muslim soldiers of the HVO was issued, the day when the order was

 6     issued to isolate conscripts of the BH Army.

 7             Let us look at these sketches once more.  I'm referring to

 8     IC1184.  Likewise, I refer to map 4D622, and we'll see what happened on

 9     the ground.

10             Let me repeat once more the BH Army established control over the

11     territories north and south of East Mostar so that East Mostar was linked

12     with Central Bosnia.  Let us take a look at the documents about that.

13             The first document is 2D1389.  This is a report of the staff of

14     the Supreme Command of the Armed Forces in Sarajevo about combat

15     activities on 30 June 1993.  What we see from this document is what the

16     BH Army is.  I'll repeat the document number, 2D1389.  The document

17     precisely lists what the BH Army took or had taken by 30 June 1993.  It's

18     not only the North Camp, as suggested by the Prosecution not only in the

19     indictment, but also in all subsequent briefs, including the final brief.

20     Apart from the North Camp, the following had been taken:  Rastani,

21     Vrapcici, Bijelo Polje, Salakovac, and Rosci.

22             This report goes on to say, Your Honours, that the BH Army is

23     holding all hydro power-plants on the Neretva River except for the

24     Capljina plant.  When you analyse the situation in Mostar, Your Honours,

25     please take into consideration this document, which is one of the

Page 52538

 1     documents showing that the BH Army had control over the hydro

 2     power-plants on the Neretva River.  And the third important part of this

 3     document is the final paragraph, which says that the forces of the 4th

 4     and the 6th Corps linked up in the areas around Mostar and Jablanica, and

 5     it says, I quote:

 6             "... which will have a positive effect on the coming combat

 7     operations."

 8             The following document we consider extremely important is 2D448.

 9     This is Arif Pasalic's speech on War Radio, given on June 30th, 1993 at

10     1100 hours [as interpreted], Your Honours, I stress 1100 hours

11     [as interpreted].  Arif Pasalic said, I quote:

12             "People, citizens of Mostar, you have to understand that this is

13     judgement day, when you have to start fighting.  I call on each citizen

14     who can carry a rifle, who can carry a rock, to kill Ustasha criminals."

15             This, Your Honours, was the start of all-out war in Mostar.  The

16     BH Army established control over areas north and south of East Mostar in

17     co-operation with Muslim HVO soldiers.  This, Your Honours, is the fact

18     which makes these activities around Mostar different from all previous

19     activities by the BH Army or any other activities.  That's why the Muslim

20     HVO soldiers, especially in and around Mostar, Stolac and Capljina,

21     became a security issue.

22             Let us remind ourselves of what the foreigners said about that.

23     I will refer to three documents by foreign observers, the last two being

24     under seal.  I will only refer to them by number, but will refrain from

25     mentioning the authors of the documents.  And I warn against showing the

Page 52539

 1     documents outside the courtroom.  I believe that this is sufficient

 2     protection, but if you think that we should go into private session, I'm

 3     not opposed to that.

 4             The first document is P3952.  This is a report by the

 5     European Monitors, dated 4 August 1993.  It says in the report, I quote:

 6             [In English] "Also, since about five weeks, the HVO has decided a

 7     large-scale arrest operation of all the Muslim male between 16 and 60 in

 8     all the territory under their control.  These operations have followed

 9     the mutiny of Muslim soldiers of the HVO, who have given the opportunity

10     to B and --" I never can pronounce that in English, "Bosnia-Herzegovina

11     Army to create a horseback corridor between Jablanica and Mostar along

12     the Neretva River."

13             [Interpretation] The following document, which is under seal so

14     it should not be broadcast outside the courtroom, is P4698A.  In this

15     document, it says, among others, I quote:

16             [In English] "It seems that the operation was triggered off

17     during the night of June 29/30th, when the Muslims enlisted in the

18     HVO 3rd Brigade with the base in the Tihomir Misic Barracks deserted

19     their weapons to join the ranks of the BiH.  Seizing this opportunity,

20     the Muslims advanced north and reached Bijelo Polje."

21             [Interpretation] The following document is P2979.  It is also

22     under seal.  It should not be broadcast outside the courtroom.  Under

23     item 3, it says, among others, that HVO forces are concerned because

24     Muslims are leaving the 3rd Brigade and joining the forces of the

25     BH Army.

Page 52540

 1             Now, Your Honours, we wish to show you documents that show that

 2     Muslim HVO soldiers, under such circumstances, really became a security

 3     problem, and that it was justified from the security point of view to

 4     take some measures.

 5             The first document is 4D1461.  This is a SIS document issued in

 6     September 1992, and it says, amongst other things, and I quote:

 7             "Muharem Dizdar, one of the HVO commanders, and Ragib Dizdar,

 8     visited Muslim members of the HVO, and they told them not to leave the

 9     HVO units, or rather not to join the BiH Army until the hour was right,

10     and that they would inform them when that happened."

11             The following document is 4D469, an official record originating

12     from the Crime Department, where it says:

13             "Pressures put on the Muslims who are members of the HVO and the

14     MUP units to leave those units, if they didn't do so, they were

15     threatened to be killed or their house to be set on fire.

16             The following document, 4D568, issued by the

17     Security Administration of the Supreme Command of the Armed Forces of

18     Bosnia-Herzegovina, the author is Fikret Muslimovic, and it says here, I

19     quote:

20             "It is realistic to [indiscernible] further tensions in relations

21     and even an all-out military confrontation between the RBiH army and the

22     HVO.  It is very important to prepare ourselves for such situation and to

23     inactivate the Muslims who are in the HVO and to exercise influence on

24     them to move over from the HVO to the Army of Bosnia-Herzegovina."

25             The following document is 4D33.

Page 52541

 1             JUDGE PRANDLER:  I'm sorry to interrupt you, Ms. Alaburic.  I

 2     only would like to ask the interpreters that in the English booth, there

 3     is so much voice -- or, sorry, not voice only, but noise that it is

 4     impossible to listen to.  Thank you.

 5             MS. ALABURIC: [Interpretation] I'm sure that our colleagues in

 6     the booth will appreciate and will act accordingly.

 7             Let's look at 4D33.  This is an assessment of the security

 8     situation.  It was issued by the security organ of the

 9     42nd Mountain Brigade, which says, amongst other things, and I quote:

10             "Call upon all Muslim members of the HVO to place themselves on

11     the side of their people."

12             The following document is 4D34.  The same author, only two days

13     later on the 18th of April, 1993, he proposes as follows, and I quote:

14             "... to establish co-operation with our soldiers in the HVO and

15     point out the seriousness of the situation to them."

16             The following document, 4D35, the commander of the

17     42nd Mountain Brigade, Bajro Pizovic, says, amongst other things, a plan

18     for forming of Muslim soldiers in HVO units in Mostar, Capljina and

19     Stolac has to be prepared.

20             The following document is 4D00473.  The same author,

21     Bajro Pizovic, on the 18th of April, wrote to the commander of the

22     1st Brigade of the HVO, Nedjeljko Obradovic, and says, and I quote:

23             "I mention, and this is well known to you, that a large number of

24     Muslim soldiers are in your units, and they are all Muslims, and they

25     belong to this people, so it wouldn't be good if a defined organisation

Page 52542

 1     and formation of your units was disrupted."

 2             Your Honours, I would like to remind you that our witness,

 3     Mr. Bozo Pavlovic, who was an officer in the 1st Brigade, interpreted

 4     this document as a direct threat, and that's exactly how the HVO

 5     understood it at the time.

 6             The following document is 4D36.  This document was issued by

 7     Arif Pasalic on the 2nd of May, 1993.  It is a report about the situation

 8     in the territory of the 42nd Mountain Brigade that was around Stolac and

 9     Capljina.  We would like to point out three parts, where it says:

10             "Linking up with our men in the HVO was carried out."

11             It says also:

12             "Men from the Capljina HVO have the task of taking Tasovcici

13     village ..."

14             And, thirdly:

15             "Villages have maximum security," or, rather:

16             "Seize the town of Stolac with our people in the HVO."

17             That's the end of quote.  This points directly to a link between

18     the BiH Army and Muslims in the HVO.

19             We would also like to highlight the testimony of a protected

20     witness, Witness CR.

21             Can we somehow make sure that the image is not broadcast.

22             On transcript page 11858 and 11859, Witness CR said that during

23     the first three months of 1993, the Muslim authorities advised Muslims to

24     leave the HVO police.

25             Based on all of the above, I would like to conclude the

Page 52543

 1     following:  Firstly, if the HVO soldiers of Muslim ethnicity joined the

 2     ABiH in other parts of the South-East Herzegovina Operation Zone, the

 3     authorities of Herceg-Bosna could easily lose control over the territory

 4     of entire Mostar, Stolac and Capljina municipalities.  Secondly,

 5     ABiH Army documents establish beyond any doubt that the ABiH prepared

 6     military actions in co-operation with certain members of the HVO Muslim

 7     soldiers.  Thirdly, immediate security measures had to be taken under

 8     such circumstances.

 9             Let's remind everybody that Muslim soldiers accounted for a large

10     percentage of HVO units.  In Mostar, it was 50 per cent.  HVO soldiers of

11     Muslim ethnicity were disarmed and interned.

12             What we wanted to demonstrate as part of our Defence is this:

13     Croatians did not rejoice -- rejoice at disarming their Muslim

14     colleagues.  That measure was a necessary security measures aimed at

15     preventing the loss of control in the territory stretching from Mostar to

16     the Adriatic coast.

17             The order on disarmament and isolation was issued on the same

18     day, on the 30th of June, 1993, and the order was issued to

19     Milivoj Petkovic by the supreme commander, Mate Boban.  And Petkovic, in

20     his turn, issued the same order to his subordinate, the head of the

21     operations zone, Mr. Miljenko Lasic.  Petkovic does not say that he did

22     not issue the order, and as we go on we will try to show you that it was

23     legal and that it was militarily justified.  In other words, Petkovic

24     participated in the implementation of the decision, thinking that he was

25     acting legally and justly.

Page 52544

 1             On the 30th of June, 1993, Petkovic testified that that was the

 2     most difficult day in his life, and that was confirmed by our witness,

 3     Bozo Pavlovic, who personally took part in the disarmament of his own

 4     Muslim soldiers.

 5             Your Honours, we wanted to show you that the isolation of Muslim

 6     soldiers of the HVO was a justified security measure and that, before the

 7     30th of June, 1993, Muslims enjoyed the same rights in the HVO as Croats.

 8     Military commanders protected their own Muslim soldiers when certain

 9     security services pointed to possible security issues due to a large

10     share of Muslims in HVO units in the territory of Mostar, Capljina and

11     Stolac.  Muslim soldiers remained HVO soldiers even after isolation.  The

12     period of their incarceration in a detention centre is considered time

13     served in the HVO.  That's how things were, and that's how things should

14     be.

15             Your Honours, I believe we have reached the time for our first

16     break.

17             JUDGE ANTONETTI: [Interpretation] Yes, you're right.  I was

18     signalling to you just a minute ago to tell you that.

19             Yes, it's the time for our first 20-minute break.

20                           --- Recess taken at 3.45 p.m.

21                           --- On resuming at 4.08 p.m.

22             JUDGE ANTONETTI: [Interpretation] We continue, and, Ms. Alaburic,

23     you have the floor.

24             MS. ALABURIC: [Interpretation] Thank you, Your Honour.

25             I promised our colleagues in the French booth that I will slow

Page 52545

 1     down in the rest of my argument.  I apologise to them for not having

 2     borne in mind the fact that they are interpreting with a bit of a delay

 3     and I was too fast.

 4             Your Honours, in our presentation, in our final argument, in our

 5     closing brief, we have reached the topic of imprisonments which started

 6     on the 30th of June, 1993.  In his final brief, in paragraph 313, the

 7     Prosecutor speaks about that, and as we go on, we will analyse that

 8     paragraph sentence by sentence.

 9             In the first sentence, the Prosecutor claims that pursuant to

10     Petkovic's order dated 30 June 1993, the Muslim able-bodied men were all

11     imprisoned.  Let's focus on the words "all Muslim able-bodied men," which

12     implies all conscripts in Herceg-Bosna.

13             Let's look at Petkovic's order, P03019.  We have seen it dozens

14     of times in this courtroom, but let's look at it once again.  Petkovic

15     issued his order and sent it only to one operation zone, not to all four

16     operations zones, but to just one operation zone, the

17     South-East Herzegovina Operation Zone.  The estimate was that the

18     security issue existed primarily in that zone.  And let's look at the

19     document, where it says that the OZ commander sent this order to the

20     2nd and 3rd Brigades, but not to the 1st Brigade.  Furthermore, Petkovic

21     ordered that Muslim soldiers of the HVO and conscripts of the BH Army who

22     were on the reserve strength of the ABiH forces to be isolated.  We will

23     talk about that further on.  It arises from this order that civilians had

24     to be left in their homes.  This order, issued by Milivoj Petkovic, was

25     lawful, and no crime could be committed through the execution of that

Page 52546

 1     order, and we will provide a lengthy explanation of that as we go on.

 2             The next sentence in paragraph 313 -- or, rather, the next two

 3     sentences contain an allegation that civilians were also arrested.  In

 4     footnote 714, the Prosecutor refers to a number of documents which we

 5     analysed very thoroughly, and we were able to establish that a majority

 6     of those documents, or at least one part of those documents, refers to

 7     the month of May 1993.  In other words, a lot of those documents had

 8     nothing whatsoever to do with this isolation measure which was carried

 9     out starting on the 1st of July, 1993.  The analysis of the remainder of

10     the document shows that in this footnote, the Prosecutor fails to mention

11     a single piece of evidence that would confirm his argument about the

12     incarceration of civilians.

13             And the following sentence reads and contains an allegation about

14     the detention of women, children and elderly.  The footnote number is

15     715.  An analysis of this footnote also shows that there is no proof

16     about the incarceration of civilians.

17             I would especially like to draw your attention to two documents.

18     One of them is P3133.  This is a report dated the 3rd of July, which was

19     compiled by the Department for Crime Prevention.  In this report, it says

20     that a list of persons under 18 and over 60 years of age has been

21     compiled, and they have to be let go.  In other words, people of a

22     younger age and people of an older age were not supposed to be arrested

23     in the first place on the 1st of July, 1993, or later on.

24             Now let's also look at P4822, which is Mazowiecki's report dated

25     September 1993, where it says that militarily able-bodied males were

Page 52547

 1     arrested, but there were also examples where people younger and older

 2     were also isolated.  We conclude that on the 30th of June, 1993, and

 3     later on, no civilians were incarcerated.

 4             And, Your Honours, now we come to an issue that

 5     General Petkovic's Defence regards the key issue in these proceedings.

 6     For us, the topic of a Greater Croatia or a Croatian entity are not

 7     crucial topics in these proceedings.  For us, the crucial topic concerns

 8     the categories of detained persons.

 9             What was the status of a people detained in the detention centres

10     of Herceg-Bosna?

11             The Prosecutor, in paragraph 142 of their final brief, state the

12     following categories:  First of all, Muslim soldiers of the HVO;

13     secondly, POWs; and, three, civilians.  Your Honours, Petkovic's Defence

14     completely agrees with the structure of these three categories, but this

15     is where our agreement ends.

16             First, a few words about Muslim HVO soldiers.

17             In their final brief, the OTP, in paragraphs 144 to 149, say that

18     the Muslim HVO soldiers were neither civilians, nor POWs.  The

19     Petkovic Defence agrees.  Further on, the Prosecution states that the

20     Muslim soldiers were persons protected by Article 75 of the

21     Additional Protocol 1 and Common Article 3, as people "hors de combat"

22     due to their detention.  Concerning this international law of protection

23     of Muslim HVO soldiers, the Petkovic Defence disagrees, and I will

24     explain why.

25             I believe everyone in this courtroom will agree that in order to

Page 52548

 1     interpret a legal norm, it is essential to establish where it is in the

 2     legal body.  If it is in the part concerning civilians, it is deemed

 3     relevant to civilians.  If it is found in the parts concerning POWs, then

 4     it has to do with POWs.

 5             Article 75 of the Additional Protocol 1 is in the civilian

 6     population part, in section 3, Chapter 1:

 7             [In English] "Field of application and protection of persons and

 8     objects."

 9             [Interpretation] The first article of that chapter is Article 72,

10     defining field of application, and it clearly states that the entire part

11     of that protocol has to do with civilians.  Based on that, Your Honours,

12     we conclude that Article 75 of Additional Protocol 1 does not concern own

13     soldiers.

14             Let us look at whether Common Article 3 could concern Muslim HVO

15     soldiers.  Persons "hors de combat" due to detention are defined by

16     Article 41 of AP 1.  Inter alia, it is stated that a person is

17     "hors de combat" if held by the enemy.  Based on that, Your Honours, we

18     conclude that the Muslim HVO soldiers were not in the power of an adverse

19     party.  They were and remain HVO soldiers.  The time spent in detention

20     is counted towards their service; their service with the HVO, that is,

21     and we have shown examples of that.  Muslim HVO soldiers, therefore, were

22     not "hors de combat," and Common Article 3 does not apply.  We conclude,

23     therefore, that Muslim HVO soldiers were protected by national law.  If a

24     crime was committed against them, it is a matter of domestic and not

25     international law.  And an important legal rule to mention is this:  In

Page 52549

 1     case of ambiguity or legal uncertainty on that point, the interpretation

 2     of the law the most favourable to the accused must prevail.

 3             In their final briefs, the Valentin Coric and General Petkovic's

 4     Defence addressed the issue of the status of Muslim HVO soldiers, and you

 5     could also refer to the relevant parts of our final brief.

 6             This brings us, Your Honour, to what we believe is the crux or

 7     the core of this case, which is the military able-bodied men or military

 8     conscripts in Bosnia and Herzegovina and their status in case of

 9     detention.  The Prosecutor believed that those persons were civilians.

10     We, on the other hand, consider them to be POWs.

11             Why is this question important at all?  Namely, we do not dispute

12     that POWs and civilians, once detained, need to be treated humanely.

13     There is no dispute in that.  However, the definition of their status is

14     essential for the following reasons, which we marked in red in our

15     presentation.  It is important because the crimes of imprisonment of

16     Article 2 and 5 of the Statute cannot be committed against POWs.  It is

17     important because the crime of deportation of civilians cannot be

18     committed against POWs.  It is important because the crime of forcible

19     transfer cannot be committed against POWs.  It is important because the

20     crime of persecution cannot be committed against POWs, with one remark.

21     The Petkovic Defence is, of course, familiar with the fact that POWs can

22     be victims of crimes against humanity, but in such a case it has to be a

23     part of a widespread and/or systematic attack against a civilian

24     population.  To put it shortly, if the able-bodied men of

25     Bosnia-Herzegovina were POWs and not civilians, then there is no core

Page 52550

 1     JCE 1, or at least that JCE 1 is substantially different than pleaded by

 2     the Prosecution.

 3             Let's have a look at the status of able-bodied men as defined by

 4     the jurisprudence of this Tribunal and its case law and what it has to

 5     do -- what it has to say about the relevance of mens rea in order to

 6     perform certain actions against POWs.  We believe it most appropriate,

 7     Your Honours, to point out the position of the Appeals Chamber in the

 8     Kordic case and what they had to say about the status of able-bodied men.

 9     Many paragraphs are relevant.  However, we believe that it suffices for

10     us to point out paragraph 608 and 615 of the appeals judgement.  You have

11     the relevant portions on the screens.  I will merely sum up the position

12     of the Appeals Chamber.  First of all, able-bodied men are not considered

13     civilians unless proven otherwise.  The second rule of thumb is that

14     children, women and elderly are considered civilians until proven

15     otherwise.  Hence, therefore, for the able-bodied men, a different

16     presumption stands, as opposed to the children, women and the elderly.

17     The Petkovic Defence believes that position to be appropriate.

18             In these proceedings, the Prosecutor was supposed to prove the

19     civilian status of able-bodied men, because an able-bodied man is

20     considered a civilian if his status as civilian is proven by the

21     Prosecutor beyond any reasonable doubt.  Pending that, able-bodied men

22     are not considered civilians.

23             The case law of this Tribunal mentions the relevance of the

24     mens rea.  We believe the most appropriate example would be the appeals

25     judgement in the Mrksic case, paragraph 42.  In the final part, it

Page 52551

 1     states, I quote:

 2             [In English] "... the Trial Chamber's finding, unchallenged by

 3     the parties, that the perpetrators of the crimes in Ovcara acted in the

 4     understanding that their acts were directed against members of the

 5     Croatian armed forces.  The fact that they acted in such a way precludes

 6     that they intended that their acts form part of the attack against the

 7     civilian population of Vukovar ..."

 8             [Interpretation] In other words, it is crucial to determine

 9     whether certain activities were undertaken with the necessary mens rea

10     and the wish to treat members of the opposing force in a particular way.

11     Evidence shows that the authorities of Herceg-Bosna considered

12     able-bodied men the reserve force of the Army of Bosnia-Herzegovina.

13     This was the position of the Petkovic Defence, and we expanded on it in

14     our final brief, among others, in paragraph 279.

15             For a start, let us have a look at what

16     International Humanitarian Law has to say on the point of reservists.  We

17     believe it to be the most appropriate to indicate a portion from a book

18     called "Customary International Humanitarian Law" by Henckaerts and

19     Doswald-Beck.  I wanted to quote two paragraphs towards the end of the

20     book.  I quote:

21             "While in some countries entire segments of the population

22     between certain ages may be drafted into the armed forces in the event of

23     armed conflict, only those persons who are actually drafted, that is, who

24     are actually incorporated into the armed forces, can be considered

25     combatants.  Potential mobilisation does not render the person concerned

Page 52552

 1     a combatant liable to attack.

 2             "Footnote:  This conclusion is based on discussions during the

 3     second consultation with academic and governmental experts in the

 4     framework of this study in May 1999 and the general agreement among the

 5     experts to this conflict.  The experts also considered that it may be

 6     necessary to consider the legislation of a state in determining when

 7     reservists actually become members of the armed forces."

 8             [Interpretation] End of quote.

 9             I wish to put forth the position on the Petkovic Defence.

10     Firstly, members of armed forces can be combatants and non-combatants.

11     Combatants are those taking direct part in combat.  Non-combatants are

12     those taking part in various so-called non-combat services in the armed

13     forces.  Secondly, if captured, both have the status of POWs.  Thirdly,

14     military conscripts who are not mobilised are not combatants.  Fourthly,

15     military conscripts who are not mobilised could be members of the armed

16     forces, but then they are non-combatants.  Fifthly, in order to establish

17     whether in Bosnia and Herzegovina military conscripts were members of the

18     armed forces, one needs to study the legislation of Bosnia and

19     Herzegovina.

20             Let's have a look at that particular legislation.  The first

21     document is 4D412, Decree Law on Service in the Army of the Republic of

22     Bosnia and Herzegovina.  Article 7:

23             "The army shall be composed of the standing and reserve forces."

24             Article 9 of the decree law states as follows, I quote:

25             "The reserve force of the army shall comprise persons who are,

Page 52553

 1     according to the provisions regulating conscription, subject to service

 2     in the reserve force of the army."

 3             The next document is Decree Law on Compulsory Military Service,

 4     number 4D1030.  In Article 4, it is stated that compulsory military

 5     service shall consist of the recruitment obligation.  And Article 7

 6     states that compulsory military service shall cease for men at the end of

 7     the calendar year in which the age of 60 is reached.

 8             Let us conclude, then, Your Honours.  According to B and H

 9     legislation, the Army of Bosnia and Herzegovina comprised active and

10     reserve forces.  Secondly, able-bodied men of a certain age, that is to

11     say, military conscripts, were members of the reserve forces of the

12     Army of Bosnia-Herzegovina.  Thirdly, military conscripts were not

13     combatants, but they were non-combatant members of the

14     Army of Bosnia-Herzegovina as part of the reserve forces.  Let us look at

15     a number of documents to see whether the legislation was, indeed,

16     implemented in such a way in the field.  We will first look at the

17     documents of the Muslim side.

18             Let us start with 4D430.  It is from mid-April 1993.  It is a

19     combat report which states as follows:

20             "Civilians from the village of Doljani are being evacuated at the

21     moment.  Conscripts will remain."

22             This document clearly confirms that military conscripts are not

23     civilians, as viewed by the Army of Bosnia-Herzegovina.

24             The next document is 1D349.  It is a document drafted by the

25     Jablanica Municipal Assembly War Presidency on 9 May 1993.  Among other

Page 52554

 1     things, it states that mobilisation should be carried out of all

 2     able-bodied population between the age of 15 and 65 in order to man work

 3     units, military units, civilian protection units, and other units formed

 4     in the municipality of Jablanica.  Therefore, military able-bodied men of

 5     a certain age did have certain obligations.

 6             The next document, 1D1410, is a decision of the Army of the

 7     Republic of Bosnia-Herzegovina.  It regulates the status of citizens,

 8     which, among other things, states that military conscripts can receive

 9     permission to depart for a third country only if they are ill.  Those who

10     are not must return to Bosnia-Herzegovina.  Assembly points will be set

11     up for them under the auspices of the Ministry of Defence.

12             THE INTERPRETER:  Interpreter's correction:  This document was a

13     government decision.

14             MS. ALABURIC: [Interpretation] The next document is P9208 by

15     Mr. Zecic, who said, and I quote, that "only able-bodied men remained in

16     the village."

17             The testimony of Witness Husnija Mahmutovic on transcript

18     page 25694.  The witness confirmed that all healthy men of military age

19     were obliged to join the BH Army.

20             The following document is P9198.  It's the statement of

21     Witness Zahirovic, who, speaking about himself and his colleagues, once

22     says "people fit for military service," and on another occasion, "members

23     of the BH Army," by which he unambiguously places a sign of equation

24     between persons fit for military service and members of the BH Army.

25             And the following document is from a protected witness and should

Page 52555

 1     not be broadcast outside the courtroom.  The document number is P10220.

 2     Witness U said, I quote.

 3             "Of course, when I was released from Heliodrom, just like any

 4     other military conscript, I reported to the closest military unit."

 5             [Interpretation] We conclude, Your Honours, that these, as many

 6     other documents of the BH Army, confirm that the practice was in line

 7     with the laws and regulations.  Conscripts were considered members of the

 8     BH Army.

 9             We said, in the introductory part, that it's equally important

10     how the BH authorities perceived military able-bodied men and military

11     conscripts, so let us look at some testimonies.  Milivoj Petkovic,

12     transcript page 49579.  He testified about how he considered --

13     able-bodied Muslim men were considered by him to be members of the

14     BH Army.  Witness Zrinko Tokic considered conscripts soldiers, as noted

15     on transcript page 45373 and the following.  Witness Filipovic spoke

16     extensively about that.  I will quote Judge Antonetti, who summarised

17     Filipovic's extensive testimony:

18             [In English] "As I understand it, in your view there were no

19     civilians, as a smatter of fact, apart from women and children.  Any man,

20     maybe except very old men, any man could be a soldier; is that right?

21             "That's correct."

22             [Interpretation] That was the witness's answer.

23   (redacted)

24   (redacted)

25   (redacted)

Page 52556

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6             Let us now look at some official minutes, and we'll see what the

 7     Government of Herceg-Bosna -- what their position was of the status of

 8     men who are conscripts.  The document is P4841.  These are minutes from

 9     the working meeting held on 6 September 1993.  It is clearly stated that

10     the persons taken prisoner were members of the standing -- standing

11     personnel of the BH Army or members of the reserve; that is, active-duty

12     or reserve members.

13             I could quote other documents, but there is no doubt about the

14     position of the authorities that members of the reserve were considered

15     members of the BH Army.

16             I'm now going to summarise all this in 12 points.

17             Firstly, the crime of imprisonment under Article 5(E) of the

18     Statute and the crime of unlawful confinement of civilian under

19     Article 2(G) of the Statute can be committed only and exclusively in

20     relation to civilians.

21             Secondly, crimes of imprisonment, unlawful confinement, cannot be

22     committed by the internment of prisoners of war.

23             Thirdly, military-able men were not civilians until proved

24     otherwise.

25             Fourthly, Muslim HVO soldiers were not protected persons by

Page 52557

 1     international law.  They were protected by national laws, and that is why

 2     this Tribunal is not competent to decide about crimes committed against

 3     one's own soldiers, irrespective of their ethnic affiliation.

 4             Five, by internment of Muslim HVO soldiers and military-able men

 5     of Muslim ethnicity who had the status of prisoners of war, crimes of

 6     imprisonment, unlawful confinement, of civilians could not be committed.

 7             Six, sub-item 1.  On the 30th of June, 1993, Milivoj Petkovic,

 8     upon the order of the supreme commander, issued an order that Muslim HVO

 9     soldiers in the South-East Herzegovina Operative Zone be disarmed and

10     isolated and that military-able Muslim men shall also be isolated.

11     Sub-item 2.  The order was lawful and justified by security

12     considerations.  Sub-item 3, civilians were supposed to be protected.

13     And here we can see once more an excerpt from Petkovic's order, which is

14     document P3019.

15             Seventh conclusion.  Civilians were not supposed to be detained

16     upon Petkovic's order.  If a civilian was arrested, after all, he or she

17     had to be released immediately.

18             Eighth conclusion.  Disarmament and isolation of Muslim HVO

19     soldiers and soldiers of the BH Army, both active and reserve, were not

20     an attack directed against the civilian population.

21             Nine, the disarmament and isolation of Muslims was not a

22     discriminatory measure, as was explained by the Appeals Chamber in the

23     Kordic case.  I quote:

24             [In English] "The Appeals Chamber considers that the detaining

25     power must, within a reasonable time, process and decide whether detained

Page 52558

 1     persons are civilians.  In the circumstances, the evidence does not

 2     support that the HVO carried out blanket detentions of all Muslim

 3     civilians, but rather suggests that men of military age between 18 and 60

 4     were targeted."

 5             [Interpretation] The 10th conclusion is that the crime of

 6     persecution was not committed by internment of Muslim HVO soldiers and

 7     military-age men of Muslim ethnicity because the victims of the

 8     internment were not civilians and, therefore, the underlying act was not

 9     a crime.  Moreover, that internment was not part of an attack against any

10     civilian population.

11             Conclusion 11.  In accordance with the Geneva Convention

12     number 3, Article 12, paragraph 2, prisoners of war may be transferred to

13     a third country which is a party to the Convention.  The transfer of

14     prisoners of war is not a crime of unlawful deportation or transfer of

15     civilians.

16             And now a digression, with your leave.

17             The Petkovic Defence, Your Honours, did not go into the issue of

18     the transit centre in Ljubuski which was to be founded in July 1993

19     because it wasn't directly relevant for General Petkovic.  And in our

20     final brief, we couldn't afford to go into matters that are not directly

21     essential for General Petkovic, so I will explain our position now.

22             Since military-able men of Muslim ethnicity were considered the

23     reserve army of the BH Army and, hence, they were prisoners of war, the

24     initiative to establish a transit centre at Ljubuski was absolutely

25     lawful and in line -- in keeping with the 3rd Geneva Convention,

Page 52559

 1     Article 12, paragraph 2.  I remind you that the Herceg-Bosna authorities

 2     contacted the UNHCR and UNPROFOR for help in the establishment of their

 3     transit centre and the temporary transfer of prisoners of war to third

 4     countries.  The UNHCR, upon consultation with their headquarters,

 5     concluded that they would thus contribute to ethnic cleansing, and

 6     refused to provide assistance, after which UNPROFOR pulled out as well.

 7     I think that these are facts for which there is ample evidence in the

 8     case file, which will be very important when you decide about the

 9     importance of this initiative, so I believe, Your Honours, that you will

10     take this into consideration when you draw your conclusions on all the

11     consequences of the situation in the detention centres.

12             11th conclusion.  The JCE 1, as pleaded by the Prosecution, did

13     not exist.

14             THE INTERPRETER:  Interpreter's correction:  It is conclusion 12.

15             MS. ALABURIC: [Interpretation] Whether or not a JCE 2, with

16     regard to the conditions and confinement, actually existed is another

17     matter which we will deal in the continuation of our closing arguments.

18             Your Honours, I'm going to speak about the so-called Mrksic duty.

19     We will state very openly, as has been our habit in the past five years,

20     what, in our opinion, is the crucial thesis of these proceedings, such as

21     determining which stone in a bridge determines its firmness and

22     stability.  We said that it's a status of the detained conscripts of the

23     BH Army or, in other words, the question whether they are prisoners of

24     war or civilians.  The second most important question, to our minds, is

25     about the responsibility for a failure to act; that is, the admission of

Page 52560

 1     liability, which is Article 7, paragraph 3 of the Statute, and which is

 2     also important for the question of responsibility under paragraph 7 --

 3     Article 7, paragraph 1 of the Statute, which is about responsibility by

 4     commission or by omission.  The duties prescribed by law or the legal

 5     duty to act we consider -- is something that we, the Petkovic Defence,

 6     consider very important.

 7             The Mrksic duty, what does the Prosecution say about that?  To

 8     begin with, let us take a look at the context of the Mrksic case.  We

 9     considered it most appropriate to show paragraph 1 from the

10     first-instance judgement, in which there is a brief description of the

11     context.  I'll summarise it in one sentence.

12             The Yugoslav People's Army handed over at least 264 detainees to

13     Serb paramilitary units.  The detainees were persons from the

14     Vukovar Hospital.  So the essence of this case is that the

15     Yugoslav People's Army handed over detainees to Serb paramilitary units.

16     The duty of military commanders, or the so-called Mrksic duty as

17     determined in this case, does not exist if a military commander transfers

18     prisoners of war to the military police of their own armed forces, their

19     own civilian police, official prisons or detention facilities.  The

20     reason for that is very simple, and I think it most appropriate to give

21     an example, an example from your life.

22             The military commander of the Herceg Stjepan Brigade from the

23     area around Konjic and Jablanica, in April 1993, transferred some 80-odd

24     soldiers of the BH Army taken prisoner in Sovici to the Ljubuski Prison.

25     That military commander stays in his area, that is, around Konjic and

Page 52561

 1     Jablanica, has no contact whatsoever with the Ljubuski Prison, and has no

 2     authority over it.  Therefore, he cannot be responsible for the treatment

 3     of prisoners of war in that prison, and that includes the prisoners of

 4     war he, himself, transferred to that prison.  Accordingly, the military

 5     commander's duty with regard to prisoners of war ceases at the moment

 6     when he hands them over to the military police, the police, or the

 7     detention centre over which that military commander has no de jure or

 8     de facto authority, just as testified to by General Praljak,

 9     General Petkovic and other witnesses.

10             Let us see what the Prosecution says about that in their final

11     brief in paragraphs 140 and 302.  They refer to the Mrksic case and the

12     Appeals Chamber judgement, and more specifically paragraph 273.  Briefly,

13     the Prosecution considers all prisoners in this case agents of the

14     detaining power and, therefore, they had a duty to protect the prisoners.

15             Let us look at the entire paragraph 73 from the Mrksic appeals

16     judgement.  We will see that the duty to protect prisoners of war

17     concerns those who have custody of prisoners, and that's why an agent, in

18     the sense of the Mrksic duty, is not every military commander, or every

19     official in Herceg-Bosna, or any other territorial jurisdiction.  An

20     agent is only one -- or only those into whose custody prisoners of war

21     have come into.

22             Let me conclude.  The legal duty as identified by the

23     Appeals Chamber in the Mrksic case only applies to those agents of the

24     detaining power who find themselves with custody of prisoners of war,

25     that is, not any and every agent of that state, but only those who had

Page 52562

 1     that responsibility as they were effectively custodians of the prisoners

 2     of war.  Second conclusion, international law does not regulate the issue

 3     of competence; it is left to each individual country to decide who is

 4     responsible to deal with prisoners of war.  Thirdly, the Prosecution did

 5     not plead in these proceedings that any legislative enactment and/or

 6     superior order delegated the duty to protect detainees in any detention

 7     facility to the chief of the Main Staff.  Number 4, there is no evidence

 8     that any legislative enactment and/or superior order delegated the duty

 9     to protect detainees in any detention facility to Milivoj Petkovic.

10     Number 5, there is no evidence that the chief of the Main Staff,

11     Petkovic, exercised control over any detention facility.  Number 6,

12     Prosecution did not plead that Petkovic found himself with the de facto

13     custody over prisoners of war and/or other detainees.  Number 7, there is

14     no evidence that Petkovic had de facto custody over prisoners of war.

15     And, finally, number 8, in conclusion, Mrksic's duty, even if it could be

16     applied in this case, certainly does not apply to Milivoj Petkovic.

17             The following topic regarding omissions, as explained by the

18     Prosecution, is the so-called Celebici duty to release prisoners.  The

19     Prosecutor speaks about that in paragraph 308 of their final brief, and

20     it is said there, amongst other things, and I quote:

21             [In English] "By August 1993, all of the accused knew that they

22     had imprisoned thousands of civilian detainees ..."

23             [Interpretation] I'm skipping one part:

24             [In English] "All of the accused, therefore, had a duty to

25     release prisoners."

Page 52563

 1             [Interpretation] I would just like to say that in August 1993,

 2     Petkovic was the deputy commander, and he had the right to decide to an

 3     extent to which his commander or the joint [indiscernible] authorised him

 4     to do so.  However, what matters here is this:  Duty to release prisoners

 5     according to the international humanitarian law applies exclusively to

 6     civilians and not to prisoners of war.

 7             Let's look at Rule 128, Customary International Humanitarian Law.

 8     It's very clear.  There's no obligation to release prisoners of war

 9     before the end of the conflict.  The International Humanitarian Law does

10     not prescribe obligations pertaining to one's own soldiers, and also the

11     duty to release applies only to civilians.  Based on that, we can

12     conclude this armed and interned Muslim HVO soldiers were not civilians.

13     Military-able men or military conscripts of the BiH Army were not

14     civilians, but rather prisoners of war.  The Herceg-Bosna authorities

15     were not obliged to release Muslim HVO soldiers and military-able men

16     from their detention centres.

17             Your Honours, as I've already told you, we will not deal with

18     detention centres.  We will touch upon the conditions in detention

19     centres, but we will be dealing with the prisoners' forced labour.

20             And now as I continue presenting my closing argument,

21     Your Honours, I would like to refer to the Prosecutor's argument about

22     commanding generals or occupation commanders, and that term applies

23     directly both to General Petkovic and General Praljak.  In his final

24     brief, the Prosecutor speaks about that in paragraphs 154, 155, 156 and

25     324.  There are some other paragraphs that touch upon the topic.

Page 52564

 1             In a nutshell, Generals Petkovic and Praljak, according to the

 2     Prosecutor, shall be held responsible for aiding and abetting crimes

 3     committed against civilians at the time when they were heads of the

 4     Main Staff, for a simple reason:  They were commanding generals at the

 5     time.

 6             Your Honours, we would like to draw your attention to the

 7     following facts.  This is the first mention of occupying commanders,

 8     commanding generals, in these proceedings.  No such thing was ever

 9     pleaded in the indictment.  No such thing was ever mentioned or explained

10     in the Prosecutor's pre-trial brief.  This argument was never part of the

11     Prosecution's opening statement.  This argument was never part of the

12     Prosecution case.  The Prosecution did not lead any evidence to that

13     effect.  The thesis about Petkovic and Praljak as occupying generals is

14     belated, and that's why it should be totally ignored by the

15     Trial Chamber, it should be totally disregarded.  However, we will be

16     dealing with the Prosecutor's allegations, and we will try to demonstrate

17     to you that contrary to the Prosecutor's allegation, the alleged

18     obligation for protecting civilians in the occupying area was not, in

19     general terms, part of the commanding general's duties.  A special

20     obligation to protect civilians in an occupied area concerned commanders

21     of the occupation army who is assigned or appointed to govern an occupied

22     territory.

23             First of all, let's deal with the issue of whether Herceg-Bosna

24     could ever be considered an occupied territory of Bosnia and Herzegovina.

25     To constitute an occupation as a matter of International Law, the

Page 52565

 1     occupation must be done by foreign forces.  This arises clearly from the

 2     1907 Hague Convention.  This is beyond challenge in the legal theory, and

 3     here we have presented an excerpt from the book "The International Law of

 4     Belligerent Occupation" by Dinstein, and based on that we can conclude:

 5     Since an occupier has to be a foreign force, the Croats of Bosnia and

 6     Herzegovina cannot be occupiers in Bosnia and Herzegovina.  Secondly,

 7     Herceg-Bosna cannot be an occupying power in Bosnia and Herzegovina.

 8             There's no dispute about the fact that there's a difference

 9     between an international armed conflict, on the one hand, and occupation,

10     on the other.  My learned friend Mr. Bozo Kovacic said a few words about

11     that, but I will also say a few words about that.

12             Firstly, every occupation is, beyond any doubt, an international

13     armed conflict.  However, an international armed conflict does not have

14     to be occupation.  The difference between occupation and an international

15     armed conflict arises from the level of control.  For an international

16     armed conflict, there has to be the so-called overall control over the

17     territory of a different state, whether for an occupation to be in place,

18     there has to be effective control over the territory of another state.

19     Occupation is the question of fact, and the Prosecution has to prove the

20     fact of occupation beyond any reasonable doubt.

21             What I've just stated is very clear in legal theory, and I'm

22     offering another excerpt from the book, "The International Law of

23     Belligerent Occupation" and as well as from the book, "The International

24     Law of Occupation."  And here we also have an excerpt from the

25     first-instance judgement in Naletilic judgement, paragraph 214.  I

Page 52566

 1     believe that my learned friend Mr. Kovacic has already quoted that part,

 2     and I will repeat:

 3             [In English] "The overall control test submitted in the Blaskic

 4     trial judgement is not applicable to the determination of the existence

 5     of an occupation.  The Chamber is of the view that there is an essential

 6     distinction between the determination of a state of occupation and that

 7     of the existence of an international armed conflict.  The application of

 8     the overall control test is applicable to the latter.  A further degree

 9     of control is required to establish occupation."

10             [Interpretation] Your Honours, we would like to draw your

11     attention to the fact that the Prosecution did not plead that Croatia

12     occupied Bosnia-Herzegovina.

13             Let's look at the indictment, first of all, paragraph 232, where

14     it says -- or, rather, this is the only paragraph where the term

15     "occupation" is mentioned at all.

16             We have prepared an excerpt from the Prosecution's pre-trial

17     brief, paragraphs 232 -- there are many of them.  However, everything

18     boils down to the following.  The Prosecutor is trying to demonstrate

19     there was an overall control, that Croatia was directly involved, that it

20     participated or intervened directly, the participation of the

21     Croatian Army.  However, there's no single word about occupation or

22     effective control.

23             Let's look at the adjudicated facts.  We have tried to single out

24     the most representative facts.  Among the adjudicated facts, we can find

25     those that lead to the conclusion that the Republic of Croatia took part

Page 52567

 1     in the organisation, planning and co-ordination of military operations;

 2     that Croatian Army units were involved in the conflict in the territory

 3     of Mostar.  It was also established that Croatian Army units were present

 4     in the territory of Bosnia and Herzegovina; and that Croatian financed

 5     and provided military equipment to the HVO; that Croatia was thus

 6     involved in the control of the HVO forces, that Croatia exercised

 7     indirect control; that Croatia also provided manpower and lent

 8     substantial material assistance to the HVO.  Again, Your Honours, look at

 9     the adjudicated facts, and you will see that there is no mention of

10     occupation, there is no single word about effective control.

11             Let's look at what the Prosecutor says in his final brief.  In

12     paragraphs 71 through 79, the Prosecutor speaks about an international

13     armed conflict.  There is a chapter where it says that Croatia had

14     overall control, and then at Chapter 5 again there's a reference to

15     Croatia's overall control, and another chapter where it says that the

16     Croatian Army was extensively engaged in BiH.  Therefore, save for the

17     parts which might refer to Generals Praljak and Petkovic, the Prosecutor

18     did not establish in his final brief that Croatia was an occupying force

19     in Bosnia and Herzegovina or that it had effective control and, I repeat,

20     effective control over the developments in Bosnia and Herzegovina.

21             Let's conclude.

22             Firstly, there is no documentary evidence that Croatia ever

23     occupied Bosnia and Herzegovina.  Secondly, there is no testimony or

24     witness statement that Croatia occupied Bosnia and Herzegovina.  I am

25     emphasising the word "occupy" or "the occupying force."  Thirdly, there

Page 52568

 1     is no evidence that the Croatian Government had effective control in

 2     Herceg-Bosna.  Four, the Prosecution has tried over the past five years

 3     that Croatia did have overall control, that Croatia gave substantial

 4     support to the authorities in the HVO armed forces, and that the conflict

 5     between the HVO and the ABiH, therefore, was not a civil war, but an

 6     international armed conflict.  All allegations would be unnecessary if

 7     the Republic of Croatia had been an occupying force in the Republic of

 8     Bosnia and Herzegovina.  And now, number 5:  The Prosecution neither

 9     pleaded nor proved that Croatia and the Croatian Army occupied part of

10     Bosnia-Herzegovina.  Thus, the Prosecution's submissions about occupation

11     presented at the very end of the proceedings should be totally

12     disregarded.

13             We would now like to put something else within the context, and

14     those are the contradictory statements on the part of the Prosecution

15     about occupation and an armed conflict co-existing on the same territory

16     at the same time.

17             First of all, let's present the following thesis:  Armed conflict

18     or occupation are two alternatives.  They cannot co-exist.  You can

19     have -- you cannot have at the same time, in the same place, an armed

20     conflict, and then charge individuals pursuant to Articles 2, 4 and 5 of

21     the Statute, and allege that at the same time, in the same place, there

22     was also the state of occupation, which requires a much higher degree of

23     concern for the civilians who reside in such an occupied territory.

24             Let's look at an excerpt from the Geneva Convention 4, only a few

25     articles where the staple formulation is "conflict" or "occupation."

Page 52569

 1     There are even parts of the Convention which regulate situations that

 2     exist during an armed conflict, and a special chapter which regulates the

 3     situation on an occupied territory.  It is beyond every doubt that

 4     certain crimes may be committed only in an occupied territory, and they

 5     cannot be committed during an armed conflict.

 6             We would like to point out a comment from the

 7     Additional Protocol 1, Commentary 1700, and I will quote from the

 8     relevant portion of that commentary:

 9             [In English] "Any part of territory in which the occupant has

10     been deprived of actual means for carrying out normal administration by

11     the presence of opposing military forces would not have the status of

12     occupied territory within the terms of Articles 2 and 42 of

13     The Hague Regulations."

14             [Interpretation] End of quote.

15             The jurisprudence of the case law of this Tribunal is incomplete.

16     Accord with that, I'm quoting from the first-sentence judgement from

17     Naletilic, paragraph 217:

18             [In English]"... battle areas may not be considered as occupied

19     territory."

20             [Interpretation] Based on that, Your Honours, we conclude that

21     the state of armed conflict, on the one hand, and the state of

22     occupation, on the other, cannot co-exist on the same territory, at the

23     same time.  The Prosecutor, however, claims that the contrary is

24     possible, and then let's look at the situation that that may lead to.

25             The Prosecution claims in the indictment and tried to lead

Page 52570

 1     evidence that major conflict between ABiH and the HVO was avoided until

 2     April 1993, and that from then until April 1994, there was continued

 3     fighting in Mostar and other areas.  You can find this in paragraph 32,

 4     111, 232 and 234 of the indictment.  I will repeat the paragraph numbers.

 5     32, 111, 232 and 234.

 6             Pursuant to this assertion, that there were continuing conflicts

 7     in the area, the Prosecution submitted a number of allegations for your

 8     assessment based on Articles 3 and 5 of the Statute, the acts which can

 9     be committed only during an armed conflict.  That is why the

10     Prosecution's assertion about continued fighting contradicts their

11     assertions on the simultaneous state of occupation.

12             We'd like to turn your attention to some evidence which clearly

13     establishes the state of armed conflict from April onwards.  There were

14     conflicts in the area of Konjic and Jablanica as of April onwards,

15     Central Bosnia from April on, Prozor from April onwards, Mostar from May,

16     with a short interim period until the 30th of June, and onwards.  In

17     June 1993, Travnik fell in Central Bosnia.  In June, Kakanj fell.  Yes, I

18     believe it was June, I believe.  I must check that over the break.  On

19     the 30th of June, 1993, as we have already mentioned, the ABiH takes the

20     territory to the east and south of Mostar.  In July, they take control of

21     the area towards Buna.  In July 1993, the AB and H take control of

22     Fojnica.  In the same month, Bugojno and Doljani fell.  As of July 30,

23     1993, there is combat in the Neretva Valley.  In October, the AB and H

24     took control of some villages in Vares municipality.  And in November

25     1993, AB and H took control of Vares town.

Page 52571

 1             As a separate example of confusion in the Prosecution

 2     allegations, we want to point out Mostar.  In their final trial brief, in

 3     para 344, they state that all of West Mostar became occupied territory,

 4     at the latest, on the 9th of May, 1993.  Therefore, the Prosecutor

 5     asserts that on the day the conflict broke out in Mostar, Mostar became

 6     occupied territory.  We wanted to indicate some undisputed facts to you.

 7             The conflict between the HVO and the Army of Bosnia-Herzegovina

 8     began in Mostar on the 9th of May, 1993.  Municipal HVO government, with

 9     Jadran Topic at the helm, was established in May 1992, and was not

10     changed on the 9th of May, 1993.  Herceg-Bosna central bodies were

11     established in April and May 1992, and their authority in Mostar was not

12     changed on the 9th of May, 1993.  On the 9th of May, there was no change

13     in terms of authorities in Western Mostar.  On the 30th of June, an

14     all-out war broke out in Mostar, lasting until the Washington Agreements

15     were signed.  Our conclusion, therefore, is unambiguous.  Facts disprove

16     Prosecution's allegations about occupation in Mostar as of 9 May 1993

17     onwards.

18             A few words about occupation state of administration, given that

19     both General Praljak and General Petkovic are charged as occupational

20     governors.

21             The system of administration on an occupied territory was

22     discussed in numerous sources, and we will quote one, for example, the

23     Benvenisti "International Law of Occupation."

24             It is stated that in occupied territory, there can be a system of

25     military administration or a civil one, or a mixture of both.

Page 52572

 1             In the manual of the UK Ministry of Defence, it is stated that in

 2     an occupied area, a military or civil government may be established.

 3     Therefore, it is asserted that the system in an occupied territory may be

 4     a civilian, a military, or a mixed one.  A system of authority in a

 5     specific area is a matter of fact which needs to be proven beyond any

 6     reasonable doubt by the Prosecution.

 7             If we completely disregard the fact that Herceg-Bosna was not an

 8     occupied part of the territory of Bosnia-Herzegovina, we should deal

 9     briefly with the system of administration in Herceg-Bosna as pleaded by

10     the Prosecution.  They state that civilian authorities existed in

11     Herceg-Bosna, such as the Presidency, presidents, government, ministries,

12     civil and military judiciary, and civil and military police.  The

13     Prosecution asserts that there was civilian control over the military.

14     In parts of their final brief concerning responsibility of government

15     officials, it is stated that the system of control in Herceg-Bosna was a

16     civilian one, as asserted in para 361 of the final trial brief.

17     Therefore, the Prosecutor does not at all assert that a military

18     commander was tasked with running Herceg-Bosna.  The Prosecutor knows and

19     asserts that civilian authorities ran the area.

20             We wanted to point out, Your Honours, that the Prosecution

21     incorrectly interprets the duties of occupying commanders.

22             Let us look yet again at paragraph 324 of their final trial

23     brief.  Petkovic and Praljak, in their respective periods and mandates,

24     were, according to the OTP, responsible for the commission of crimes

25     committed against civilians, irrespective of their knowledge, ignorance,

Page 52573

 1     measures undertaken, and all other circumstances.  Namely, with the

 2     exception of this paragraph in this case, there is not a single

 3     Prosecution submission which defined differently the responsibility of

 4     occupying commanders, simply because there were no such assertions made

 5     up to that point.  In order to interpret the duties of occupying

 6     commanders in this way, one would need a sound basis in international

 7     humanitarian law, which does not exist.

 8             We prepared a few excerpts from the High Command case for you,

 9     Your Honours, which we wanted to present to you in order to show the

10     following: that the occupying commander is the commander entrusted with

11     executive authorities.  If you look at this first excerpt, you can

12     clearly see that the phrase "endowed with executive power" is mentioned.

13     Therefore, a military commander lacks executive power unless specifically

14     tasked with it.

15             The second excerpt indicates the knowledge and information at the

16     disposal of the commander about crimes committed and that he must have

17     known in order to be culpable.

18             The third excerpt speaks of executive authorities which have to

19     be endowed -- delegated to the commander.

20             The next excerpt speaks of the lack of general presumption of the

21     commander's knowledge about the crimes; that is to say, the burden of

22     proof is with the Prosecution in order to prove that the occupying

23     commander had the requisite knowledge.

24             In the fifth excerpt, we wanted to show you a part of a judgement

25     which has to do with the von Leeb.  I hope I have pronounced that

Page 52574

 1     properly.  I quote:

 2             "We are, therefore, unable to find from the evidence submitted

 3     that the defendant, von Leeb case.  I hope I pronounced that properly.  I

 4     quote:

 5             "We are therefore unable to find from the evidence submitted that

 6     the defendant, von Leeb, had knowledge of the murder of civilians within

 7     his area by the Einsatzgruppen or acquiesced in such activities.

 8             "Nor is it established from the evidence that the defendant

 9     participated in the recruitment of slave labour from the Reich."

10             Therefore, the responsibility of an occupying commander is not

11     presumed.  It must be proven.

12             The last excerpt from the High Command case is something of

13     interest for these proceedings, because it has to do with the siege of

14     Leningrad.  If any of us heard of any horrific sieges throughout human

15     history, it would probably be those who heard of Leningrad, and the

16     conclusion is as follows:  We are sorry to say that the law is as such,

17     but that no crime was committed in the case of the siege of Leningrad.

18             I wanted to conclude this part by saying that Herceg-Bosna was

19     not an occupied part of Bosnia and Herzegovina, in our view.  Therefore,

20     we can conclude the following:  Not every military commander on the

21     occupied territory is a military governor or a commanding general.  A

22     commanding general in an occupied territory is that commander which was

23     appointed governor, entrusted with administrative tasks and those of the

24     executive authorities.  Duties and responsibilities of a particular

25     military commander within an occupied territory is a question of fact,

Page 52575

 1     and the Prosecution has to prove them beyond reasonable doubt.  The

 2     criminal responsibility of occupying commanders is a form of command

 3     responsibility defined in Article 7(3) of the Statute.  The Prosecution

 4     proved that the government in Bosnia and Herzegovina was a civilian one

 5     and the civil had control over the military.  We wanted to reiterate yet

 6     again that this does not include operational command.  The Petkovic

 7     Defence was clear on the point.  Jadranko Prlic, as the HVO government

 8     president, did not issue orders to the military, in terms of operational

 9     orders.  Bruno Stojic, as the minister of defence, never issued an order

10     to General Petkovic to undertake a specific combat operation or activity

11     by any unit of the HVO.  We'd like to close this topic of occupational

12     governors by having said this with regard to General Petkovic.

13             Your Honours, is this a suitable time for the break?

14             JUDGE ANTONETTI: [Interpretation] Very well.  This will be our

15     last break of 20 minutes for the day.  Thank you.

16             Stand up, please.

17                           --- Recess taken at 5.30 p.m.

18                           --- On resuming at 5.54 p.m.

19             JUDGE ANTONETTI: [Interpretation] We are going to continue with

20     this hearing.

21             Ms. Alaburic, you have the floor.

22             MS. ALABURIC: [Interpretation] Thank you, Your Honours.

23             I know that it is tedious to listen to a single person for such

24     an extended period of time, but this was the only way we could organise

25     ourselves.

Page 52576

 1             To continue with our closing arguments, we'll briefly look at the

 2     closing arguments of the Praljak Defence.  It was not our intention to

 3     respond to the final briefs and closing arguments of other Defences,

 4     believing that in the past five years we have had ample opportunity to

 5     say everything we deemed relevant.  However, one assertion was made

 6     during the closing argument by General Praljak's counsel, and it was that

 7     assertion which drove us to change our previous decision.  Let us have a

 8     look at what it actually is.

 9             It has to do with something that was stated at page 52484 and

10     52485, with regard to document P1236.  It is a -- P1163, which is under

11     seal.  I would like to ask that it not be broadcast, and I will strive

12     not to refer directly to the contents of the document, itself.

13             General Praljak's counsel said as follows:

14             [In English] "In the oral presentation, the Prosecutor referred

15     to document P1163, page 3, indicating that General Praljak was in Mostar

16     before he came to Prozor, and that he issued an order to Miro Andric.

17     The Prosecutor found his conclusion on the fact that the general is

18     mentioned in the text of this document.  However, the general's name is

19     not mentioned.  But, in any case, the Prosecution concludes that the

20     general is Slobodan Praljak and that he was the one who issued the order

21     in Mostar because General Petkovic was in Geneva.  However, on the 15th

22     and 16th of January, 1993, General Petkovic was not in Geneva."

23             [Interpretation] End of quote.

24             There is reference made to a document in the text that follows,

25     confirming that Milivoj Petkovic was in Mostar in the course of those few

Page 52577

 1     days.  The counsel concluded by saying:

 2             [In English] "So the Prosecution erroneously refers to this

 3     document so that the Trial Chamber would also draw a wrong conclusion

 4     from it."

 5             [Interpretation] End of quote.

 6             Given that this is a direct suggestion that the message Andric

 7     mentioned in document P1162 is a message from his commander, who was a

 8     general based in Mostar, and that this document refers to

 9     General Petkovic, allegedly, it is this Defence that wishes to draw your

10     attention to the following:  The assertion in this document about a

11     general in Mostar cannot be in regard to -- with regard to

12     General Petkovic because General Petkovic at that point in time was not a

13     general.  At that point in time, he was a brigadier, which can be seen in

14     all the documents he issued whereby he stipulates his military rank.  We

15     prepared one such document, which is P1322, Petkovic's order of the 27th

16     of January, 1993.  The contents are unimportant at this point in time.

17     We can see, however, that in January 1993, Milivoj Petkovic was a

18     brigadier.  Therefore, a general in Mostar referred to in the document

19     could not have been Milivoj Petkovic.

20             We would like to draw your attention to a paragraph in the

21     Praljak Defence final brief, which is paragraph 406, which says, I quote:

22             [In English] "Slobodan Praljak was not, prior to action taken by

23     the HVO (including units Maturice and Apostoli from Kiseljak), informed

24     about assessment of Ivica Rajic, nor was he informed which action the HVO

25     forces are taking.  When the accused did receive the information

Page 52578

 1     (3D00823) of Ivica Rajic on 23rd October 1993, it was later that day or

 2     in the evening.  After receiving this information, the accused Praljak

 3     reacted promptly.  On the same day at 1110 hours, he sent a message to

 4     Petkovic, advising him to settle down the situation in Vares without

 5     mercy to anyone and to find the men who are up to time and task.  It must

 6     be noted that Praljak did not order Petkovic to do anything.  He merely

 7     offered him an advice.  If Praljak, as the commander of General Staff,

 8     considered it necessary, he would surely say so.  He would surely write

 9     down the word 'order.'  It is logical that, instead, Praljak chose to

10     offer only a piece of advice or suggestion to Petkovic because Petkovic

11     was on the field.  He could easily obtain any additional information

12     needed for proper decisions, and Petkovic was commander of the area

13     (de jure and de facto) pursuant to the previously issued orders."

14             [Interpretation] End of quote.

15             What I would like to draw the Bench's attention to is the

16     allegation that Petkovic then was the de jure and de facto commander of

17     the area pursuant to previously issued orders.  These orders -- or,

18     rather, documents are mentioned in footnote 550.  In the right-hand

19     column of this table, you can see the documents cited in that footnote.

20     The first document is 3D1161.  That's an order of

21     General Slobodan Praljak on the organisation of duty operations shifts in

22     the Main Staff.  And the second document is 3D2756, also

23     General Praljak's order about the composition of the duty operative team

24     from the 22nd until the 29th of October, 1993.  The third document is an

25     order issued by General Petkovic on 4 November 1993 about the area around

Page 52579

 1     Kiseljak.  The document number is P6408.

 2             Therefore, Your Honours, the Praljak defence that pursuant to

 3     these orders about duty shifts in the Main Staff, General Petkovic had

 4     de jure commander's powers in Central Bosnia, we will not comment on

 5     those allegations, but we leave it to you to assess its validity based on

 6     the documents as cited in the footnote.

 7             Now we will deal with analysing the Prosecution's closing

 8     arguments, which was presented by my learned friend Ms. West and partly

 9     by my learned friend Mr. Scott.

10             Ms. West, as you can see here, tried to put it to us that the

11     Petkovic Defence claims that Petkovic never took part in a meeting with

12     President Tudjman, but the OTP have found out that he did, after all,

13     attend a meeting with President Tudjman on the 5th of November, 1993, in

14     Split.  Let us take a look at the Petkovic final brief about that meeting

15     with President Tudjman in Split.  The Petkovic Defence mentions it in at

16     least three paragraphs.  These paragraphs are 464, 532 and 537.

17             The Prosecution tried to put it wrongly to the Trial Chamber that

18     the Petkovic Defence tried to hide our client's participation in the

19     meeting on the 5th of April, 1993, meeting in Split, where

20     President Tudjman was.  They tried to show that Mr. Petkovic attended

21     various meetings about the strategy in Herceg-Bosna and political issues,

22     and so the OTP, on transcript pages 52013 and the following, states that

23     Petkovic did participate in at least two very important meetings.  They

24     mention a meeting in Zagreb, in Tudjman's office, in April 1993.

25             We would like to point it out to you, Your Honours, what is said

Page 52580

 1     in the annex of the Petkovic final brief, Annex 1, page 2, that is, where

 2     you see excerpts from decisions that were signed or excerpts from the

 3     joint statement and its annexes as signed at the meeting in Zagreb on

 4     25 April 1993.  This is a joint statement signed by Izetbegovic,

 5     Boban and Tudjman, and the supplement -- or the military supplement to

 6     the joint statement, signed by Halilovic and Petkovic.  This document has

 7     been shown in this courtroom by the Petkovic Defence zillions of times,

 8     and we will show it yet again in our closing arguments.  For the time

 9     being, I'll say this was a meeting of the Muslim and Croatian side in

10     Bosnia-Herzegovina, in President Tudjman's office, in the presence of the

11     international community, so this is not a meeting of Croatian politicians

12     who discussed a strategy of whatever sort or other things in

13     Herceg-Bosna, as the Prosecution wishes to present it.  We do consider

14     this meeting as one of the most important events, and it really has

15     nothing to do with any agreements about criminal objectives of

16     Herceg-Bosna.

17             On transcript page 52016, it says that the Petkovic Defence does

18     not mention his report for 1992; it only mentions it in its annex.  And

19     they say that the report was allegedly issued by Petkovic.  Your Honours,

20     please take a look at the excerpt that you'll see in this table on your

21     screens, and you will see that the documents allegedly issued by Petkovic

22     in this annex of ours are marked red.  The report for 1997

23     [as interpreted], P907, is under item 1, and you see that it is not

24     mentioned -- it is not marked red.  This report was used by our Defence

25     many times, and we used it in our closing argument, and we will use it

Page 52581

 1     again because we consider it extremely important.  We would like to point

 2     it out that the OTP falsely puts it to the Trial Chamber that the

 3     Petkovic Defence wishes to hide something or that it wrongly qualifies

 4     any document issued by Petkovic.

 5             On page 52027, we see the Prosecution's claim:

 6             "Petkovic claims that the brigade commanders did not report to

 7     him ..."

 8             Your Honours, among other things, we would like to draw your

 9     attention to paragraph 70 of the Petkovic Defence final brief, where it

10     says clearly that the commander of the Main Staff was superior to a

11     brigade commander and other military commanders in all issues regarding

12     combat.  We have shown many reports that military commanders sent to both

13     Mr. Petkovic and the Main Staff, so that General Petkovic never renounced

14     the brigade commanders of the HVO or other military commanders.  What we

15     have clearly pointed out to the Trial Chamber in these five years is the

16     following: that the chief of Main Staff had no authority over the

17     Convicts Battalion and that the chief of Main Staff had no authority over

18     the military police or the civilian police, except where they were

19     re-subordinated to the Main Staff or any military commander.

20             The following allegation we want to comment upon is mentioned on

21     transcript page 52028.  It is about documents that define the tasks of

22     the Main Staff.  Ms. West said that the arguments of the Petkovic Defence

23     refer to only two HVO pieces of legislation, and the stress was on "only

24     two."  What we wish to say is that it's true, only two, for the simple

25     reason that there are no more.  There were only two.  So if you want to

Page 52582

 1     see what the duties of the chief of Main Staff were under the law, what

 2     you will have to consult are these very two pieces of legislation.  By

 3     this allegation, the Prosecution falsely implied the existence of any

 4     other laws or regulations which the Petkovic Defence consciously omitted.

 5     That is why we want to state clearly and unambiguously that these two

 6     pieces of legislation are the ones that set out the authority of the

 7     Main Staff.

 8             On transcript page 52029, developing this thesis about only two

 9     pieces of legislation, Ms. West says that -- mentions exercise in

10     linguistic gymnastics and mentions P289 and P586, and then she says, I

11     quote:

12             [In English] "The reason I am not going to do the analysis here

13     is this:  No matter what these documents say about Petkovic's competence

14     as chief of the Main Staff, the Trial Chamber must look to what happened

15     in fact, what happened on the ground, to see the real picture."

16             [Interpretation] End of quote.

17             In the right-hand column, Your Honours, we show excerpts from the

18     documents I mentioned, so you can see for yourselves what they say and

19     determine what the legal duties and obligations of the chief of

20     Main Staff of the HVO were.

21             What we wish to comment on now is the appeal of the Prosecution

22     to the Trial Chamber not to heed laws and regulations, but instead to

23     focus on the events on the ground.  We would like to say to you that both

24     matter, laws and regulations, on the one hand, and the situation on the

25     ground, on the other.  The appeal to disregard laws and regulations and

Page 52583

 1     focus only on events on the ground surprises us because, based on our

 2     analysis of all the laws and regulations, this trial is actually a trial

 3     for commission by omission.  Commission by omission and aiding by

 4     abetting by omission are the very crux of these proceedings.  To assess

 5     responsibility under these headings, you must determine the legal

 6     obligation to act, and that can only be determined by looking at laws and

 7     regulations.  We cannot sentence somebody for omission and only determine

 8     the facts about what he did, and a precise analysis of the laws and

 9     regulations of Herceg-Bosna is a precondition for a fair verdict.  That

10     is why we dealt extensively with laws and regulations in our defence and

11     attempted to give our opinion about what the laws and regulations of

12     Herceg-Bosna say about the duty of the chief of Main Staff to do or omit

13     to do something.  I believe that you will also analyse these laws and

14     regulations and draw your conclusions from them.

15             We would also like to stress something else in this context;

16     namely, that we never contested the position of the chief of Main Staff

17     in the operative chain of command, and I stress the word "operative,"

18     because this operative chain of command has to do with combat activities.

19     What we have alleged in these proceedings and tried to prove is that the

20     chief of Main Staff was not in the chain of command or the chain of

21     subordination for regular tasks of the military police, the SIS, and

22     other non-combat activities, from the remit of individual bodies of

23     Herceg-Bosna.  We also attempted to show that the Main Staff had no

24     authority over detention centres.  Whether or not we have been successful

25     in that respect is up to you to decide, Your Honours.

Page 52584

 1             The following submission of the Prosecution we would like to

 2     comment on is recorded on page 52031 of the transcript.  Ms. West said, I

 3     quote:

 4             [In English] "Mr. Scott mentioned this chart as well, and it's

 5     clearly contrary to the Defence position that Petkovic was not in command

 6     and control of the armed forces."

 7             [Interpretation] End of quote.

 8             I must admit, Your Honours, that after this allegation put

 9     forward by Ms. West, General Petkovic asked me, What did you write in

10     your final brief for the Prosecutor to say this?

11             Please take a look at the schematic on the right-hand side.  This

12     is also a Defence document of the Petkovic Defence, 4D618.  This document

13     was used by General Petkovic when he was examined in the Blaskic case, so

14     it was used some 10 years ago or so, and we wanted it to be an exhibit in

15     this trial because it shows what General Petkovic said in another trial

16     without knowing that he would be -- he would stand trial here one day.

17     And it is important information that the Convicts Battalion is not in the

18     system of responsibility of the Main Staff.  This was a chart that we

19     used during our case.  And based on it, we examined many of our own

20     witnesses and other witnesses, and Generals Petkovic and Praljak also

21     testified about it.  Let me, therefore, repeat once more.  It is

22     uncontested that the chief of Main Staff was part of the chain of command

23     and in exactly the manner as stated by the witnesses of the

24     Petkovic Defence, as we have mentioned it in our final brief.

25             Further on, on transcript page 52039, the Prosecutor referred to

Page 52585

 1     paragraph 212 in the Petkovic Defence final brief and said -- actually,

 2     they quoted one part of our paragraph 212 and then they said:

 3             [In English] "Now the brief does not give any citation for this

 4     assertion that the government only is responsible and not anyone else,

 5     and there is no source listed."

 6             [Interpretation] Your Honours, look at the entire paragraph 212

 7     of the Petkovic Defence final brief, and you will see that there is a

 8     footnote there, footnote 410.  Furthermore, look at the documents

 9     referred to in that footnote, in footnote 410.  We have prepared parts of

10     the regulations that we referred to when we compiled paragraph 212 of our

11     final brief.  Allow me to read what we wrote there.  In annex to the 1907

12     Hague Convention, it is said, and I quote:

13             [In English] "Prisoners of war are in the power of the hostile

14     government, but not of the individuals who captured them.

15             "Article 7:  The government into whose hands prisoners of war had

16     faller is charged with their maintenance.

17             "Article 14:  An inquiry officer for prisoners of war is

18     instituted on the commencement of hostilities in each of the belligerent

19     states and, when necessary, in neutral countries which have received

20     belligerence in their territory.  It is the function of this office to

21     reply to all inquiries about the prisoners.  It received from the various

22     services concerned full information respecting internment and transfers,

23     releases on parole, exchanges, escapes, admissions into hospitals,

24     deaths, as well as other information necessary to enable it to make out

25     and keep up to date an individual return for each prisoner of war."

Page 52586

 1             [Interpretation] The second document that we referred to in the

 2     footnote is the Geneva Convention III.  I quote:

 3             [In English] "Article 12:  Prisoners of war are in the hands of

 4     the enemy power, but not of the individuals or military units who have

 5     captured them."

 6             [Interpretation] The commentary of the International Committee of

 7     the Red Cross, the first sentence reads, I quote:

 8             [In English] "The logical consequence is that prisoners of war

 9     are not in the power of the individuals or military units who have

10     captured them.  They are in the hands of the state itself over which

11     these individuals or military units are only the agents.  The present

12     provision, which formally establishes this principle, reproduces the text

13     of Article 2, paragraph 1, of the 1929 Convention, which, in turn, was

14     derived from Article 4, paragraph 1, of The Hague Regulations of 1907."

15             [Interpretation] We would also like to point to a completely

16     erroneous conclusion by my learned friend from the Prosecution.  She

17     claims that the Petkovic Defence claimed that only the government was

18     responsible for the treatment of POWs.  There is no such claim in our

19     final argument.  Within that context, it might be of some interest to

20     remind everybody that Mr. Scott arrived at a completely different

21     conclusion, based on our final brief.  On the one hand, Ms. West

22     concludes that only the government was responsible, whereas Mr. Scott

23     concluded that the Petkovic Defence considered the Ministry of Defence

24     and the military police as persons responsible for the treatment of

25     prisoners of war in detention centres.

Page 52587

 1             A large part of the closing argument of our learned friend from

 2     the Prosecution was dedicated to artillery fire and the responsibilities

 3     of those responsible for the artillery, and that is recorded on

 4     pages T-52061 and P52064 [as interpreted].  Those assertions, briefly,

 5     concern the fact that the Main Staff had responsibilities over the

 6     artillery, that Milivoj Petkovic, as the chief of the Main Staff, had

 7     full authority over the artillery, and that he used those authorities,

 8     that he exercised his rights.

 9             We shall deal with the part of the documents that were of some

10     relevance for this topic.  The first one is P04131.  This is an order

11     issued on the 12th of August, 1993, about the changes in the chain of

12     command which were to be implemented when General Praljak took over the

13     command of the Main Staff.  Under item 2, you will see entirely that it

14     was decided for the Rocket Battalion to be subordinated directly to the

15     Main Staff.  General Praljak testified at great length about that.  He

16     explained why the artillery fire was being centralised by this decision.

17     Other witnesses confirmed that in their testimonies.  Among them was also

18     Petkovic's witness, Maric.  It is very clear in the document that up to

19     that moment, the Rocket Regiment was never subordinated to the

20     Main Staff.  If the Rocket Regiment had ever been subordinated to the

21     Main Staff, General Praljak would have never issued an order to this

22     effect, it would have been unnecessary.  Therefore, it is completely

23     erroneous to conclude that Milivoj Petkovic, as the chief of the

24     Main Staff, had authorities that did not exist before the 12th of August,

25     1993, and that person number 1 of the Main Staff never had.

Page 52588

 1             Let's look at the following document, which is P6950.  Towards

 2     the end of November, 1993, the commander of the South-East Herzegovina

 3     OZ, Mr. Miljenko Lasic, sent a request to the chief of the Main Staff,

 4     Ante Roso, for the Rocket Regiment to be returned under the authority of

 5     the OZ, which used to be the South-East Herzegovina OG.

 6             On the 1st of December, 1993, document P6990 was sent by the

 7     chief of Main Staff, Ante Roso, and by that order he re-subordinated the

 8     Rocket Regiment to the Military District of Mostar until further

 9     proceedings.  It arises unambiguously from these documents that the

10     Main Staff at the time, and Milivoj Petkovic was its chief, was not in

11     command of the Rocket Regiment.  There is no reason whatsoever not to

12     establish very clearly what happened and what the sequence of events was.

13     We will be able to do that if we analyse all of the documents and if we

14     see what the relationship between those documents is.

15             Furthermore, in their closing argument, on page 52064, the

16     Prosecutor stated that one document, dated 22nd July, showed that

17     General Petkovic, prior to leaving his office as the chief of the

18     Main Staff, had requested data on artillery, and this, according to them,

19     was a clear suggestion that there was a combat being prepared.  As you

20     can see from the quote, the document has been admitted under P343.

21             And now let's look at the document on the right-hand side.  The

22     document was indeed issued on the 22nd of July, but not in 1993, as has

23     been suggested by the Prosecutor, but rather in 1992.  In other words,

24     that document was issued in mid-1992, when the Main Staff of the HVO

25     still didn't have a clue what kind of artillery pieces were in the hands

Page 52589

 1     of their units on the ground, but when the Main Staff tried to gather

 2     information as to what kind of artillery power the HVO had at its

 3     disposal.  The Prosecution completely erroneously suggested to the

 4     Trial Chamber that Petkovic did something immediately around the time

 5     when he left his position.  They did that by missing the date of the

 6     document by merely a year.

 7             Your Honours, I would like to point out to one part of the

 8     closing argument delivered by my learned friend Mr. Scott that refers to

 9     General Petkovic.

10             My learned friend Mr. Scott, inter alia, on page P51848,

11     mentioned a document, 35377, that the document was issued by

12     General Petkovic, and that document says, inter alia -- I'm repeating the

13     document number -- first the page number, P51848 and then the document

14     number P377.  P377 is the document number, and the page number is

15     correct, yes.  Very well.

16             My learned friend Mr. Scott quoted one part of the order dated 10

17     August 1992, where it says, and I quote:

18             [In English] "Use all available HVO civilian and military police

19     forces to prevent any military units, other than the HVO, from entering

20     your area of responsibility.  This is solely HVO territory.  None others

21     are welcome.  None others will be accepted.  You are to advise the staff

22     on the presence of any unit other than the HVO."

23             [Interpretation] On the right-hand side of this page,

24     Your Honours, we are providing you with the integral text of this order

25     issued by Petkovic, and we would like to draw your attention to the fact

Page 52590

 1     that this order was sent to the following cities:  Livno, Tomislavgrad,

 2     Posusje, Siroki Brijeg, Mostar, Capljina, Ljubuski and Citluk.  At that

 3     moment in the month of August 1992, BiH Army units existed only in the

 4     territory of Mostar.  As for the other municipalities, there were no HVO

 5     units there.  And if you -- I apologise.  There were no BiH Army units

 6     there.  I thank my colleague for the intervention.  So the only

 7     municipality where a BiH Army unit existed was Mostar; nowhere else.

 8     That fact would have been reasonable grounds to ask ourselves as to what

 9     hid behind the order issued by Brigadier Petkovic.  Was there another

10     reason, and not what was suggested to us by the Prosecutor?  Why did

11     General Petkovic put a ban on the entry of BiH Army units?  We believe

12     that the answer lies in P391.  This is the minutes of the HZ-HB session

13     which was held on the 14th of August, 1992, in Grude.  If we look at the

14     last lines of the excerpt, we will see that a warning was issued at the

15     meeting to the effect that the HVO was privy to the information that the

16     HOS were poised to take over in Ljubuski, Capljina, and other

17     municipalities in that part of Herzegovina.  Within that context,

18     Petkovic's order issued in August 1992 cannot be interpreted in any other

19     way but as an order that is relative to the HOS and not to the BiH Army.

20             And now, Your Honours, with regard to this type of interpretation

21     of documents, and drawing conclusions either based on the erroneous

22     interpretation of entire documents or parts thereof, I would like to

23     remind you that all Defence teams, those who were delivering their

24     arguments before me, invited the Trial Chamber to carefully analyse each

25     and every document and to analyse their context.  Otherwise, if you don't

Page 52591

 1     do that, by combining selected parts of documents, irrespective of the

 2     date when they were created, irrespective of the participants and the

 3     context, any kind of picture could be created, as is indeed possible

 4     according to the mosaic theory.  If you take parts of certain documents

 5     and put them together, you can get whatever you wish.  However, proper

 6     reading of documents, proper reading of context, can bring us closer to

 7     the truth.

 8             And now, Your Honours, we will embark on our commentary of the

 9     Prosecutor's final brief, although I believe that whatever I have done so

10     far is pretty tiring, so if you don't mind, if it's all the same to you,

11     I don't mind continuing tomorrow instead of today.

12             JUDGE ANTONETTI: [Interpretation] Please continue now.  We still

13     have 20 minutes left.

14             MS. ALABURIC: [Interpretation] Very well.

15             Let's start analysing the Prosecutor's final trial brief.

16             In paragraph 3 of its final trial brief, the Prosecutor says:

17             [In English] "This is especially true of the testimony of the

18     accused Praljak and Petkovic, who lied repeatedly when they were not

19     evading questions on important issues.  Their self-serving testimony is

20     entitled to little weight."

21             [Interpretation] The Prosecutor, therefore, claims about

22     General Praljak and about General Petkovic that they both lied.  Of

23     course, I'm going to provide comments only with regard to the parts

24     dealing with General Petkovic.

25             Further on, the Prosecution doesn't give us a single example to

Page 52592

 1     corroborate their claim that General Petkovic lied in his testimony.  We

 2     believe that such a claim in a final brief is inappropriate, and if

 3     anybody in -- if nobody in the courtroom, when examining their witnesses,

 4     was not able to prove that they are lying, that it is inappropriate for

 5     them to claim something like that in their final brief.  We also believe

 6     that it is an inappropriate expression, when we look at paragraph 867 of

 7     the Prosecution's final trial brief, where it says, inter alia, and I

 8     quote:

 9             [In English] "The meaning couldn't be clearer, and Petkovic's

10     assertions are comical, at best, and dishonest, at worst."

11             [Interpretation] We also believe it to be completely

12     inappropriate to state what was stated in para 868, that Petkovic was

13     trying to convey something through Praljak.  General Praljak spoke on his

14     behalf, much as General Petkovic did, as well as all the other

15     participants of the meeting referred to in that paragraph.  We won't

16     comment upon this mode of expression, but we merely wanted to note that

17     it is entirely inappropriate as part of a final trial brief in

18     proceedings such as this.

19             In several paragraphs in their final trial brief, the OTP

20     referred to document P279 let's look at paragraph 11 for that purpose.

21     It is stated as follows for General Petkovic:

22             [In English] "The accused intended to achieve Croat control over

23     Herceg-Bosna through deportation and forcible transfer, together forcible

24     displacement.  As early as June 1992, Petkovic cited the need to

25     establish Croatian rule over all municipalities."

Page 52593

 1             [Interpretation] In paragraph 861, this speech is mentioned as

 2     well, as well as in 864.  I must admit that while reading the OTP final

 3     brief, my impression was that there was a number of speeches or

 4     contributions, and only then I realised that the Prosecutor kept going

 5     back to one single document.  So let's look at that document together.

 6     It is P279.  You are familiar with it, Your Honours, since, on the basis

 7     of that document, you put many questions to General Petkovic.  Let's look

 8     at how the document opens.  I quote:

 9             [In English] "General, gentlemen of municipal leadership and

10     commanders of HVO units, today we shall analyse current operative and

11     tactical situation, further intentions and tasks, and consider all the

12     problems that we have and are confronted with that need urgent solutions.

13     Agenda of this meeting has been created to serve that purpose.  We have

14     to give proper answers to the questions and problems that we shall talk

15     about.  (Inform about the agenda.)"

16             [Interpretation] Based on this introductory part of the document,

17     one concludes that it is completely unambiguous that this is not a

18     written report, but a draft speech that was supposed to be held at a

19     meeting which was supposed to be attended by a general.  It was

20     General Bobetko.  In attendance, there should also have been members of

21     municipal authorities and commanders of certain areas.

22             The first and basic question to put is this:  If we realise that

23     a document is a draft speech, we must ask ourselves whether it was ever

24     held or not, because if it had not been, then there is no actus reus,

25     there is no activity which would initiate anything.  The Prosecutor did

Page 52594

 1     not offer a single piece of evidence that General Petkovic indeed made

 2     this speech, as drafted in this document.  On the other hand,

 3     General Petkovic's Defence provided the following proof:

 4     General Petkovic explained what took part at the meeting.  He also said

 5     that he never made the speech, and that rather, standing in front of a

 6     map, he explained the situation in the field.  This was at transcript

 7     page 49351, 49351 to 49353.  Our witness, General Beneta, confirmed that

 8     General Petkovic spoke in front of the map, addressing directly those in

 9     attendance while he was not reading out of anything.  General Beneta's

10     testimony is at transcript page 46606 to 46607.

11             With regard to this document, Your Honours, we also wish to draw

12     your attention to one part of it that you can see on the screen, which

13     contains a list of municipalities whose representatives were supposed to

14     have attended the meeting.  Let's have a look at what those

15     municipalities were:  Mostar, Siroki Brijeg, Citluk, Ljubuski, Capljina,

16     Grude, Stolac, Neum, and Ravno.

17             If you recall the testimonies of General Beneta and of

18     Bozo Pavlovic, as well as of General Praljak and General Petkovic, you

19     will see that in June 1992, it was precisely this area of Bosnia and

20     Herzegovina that had been liberated and taken over from the JNA and the

21     Serb forces, and that in Stolac there was an attempt to organise civilian

22     authorities.  As for the other municipalities in question, they already

23     had civilian authorities in place; that is to say, all of the

24     municipalities, save for Mostar and Stolac, were predominantly populated

25     by Croats.  Hence, there were no changes in the authorities of those

Page 52595

 1     municipalities.

 2             If we take another look at the document, we see that neither in

 3     its introductory part, nor anywhere else, we have the registry file

 4     number.  We do not believe this is a decisive piece of evidence, but it's

 5     at least an indication that the document had never received an official

 6     filing number.  That is why we wish to reiterate the following concerning

 7     this document:  This speech was never made.  Concerning this speech,

 8     there is no actus reus, and the Petkovic Defence, however, does not deny

 9     that this document is important to ascertain Petkovic's mens rea.  We do

10     not shy away from it, and we will address it specifically in the

11     continuation of our closing argument.  What we are trying to stress for

12     the time being is that this is not an anti-Muslim speech, as the

13     Prosecutor would have you believe, and we will prove that by showing you

14     a number of other documents and reports issued by Petkovic, at the time

15     and later, which clearly and unambiguously confirm that Petkovic did not

16     have any anti-Muslim intentions and that the mention of Croatian rules

17     did not mean the denigration of Muslims.

18             In order to begin with that exercise, I wanted to show you first

19     4D830.  Basically, it is the same document as P907, the report on

20     Petkovic's work in 1992.

21             In general conclusions, General Petkovic states as follows:

22             "At this moment in time, HVO forces successfully hold on to

23     90 per cent of the territory envisaged as the territory of Herceg-Bosna."

24             In item 7, he states that:

25             "HVO forces, despite numerous obstacles and problems, hold

Page 52596

 1     70 per cent of the territory of Bosnia-Herzegovina under their control."

 2             Your Honours, we wanted to draw your attention to this part of

 3     the report.  This sentence makes it clear that General Petkovic believed

 4     that the free part of Bosnia-Herzegovina was also that part which was

 5     held by BH Army at the time.

 6             The sentence following that is -- given that I have this document

 7     in English, I'll read it out in English:

 8             [In English] "By organising its own armed forces in the territory

 9     of HZ-HB, Croatian people defended themselves and majority of Muslims."

10             [Interpretation] Therefore, General Petkovic in the report states

11     that the armed forces of Herceg-Bosna defended the Croatian people and

12     most Muslims.  Therefore, there was no doubt in General Petkovic's mind

13     that the HVO forces are the forces defending the Croatian and Muslim

14     people in Bosnia and Herzegovina.  Based on this small portion of this

15     document, we can see that General Petkovic believed the HVO capable of

16     defending and keeping under control a certain part of territory, meaning

17     that neither General Petkovic nor anyone else in the Main Staff or in the

18     HVO had planned any offensive operations.

19             It is also a fact that it is stated therein that 90 per cent of

20     the territory was under control of the authorities of Herceg-Bosna.  It

21     clearly indicates that the HVO had no offensive plans and that there were

22     no preparations under way to attack the Army of Bosnia-Herzegovina.  They

23     did not wish to expand the territory that had already been under control

24     of the authorities of Herceg-Bosna by use of arms.

25             Your Honours, this brings us to the next large topic.  Hence, I


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 1     suggest that we continue tomorrow, since we only have five minutes left,

 2     by your leave, of course.

 3             JUDGE ANTONETTI: [Interpretation] Very well.

 4             I wanted to tell you that you have one and a half hours left for

 5     tomorrow, one and a half hours.  Actually, it is one hour and thirty-five

 6     minutes.  Therefore, we continue with your argument tomorrow, following

 7     which we have Mr. Coric's Defence.

 8             I wish you a good evening.  And as you know, we continue tomorrow

 9     at 2.15 in the afternoon.

10                           --- Whereupon the hearing adjourned at 6.54 p.m.,

11                           to be reconvened on Tuesday, the 22nd day of

12                           February, 2011, at 2.15 p.m.