Tribunal Criminal Tribunal for the Former Yugoslavia

Page 366

 1                           Wednesday, 22 March 2017

 2                           [Open session]

 3                           [Appeals Hearing]

 4                           [The appellants entered court]

 5                           [The Appellant Pusic not present]

 6                           --- Upon commencing at 9.29 a.m.

 7             JUDGE AGIUS:  Good morning, everyone.

 8             Mr. Registrar, could you kindly call the case, please.

 9             THE REGISTRAR:  Thank you and good morning, Your Honours.  This

10     is case number IT-04-74-A, the Prosecutor versus Prlic et al.

11             JUDGE AGIUS:  Thank you very much.

12             Could I call for appearances, starting from the Prosecution,

13     please.

14             MR. STRINGER:  Good morning, Mr. President and all of Your

15     Honours.  For the Prosecution, Barbara Goy, Inneke Onsea, Sarah Finnin,

16     Douglas Stringer, Janet Stewart.

17             JUDGE AGIUS:  Thank you very much.

18             Appearances for Appellant Prlic.

19             MS. TOMANOVIC:  Good morning, Mr. President.  Good morning, Your

20     Honours.  And good morning to everybody in and around the courtroom.

21     Suzana Tomanovic, co-counsel for Dr. Jadranko Prlic.  Mr. Karnavas

22     expresses his regrets for not being here this morning due to a commitment

23     to International Criminal Court.  He is lead counsel in a case, and his

24     client today is scheduled to be sentenced at 11.00 this morning.  He will

25     be joining us after the lunch, if not sooner, and he wanted me to express

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 1     his regrets for not informing Your Honours about this yesterday.  Thank

 2     you.

 3             JUDGE AGIUS:  Thank you, Ms. Tomanovic.  I better not comment.

 4             Appearances for Appellant Mr. Stojic.

 5             MR. KHAN:  Mr. President, Your Honours, good morning.  Mr. Stojic

 6     is represented by lead counsel, Senka Nozica; who is assisted by

 7     Mr. Aidan Ellis; and myself, Karim Khan.  Thank you.

 8             JUDGE AGIUS:  All right.  Thank you, Mr. Khan.

 9             Appearances for Mr. Praljak.

10             MS. PINTER: [Interpretation] Good morning, Your Honours.  Good

11     morning to everyone in the courtroom.  Mr. Slobodan Praljak is

12     represented by Natacha Fauveau-Ivanovic; and myself, Nika Pinter.

13             JUDGE AGIUS:  I thank you, Ms. Pinter.

14             Appearances for Mr. Petkovic.

15             MS. ALABURIC: [Interpretation] Good morning, Your Honours.

16     General Petkovic is represented by Vesna Alaburic; Davor Lazic; and our

17     legal assistant, Slavko Mateskovic.

18             JUDGE AGIUS:  I thank you, Ms. Alaburic.

19             Appearances for Mr. Coric.

20             MR. PLAVEC: [Interpretation] Good morning, Your Honours.

21     Mr. Valentin Coric is represented by lead counsel,

22     Dijana Tomasegovic-Tomic; co-counsel, Drazen Plavec; and our

23     co-consultant, Dan Ivetic.  Thank you.

24             JUDGE AGIUS:  Thank you very much.

25             And finally, appearances for Mr. Pusic.

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 1             MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours.

 2     Mr. Pusic is represented by Mr. Sahota and Fahrudin Ibrisimovic.

 3             JUDGE AGIUS:  Okay.  Thank you both.

 4             We can now proceed to start with the submissions of the Defence

 5     for Appellant Mr. Praljak.

 6             MS. PINTER: [Interpretation] Your Honours, General Praljak's

 7     Defence plans to present its appeal with Natacha Fauveau-Ivanovic

 8     responding to your questions 1, 2, 8 and 10; and expand on some points

 9     from our appeals submissions.  I'm going to respond to questions 3, 4, 5,

10     6 and 7 and also draw your attention to some key grounds of our appeal.

11     And with your permission, I would like to ask ten minutes for

12     General Praljak, in which he is going to touch upon the topics discussed

13     in the appeal.  He will not testify.  There will be no -- nothing else

14     except key arguments regarding our joint position on your decision.  So

15     if he does not have time in this first part, we kindly ask that he be

16     given this time in our reply to the response by the Prosecution.

17             JUDGE AGIUS:  You're not asking -- maybe it's a question of

18     translation here and transcript.  You're not asking for an extra ten

19     minutes; you're just asking that ten minutes of your time will be

20     allotted for -- okay.

21             MS. PINTER: [Interpretation] Yes, ten minutes of our overall

22     time, yes.

23             JUDGE AGIUS:  Thank you.

24             Madam Fauveau.

25             MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, Your

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 1     Honours, the Defence of Slobodan Praljak raised a number of errors of law

 2     and fact committed by the Trial Chamber.  The Defence admits that all its

 3     grounds of appeal are well founded.  We shall today only address certain

 4     grounds of appeal and emphasise some of the cardinal errors that

 5     eviscerate the entire judgement and that invalidate Slobodan Praljak's

 6     conviction.

 7             From the outset, we wish to emphasise that nothing has been --

 8     nothing has been properly established in the judgement.  The judgement is

 9     inchoate, confused, contradictory, and unintelligible.  It is based on

10     rumours and assumptions, which in turn are based on a selective and

11     approximate selection of the evidence that has often been assessed out of

12     context and mischaracterised.  In breach of Article 23.2 of the Statute

13     of the Tribunal, the Trial Chamber has omitted to provide reasoned

14     opinions on its essential findings.  The judgement ignores the basic

15     standards of international criminal law and general principles of law,

16     i.e., the presumption of innocence, the standards of proof beyond all

17     reasonable doubt, and it seems to ignore that the burden of proof lies

18     with the Prosecution.

19             When the Trial Chamber establish a state of occupation, i.e., our

20     second ground of appeal, paragraphs 42 to 56 of our brief; and an

21     international conflict, i.e., first ground of appeal, paragraphs 7 to 41

22     of our brief, it committed a series of errors of law and fact that led to

23     erroneous findings regarding, inter alia, the role played by Croatia, but

24     first and foremost the role played by Slobodan Praljak, errors that

25     invalidate all Slobodan Praljak's convictions based on Article 2 of the

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 1     Statute of the Tribunal.

 2             JUDGE AGIUS:  Yes, I [Microphone not activated] but please slow

 3     down as much as you can, please.  Thank you.

 4             MS. FAUVEAU-IVANOVIC: [Interpretation] If Article 2 of the

 5     Statute of the Tribunal is to be applied, namely, grave breaches of the

 6     Geneva Conventions, the Trial Chamber must establish the existence of an

 7     international conflict or of a state of occupation.  A state of

 8     occupation can only follow from an international conflict or an invasion.

 9     In the present case, there was no invasion.  Therefore, to establish a

10     state of occupation, an international conflict must be established.  But

11     also a cessation followed by the establishment of power -- by the

12     establishment of authority by the foreign power that then replaces the

13     authorities that were in place before the occupation.  No foreign power

14     has established its authority over the territory of Bosnia-Herzegovina,

15     and the Trial Chamber did not reach that conclusion either.

16             The Trial Chamber concluded in paragraphs 579, 580, 583 to 585,

17     587, and 588 of the judgement, volume 3, that the HVO had occupied

18     certain territories in Bosnia-Herzegovina - the HVO, namely, the Croats

19     of Bosnia-Herzegovina.  This is quite impossible.  The HVO cannot occupy

20     the territory of Bosnia-Herzegovina.  The HVO had been created by the

21     Croats who lived in Bosnia-Herzegovina.  It was a body that had been

22     recognised by the authorities of Bosnia-Herzegovina.  See 3D647 and

23     P1988.

24             It was also one of the components of the armed forces, 3D647,

25     P339, and P1988.  How could they occupy a territory in

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 1     Bosnia-Herzegovina?  This is from legal and logical standpoint quite

 2     impossible.  A people that lives in a location cannot occupy such a

 3     location.  It cannot occupy the land of its forefathers.  It cannot live

 4     on a territory where it has been living for centuries.  This is quite

 5     impossible.  The absurdity of the conclusions of the Trial Chamber is

 6     reflected in the Prozor municipality, which - according to the

 7     conclusions of the Trial Chamber - was occupied by the HVO.

 8     Paragraph 578 of volume 3 of the judgement.

 9             In Prozor, during the elections of 1990, the Croatian Democratic

10     Party won an absolute majority, 1D920, transcript page 3478.  No

11     change-over of power occurred during the purported occupation, and the

12     authorities that had been legally elected continued to exercise their

13     authority.  There was no foreign power.  The local authorities that had

14     been legally elected continued to exercise their power, and the Trial

15     Chamber found that there had been an occupation.

16             The Trial Chamber committed a series of errors of fact when it

17     concluded that there was a state of occupation, but it established no

18     legal element required for such an occupation.  By concluding that the

19     HVO had occupied certain territories in Bosnia-Herzegovina, the Trial

20     Chamber committed an error of law of such a magnitude that any discussion

21     on the state of occupation is quite simply impossible.

22             Nowadays, international law affords protection to civilians and

23     to their property in internal conflicts - fortunately - and in

24     international conflicts.  International Judges do not need to conjure up

25     an international conflict or a state of occupation to try international

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 1     crimes.  Suffice it for them to apply the appropriate standard.  If

 2     Article 2 of the Statute of the Tribunal cannot be applied outside an

 3     international armed conflict or a state of occupation, the other articles

 4     that essentially cover the same type of conduct require no international

 5     armed conflict, neither -- neither an international armed conflict nor a

 6     state of occupation.

 7             However, in this case, no matter what the nature of the conflict

 8     is, no matter what article needs to be applied, no rule of law has been

 9     applied correctly, and this does not warrant the conviction of

10     Slobodan Praljak, for he has not committed the crimes he is charged with.

11             As in the state of occupation -- in a state of occupation, the

12     Trial Chamber committed an error when it considered that the conflict in

13     Bosnia-Herzegovina was an international conflict.  The evidence on the

14     record do not lead to the conclusion that the Croatian army participated

15     directly in the fighting.  I shall not repeat the arguments we have set

16     forth in our appeal.  I will, however, emphasise that an international

17     witness stated that the ECMM had no tangible indications of the presence

18     of the units of the Croatian army in Bosnia-Herzegovina.  Transcript

19     pages 20486 to 20487, 20501 and 20504.

20             The presence of the Croatian army units was assumed; but despite

21     all the efforts deployed to establish it, the latter was never confirmed.

22     Transcript page 20504.  And I'd like to specify that this is testimony of

23     an international witness.

24             The individual members of the Croatian army went to

25     Bosnia-Herzegovina.  Some of them joined the HVO, others joined the Army

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 1     of Bosnia-Herzegovina.  Transcript pages 40076 to 40077.

 2             These people retained their administrative ties to the Croatian

 3     army but had been incorporated either in the chain of command of the Army

 4     of Bosnia-Herzegovina or the chain of command of the HVO.  The Trial

 5     Chamber established this in volume 1, paragraph 775.  Some members --

 6     some of them -- some members of the Croatian army were also members of

 7     the HVO and of the Army of Bosnia-Herzegovina.  Slobodan Praljak himself

 8     was a member of the Army of Bosnia-Herzegovina.  3D3510.

 9             Not having really established the direct presence of the units of

10     the Croatian army in Bosnia-Herzegovina, the Chamber held that the

11     Croatian army exercised overall control over the units of the HVO.

12     Judgement, volume 3, paragraph 35 -- 545 to 567.

13             If the Trial Chamber had properly applied the standard

14     established by the case law of this Tribunal, namely, the standard of

15     overall control, it should have then assessed all the elements of control

16     assessed in there altogether and determined whether -- on this basis,

17     whether the requisite degree of control existed.  Appeal judgement,

18     Aleksovski, paragraph 145.

19             In the Tadic case, the Judges held that the requisite degree of

20     control of a state could be considered proven when a state played a role

21     in the organisation, the co-ordination, the planning of military actions

22     of a military group, in addition to funding, training, equipping, and

23     providing operational support to it.  Paragraph 137 of the Tadic appeal

24     judgement.

25             In this case, the Trial Chamber did not establish that Croatia

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 1     had played a role in the organisation, co-ordination, or planning.  All

 2     that it established is some vague assistance which, moreover, was

 3     provided, both to the HVO and to the Army of Bosnia-Herzegovina.  This

 4     is -- can be found in the transcript pages 9878, 40076, 40077, and a

 5     multitude of documents we have cited in our appeal brief, paragraph 18,

 6     19, 22, 23, and 24.

 7             The Republic of Croatia provided weapons to the Army of

 8     Bosnia-Herzegovina.  The Republic of Croatia trained the members of the

 9     Army of Bosnia-Herzegovina.  The Republic of Croatia had three logistical

10     centres of the Army of Bosnia-Herzegovina that operated freely on the

11     territory of the Republic of Croatia.  The Republic of Croatia tended to

12     the wounded of the Army of Bosnia-Herzegovina.  What state?  What state

13     would have provided the weapons, the equipment, the training, and the

14     logistics to the enemy army -- or the hostile army?  The answer is, quite

15     simply:  No state would do such a thing.

16             In addition, the Trial Chamber totally overlooked the

17     particularly unglamorous situation in which Croatia found itself during

18     the conflict in Bosnia-Herzegovina.  The Republic of Croatia did not take

19     part in this conflict.  It was solicited by the international community

20     as a whole and by some individual states asking it to calm down the

21     situation, organise negotiations, and provide a solution.  The findings

22     of the Trial Chamber concerning the visit of Minister Gojko Susak at the

23     time, Minister of Defence of Croatia to Bosnia-Herzegovina, volume 3,

24     paragraph 552, perfectly illustrate the misunderstanding of the Trial

25     Chamber of the situation.  At the time, ministers of defence of a number

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 1     of countries visited Bosnia-Herzegovina.  The visit of the minister of

 2     Croatia carries no more weight or is not more important and is no

 3     different from the visits of other ministers of other countries that took

 4     place without interruption.

 5             This visit is part of the role imposed by the international

 6     community on Croatia and does not demonstrate in any way that Croatia

 7     took part in the conflict; quite the contrary, it was to provide a

 8     solution and put an end to it.  No doubt, there was no international

 9     conflict in Bosnia-Herzegovina in 1993 and the conflict between the

10     Croats and the Muslims was an internal conflict, between two people that

11     were living in the same state for centuries.

12             I would, however, like to return to the standard of overall

13     control which the Tribunal has applied ever since it worked on

14     establishing an international conflict.  The Tribunal admitted that the

15     overall control standard is less stringent than the standard affirmed by

16     the ICJ and explained that this approach allowed for a better protection

17     of civilian victims.  Appeal judgement Aleksovski, paragraph 146.

18             If the purpose of international human law standards is to protect

19     civilians, the purpose of Judges must be no other than to apply the

20     standards.  It is not incumbent upon the Judges, and particularly not in

21     a criminal case, to interpret the standards in a broad or loose way with

22     the sole aim of convicting the accused.  The Judges must apply the law.

23     And the rules of criminal law, those that may lead to the conviction of

24     an individual even in an international context, must be strictly

25     interpreted.  Despite the fact that I have already mentioned, namely,

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 1     that Article 2 of the Statute of the Tribunal is not the sole article

 2     applicable to the alleged facts in the indictment and that the Statute

 3     provides for other articles that may make it possible to enter a

 4     conviction for alleged facts if they are proven.  The approach adopted by

 5     the Appeals Chamber in the Tadic case is today challenged by the ICJ.  It

 6     attaches the greatest importance to factual findings and legal

 7     qualifications set forth by the ICTY to rule on the criminal

 8     responsibility of the accused.  The ICJ held that the ICTY is not

 9     required to rule on the issue of international responsibility of states.

10     Appeal judgement of the ICJ dated 26th of February, 2007, paragraph 403.

11             To adjudicate indicate on the application of Article 2 of the

12     Statute of the Tribunal, the Judges of the ICTY have no choice and must

13     adjudicate indicate the nature of the conflict.  When they adjudicate the

14     nature of the conflicts, it would be fair and legally correct and wise to

15     refer to international law that has been well established and that is not

16     familiar with overall control but effective control.  Indeed, when the

17     Tribunal establishes an international conflict according to its own

18     standards - which is a problem in itself - it engages the responsibility

19     of the state which according to it would have participated in this

20     conflict.  For, from an objective standpoint, if the state had

21     participated in the international conflict, then it - normally speaking -

22     could be held responsible.  However, if the Tribunal does not apply the

23     rules of international law, its findings are worthless as regards

24     responsibility of a state.  They will be deemed not applicable to that

25     state, and this situation may give the impression that the Tribunal is

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 1     not applying the law.  It is difficult to understand how an international

 2     jurisdiction applies one rule, whereas another one relating to the same

 3     legal issue - i.e., international conflict - would apply another rule.

 4     If the Tribunal applies a rule of law which is disavowed by the ICJ, this

 5     situation could have a snowball effect in an avalanche, in which the

 6     Tribunal in the end will lose all credibility.

 7             I will now address your question number 2 and will discuss the

 8     crimes committed in the municipality of Mostar.

 9             Regarding the question regarding the errors committed by the

10     Chamber relating to the destruction of the Old Bridge, the Defence would

11     like to emphasise that errors committed by the Trial Chamber when it

12     analysed the destruction of the Old Bridge are not isolated but are part

13     of a series of errors which led to erroneous findings.  By concluding

14     that a crime against humanity, persecution, and a crime of -- and a war

15     crime, spreading terror in Mostar, the Trial Chamber considered the

16     snipers, the bombings, the destruction of the Old Bridge, the destruction

17     of mosques, the isolation of the population, and forced transfer.  But

18     none of these facts have been properly established with regards to

19     Slobodan Praljak.  The errors relating to the destruction of the Old

20     Bridge are a perfect illustration of the errors committed by the Trial

21     Chamber that established no relevant facts as regards persecution or

22     spreading terror in accordance with a well-established criminal procedure

23     and international criminal law.  None of these facts can be attributed to

24     Slobodan Praljak beyond all reasonable doubt.

25             The errors in connection to the destruction of the Old Bridge are

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 1     ground of appeal number 23, paragraph 280 to 296, have without doubt an

 2     impact on crime of persecution and spreading terror, for they show that

 3     these have been tried on the basis of erroneous facts and must therefore

 4     be reversed.  The Trial Chamber committed an error of law when it held

 5     that the destruction of the Old Bridge was disproportionate.  I will not

 6     cover this or this ground again.  Paragraph 290 of 296.  But it also

 7     committed an error of fact when it held that the HVO had destroyed the

 8     Old Bridge.

 9             I would like to now just give you one example.  Once again, the

10     Trial Chamber disregarded evidence which did not suit it.  It decided

11     that the -- the testimony of witness Vinko Maric was not credible simply

12     because it contradicted the theory of the Chamber.  It's written -- this

13     is in the judgement, paragraph 1322.

14             The Trial Chamber has broad discretionary powers when assessing

15     the evidence, but it does not hold arbitrary powers and cannot substitute

16     a theory which is not founded on the evidence to a witness's testimony.

17             The same errors can be found in the findings of the Chamber as

18     regards all the other crimes.  The snipers, for instance, the Trial

19     Chamber admitted that a number of -- volume 2, paragraph 1032, that a

20     number of these crimes could not be attributed to the HVO.  It also

21     recognised on a number of occasions and for each incident identified that

22     it was unable to establish the exact location of the origin of fire.

23     This is also in the judgement, volume 2, paragraph 1077, 1087, 1107,

24     1130, 1134, 1147, 1150, 1151.

25             In such a situation, how could the Trial Chamber - not knowing

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 1     where -- what the origin of fire was - how could it in such a situation

 2     reach such a conclusion, namely, that the snipers belonged to or were

 3     under the control of the HVO?  No reasonable trier of fact could have

 4     reached such a conclusion.  The same applies to the bombings, the origin

 5     of which is confirmed by no document.  P4573.  This same situation

 6     applies to the mosques.  The Trial Chamber established that eight mosques

 7     had been damaged or destroyed in 1992, well before any conflict erupted

 8     between the HVO and the Army of Bosnia-Herzegovina.  The Trial Chamber

 9     also established that only two mosques were intact and still standing in

10     January 1993, but nobody knows what happened after January 1993.

11     Judgement, volume 2, paragraph 1369, 1370, and 1371.

12             How in such a situation could the HVO be responsible for the

13     destruction of ten mosques between June and December 1993 since at least

14     eight, if not all ten mosques, had already been destroyed?  If one

15     follows the reasoning of the Trial Chamber, the HVO would have nothing

16     else to do but to destroy the already destroyed mosques, of course.  From

17     a theoretical standpoint, one can complete the destruction of damaged

18     mosques.  But in that case, in that case, the Trial Chamber would have

19     had to establish what kind of damage had been caused before that date and

20     what damages had been inflicted by the HVO.  It did not do this.  It

21     simply attributed - absent any evidence and in a totally arbitrary

22     fashion - the destruction of the mosques to the HVO.

23             The errors in connection with the Old Bridge are part of this

24     same series of errors by which the Trial Chamber attributed, without any

25     form of proof and in an arbitrary fashion, all these criminal acts to the

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 1     HVO.  The Defence recalls that a reasonable trier of fact should be

 2     reasonably convinced that the Prosecution has established all the

 3     essential facts of a crime beyond all reasonable doubt.  If at the end of

 4     the trial the crime has not been established, the principle of in dubio

 5     pro reo must be applied.  Appeal judgement Martic, paragraph 55.

 6             In this case, in this particular case, the Judges of the Trial

 7     Chamber did not apply this principle.  Likewise, when the Judges

 8     established the presumptions based on indications, it is not enough to

 9     state that the evidence may lead to a reasonable entering -- to a

10     reasonable finding of guilt.  This finding cannot be the only finding

11     possible.  If another conclusion can -- or finding can be reasonably

12     drawn from the evidence and when it does not exclude the innocence of the

13     accused, he must be acquitted.  Appeal judgement Celebici, paragraph 458.

14     Once again in this case, the Judges of the Trial Chamber have disregarded

15     this principle.

16             Briefly, regarding your question number 8, the crime of spreading

17     terror, the Defence submits that crime of spreading terror requires a

18     specific intent directed at spreading terror, will establish a case law

19     in the Galic case, appeal judgement, paragraph 104.  This intention has

20     not been established in this case.  The Trial Chamber correctly stated

21     that the crime of spreading terror requires that the main purpose of the

22     act be the spreading of terror.  Volume 1, paragraph 185 and 187 -- 195

23     and 197.  However, it is not sufficient to enunciate the principle; it

24     needs to be applied to the facts.  But the Trial Chamber established that

25     the activities of the HVO were directed at sectors where the military

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 1     objectives were located.  Judgement, volume 2, paragraphs 1003, 1009,

 2     1013, and 1014.

 3             This finding alone, since the activities are directed at military

 4     objectives, are sufficient basis to exclude terror.

 5             JUDGE AGIUS:  One moment.  You haven't -- unless you tell me that

 6     you haven't finished, you haven't answered the second part of question 8,

 7     which is the --

 8             MS. FAUVEAU-IVANOVIC: [Interpretation] What is question 8?

 9             JUDGE AGIUS:  What the impact would be if the Appeals Chamber

10     found that the Trial Chamber failed to provide a reasoned opinion in this

11     regard.

12             MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, our

13     conclusion are the same regarding the second part.  As far as we're

14     concerned, the judgement in its entirety must be invalidated.  And

15     regarding the crime of spreading terror, it has not been established.

16     But in addition, the Trial Chamber did not provide a reasoned opinion;

17     and for us, that amounts to the same.  This invalidates this conviction,

18     this particular conviction, and has an impact, of course, on the other

19     crimes in which spreading terror does play a part.

20             May I resume, Mr. President?

21             JUDGE AGIUS:  Up to you.

22             MS. FAUVEAU-IVANOVIC: [Interpretation] Very briefly, I would like

23     to provide a response to question number 10.  I believe that it is

24     slightly similar to the question you asked.  At this stage of the

25     procedure what I would like to say is that -- and I would like to address

Page 382

 1     this immediately afterwards.  We consider that there is no joint criminal

 2     enterprise and no common purpose, so any question relating to JCE 3 is

 3     moot, notwithstanding this irrelevant of any standard which was applied

 4     or which should have been applied to the Trial Chamber relating to this

 5     issue.  Of course, we are prepared to return to this issue, if necessary.

 6             We consider that the error committed by the Trial Chamber in this

 7     case relates -- is to be found in its findings on the common criminal

 8     purpose.  The Trial Chamber held that the common -- the JCE was

 9     established mid-January 1993 to achieve its political objectives, volume

10     4, paragraph 44.  Firstly, political objectives do not amount to a common

11     criminal purpose.  I take this opportunity to inform you that

12     Slobodan Praljak's Defence agrees entirely with the arguments of the

13     Defence of Jadranko Prlic and Bruno Stojic on all questions relating to

14     the existence of a joint criminal enterprise and a common criminal plan.

15             Having thus determined the political objective, the Trial Chamber

16     held that according to the interpretation of the leaders of the HVO, this

17     political plan included ethnic cleansing, paragraph 44, volume 4.  Nobody

18     knows who these leaders of the HVO were, who would have attributed a

19     criminal dimension to a political plan.  We don't really know which

20     crimes were included in this plan.  In this plan the term "ethnic

21     cleansing" is not a legal term and is much too vague to specify the

22     alleged crimes.

23             The Trial Chamber has, therefore, never clearly established the

24     crimes which were envisaged in the initial plan and cast doubt on those

25     persons who may have had knowledge of this criminal plan.  The common

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 1     criminal purpose was purportedly expanded in June, volume 4,

 2     paragraph 57.

 3             The Trial Chamber did not establish with -- all the members of

 4     the JCE and Slobodan Praljak, inter alia, agreed to the common criminal

 5     purpose.  It did not even establish whether they were informed of such an

 6     expansion.  What crimes were included in this expanded enterprise?  This

 7     time the Trial Chamber cited a multitude of crimes, paragraph 66, but in

 8     the following paragraphs, paragraph 67 of volume 4, the Trial Chamber

 9     held that the members of the JCE knew that most of the crimes -- most of

10     these crimes were committed and intended to have these crimes committed.

11             Most of these crimes.  Which crimes are included in the term

12     "most"?  A judgement rendered by a criminal court must be specific which

13     is not the case; it is not specific, unintelligible, confused,

14     contradictory.  For a member of a JCE to be held responsible for crime

15     committed by another, this crime must be part of a common criminal

16     purpose.  Appeal judgement Brdjanin, paragraph 418.  And to determine

17     whether a crime is a part or is not part of a common criminal purpose,

18     such a crime must be clearly established, which is not the case in this

19     particular case.

20             Beyond the fact that the initial common purpose or its supporting

21     from a legal point of view were not properly established, the Trial

22     Chamber made a factual mistake by ignoring the relevant facts.  I'm

23     talking here about the broadening or extension of the JCE.  Even if the

24     Trial Chamber established that in June 1993 the ABiH was attacking HVO

25     positions, judgement, volume 2, paragraph 880; and volume 4,

Page 384

 1     paragraph 57, it decided without any valid reason not to take this into

 2     account.  If the Trial Chamber had taken into account the attack launched

 3     by the ABiH over HVO in June 1993, it should have held that the

 4     subsequent events were the consequence of this attack.  In this case, the

 5     Trial Chamber would not have needed the imaginary common plan that

 6     created only on the basis of the Prosecution's allegations, but the

 7     Prosecution's allegations are no evidence and do not demonstrate facts.

 8             For the sake of clarity, I would like to add that the attacks of

 9     the ABiH do not warrant any crime committed in response to these attacks,

10     but they shed another light on the situation and explain differently the

11     events.  These attacks cannot be ignored; they must be taken into account

12     if one is to properly assess the facts.

13             The Trial Chamber made findings but it instantly forgot them.

14     The Trial Chamber's conclusions are particularly unclear but also

15     contradictory with regard to Slobodan Praljak.  Indeed, according to the

16     Trial Chamber's findings, the common criminal purpose would have been

17     enlarged in June 1993 with the siege of East Mostar and was mainly

18     implemented in Mostar.  Judgement, volume 4, paragraphs 57 and 59.

19             And the same Trial Chamber held that there is no evidence about

20     the role that Slobodan Praljak played in these events in Mostar before 24

21     July 1993, judgement, volume 4, paragraph 577.  Hence, when and where

22     Slobodan Praljak could have received the information about the

23     enlargement of the common criminal purpose is still a mystery.  So is the

24     fact that Slobodan Praljak had or not adhered and joined this extended

25     purpose or whether he contributed to it in any other way.  And since this

Page 385

 1     information is unknown, Slobodan Praljak can only be acquitted for the

 2     crimes that he would have committed through his participation to the JCE.

 3             We do not know either how the Trial Chamber reached the

 4     conclusion that leaders of the Republic of Croatia were part of the JCE.

 5     Once again, the findings of the Trial Chamber are contradictory.  Indeed,

 6     the Trial Chamber held that President Tudjman supported the

 7     Bosnia-Herzegovina division by incorporating part of it in Croatia or,

 8     alternatively, with the establishment of an autonomous Croat entity

 9     within the BiH.  Judgement, volume 4, paragraph 10.

10             The establishment of an autonomous Croat entity within BiH does

11     not imply splitting it and directly contradicts the conclusion of the

12     Trial Chamber that President Tudjman supported the Bosnia-Herzegovina

13     division.  Besides, dividing Bosnia-Herzegovina was not some invention of

14     President Tudjman because he always opposed to this division.  I'm

15     referring here to P6454, page 2.  Dividing Bosnia-Herzegovina was one

16     option proposed by the international community.  So once again, the

17     international community raised this issue.  P108, page 48.

18             The Defence indicated in its appeal brief, Ground 5, paragraphs

19     70 to 88 -- so the Defence indicated that all the documents showing

20     without any ambiguity that President Tudjman continuously advocated for

21     internationally recognised borders of Bosnia-Herzegovina and against any

22     separatist intention.  President Tudjman's motives are not important.

23     His personal opinions or beliefs are not important.  What matters in

24     criminal proceedings are actions an intentions, and both fully -- and

25     both show that full support to independent sovereign Bosnia-Herzegovina

Page 386

 1     within the internationally recognised borders.

 2             When Bosnia-Herzegovina was recognised, President Tudjman made

 3     everything he could to co-operate with Muslims.  P134.  Even if some

 4     international bodies kept on considering for their own interest dividing

 5     Bosnia-Herzegovina, 1D896, page 3, President Tudjman or Croatia never

 6     supported this option.  Unfortunately, the majority of the Trial Chamber

 7     showed complete misunderstanding of the historical background in the

 8     Balkans, hence the wrong inferences regarding President Tudjman's

 9     statements about a Croatian Banovina.  Judgement, volume 4, paragraph 22.

10             In order to fairly grasp what Tudjman meant, one has to know a

11     little bit of history.  Banovina was only an administrative region

12     created in 1939 with the Kingdom of Yugoslavia in order to find a

13     solution to the Croat question which was already raised at the time, and

14     the Kingdom of Yugoslavia was made up of several Banovinas and the

15     Croatian Banovina was only one of them.  And when President Tudjman

16     referred to Banovina, he does not refer to an independent state and

17     sovereign state but to a whole territory; and actually, it does not even

18     include all the territories, all the current territories, of Yugoslavia.

19     There is it no Istria, no Baranja, nor Dalmatian Coast.  So why, why

20     would President Tudjman have wanted to recreate this Croatian Banovina?

21     This is completely preposterous.

22             The Trial Chamber also ignored the fact that until April 1992,

23     Bosnia-Herzegovina was no independent and sovereign state in the sense of

24     international law.  Bosnia-Herzegovina was part of Yugoslavia, which was

25     disintegrating.  The discussions and talks that happened before

Page 387

 1     Bosnia-Herzegovina claimed its independence have to be assessed within

 2     this context.  In 1991 until April 1992, nobody knew whether it would

 3     become independent or not.

 4             The Trial Chamber assumed - wrongly and without any tangible

 5     evidence - that President Tudjman planned to divide Bosnia-Herzegovina;

 6     and afterwards, it assessed all the evidence in light of this erroneous

 7     presumption, which led it to ignore President Tudjman's statements or

 8     misconstrue their meaning.  This approach of the Trial Chamber culminated

 9     with the erroneous and completely unreasonable conclusion that civil

10     servants of the Republic of Croatia would have been involved in a JCE.

11     Same for the Trial Chamber's conclusions that President Tudjman would

12     have been the real leader of the Croat of Bosnia-Herzegovina delegation

13     in January 1993.  The evidence in this case merely show that Tudjman was

14     in London.  Transcript page 16673.  And there's a gap, being present and

15     participating.  There is a gap between taking part in negotiations and

16     leading a delegation.  And those gaps, the Trial Chamber did not even try

17     to fill those gaps.  But beyond all this evidence, transformation, the

18     very conclusions of the Trial Chamber are confused and contradictory.

19     Indeed the Trial Chamber could never include the leaders of the Republic

20     of Croatia within the common criminal purpose; they didn't even try to do

21     it.  It only claimed that the leaders of the Republic of Croatia, among

22     others President Tudjman, supported the creation of an independent or

23     autonomous Croat entity in the territory of Bosnia-Herzegovina.  The

24     leaders of the Republic of Croatia do not appear in the common criminal

25     purpose; and in all paragraphs referring to this plan, the Trial Chamber

Page 388

 1     only mentions HVO leaders - wrongly once again - but it only mentions

 2     them or Croat community leaders in Herceg-Bosna.

 3             In reviewing the common criminal plan, the Trial Chamber never

 4     mentioned Minister Susak or General Bobetko, who would have been members

 5     of the JCE.  President Tudjman is only mentioned twice but in a context

 6     that puts him not within the JCE, but as the contact person of the

 7     international community - judgement, volume 4, paragraph 49 - or

 8     attending a meeting with President Izetbegovic, paragraph 52.  This is

 9     not enough to infer that leaders of Republic of Croatia were part of a

10     JCE.  Besides the Trial Chamber excluded itself the leaders of the

11     Republic of Croatia from the common criminal purpose when it held that

12     the crimes were the result of a plan established by the leaders of the

13     HZ HB.  Judgement, volume 4, paragraph 65.

14             Croatian leaders simply disappeared.  It also excluded them

15     from ... from -- sorry.  Strike this.

16             It also excluded them of any criminal purpose when it held that

17     leaders of HVO gave some criminal interpretation to the political plan

18     envisaged by the leaders of the Croats in Bosnia and some leaders of the

19     Republic of Croatia.  These conclusions of the Trial Chamber confirm that

20     the leaders of the Republic of Croatia could have pursued some political

21     objectives, but these conclusions do not show any criminal intent or

22     criminal objective and cannot place them within a JCE.

23             Your Honours, with all due respect, you have -- this Tribunal has

24     jurisdiction to ... you have jurisdiction to judge -- [No interpretation]

25             THE INTERPRETER:  Apologies for this.

Page 389

 1             MS. FAUVEAU-IVANOVIC: [Interpretation] This Tribunal was given a

 2     mandate but it has no jurisdiction over political party, over the people,

 3     and even less over a sovereign state.  The Trial Chamber is bound to

 4     establish some evidence in order to convict an accused on the basis of a

 5     JCE.  One could accept that these strict criteria cannot be held against

 6     alleged members of the JCE who are not accused.  Nevertheless, it would

 7     be problematic to involve through JCE people who cannot defend

 8     themselves, and this all the more problematic when those people held

 9     high-level political or military functions within an independent state.

10     Their implication in a criminal enterprise could have extremely serious

11     consequences because it could make a state liable.  As a consequence, the

12     Trial Chamber cannot be satisfied with a general statement without any

13     tangible proof which actually contradicts other findings that it made.

14             Similarly, the same mistakes -- or the Chamber erred with regard

15     to Slobodan Praljak.  The Trial Chamber held that Slobodan Praljak

16     assisted and attended meetings with some leaders of the Republic of

17     Croatia.  Judgement, volume 4, paragraph 522.  But according to the Trial

18     Chamber, Croatian leaders did not participate or were not involved in the

19     establishment of the common criminal purpose.  Judgement, volume 4,

20     paragraph 44.  So these meetings cannot lead to the conclusion that

21     Slobodan Praljak was involved in any way to the joint criminal

22     enterprise.

23             The Trial Chamber also tried to establish that Slobodan Praljak

24     was implementing in Bosnia-Herzegovina a policy established by the

25     Republic of Croatia.  Judgement, volume 4, paragraph 527.  But the Trial

Page 390

 1     Chamber could find no criminal element in the policy of Croatia.  As a

 2     consequence, implementing such a policy - which in any way was not

 3     evidenced - does not demonstrate in any way that Slobodan Praljak

 4     participated in the common criminal purpose.  Paragraph 525 of the fourth

 5     volume of the judgement is also completely incomprehensible.  How could

 6     Slobodan Praljak have implemented in 1992 - 1992, Your Honours - the

 7     common plan that was only established in 1993?  Actually, over the

 8     relevant period for Slobodan Praljak, between January and November 1993,

 9     the Trial Chamber could only establish that he attended two meetings.

10     Judgement, volume 4, paragraph 523.

11             These meetings can in no way be linked to the common plan and

12     cannot be used as evidence showing that Slobodan Praljak was

13     participating in a JCE.  The first of these meetings was held on 15

14     September 1992, and its objective was to convince the representatives of

15     the Herceg-Bosna Croat community to endorse the agreement with the

16     Muslims in order to find a peaceful solution.  At this meeting, Praljak

17     only explained the situation in the field and his intervention had the

18     same purpose as the whole meeting:  Finding a solution that would end

19     fighting between Muslims and Serbs.  P5080, pages 11 to 23.

20             The objective of the second meeting was the same:  Implementing

21     agreement with the Muslims.  P6454, page 3.  And once again, in his

22     intervention, Slobodan Praljak only described the situation in the field.

23     Actually, and to put it simple, the whole case - as lengthy as it may

24     be - has no evidence that Slobodan Praljak knew, one way or the other,

25     that there was a common plan in January 1993 or he knew later that such a

Page 391

 1     plan existed.  According to the Trial Chamber, Slobodan Praljak shared

 2     the intent, along with other members of the JCE, the intent to

 3     permanently remove the Muslim population from the Croat Community of

 4     Herceg-Bosna.  The Defence contends this conclusion because there is no

 5     evidence to support this.  Nevertheless, from this intent, which is the

 6     only inference that the Trial Chamber -- of fact that the Trial Chamber

 7     established, Slobodan Praljak cannot be convicted on the basis of JCE for

 8     crimes against humanity because he can only be held reliable for crimes

 9     related to the displacement of the population.  He should be -- his

10     conviction could be -- should be annulled for all the other grounds.  For

11     such conviction to be possible, the Trial Chamber should have established

12     that the crimes were within the framework of a common plan and that

13     Slobodan Praljak shared, along with other members of the JCE, the intent

14     of committing each of those crimes, but it did not do so.

15             The Trial Chamber did not properly establish how Slobodan Praljak

16     contributed to the common plan.  It held that Slobodan Praljak

17     facilitated and led the military operations in Gornji Vakuf in

18     January 1993.  Judgement, volume 4, paragraph 558.  But the participation

19     of the accused in military operations which are inherent to any armed

20     conflict is not enough to hold an accused -- or to hold that an accused

21     was contributing to a common plan.  And besides, Slobodan Praljak's

22     activities in Gornji Vakuf were aimed at easing the tension.  The famous

23     15 January 1993 ultimatum was drafted in the night between 13 to 14

24     January 1993 in Zagreb, in the presence of Lord Owen, Cyrus Vance, and

25     Alija Izetbegovic.  Judgement, volume 4, paragraph 475.  Praljak went to

Page 392

 1     Bosnia-Herzegovina at the joint request of President Tudjman and

 2     Alija Izetbegovic, the president of Bosnia-Herzegovina, P1739, 3D561.

 3     And the Trial Chamber acknowledged that Praljak was the envoy of

 4     President Tudjman and Alija Izetbegovic.  Volume 4, paragraph 534.

 5             The presence of two parties as well as representatives of the

 6     international community shows that the document was drafted without any

 7     criminal intent; on the contrary, in the hope that the conflict could be

 8     prevented.

 9             The Trial Chamber ignored the basic legal principles because it

10     concluded that there was no specific information about the instructions

11     that Praljak could have done to -- could have given to HVO.  Judgement

12     volume 4, paragraph 559.  It held that Slobodan Praljak was involved in a

13     common plan.  And the situation was the same for Prozor, because the

14     Trial Chamber could not find for Slobodan Praljak the requisite intent

15     necessary for JCE 1.  Judgement, volume 4, paragraph 573.  And once

16     again, the Trial Chamber changed the positive actions of Slobodan Praljak

17     aimed at preventing any criminal act into contributing to JCE.

18             On 17 August 1993, Slobodan Praljak ordered that all prisoners be

19     taken off labour.  In other words, he forbade prisoners' labour, P4260.

20     This order does not indicate that Slobodan Praljak knew that unlawful

21     work was going on for prisoners since that, according to the Third

22     Geneva Convention, prisoners' labour is not unlawful, as such.  But

23     against all odds, the Trial Chamber inferred from this document that

24     Slobodan Praljak knew that prisoners were used for labour on the front

25     line, which is indeed forbidden and prohibited.  Judgement, volume 4,

Page 393

 1     paragraph 574.

 2             As for Mostar, Your Honour, I already said that the Trial Chamber

 3     held that he played no role, no role at all, in Mostar until 24

 4     January -- July - sorry - 1993.  The JCE is not an open-ended concept

 5     that allows for conviction by simple association.  The accused that takes

 6     part in a JCE of course does not have to take part in the actus reus, but

 7     he must play a role; he must be involved in the implementation of the

 8     common plan.  And the Trial Chamber held that Slobodan Praljak played no

 9     role, no role.

10             With regard to the role that Slobodan Praljak played in Mostar

11     after 24 July 1993, the Trial Chamber continued to change the evidence

12     and to misinterpret them.  It held that Slobodan Praljak ordered to get

13     rid of Muslim terrorists in Mostar.  Judgement, volume 4, paragraph 579.

14     Although getting rid of terrorists shouldn't take anyone by surprise,

15     it's quite surprising that the Trial Chamber gave it some importance.

16     And actually Slobodan Praljak's order was quite precise and specific; he

17     ordered to eliminate terrorist groups of the Muslim armed forces.  And

18     this order was totally lawful and legitimate.

19             With regard to the role that Slobodan Praljak played in Vares -

20     and my learned friend will give you more details about this - the

21     conclusions of the Trial Chamber are contradictory, confused, and not

22     really clear.  Judgement, volume 4, paragraphs 61 and 524.  Once again,

23     the Trial Chamber did not assess the evidence the way it should have done

24     it by hastily concluding that Slobodan Praljak was contradicting himself

25     and ignoring testimonies of Slobodan Praljak and Milivoje Petkovic that

Page 394

 1     confirmed the same information.  Judgement, volume 3, paragraph 324.

 2             The Trial Chamber made a series of errors with regard to the role

 3     that Slobodan Praljak played in the detention centres.  The only thing

 4     that the Trial Chamber could establish was that Slobodan Praljak was

 5     willing to improve detention conditions, as well as his willingness to

 6     implement and enforce Geneva Conventions.  Judgement, volume 4,

 7     paragraphs 602, 603, 607, 608, 611, and 612.

 8             In this situation where Slobodan Praljak was doing his utmost to

 9     implement the Geneva Conventions, the Trial Chamber could not establish

10     the necessary mens rea in order to convict him for JCE 1, but it

11     convicted Slobodan Praljak for crimes that would have been committed in

12     the Dretelj and Gabela centres on the basis of JCE 1.  And my colleague

13     will give you further information if need be.

14             There is no doubt that Slobodan Praljak was participating in the

15     military activities of HVO between 24 July and 9 November 1993, because

16     this was his duty over this period; but this is not enough to establish

17     his contribution to the JCE.  And the Trial Chamber should have

18     established that Slobodan Praljak was acting and had the intent of

19     pursuing the common plan - Tadic appeal judgement, paragraph 229 - and it

20     did not do so.  The method that the Trial Chamber applied led it to make

21     an absurd finding, since the Trial Chamber ended up considering the

22     positive actions that Slobodan Praljak undertook in order to ease the

23     situation, to prevent crimes, to bring peace, and to alleviate civilians

24     as a contribution to the common plan.

25             Your Honours, war is no child's play.  War is cruel and crimes

Page 395

 1     are part of it.  There is no such thing as a clean war.  And as long as

 2     international law does not prohibit wars as such, crimes will be

 3     committed over their course.  This doesn't mean that one should accept

 4     them and even less that the perpetrators shouldn't be convicted, but

 5     those who intended to commit them should be convicted.  No one should be

 6     expected to do the impossible and throughout the whole war,

 7     Slobodan Praljak worked to end the convict.  Throughout the war he fought

 8     against crimes, and some decisions he made required bravery in this

 9     context and at the time.  He did what he could do and never had any

10     criminal intent, not even a criminal thought.  And by the way, the

11     Trial Chamber could never establish that.  So the Trial Chamber did not

12     properly assess the evidence.  It did not properly establish facts.  It

13     did not properly enforce law and did not give us any reasons for this

14     decision.  All we are asking for today is that the evidence is properly

15     assessed in this case and that the applicable law be properly enforced

16     for the properly established facts.

17             I thank you for your attention.  I now give the floor back to the

18     lead counsel.

19             JUDGE AGIUS:  Thank you.

20             Ms. Pinter, you have more or less three-quarters of an hour.  We

21     will stop at half past 11.00.  Thank you.

22             MS. PINTER: [Interpretation] Thank you, Mr. President.  I'm going

23     to try to finish within my time.

24             Mr. President, Your Honours, I'm going to begin by replying to

25     your questions.  After that, I'm going to draw the attention of the

Page 396

 1     Appeals Chamber to procedural and factual errors of the Trial Chamber

 2     that we referred to in our appeal which we consider to be exceptionally

 3     important due to the consequences they have had, which are that

 4     General Praljak did not have a fair trial.

 5             Dr. Prlic's Defence and Mr. Stojic's Defence responded to

 6     questions that you put to Defence counsel, and I join with their

 7     arguments and the answers to the questions that they gave.  I'm going to

 8     discuss questions 3, 4, 5, 6, and 7.

 9             We have addressed all the legal and factual errors of the

10     Trial Chamber regarding the elements of the crimes for which

11     General Praljak, in relation to Gornji Vakuf and Uskoplje was convicted,

12     and we have covered those in our grounds of appeal 11, 12, 13, 14, and

13     15.  We have stated our position in Ground 38 about the sustainability of

14     conclusions regarding JCE 3.

15             Question 3 that you have put has already been given an answer by

16     the Defence of Mr. Stojic in their oral submissions.  Here, I would just

17     like to stay that the conclusion of the Trial Chamber was not explained

18     in an understandable way as to the evidence beyond a reasonable doubt

19     that enabled the establishment of the intent to hurt or murder civilians.

20     The Trial Chamber did not have these -- this evidence because the

21     Prosecution did not present them, evidence which could justify such a

22     conclusion.  The Trial Chamber did not establish the preconceived plan

23     and what its contents were, when, where, and with whom Slobodan Praljak

24     planned the military operations; did he, when, and from whom did

25     Slobodan Praljak receive any information regarding the particulars and

Page 397

 1     the results of the conflict between the ABiH army and the HVO.  In other

 2     words, did he know that civilians were killed in the combat operations in

 3     the village of Dusa?

 4             The Trial Chamber did not establish that the HVO fired the shell

 5     at the house on Enver Sljivo, and therefore it was not able to establish

 6     that the HVO had the requisite intent to inflict grave injuries and that

 7     he could have anticipated that civilians would be killed, the civilians

 8     who happened to be in the house of the commander of the ABiH unit.  The

 9     Trial Chamber did not establish - it did not have evidence to that

10     effect - that members of the HVO knew that there were civilians in the

11     house of the ABiH army commander, a house which was located immediately

12     next to a dug-in bunker, as shown in Exhibit 3D00527, P01213, and

13     paragraph 359 of volume 2 of the judgement.  There were 25 members,

14     soldiers, of the BiH army in the bunker.  There is no evidence, nor could

15     it have reasonably been concluded, that the soldiers or members of the

16     HVO in such a situation could have foreseen that there was civilians in

17     an army commander's house.

18             I also have to mention - and this is important in your assessment

19     of the events in the village of Dusa - that the bunker which was next to

20     the house in the village of Dusa, the house that belonged to the BiH army

21     commander, fires were shot at members of the HVO; and this can be seen in

22     exhibit 3D00527.  It's a document dated the 16th of January, 1993, where

23     it states that there were 25 soldiers of the BiH army.  It also talks

24     that the bunker was next to a large house, there was a dugout next to the

25     house, and that there were fired shots from there too "at our boys."

Page 398

 1     This is a quotation from a document.

 2             We have written in our grounds of appeal 12.2 about the intention

 3     to cause the death of civilians in the house of Enver Sljivo.

 4             I would just also like to say the following regarding question 3.

 5     The presence of the Croatian army in January 1993 was established through

 6     the fact that the soldiers who entered the village spoke Croatian.

 7     Exhibit P09202, Rule 92 statement by Enver Sljivo, who -- as my previous

 8     speakers have said, he was not subjected to a cross-examination.  His

 9     statement was admitted as a written one, so he said that that was the

10     Croatian army and he established this because they spoke Croatian, based

11     on that fact.  People in Bosnia and Herzegovina, particularly in

12     Herzegovina, Croatian people, speak the same sort of Croatian spoken by

13     Croats from Croatia.  So the fact that a person or persons who entered a

14     village spoke Croatian cannot be used as evidence of the presence of the

15     Croatian army in the village of Dusa on the 18th of January, 1993.  The

16     specific error that the Trial Chamber committed regarding the charges for

17     the village of Dusa is an error in law.  My colleague Mr. Khan addressed

18     this in his submissions, so I absolutely agree with his arguments.

19             And now question number 4.  Your question states:

20             "If the Trial Chamber finding on the intent of HVO forces with

21     regard to the deaths of civilians who had taken refuge in Enver Sljivo's

22     house in the village of Dusa is overturned and if this finding that this

23     incident constituted the crimes of murder and wilful killing are

24     consequently reversed, the impact on the following."

25             So what would it have -- what effect would it have on the common

Page 399

 1     criminal purpose in terms of JCE 3?  The position of the Defence is the

 2     following.  In that case, the events in Gornji Vakuf cannot be considered

 3     as crimes under JCE and a common criminal plan.  They should be viewed as

 4     an incident between the HVO and the BiH army at the municipal level due

 5     to disagreements between Croats and Muslims, which disagreements led to a

 6     conflict, which then did not spread to the entire area of the HZ HB,

 7     which should have happened if there had been a plan to cleanse the space

 8     and free it up for Croats by removing the Muslims.  In order to have such

 9     a common criminal purpose, the conflict would have continued in other

10     areas.  However, following the 18th or the 22nd of January, when the

11     conflicts in Gornji Vakuf ceased, there were no longer any more conflicts

12     until later when the Army BiH began an offensive.

13             In paragraph 45 of volume 4 of the judgement, the Trial Chamber

14     concludes the following in relation to Gornji Vakuf and Uskoplje.

15             As the HZ HB leaders were participating in peace talks, the HVO

16     conducted military campaigns in the provinces it considered Croatian in

17     order to consolidate its presence here.  I'm now quoting from the

18     judgement.  Consolidating presence cannot in any way be part of the

19     implementation of any plan, particularly not if such an assertion is

20     taken out of context.  The Trial Chamber's conclusion does not follow

21     from its reasoning and does not reply to the question why events in

22     Gornji Vakuf and Uskoplje are considered to be part of a common criminal

23     plan.  They do not answer the questions of when and how that plan was

24     conceived.  The position of the Defence in the proceedings and in the

25     appeal is always the same:  There was no JCE, there was no criminal plan.

Page 400

 1     The real open and general war between the HVO and the BH army began in

 2     June 1993 when the BiH army offensive began in Central Bosnia, and then

 3     in September, along the valley of the Neretva River spreading to

 4     Herzegovina.  In the course of the conflict between two armies of one

 5     state, crimes did occur.  We never contested that.  But they were not

 6     part of a criminal plan.  Regrettably they were a consequence of the

 7     extraordinary and chaotic situation caused by war.  As my learned friend

 8     said, crimes are part of war, unfortunately.

 9             The (b) part of the question, the mens rea of Praljak for murder

10     under the first category of joint criminal enterprise.  To that, the

11     response -- the Defence provided its response in Ground 12, errors that

12     relate to the military action in the village of Dusa.  I emphasise here

13     that the presence of members of the BiH army in the village of Dusa -

14     with whom the HVO was in conflict from the 11th of January, not from the

15     18th of January - provides legitimacy to the military actions of the HVO.

16     It was not unlawful and it was, in particular, not directed against the

17     civilian population.  If it were really a small number of BiH army

18     soldiers or defenders of the village, as they are referred to in the

19     judgement, then the conflict would not have lasted two days.  It would

20     have been completed in a much shorter period of time.

21             The Trial Chamber did not have evidence through which it could

22     establish that Praljak knew that there was civilians in the house of the

23     BiH army commander.  Therefore, he could not have the intent for killing.

24     Also, there isn't a single exhibit that the Trial Chamber mentioned in

25     its judgement based on which it would be able to conclude that Praljak

Page 401

 1     could have known there was civilians in Enver Sljivo's house instead of

 2     members of the ABiH army.  This is paragraph 342, volume 2 of the

 3     judgement.

 4             Thus, in a local conflict which Praljak tried to calm down - and

 5     we heard that from my colleague Ms. Fauveau - civilians were killed from

 6     a shell which we don't know who fired; the Trial Chamber did not

 7     establish that.  Therefore, all available evidence does not provide the

 8     opportunity to conclude beyond a reasonable doubt that Praljak intended

 9     for civilians to be killed, that he knew that there were civilians in the

10     village, that he ordered that civilians be killed, that he in any way

11     willingly, deliberately, or by omission caused the death of civilians who

12     were in the house of the BiH army commander, next to which there was an

13     entrenched unit of the BiH army which was firing at members of the HVO.

14             Now we're talking about (c), which is part of question 4, and

15     your question is the mens rea of Praljak for murder under the third

16     category of joint criminal enterprise invites Praljak further to discuss

17     along with other relevant evidence not on the trial record, if any, the

18     significance of Zeljko Siljeg's report of 28 -- 29th January, 1993.  This

19     is Exhibit P01351.  In relation to -- this is the position of the Defence

20     in relation to JCE 3.  We believe that if there is no JCE there can be no

21     JCE 3 either.  In responding to this question, we know that the analysis

22     of available evidence does not permit a decision on Praljak's criminal

23     intent:  The intent to begin a conflict with the BiH army and, in

24     particular, to commit crimes.  Praljak could not have known, nor should

25     he have known, nor could he have foreseen that murders would be

Page 402

 1     committed.  Exhibit P1351 is a report on the situation in Vakuf on the

 2     28th of January, 1993; it was drafted after the conflicts stopped.

 3             A joint commission of the BiH army and the HVO established the

 4     effects of the conflict and the damage caused during the combat.  That is

 5     what it says in the document.  Two houses were damaged from shelling,

 6     were destroyed in the village of Uzricje; two houses were destroyed in

 7     the village of Dusa; and one house suffered minor damage in the village

 8     of Luzane.  If there were a joint criminal plan, as stated in the

 9     judgement, one could then ask:  Why would the HVO have a joint commission

10     with the BiH army?  Why would they establish the effects of the clash

11     together, the damage caused?  And why ultimately the civilians returned

12     to their homes?  If there was a common criminal plan to create a

13     territory dominated by Croats, why were military operations halted?  Why

14     were Gornji Vakuf and Uskoplje not captured when it was possible?  And

15     why attempt to jointly assess the consequences of the conflict at all?

16             Additionally, the document also shows that there was no common

17     criminal plan that would encompass the conflict in Gornji Vakuf and

18     Uskoplje since the document shows the following.  I'm of the opinion that

19     the question of Gornji Vakuf must be resolved as soon as possible and at

20     a higher level, unilaterally or bilateral, because a single shot could

21     re-trigger the war.  Calling for a solution at a higher level at

22     Gornji Vakuf and Uskoplje shows without doubt that there was no common

23     criminal plan or a JCE; because had it existed, the drafter of the

24     document would not be asking that the issue of Gornji Vakuf and Uskoplje

25     be resolved at a higher level.  Rather, they would militarily defeat the

Page 403

 1     army by continuing military operation and would have captured

 2     Gornji Vakuf and Uskoplje.

 3             In reference to the village of Dusa, an important fact from this

 4     document is that it was verified, that 23 soldiers were detained.  These

 5     were not defenders of the village; these were soldiers of the BiH army,

 6     and that is why we do not accept the qualification of the Trial Chamber

 7     that these were village defenders.  Also in the document there is

 8     another -- there were 23 soldiers there who were captured, and the

 9     Defence does not accept the qualification of the Trial Chamber that these

10     were defenders of the village.  The Defence asserts that these were

11     members of the BiH army, regular soldiers.

12             Another thing that the document states that is worthy of your

13     attention is the fact that the author of the document states that

14     somebody fired a recoilless gun at Enver Sljivo's house in which women

15     and children were killed.  The author of the document notes - and he is a

16     member of the HVO - the following:

17             "We did not have a recoilless gun."

18             The Trial Chamber did not actually establish what type of

19     artillery weapon fired the shell that had such a tragic result.

20     General Praljak received information by the 22nd but he did not receive

21     information in this document because on the 29th of January, 1993, was no

22     longer in Gornji Vakuf.  The document was not sent to him.  He has no

23     knowledge about the consequences of the armed conflict between the BiH

24     army and the HVO in the village of Dusa.

25             After facts are established, they are interpreted according to

Page 404

 1     the law.  For the sake of argument, because the Defence holds that JCE 3

 2     does not exist at all, the JCE 3 mode of liability cannot be applied to

 3     the facts the Trial Chamber established in relation to death of civilians

 4     in the village of Dusa.

 5             And now my response to question 5.  I am skipping some things

 6     because of a lack of time.  The question states:

 7             "The basis for the Trial Chamber's finding that the property

 8     destruction caused during the attacks on the villages of Dusa, Hrasnica,

 9     Zdrimci, and Uzricje was wanton and not justified by military necessity

10     and whether there would be any effect if this finding were overturned on

11     the finding that the property destruction caused during attacks on

12     several localities in Gornji Vakuf municipality was extensive."

13             The conclusions of the Trial Chamber that the destruction of

14     property during the attack on the villages of Dusa, Hrasnica, Zdrimci,

15     and Uzricje was wanton and not justified by military necessity are not

16     based on the evidence.  The Trial Chamber had evidence that in the area

17     of Gornji Vakuf, Uskoplje municipality, there were incidents, conflicts,

18     between the HVO and the BiH army that in said places and facilities there

19     were members of the BiH army who took an active part in the conflict.

20     That on the 11th of January and the 12th of January, 1993, conflicts

21     began between the BiH army and the HVO, and they occurred in the villages

22     of Dusa, Hrasnica, Zdrimci, and Uzricje on those dates.  This is volume

23     2, paragraph 336 of the trial judgement.  In the same paragraph the Trial

24     Chamber notes that Serbian forces also participated in the conflict, but

25     the Trial Chamber did not establish what the damage was that was

Page 405

 1     inflicted by members of the HVO.

 2             The Trial Chamber did not establish who and when -- damaged the

 3     property.  This is volume 2, paragraph 352.  The Defence holds that the

 4     only conclusion -- the Defence holds that it was not established beyond a

 5     reasonable doubt that the destruction of property was excessive, as it

 6     was not established that the destruction of property was wilful.  It

 7     could not have been established that it was excessive.  We dealt with

 8     this in Ground 11 of our appeal.

 9             I would like to ask the interpreters to say when I say

10     Gornji Vakuf, Uskoplje, for them to write Gornji Vakuf, Uskoplje, because

11     that is it the official name of the town or the village.

12             Response to question 6 as to whether the evidence with particular

13     reference to Exhibits P06068 and P06073 establishes that Praljak knew

14     that UNPROFOR was seeking access to Stupni Do between the 23rd and the

15     25th of October, 1993, and that he sought to prevent such access -- that

16     Praljak sought to prevent such access.  This is a question to be dealt

17     with by the Defence of Praljak and the OTP.  In order to answer this

18     properly, I would like to ask for a closed session, since I'm going to be

19     dealing with documents under seal and with allegations made during closed

20     session.

21             JUDGE AGIUS:  Okay, let's go in closed session, please.

22             Wait, wait, wait.  Wait.  We are not yet in closed session.

23                           [Private session]

24   (redacted)

25   (redacted)

Page 406











11 Pages 406-407 redacted. Private session.















Page 408

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

 5             JUDGE AGIUS:  Thank you.  We are in open session.

 6             MS. PINTER: [Interpretation] Document P6073 is information

 7     Milivoje Petkovic is sending to Slobodan Praljak to the Main Staff of the

 8     HVO in Citluk.  From the document General Praljak learns that the UN is

 9     requesting the transfer of 45 tonnes of explosives from the Sarajevo

10     airport and about 25.000 detonators allegedly for the construction of a

11     road in the Kakanj sector.

12             "I am concerned that this might be intended for the Muslims.

13     Serbs for now are not allowing them permission for in transport."

14             Among other things the information says:

15             "Firing by our side chased the UN away.  I'm trying to reverse

16     the situation."

17             This is a document from the 25th of October, 1993.

18             General Praljak does not find out from this document that the UN

19     is seeking access to Stupni Do, but he does find out that UN is asking to

20     transfer large quantities of explosives.  Document P6068 also from the

21     25th of October, 1993, is signed by General Praljak and it is a --

22     evidently response from questions from document P6073.  Item 3 of the

23     document says that the UN request for the transfer of explosives should

24     not be allowed until further notice through our territory and that

25     Milivoje Petkovic should do everything to show that we did not chase the

Page 409

 1     UN away from Vares.  So there is nothing there about Stupni Do and

 2     preventing the entrance to Stupni Do.  Praljak did not find out that

 3     UNPROFOR sought access to Stupni Do.  General Praljak on the 25th of

 4     October, 1993, didn't even know that there was a crime committed in

 5     Stupni Do.  Volume 4, paragraph 641 of the judgement.

 6             As for relations with UNPROFOR, Slobodan Praljak evidently

 7     approved of the actions of Petkovic directed at -- rectifying the

 8     situation in relation to UNPROFOR.  Document D6063 is an order by

 9     Milivoje Petkovic on the 24th of October, 1993, at 2315 hours.  It is

10     sent to the commander of the Bobovac Brigade, requesting that all

11     activities towards UNPROFOR cease and that UNPROFOR must be given

12     unimpeded access and movement so there is no possibility here, either by

13     Praljak or Petkovic, to restrict movement by UNPROFOR.

14             Exhibit P06078 is a request sent from the Main Staff of the HVO,

15     Milivoje Petkovic, on the 25th of October, 1993, to the commander of the

16     Bobovac Brigade and Ivica Rajic, asking to have information, true

17     information, about Stupni Do submitted by 9.00 the next morning.  So they

18     don't know what happened in Stupni Do.  Therefore, the response to your

19     question is that General Praljak did not know that UNPROFOR was being

20     prevented from accessing Stupni Do, that he did not know that crimes were

21     committed.  Therefore, regarding Stupni Do, his responsibility cannot be

22     accepted.

23             Again, I say --

24             JUDGE AGIUS:  You have eight minutes left.  You have eight

25     minutes.

Page 410

 1             MS. PINTER: [Interpretation] I would kindly ask to have an extra

 2     two minutes, perhaps -- ah, perhaps it is because of the tape.  I did

 3     lose some time still.  Would I be able to have a little bit of extra time

 4     after the break perhaps, Your Honour?

 5             JUDGE AGIUS:  I'm actually informed that we have only seven

 6     minutes of tape left, so you have to stop after seven minutes.

 7             I'll confer with my colleagues to see if we can give you an extra

 8     three minutes after the break.

 9             MS. PINTER: [Interpretation] Would it be possible to have some

10     time after the break?  Three minutes?

11                           [Trial Chamber confers]

12             JUDGE AGIUS:  Prosecution.

13             MR. STRINGER:  Excuse me, Mr. President.  Yes, while we're

14     discussing the time, could I make one request or suggestion.  If indeed

15     General Praljak is going to make submissions at some point in the scope

16     of the appeal, could I suggest that rather than it be -- being done

17     during the reply time, if he could just use some of their reply time in

18     response then, if necessary.  It would enable the Prosecution to then

19     respond to whatever submissions he makes as well.

20             JUDGE AGIUS:  Well, I can't create -- review the schedule.  What

21     my suggestion is, if Madam Pinter requires an extra five minutes, we can

22     grant her five minutes after the break before you start.  But that means

23     she has five minutes -- they have five minutes less for the time allotted

24     for the reply.  And that's the beginning and the end of the story.  Okay,

25     thank you.

Page 411

 1             So, Madam Pinter, please proceed.  I will ask you to stop in five

 2     minutes' time or however much time we are left -- yeah, four to five

 3     minutes' time, four to five minutes' time.  And then have you an extra

 4     five minutes when we reconvene.  Go ahead.

 5             MS. PINTER: [Interpretation] I lost my place, but my time is

 6     running, so very well.

 7             I'm going to end with question 6.  It's all stated in our appeal

 8     submission anyway, so I'm not answering to the end.

 9             Then question 7 regarding Gabela and Dretelj.  I will shorten by

10     saying that there is not a single piece of evidence in the case file

11     which would beyond a reasonable doubt establish that General Praljak knew

12     about the conditions in Gabela and Dretelj; but what I would like to

13     stress more is that General Praljak was not obliged in any way to know

14     about the conditions in Gabela and Dretelj because he was the commander

15     of the Main Staff of the HVO.  He was conducting military operations.  He

16     was saving the lives of Croats who were attacked in Central Bosnia and

17     along the Neretva River Valley.  And really, in conducting these

18     operations, he cannot be considered by doing his job to acquiescing to

19     crimes in Gabela and Dretelj.  There's no piece of evidence on file

20     indicating that there exists any single document pertaining to Dretelj

21     and Gabela that was sent to the Main Staff or to General Praljak.

22     Therefore, the conclusion that he was aware of the conditions and

23     circumstances prevailing at Dretelj and Gabela is completely untenable.

24             If I need to stop now, I will gladly do so and continue after the

25     tapes have been switched.

Page 412

 1             JUDGE AGIUS:  Thank you.  We'll have the break now.  We will

 2     reconvene at 12.00.  Thank you.

 3             MS. PINTER: [No interpretation]

 4                           --- Recess taken at 11.28 a.m.

 5                           --- On resuming at 12.01 p.m.

 6             JUDGE AGIUS:  Thank you.  Let me clarify something for the record

 7     and for the proper conduct of these proceedings.  We have conferred

 8     amongst us, and after also having heard Mr. Stringer's submission, which

 9     wasn't as clear as we expected, actually.  The situation is as follows.

10     That if we give you the floor now, Ms. Pinter, and you conclude in the

11     ten minutes that you have available, that would mean that your client,

12     when he is given the ten minutes that he wants to address the Appeals

13     Chamber, that would be during the reply time, which would deprive

14     essentially the Prosecution from responding to any submission that he may

15     come up with.  So what we have decided is that you speak later and that

16     he makes his intervention now during the ten minutes that we are

17     conceding as part of the two hours that you had, and which would enable

18     Mr. Stringer then or whoever from the Prosecution side to make any

19     comments on his submissions -- if they are submissions because I don't

20     know what we are supposed to expect from him.

21             MS. PINTER: [Interpretation] Thank you, Your Honour.  That is

22     what you had understood.  We believe that Mr. Stringer's request was

23     fully justified.  That is why we wanted to ask you - of course, we will

24     abide by your decision - that after I have concluded, to give the floor

25     to General Praljak to respond to a single question and that that time be

Page 413

 1     deducted from our reply time.  That would conclude our arguments on

 2     appeal.  We believe the OTP request is fully justified.

 3                           [Trial Chamber confers]

 4             JUDGE AGIUS:  My preoccupation with that is that I don't like -

 5     having been a lawyer and a Judge practically all these decades - I can

 6     understand the frustration of counsel having his speech interrupted or in

 7     bits and pieces.  So -- because what you are suggesting is that 20

 8     minutes for you and for Mr. Praljak which I'm sure can become an even a

 9     little bit more sometimes, which would mean that Mr. Stringer would only

10     have about 35 minutes --

11             MS. PINTER:  Not Mr. Stringer.

12             JUDGE AGIUS:  Not because we are going -- we are going to finish

13     at 1.00.

14             MS. PINTER:  After the break.  Yes, till break, then the main --

15             [Interpretation] We were thinking along these lines.  We wanted

16     to conclude our part, and in our reply later on we will not make use of

17     the time allocated but we will use whatever is left so that Mr. Stringer

18     would be able to address General Praljak's arguments as well.  That was

19     our thinking.

20                           [Trial Chamber confers]

21             JUDGE AGIUS:  So the decision is, madam, you will conclude later

22     on this afternoon, during the reply section; and Mr. Praljak will make

23     his intervention now.

24             MS. PINTER:  Okay.

25             JUDGE AGIUS:  And you have ten minute, Mr. Praljak, not more.

Page 414

 1             THE APPELLANT PRALJAK: [Interpretation] Good morning, Your

 2     Honours.

 3             It concerns a document pertaining to the joint comment of the

 4     ABiH and the HVO of the 15th of January, 1993.  Given the fact that I

 5     testified before this Court, this document was drafted in co-operation

 6     with Mr. Izetbegovic in Zagreb on the 13th and 14th of January, 1993.

 7     The Trial Chamber omitted to ascribe any sense or importance to the

 8     document, and whatever importance they assigned to it was mistaken.  The

 9     HVO and the ABiH were equal components of the armed forces of the BH.

10     They had to have joint commands.  They had to.

11             To continue.  In that document, the ABiH and the HVO, the two

12     components of the BiH armed forces, are mirror reflections of each other

13     in terms of treatment.  If two parties are treated in such a way, no

14     party can issue ultimatums to the other.  That is basic logic.

15             I further assert the following.  Unless there are joint commands

16     between two armed forces that act as partners and allies, there is no way

17     to avoid individual or extensive clashes between two such armed forces.

18     The non-existence of joint command will eventually lead to a military

19     defeat of such an armed force against the enemy, but clashes were

20     unavoidable because the non-existence of joint commands was an

21     architectural mistake within the system of alliance as it existed.  The

22     document was created based on certain assertions I made as well, because

23     I took part in its design and drafting.  As a sociologist, at least for a

24     period of my life, I studied the history of warfare.  War is the most

25     disastrous aspect of human civilisation and society.  From Thucydides,

Page 415

 1     von Clausewitz and others on.  I tried to find the answers to the causes

 2     and consequences of the concept of war and how it affects society,

 3     starting with myself, of course, and the concept of war in and of itself.

 4     I wanted to find the answer to the question of who wins or loses a war

 5     and for what reason.  Your Honours, I didn't find a single example, a

 6     single case, in which two or more allied armed forces would function

 7     without a joint command.  Joint commands are sine quo non of the

 8     functioning of allied armies.  Joint commands are the alphabet, the basic

 9     prerogative of any alliance of armed forces.  Why is that so?  War is

10     governed by fear unless there is a possibility to resolve individual

11     conflicts, armed forces located at front lines without communication,

12     with arms in their hands, the appearance of mistrust is imminent or

13     unavoidable, that one would turn on the other, that there they allow the

14     enemy through the backdoor and so on and so forth.  All of that breeds

15     fear, and under such circumstances armies cannot function.  An example of

16     that is the fall of Jajce in 1992.  Even to this day arguments are

17     exchanged in terms of who was the first one to leave the front line

18     facing the Serb forces.  There was no joint command.  The HVO was afraid

19     that the ABiH soldiers would be the first ones to leave and vice versa.

20     The population saw there was something wrong and started to flee.  The

21     soldiers representing the particular community see their population leave

22     and they leave themselves.  Therefore, everybody flees ultimately and the

23     issue of who fled first becomes irrelevant.  It happens everywhere and

24     all the time.

25             Let us look at the joint command functioning during the invasion

Page 416

 1     in Normandy in 1944 and the Allied Forces.  There was a joint command.

 2     Dwight Eisenhower was the joint commander, but did not draft orders to --

 3     the American divisions were commanded by Bradley, the British divisions

 4     by Montgomery.  They simply co-ordinated.  They discussed who went how

 5     far, whose flank was exposed, and who needed air support.  All other

 6     attributes that comprise an armed force, such as arming, logistics,

 7     rotation of commanders fall within the ambit of individual armed forces.

 8     Joint commands do not become involved in that.

 9             If there is no joint command, necessarily it will lead to a

10     conflict starting at an individual level and up.  If there is no forum to

11     deal with it, if there is no joint command which would increase trust,

12     tour the front lines, visit the soldiers, such an armed force cannot

13     survive.  Experiments conducted by social psychologists show that

14     conflicts of amorphus groups caused by irrelevant causes continue for

15     months even once those involved learn that the conflict was intended.

16     War is governed by fear, the fear of being abandoned, the fear of being

17     caught unawares, or of being killed.  When this document was being

18     drafted, the gist of was it that it was not an ultimatum.  It was a

19     necessary requisite so as to avoid any conflict.  The document was

20     supposed to go to Sarajevo to be used by the ABiH the same way the HVO

21     used it.

22             To conclude, by refusing the proposal on joint commands was a

23     clear indication, a clear message that somebody did not want to be an

24     ally, that somebody was intending to attack.  In and of itself such

25     decision is evil and it testifies to the basic belief of eventually

Page 417

 1     conducting offensive operation against your temporary ally, which is

 2     exactly what happened in the ensuing months.  Unable to oppose the Army

 3     of Republika Srpska, the ABiH and the Muslim political leadership

 4     attacked the HVO and the Croats so as to compensate for the territories

 5     lost.  All evidence points to that.  The so-called JCE, as stipulated by

 6     the judgement and those involved, throughout the period following the

 7     15th of January sent and kept sending all the necessary arms to the ABiH

 8     as well as equipment.  Ninety per cent of the overall military arsenal at

 9     the disposal of the ABiH during the war was obtained through -- or by --

10     by the Croats.  All evidence indicates that was the case.

11             Thank you for your attention.

12             JUDGE AGIUS:  Okay, Thank you.

13             Mr. Stringer, are you ready to go?  Or do you prefer Ms. Pinter

14     to make her ten-minute submission now?

15             MR. STRINGER:  Your Honour, it's fine with the Prosecution either

16     way, I think is --

17             JUDGE AGIUS:  Let's proceed, start, because it will get --

18     there's very little time left in any case and I suppose it's wiser to go

19     like I'm suggesting.

20             MR. STRINGER:  Thank you, Mr. President.  Then with that, I will

21     be making the Prosecution submissions in response to the submissions of

22     General Praljak, and in the course of that I'll be responding to

23     Your Honours' questions 4(c) as well as question 8 as they relate to

24     General Praljak, question 8 relating to his specific intent to spread

25     terror.  And I will also be making the Prosecution response on question 2

Page 418

 1     regarding the Old Bridge.

 2             My colleague, Ms. Finnin, after I'm finished, probably after the

 3     lunch break will be making the Prosecution's submissions in response to

 4     your questions 6 and 7 on Stupni Do and the detention camps.

 5             Your Honours, have already heard submissions yesterday and on

 6     Monday from my colleagues, Ms. Gustafson, and Ms. Goy in relation to

 7     occupation, international armed conflict and the conflict in Gornji

 8     Vakuf, specifically the questions -- the Chamber's question in relation

 9     to Dusa.  And our submissions, we adopt those as our own submissions in

10     relation to appellant General Praljak, Mr. President, with just a few

11     brief exceptions for clarifications, some additions, supplements, we'd

12     like to make today in response to what's been said already by my friends

13     on General Praljak's Defence.

14             In regard to occupation, there was an assertion that the HVO

15     forces, the Bosnian Croats, could not occupy those parts of Herceg-Bosna

16     and we just wanted -- it's in our submissions but just to make it perhaps

17     more clear.  By arguing that the HVO could not occupy parts of BiH, the

18     Defence overlooks that this is an occupation by agency as was found by

19     the Trial Chamber and that Croatia is the occupying power here, and, of

20     course, Croatia could indeed be an occupying power in relation to parts

21     of Bosnia and Herzegovina.  Croatia's role as an occupying power is -- I

22     refer Your Honours to volume 1, paragraph 96, and to volume 3, footnote

23     1175 of the Trial Chamber judgement in relation to that point.

24             And then just a couple of follow-up in response to submissions

25     earlier about the HVO attack on the village of Dusa which forms part of

Page 419

 1     the Chamber's questions 3 and 4.  Today the Defence argued that there was

 2     significant fighting in Dusa, and relying on a finding that the HVO took

 3     control of Dusa after one or two days of fighting, the Defence relied on

 4     volume 2, paragraph 365.  But, Your Honours, when you look at the

 5     underlying evidence, it is clear that the HVO took control of Dusa in

 6     less than a day.  The attack on Dusa began in earnest on the morning of

 7     the 18th of January.  The HVO took control of the village and detained

 8     all its inhabitants, defenders and civilians alike, that afternoon.  And

 9     for this we refer you to the evidence of Kemal Sljivo, Exhibit P10108,

10     pages 3 to 4, and the testimony of Witness BW at transcript page 780.

11             On the assertion we heard today, Your Honours, that the Trial

12     Chamber did not establish that the HVO fired the shell that hit the

13     Sljivo house, we say that in fact in volume 3, paragraphs 663 and 711,

14     the Chamber clearly found the HVO was responsible for the shelling of

15     Enver Sljivo's house and the finding's amply supported by the evidence

16     you've heard the Prosecution refer to on Monday.

17             Finally the Defence said that the HVO could not have foreseen

18     that there were civilians in Enver Sljivo's house and they rely on the

19     fact that the house belonged to the commander of the village defence.  As

20     you heard from my colleague on Monday, Ms. Gustafson, Your Honours, a

21     residential house -- it's our position a residential house is a prima

22     facie civilian object.  There was no indication here that it was being

23     used for a military purpose, no defenders were in the house, no shots

24     were fired from the house, and a house that was obviously occupied with

25     smoke rising from the chimney.  The Defence seems to be repeating the

Page 420

 1     claim that they made in the brief that the mere fact that the owner of

 2     Sljivo's house was among the local defenders was itself a justification

 3     for the HVO to target the house despite the absence of any military

 4     activity associated with the house.  And as we've said in our

 5     submissions, Your Honours, on Monday, we say that in fact when they

 6     attacked the house on such circumstances, it was at the very least an

 7     indiscriminate attack.

 8             With that said, Your Honour -- oh, let me just go, first of all,

 9     to another couple of the points that were made earlier today.  One of

10     those relates to General Praljak's challenges to the Trial Chamber's

11     findings on the ultimate purpose.  And here we would refer Your Honours

12     back primarily to the Trial Chamber's findings on the ultimate purpose,

13     leading to the ultimate purpose, which are set out in paragraphs 6 to 24

14     of volume 4 and as well as to the Prosecution's submissions that were

15     made on Monday.  I made those submissions, Your Honours.  I hope, I tried

16     to, as clearly as I am able to, lead Your Honours through the Chamber's

17     findings on ultimate purpose and how well supported they are by the

18     evidence.  Issues relating to the plan, the aspiration, the obsession, as

19     was said by Mr. Karnavas on Monday, of President Tudjman to restore the

20     Banovina and how that required the use of crimes inside Herceg-Bosna

21     territory in order to achieve that ultimate purpose?  We commend

22     Your Honours to the testimony the Ambassador Galbraith, I referred to it

23     on Monday, we'll be coming back to it today, as well as to the testimony

24     of Ambassador Okun, who the Chamber relies on extensively among all its

25     findings regarding ultimate purpose.

Page 421

 1             It's Ambassador Okun that speaks to the two-track policy, what he

 2     considered to be a two-track policy.  This relates to other submissions

 3     made here today, Your Honours, in relation to Croatia'S alleged benign

 4     intentions in respect of Bosnia-Herzegovina at the time, sending arms to

 5     the ABiH, the so-called -- well, the agreement on friendship and

 6     co-operation between the HVO and the ABiH which has also been referred

 7     to.  None of that undermines the Chamber's findings, the core fundamental

 8     findings on the existence of the joint criminal enterprise as applied to

 9     this case, this conflict between those two armed forces.  And nothing

10     called an agreement on friendship and co-operation is going to undermine

11     or cast doubt on the fact that there was a very brutal war taking place

12     during the period here, 1993 and 1994, between these two military forces,

13     the HVO and the ABiH.

14             Croatia, as Your Honours know, because all of you have sat on

15     Chambers in cases involving events taking place in the north of Bosnia,

16     the east of Bosnia during this period, 1993, 1994, you know that there

17     was a very strong conflict between the Serbs, the VRS on one side, and

18     unified Croat and Muslim forces that were fighting against the Serbs.

19     It was in Croatia's interest to support those efforts and that involved

20     providing supplies to Muslim fighters in other parts of the country.  It

21     was in Croatia's interest to do so.  But none of that undermines the

22     basic ultimate findings here that when we look at the conflict that we're

23     concerned with here, the conflict between the ABiH and the HVO in

24     Herceg-Bosna, there wasn't anything benign about Croatia's intentions and

25     there wasn't anything involving friendship and co-operation.

Page 422

 1             Your Honour, many of Slobodan Praljak's arguments were made at

 2     the trial, they were rejected by the Trial Chamber after extensive

 3     detailed findings on Praljak's role in developing the JCE before

 4     January 1993 and then contributing to its implementation throughout the

 5     claimed territories of Herceg-Bosna until the 9th of November, 1993, when

 6     he quit the HVO and Bosnia-Herzegovina altogether to return to Croatia.

 7     The final destruction of the Old Bridge, the Stari Most, and its collapse

 8     into the Neretva River on that day, the 9th of November, is emblematic of

 9     the destruction and the misery that he left behind.

10             As he did at trial, Praljak claims on appeal that he was just a

11     simple soldier.  We see this in his brief at paragraph 385.  In fact, as

12     the Trial Chamber rightly concluded, Praljak was one of the most

13     important members of the joint criminal enterprise.  He exercised

14     significant de facto and, later, de jure and de facto authority over the

15     HVO armed forces and its military police.  That's volume 4,

16     paragraph 1340.

17             In considering the evidence proving Praljak's high-level

18     positions in the Croatian government and the role he played as

19     President Tudjman's advisor and agent in the BiH, the Trial Chamber

20     concluded that Praljak enjoyed a "privileged and continuous link" to

21     Croatia's leadership on subjects regarding BiH and Croatia's engagement

22     there.  That's volume 4, paragraph 1223.  Praljak, Your Honours, was no

23     simple soldier.

24             As the Trial Chamber found, and it's not in dispute, throughout

25     1992 and much of 1993, Slobodan Praljak was an Assistant Minister of

Page 423

 1     Defence of the Republic of Croatia.  His superior was co-JCE member,

 2     Defence Minister Gojko Susak.  Praljak was a member of Croatia's national

 3     Security Council, the VONS, and he was a trusted advisor to Tudjman.  He

 4     was also a major-general in the Croatia army.  Prior to the 24th of July,

 5     1993, he was all of these things while simultaneously exercising de facto

 6     authority over the HVO armed forces on the ground in Herceg-Bosna, armed

 7     forces that committed crime on a large-scale.  On the 24th of July, 1993,

 8     Praljak officially assumed command over the HVO armed forces, including

 9     its military police, as commander of the HVO Main Staff.  Even then he

10     remained on Croatia's payroll.  See volume 4, paragraph 520.

11             It's the combination of these high-level positions held by

12     Praljak prior to and during the JCE that made him one of its most

13     important members and enabled him to participate both in the development

14     and the implementation of the criminal plan to change the ethnic makeup

15     of Herceg-Bosna.

16             In my submissions this morning, Your Honours, this afternoon, I

17     should say, I will address Praljak's challenges in Grounds 39 and 41 to

18     the Trial Chamber's findings regarding his awareness of the common

19     criminal plan and his shared intent.  I will then address his challenges

20     to the Chamber's findings on two aspects of his contribution to the JCE,

21     his role as a conduit between Croatia and Herceg-Bosna, and his use of

22     HVO forces to commit crimes in furtherance of the common criminal plan in

23     such places as Gornji Vakuf, Prozor, and Mostar as set out in his

24     Ground 40.

25             In Ground 39, Praljak claims that the Trial Chamber erred when it

Page 424

 1     considered his pre-JCE conduct.  And this was raised earlier this morning

 2     by my colleague in relation to their oral submissions, consideration of

 3     his acts prior to the beginning of the joint criminal enterprise.  We

 4     rely -- the Chamber in fact relied on things Praljak said and did during

 5     1992 in high-level meetings with Croatia's leadership and in secret

 6     meetings with VRS commander Ratko Mladic, and they did this when

 7     considering his awareness of the common plan.  In fact, the Chamber's

 8     consideration of these pre-JCE conduct amply establishes that he played a

 9     key role in developing the common plan and that he shared the intent once

10     implementation began in January of 1993.

11             It is well settled, Your Honours, in our jurisprudence that an

12     accused's pre-JCE conduct may be considered in relation to a variety of

13     important issues once the JCE does come into being, such as an accused's

14     role in the JCE and his mens rea.  In the Djordjevic appeal judgement,

15     paragraph 297, the Appeals Chamber observed that an accused's pre-JCE

16     meetings with senior political and military leaders could be considered

17     for that purpose.  And this is precisely what the Trial Chamber did here.

18     See volume 4, paragraphs 18, 522, 525, 545.

19             Praljak's conduct in the lead-up to the JCE tells us a great deal

20     about his mens rea.  In his acts and words, Praljak promoted ethnic

21     separation, the division of BiH and reconstituting the borders of the

22     1939 Banovina territory.  In other words, he promoted the ultimate

23     purpose.  What's more, he knew that achieving that would require changing

24     the ethnic composition of this new Banovina territory in BiH called

25     Herceg-Bosna through ethnic cleansing.

Page 425

 1             On the 26th of September, 1992, Praljak raised the alarm with

 2     President Tudjman in a meeting of the VONS, the national Defence Council,

 3     in reference to Muslim refugees now living in areas inhabited by Croats.

 4     Lamenting the arrival of the refugees, Praljak observed that expulsions

 5     would be necessary in order to achieve a Croat-majority population.

 6             Your Honours have a slide, these are Praljak's words:

 7             "As things stand now, and with the kind of settlements we are

 8     seeing in Travnik, areas to the south of Travnik, I am afraid that at the

 9     moment the war ends, in light of the substantial changes in the ethnic

10     structure, our chances are slim, unless we decide to deal with this, with

11     them in another war, and this is what will happen, civil, international

12     rights, et cetera."

13             And he says:

14             "It will be difficult to make those people leave those parts in

15     any way," I think we have got a typo in our slide "... those parts in any

16     way ... unless we evict those people from there we will not have a

17     majority there."

18             Unless we evict those people we will not have a majority.

19             Although is he referring here to incoming Muslim refugees, we

20     know that once implementation of the common criminal plan started in

21     January of 1993, implementation was not limited to evicting only Muslim

22     refugees.  This JCE was about removing long-established Muslim

23     populations in communities from large areas of Herceg-Bosna to create the

24     necessary ethnic balance.  Your Honours heard my reference on Monday and

25     my colleague Mr. Menon's reference yesterday to the changed ethnic

Page 426

 1     structure in Stolac when it was all said and done by September 1993.

 2     8.000 Muslims down to 0.  Stolac had been a Muslim majority municipality

 3     before the conflict.

 4             Nor did the Trial Chamber err when it considered Praljak's

 5     pre-JCE meetings with Ratko Mladic.  Just ten days after this meeting we

 6     saw, the September 26th meeting between Praljak and President Tudjman,

 7     Praljak, together with Prlic, Stojic, travelled to Hungary where they had

 8     a secret meeting with VRS commander Ratko Mladic.  This was referred to

 9     already, Your Honours, just to repeat.  It was at this meeting the

10     Praljak described the objective:  "The goal is the Banovina of 1939; if

11     not, we'll continue the war."  That's Exhibit P11377, page 2, referred to

12     at volume 4 -- sorry, 376 referred to at volume 4, paragraph 118.

13     Paragraph 18.

14             Bear in mind, Your Honours, that at this meeting Praljak was

15     representing Croatia as an Assistant Minister of Defence.  His reference

16     to the Banovina obviously reflects the policy of Croatian

17     President Tudjman.  You've heard this about in our submissions on Monday.

18     But it also bears on his knowledge and intent once the pattern of crimes

19     is unleashed to implement it.

20             In considering Praljak's knowledge and mens rea, how could the

21     Trial Chamber ignore Praljak's statements to Mladic when they met again

22     three weeks later, on the 26th of October, 1992.  Praljak was again

23     accompanied by Prlic and Stojic, joined also this time by Milivoje

24     Petkovic.

25             It was at this meeting that Praljak announced:  "We're on a good

Page 427

 1     path to compel Alija," that's a reference to Bosnian President

 2     Alija Izetbegovic "to divide Bosnia."

 3             Later in this meeting he referred to the population movements he

 4     envisioned as part of the Herceg-Bosna plan:  "It is our interest that

 5     the Muslims get their own canton so they have somewhere to move to."

 6     Volume 4, paragraphs 14 and 18.  That's P11380.

 7             As with his statement to Mladic advocating the Banovina,

 8     Praljak's statement here about the Muslims having their own canton to

 9     move to reflects what was Croatian policy.  Tudjman had referred to this

10     concept in December of 1991 in an important meeting he had with Bosnian

11     Croat leaders.  Praljak attended the meeting.  At the meeting, Tudjman

12     referred to the creation of a "statelet" for Muslims in BiH which would

13     serve as a "buffer zone in the demarcation of Serbia and Croatia."

14     That's Exhibit P89, page 33.  And the Chamber considers that meeting in

15     volume 1, paragraph 428.

16             In these examples, Praljak's statements to President Tudjman and

17     to Ratko Mladic, we see Praljak advocating the essential elements,

18     aspects of the ultimate purpose that let to the JCE that was launched in

19     January of 1993, establishment of a Banovina territory, establishment of

20     ethnically Croat majorities inside it, the outward movement of Muslims

21     "to their own canton" to achieve this.  The Trial Chamber properly

22     considered Praljak's pre-JCE conversations with Tudjman and Mladic in

23     relation to the JCE, his knowledge, and his mens rea.

24             In any event, Praljak's advocacy of the Herceg-Bosna project did

25     not end once the JCE started.  The Trial Chamber noted in volume 4,

Page 428

 1     paragraph 522:

 2             "From April 1992 to November 1993, Slobodan Praljak participated

 3     in meetings of the senior Croatian leadership at which Croatia's policy

 4     in BiH was discussed and defined with a view to furthering the common

 5     criminal purpose."

 6             And Your Honours will note in the judgement the Trial Chamber

 7     referred to numerous of the presidential transcripts, numerous

 8     conversations occurring at the presidential palace, numerous statements

 9     of Praljak, confirming that he was involved throughout the course of the

10     JCE in advancing this policy.

11             The Trial Chamber committed no error in considering all of

12     Praljak's statements both prior to and during the JCE in finding that he

13     shared the common plan to recreate the Banovina on BiH territory.  His

14     arguments to the contrary should be dismissed.

15             Shared intent.  This is largely Praljak's Ground 41.  It has come

16     up today.

17             Praljak did not merely advocate the goal of changing the ethnic

18     composition of Herceg-Bosna.  He also shared the intent to use criminal

19     means to achieve the goal.  He intended a range of crimes, ranging from

20     attacks on towns and villages, violent eviction operations, the unlawful

21     detention and mistreatment of Muslim inhabitants of Herceg-Bosna.

22             In his comments earlier, just a few moments ago, General Praljak

23     made references to populations fleeing war.  Your Honours, you're going

24     to, we submit, find as the Trial Chamber did -- you're not going to find,

25     you're going to, we submit, reasonably conclude that the Chamber

Page 429

 1     reasonably concluded that everyone one of these crime bases that we've

 2     got in this case is one that is not about populations fleeing war.  It's

 3     about deliberate attempts to drive a particular ethnic entity out,

 4     whether it's West Mostar evictions, whether it's the Muslim community

 5     removed from Stolac, Capljina, Ljubuski, whether it's eviction operations

 6     and destruction that occurred in the wake of, after attack operations,

 7     after the villages had been consolidated by the HVO.  This is the pattern

 8     and the theme that runs throughout the entire case, and it's not about

 9     self-defence and it's not about people fleeing the ravages of war.

10             As this implementation of the JCE unfolded throughout 1993 and

11     the pattern of crimes revealed the goal of removing the Muslims,

12     Praljak's action reflect his intent.  Although he didn't directly

13     contribute to every single crime that was committed during the

14     implementation of the JCE, he intended those crimes be used to implement

15     it and he willingly played his part.  This is what brings us to Praljak's

16     contributions to the JCE.

17             I'll now address additional aspects of Ground 40, where Praljak

18     claims errors in the Trial Chamber's findings on his contribution to the

19     JCE.

20             In sub-Ground 40.1, he claims the Chamber's findings are too

21     vague, requiring him to speculate as to their meaning.

22             Praljak overlooks the careful analysis of the evidence of his

23     unique and multi-faceted contributions set out in paragraphs 512 to 623

24     of volume 4.  It is not vague.  The Trial Chamber states precisely how

25     Praljak contributed to the JCE.

Page 430

 1             First, he contributed by serving as a conduit between Croatia and

 2     Herceg-Bosna to further the common criminal purpose.  Volume 4,

 3     paragraph 545.  By exercising his Croatia and Herceg-Bosna functions

 4     simultaneously, Praljak knew that the Herceg-Bosna policy -- he knew the

 5     Herceg-Bosna policy and willingly implemented it by transmitting orders

 6     and instructions from Croatia.  He informed Croatia's leadership about

 7     the situation in BiH, Croatia's military support for the HVO armed

 8     forces.  See volume 4, paragraphs 515, 545.

 9             Second, Praljak exercised de facto command authority over the HVO

10     armed forces from the autumn of 1992 until the 24th of July, 1993.  And

11     then from that date until his departure on the 9th of November, Praljak

12     had command and control authority and effective control over all

13     components of the HVO as the commander of its HVO Main Staff.  That's

14     volume 4, paragraphs 482, 506, 624.  He contributed to crimes by actively

15     planning and directing operations of HVO units in which many crimes were

16     committed.  He contributed to the crimes committed by the HVO forces in

17     Gornji Vakuf, Prozor, Mostar, including the siege of East Mostar and

18     Vares as well.  Volume 4, paragraphs 546 to 598.

19             The third contribution as found by the Trial Chamber was that

20     despite his position at the apex of the political and military structures

21     of Croatia and Herceg-Bosna during this period, his command over HVO

22     forces, his privileged and continuous ties to Croatia's leadership,

23     Slobodan Praljak did virtually nothing to stop or prevent crimes of his

24     HVO subordinates.  That's volume 4, paragraphs 617 to 623.

25             As you'll hear from my colleague Ms. Finnin later, he works to

Page 431

 1     block or stall UNPROFOR personnel from gaining access to Stupni Do after

 2     the HVO massacre there, and he worked with Petkovic to cover it up.  He

 3     made no significant effort to improve the HVO's prisons at Gabela and

 4     Dretelj, even after news of the appalling conditions there become an

 5     international scandal.

 6             I will address Praljak's claims regarding the first two of these

 7     contributions, conduit and contribution to crimes as HVO commander.

 8             Regarding the role of conduit, I've already referred to Praljak's

 9     role in his meetings with Croatia's leadership as well as with VRS

10     Commander Mladic in relation to his mens rea and his membership in the

11     JCE.  This does, of course, shed light on the nature of his role as a

12     conduit after the JCE began.

13             But let me take a few minutes first to address another key aspect

14     of Praljak's conduit role:  Delivering the message and the policy from

15     Zagreb to those responsible for implementing the policy in Herceg-Bosna.

16     I'll give you four illustrations.

17             There's perhaps no better illustration of this than the role

18     Praljak played in relation to the Prlic ultimatum.  This set the stage

19     for implementation of the JCE at Gornji Vakuf in January of 1993.  I'm

20     referring of course to the 15 January 1993 decision by Jadranko Prlic

21     demanding that the ABiH units in Vance-Owen provinces attributed to

22     Croats subordinate themselves to the HVO.

23             And let me digress just a little bit here from my outline,

24     Your Honours, to respond directly to some of the assertions that have

25     been made by the Defence today.

Page 432

 1             General Praljak referred Your Honours to his testimony at the

 2     trial in which he claimed that, in fact, he was delivering the essence of

 3     an agreement that had been reached in Zagreb between him, the Croatian

 4     leadership and Bosnian president, President Izetbegovic.  Your Honours,

 5     the Trial Chamber had that evidence and they correctly did not credit

 6     that version of the events.  When he was asked about this agreement that

 7     had been reached in Zagreb, the agreement in which the ABiH would

 8     subordinate itself to the HVO in these areas, whether the agreement had

 9     ever been put into writing, Praljak said, no, it was actually not ever a

10     written agreement.  It was what he called a gentlemen's agreement.  So

11     that's worth bearing in mind when considering whether such an agreement

12     really came into an existence.  The Chamber doesn't refer to this as an

13     agreement anywhere in its findings.  It correctly refers to this as an

14     ultimatum.  It was a unilateral ultimatum and it was based upon the HVO's

15     misinterpretation, deliberate misinterpretation of the Vance-Owen Peace

16     Plan.  In my remarks on Monday I referred to the evidence, the testimony

17     of Ambassador Okun who was one of the drafters, lead negotiators of the

18     Vance-Owen Plan.  He testified at trial that it was illegal; their

19     interpretation was wrong and illegal.

20             Also today my colleagues have referred to Exhibits P1739 and

21     3D561, asserting that in fact Praljak played a role as an envoy in

22     respect of this matter.  We responded to this argument in our brief and

23     we refer Your Honours to that.

24             What the Trial Chamber reasonably found, Your Honours, was that

25     Praljak actively participated in drafting this ultimatum.  We know he was

Page 433

 1     involved in it.  We disagree as to whether it was an ultimatum or an

 2     agreement.  The Chamber's finding on that is the reasonable one.  Praljak

 3     was in Mostar with Prlic, Stojic, and Petkovic on the 15th of January.

 4     Volume 4, paragraph 475.  Once Prlic issued the ultimatum in Mostar, it

 5     then moved down the HVO chain of command through Stojic and Petkovic and

 6     then the HVO operative zones.  In the days that followed, Praljak, who

 7     again was still an assistant minister of defence and a major-general in

 8     the Croatian army at this time, Praljak was present in the Gornji Vakuf

 9     region and he was active in implementing the Prlic ultimatum.  This is at

10     volume 4, paragraph 553, 556.

11             In a few moments I'll talk more about Praljak's contributions to

12     the crimes then that unfolded in Gornji Vakuf after the deadline on

13     implementation of this ultimatum passed and the HVO attacked the villages

14     in the municipality in Gornji Vakuf.

15             Another example of Praljak's role as a conduit is his meeting on

16     the 2nd of April, 1993, in which he carried the message of Croatian

17     policy to HVO armed forces and military police in BiH.  There he chaired

18     a meeting of HVO authorities and commanders of the HVO Central Bosnia

19     operative zone.  Consistent with the views he had expressed in his

20     earlier conversations with Tudjman and Mladic, Praljak spoke of

21     population movements, the importance of creating a Croatian state within

22     BiH.  His co-JCE member Valentin Coric was present, together with HZ HB

23     Vice-President Dario Kordic also convicted in this Tribunal.

24             At this meeting, Praljak states:

25             "Now we have got what we want.  The homogenisation of our

Page 434

 1     population continues.  We can only fence off what is ours and build there

 2     our own space and our own state.  It is all as clear as noon on a spring

 3     day."

 4             That's from Exhibit P1788.

 5             The Trial Chamber rightly considered these remarks to HVO

 6     personnel in Herceg-Bosna as illustrating both Praljak's role of conduit

 7     and his state of mind.  Volume 4, paragraphs 532, 1343.

 8             Praljak's claims in Ground 40 that he did not attend this meeting

 9     in an official capacity.  That is not reasonable.  See his appeal brief

10     paragraph 438.  As the Chamber noted, on the day of this meeting Praljak

11     was an assistant minister of defence of Croatia, he was a major-general

12     in its armed forces.  His authority emanated from his privileged and

13     continuous ties to the Croatian leadership.  Also on this day, Praljak

14     had de facto command authority over the HVO's own forces.  He was

15     addressing his subordinates, and the exhibit has him down as the person

16     chairing the meeting.

17             Okay, one more illustration, Mr. President, or is it time for the

18     break?  Looks like we've got about five minutes?

19             JUDGE AGIUS:  You still have about five minutes.

20             MR. STRINGER:  Thank you.  President Tudjman himself saw Praljak

21     as a surrogate and an implementer in Herceg-Bosna.  The Trial Chamber

22     relied on the transcript of the meeting at the presidential palace in

23     Zagreb on the 2nd of July, 1993.  Your Honours saw this yesterday, I

24     believe, in Mr. Menon's submissions.  After expressing concern about the

25     possibility of international sanctions against Croatia for its support of

Page 435

 1     the HVO, Tudjman instructed Susak and Bobetko as follows.  Tudjman

 2     states:

 3             "But at the same time we must take steps to protect Croatian

 4     interests in the territorial sense too.  And you two, please, Minister

 5     Susak, General Bobetko, see about this, and meet with Herceg-Bosna

 6     leaders there, with General Praljak, Petkovic ... with Boban and Prlic,

 7     to discuss exactly what should be done.  But, it goes without saying, do

 8     not lead the operation in such a way as to make a direct involvement."

 9             My colleague Mr. Menon referred to this yesterday in relation to

10     the JCE membership of Mr. Susak and General Bobetko.  This is another

11     point that was raised in the submissions of my learned friend this

12     morning.

13             Your Honours will note that at this point in time, Praljak held

14     no official position within the HVO.  Tudjman is referring to his

15     Assistant Minister of Defence here as a Herceg-Bosna leader.  And it's

16     correct:  Praljak was both.

17             It's also worth noting that when Tudjman issued these

18     instructions to consult with Praljak and the others on taking steps to

19     protect Croatian interests in the territorial sense, the HVO had already

20     committed extensive crimes in its operations in Gornji Vakuf and

21     Jablanica.  The HVO personnel including military police were committing

22     numerous crimes against the captive Muslim population in Prozor, the

23     violent expulsions from West Mostar into East Mostar were in full swing,

24     the JCE had by this time expanded to encompass crimes linked to the siege

25     of East Mostar, terror and unlawful attacks.

Page 436

 1             Two weeks after this meeting, Praljak would become the

 2     Herceg-Bosna leader -- I should say, two weeks after this meeting,

 3     Praljak would then become the commander of the HVO Main Staff, making

 4     official his position as a Herceg-Bosna leader.

 5             With that, Your Honours, if now is the time for a break, it's a

 6     good time for me to ...

 7             JUDGE AGIUS:  Thank you, Mr. Stringer.  Mr. Stringer, you have

 8     spoken for 41 minutes so that you can calculate what time, the amount of

 9     time you have left.

10             We will reconvene at half past 2.00.  Thank you.

11                           --- Luncheon recess taken at 12.58 p.m.

12                           --- On resuming at 2.30 p.m.

13             MR. KHAN:  Mr. President, before we start, can I just say that

14     Mr. Ellis before the break left the courtroom and our pro bono legal

15     assistant, Ms. Molly Martin, is in court.  Just for the record.  Thank

16     you.

17             JUDGE AGIUS:  Thank you, Mr. Khan.  And for the record also -- I

18     intended to do this earlier but I didn't.  For the record, Mr. Karnavas

19     came into the -- entered the courtroom while Mr. Praljak was addressing

20     the Court.  Thank you.

21             Yes, Mr. Stringer.

22             MR. STRINGER:  Thank you, Mr. President.

23             Your Honours, before the break we were addressing aspects of the

24     Chamber's findings regarding Praljak's contribution as a conduit as

25     between Croatia and the policies and events in Herceg-Bosna.  And the

Page 437

 1     last point I wanted to make on that is to draw Your Honours' attention to

 2     the Chamber's finding to the extent it was based upon Mr. Praljak's own

 3     testimony at trial, this finding that he played a role as a conduit

 4     between Croatia and Herceg-Bosna.  When it was put to him on

 5     cross-examination that he was implementing President Tudjman's policies

 6     in Bosnia-Herzegovina, General Praljak replied:

 7             "No, I was implementing the policies of the Croatian state.  My

 8     policies were parallel to the policies of the Republic of Croatia and the

 9     policies of Franjo Tudjman, Gojko Susak, Bruno Stojic, Jadranko Prlic,

10     and all the others."

11             That's at pages 43001 to 43002 of the transcript referred to by

12     the Chamber in volume 4, paragraph 527.

13             Your Honours, the policy, as the Chamber found, was to change the

14     ethnic composition of Herceg-Bosna through ethnic cleansing of Muslims.

15     And as Praljak tells us in his own words at the trial, his contribution

16     was to implement that policy.

17             I'd like to now move to the Chamber's findings and General

18     Praljak's challenges to the judgement in respect of his contribution as a

19     commander of HVO armed forces.  In his briefs in Grounds 40.2 and 40.7,

20     Praljak claims errors in the Trial Chamber's findings that he contributed

21     by using HVO armed forces to commit crimes.  As with the evidence of his

22     contribution as a conduit, the evidence of Praljak's contribution on the

23     use of the HVO armed forces also tells us much about his criminal intent.

24             Gornji Vakuf, Your Honours have heard a lot of about Gornji Vakuf

25     today and in the previous days.  At Gornji Vakuf, Praljak claims in

Page 438

 1     Ground 42 that the events there were not planned and that he was not kept

 2     informed of the situation there.  The Trial Chamber's findings to the

 3     contrary are reasonable.

 4             Your Honours, in my remarks over the next couple of minutes this

 5     will not only go to Praljak's challenges on his contribution in respect

 6     of the Gornji Vakuf operation and the crimes there, but this will also

 7     relate to our answer to Your Honours' question 4(c) to the extent it

 8     relates to Praljak's knowledge or the extent to which he was privy to the

 9     Siljeg report, Exhibit P1351.

10             We know that after the ultimatum make he was involved in drafting

11     was issued, HVO Operative Zone Commander Siljeg and HVO Chief of Staff

12     Miro Andric consulted with Praljak on the 16th of January about

13     implementing it.  By then Praljak had arrived from Mostar.  He is

14     referred to in Siljeg's report at 2000 hours on the 16th of January,

15     that's P1162, as calling for the ABiH to accept the decisions of the

16     HZ HB, that is, the ultimatum.  Also on the 16th of January, Praljak

17     issued orders for artillery such as rocket-launchers to be deployed in

18     Gornji Vakuf.  That's Exhibit P1172, referred to at volume 4,

19     paragraph 558.

20             Notably on the 23rd of January, the British Battalion

21     peacekeepers in the area reported an HVO rocket attack at the village of

22     Bistrica in Gornji Vakuf where the houses were burning fiercely.  The

23     report stressed:  "This is most definitely ethnic cleansing by Croats on

24     a Muslim village."

25             That's Exhibit P1278.

Page 439

 1             On the next day, the 24th of January, Petkovic ordered Siljeg to

 2     "report urgently to Brada."  And Your Honours, Brada -- Praljak is

 3     referred to in some of the HVO's documentation as Brada, or Beard.

 4     "Report urgently to Brada in Mostar and send a report on the situation in

 5     Gornji Vakuf directly."

 6             That's P1293.

 7             Petkovic was in Geneva at the negotiations on the 24th at that

 8     time.  Praljak was in charge and Siljeg was reporting to him on

 9     Petkovic's order.  Other reports of Siljeg make clear that Praljak was

10     well informed, was directing HVO operations and was even issuing orders

11     to Siljeg himself.  In P1277, the 23rd of January, Siljeg reports:  "I

12     issued necessary orders that were in the spirit of the orders issued by

13     Brada and they were carried out."

14             In his report on 26 January 1993, Siljeg again referred to the

15     other orders of Brada that he carried out.  P1311.  See volume 4,

16     paragraph 559 on that.

17             The HVO's own documents thus confirm that Petkovic ordered Siljeg

18     to report to Praljak regarding the Gornji Vakuf operation.  Praljak was

19     in direct, regular contact with Siljeg, and issued orders to him for HVO

20     operations.  The Trial Chamber thus reasonably found that Praljak

21     planned, directed, facilitated, and was kept informed of ongoing events

22     in Gornji Vakuf after the HVO launched its attacks there on the 18th of

23     January.  That finding is at volume 4, paragraphs 558 -- sorry, 558 to

24     562.  Praljak knew about these HVO crimes, he intended them, he

25     contributed to them.

Page 440

 1             For the booths, I'm going to skip ahead in my outline to

 2     paragraph 64.

 3             Your Honours, this brings to us the second part of your question

 4     4(c), where Your Honours invite us to address the significance of the

 5     Siljeg report and the extent to which Praljak may have been privy to its

 6     content.

 7             The series of HVO documents that I've just referred to clearly

 8     establishes that Praljak was privy to the information contained in

 9     Exhibit P1351, including HVO crimes.  They show it was Praljak and Siljeg

10     who were essentially co-directing the HVO military operations in Gornji

11     Vakuf.  Everything that Siljeg knew about the events in Gornji Vakuf,

12     including the crimes referred to in Siljeg's report, were undoubtedly

13     known to Praljak.  Pursuant to Petkovic's order of 24 January, Siljeg was

14     to report directly to Praljak, Brada, about Gornji Vakuf.  There was no

15     reason for Siljeg to withhold any information from Praljak contrary to

16     Petkovic's order.  We know that this report of Siljeg was sent to the

17     Herceg-Bosna government, the Herceg-Bosna Defence Department, and the HVO

18     Main Staff.  And it reported the HVO crimes in Gornji Vakuf.  Why would

19     Siljeg have withheld that information from Praljak when it was reporting

20     all of this information to the government, the Defence Department and to

21     the Main Staff?

22             Praljak knew the scale and the violent nature of the crimes

23     directed against the Muslim population as referred to in Siljeg's report.

24     Exhibit P1351.

25             And, Your Honours, the Chamber should dismiss, therefore,

Page 441

 1     Praljak's challenges to the Trial Chamber's findings on his contribution

 2     to the Gornji Vakuf crimes.

 3             And now for the booths, I'm going to skip ahead to paragraph 86

 4     of my outline.

 5             I'm going to address, Your Honours, Praljak's contribution and

 6     awareness of the HVO crimes at Mostar, and in the course of doing that,

 7     I'll address your question number 8 and then I will conclude my remarks

 8     with a response to your question number 2 related to the Old Bridge.

 9             In regards to Mostar, Praljak claims he should be acquitted of

10     any crimes that occurred prior to his taking command of the HVO

11     Main Staff on the 24th of July, 1993, as well as any crimes after his

12     departure and return to Croatia on the 9th of November, on the grounds

13     that he was not involved in implementing the common criminal plan in

14     Mostar during those periods.  This is General Praljak's brief at

15     paragraph 483.  As to the post-November 9th period, Your Honours, Praljak

16     has not been convicted of those crimes what occurred in Mostar or

17     anywhere else after he quit the HVO on the 9th of November.  In volume 4,

18     paragraph 1228, the Trial Chamber found that he ceased being a member of

19     the joint criminal enterprise at the time he left on the 9th of November.

20     See our respondent's brief on that at paragraphs 177 and 179.  So he's

21     not responsible for what happened after the 9th of November.

22             In terms of his responsibility for what happened prior to taking

23     formal command of the HVO Main Staff on the 24th of July, we say that

24     Praljak's misapplying the law of JCE when he claims he is not responsible

25     for what happened in Mostar before the 24th of July.  He was a member of

Page 442

 1     the JCE from mid-January and he's therefore responsible for crimes

 2     committed by co-JCE members prior to the 24th of July, 1993, during the

 3     time that he was exercising de facto control rather than de jure control

 4     over the HVO armed forces.

 5             So, Your Honours, it's our position that he was properly

 6     convicted of all JCE 1 crimes committed in Mostar during the period of

 7     his JCE membership.

 8             Now, regarding Praljak's contribution to crimes committed in

 9     Mostar after the 24th of July, 1993, when he was commander of the HVO

10     Main Staff and therefore exercising de jure authority and effective

11     control over the HVO armed forces, Praljak claims that the Trial Chamber

12     relied only on his functions as commander of the HVO Main Staff in

13     finding that he contributed to the crimes.  See his brief, paragraphs 428

14     and 431.  He claims he didn't know about the crimes in Mostar, and that

15     he did not possess the requisite mens rea.

16             But before considering what he knew and how he contributed, let's

17     first recall the situation in Mostar.  And I'm going to do this briefly

18     because I need to make sure to answer your questions 8 and 2.

19             So the situation in East Mostar while Praljak was commander of

20     the HVO Main Staff.  The HVO shelled East Mostar "daily, intensely, and

21     closely."  That's volume 2, paragraph 1000.

22             One international told the Trial Chamber that from

23     September 1993, when Praljak was commander, East Mostar received on

24     average between 20 to 100 HVO shelling impacts per day.  That's volume 2,

25     paragraph 1000.

Page 443

 1             The densely populated Donja Mahala neighbourhood was hit not only

 2     by artillery and intense shelling, but also by improvised explosive

 3     devices in the form of tires filled with explosives that would be rolled

 4     into the town from HVO positions.  Volume 2, paragraph 1005.

 5             The HVO conducted a test dropping two napalm bombs on

 6     Donja Mahala neighbourhood in August of 1993.  It is referred to in a

 7     report directed to the HVO Main Staff, Praljak's Main Staff on the 17th

 8     of August.  That's Exhibit 4265, volume 2, 1006.

 9             The Trial Chamber found that HVO sniping targeted women, children

10     and elderly.  People were targeted while carrying out daily activities

11     like fetching water.  Volume 2, paragraph 1185.

12             What's more, when Praljak took command of the HVO Main Staff,

13     waves of evictions of Muslims were happening already, well under way,

14     from West Mostar across the Neretva River into East Mostar.  This did not

15     stop once Praljak took over.  The campaign of violence, expulsion and

16     appropriation of Muslim housing in West Mostar continued unabated.

17             As I mentioned on Monday, during this period the number of

18     Muslims living in besieged East Mostar, Your Honours, increased from

19     20.000 to 55.000 by late August 1993.  Volume 2, paragraph 1200.  The

20     conditions were horrendous.

21             So what was Praljak's role in all of this.  The Trial Chamber

22     reasonably concluded that Praljak played an important role in planning

23     and directing the military operations in Mostar municipality during the

24     time he was commander of the HVO Main Staff.  Paragraph -- volume 4,

25     paragraph 579.

Page 444

 1             On assuming command of the HVO Main Staff, Praljak asserted firm

 2     control over the HVO armed forces.  Within two weeks, his Main Staff took

 3     over command of what he called the defence of Mostar.  That's

 4     Exhibit P3983.  Praljak's order of 12 August 1993 mobilized all the

 5     manpower and materiel of the HVO armed forces to eliminate the Muslim

 6     terrorists from Mostar.  Volume 4, paragraph 579.  This order placed an

 7     HVO rocket and artillery regiment under the direct command of Praljak's

 8     Main Staff.  Volume 1, paragraph 801.  Thereafter, this artillery

 9     regiment sent reports to Praljak's Main Staff, including a report dated

10     25 August 1993 on its "intensive operations against targets in Mostar."

11     That's P4495.

12             On the 1st of September, Praljak issued an order on HVO military

13     operations in Mostar, a one objective of which was to clear Mostar of

14     Muslim armed forces and in subsequent offensive operations to take

15     control of Mostar.  That's P4719.  On the 24th of September, he issued a

16     report to all Herceg-Bosna combatants entitled "Situation on the Mostar

17     front," informing HVO armed forces of various developments, expressing

18     his pride in their successful operations and exhorting them on to "new

19     victories for the HZ(R)HB and all Croatian men and women.  P5365,

20     referred to at volume 4, paragraph 579.

21             Your Honours, the level of Praljak's control and involvement in

22     the HVO's Mostar operations confirms the Trial Chamber's finding that he

23     participated in directing and planning HVO operations in Mostar as

24     commander of the Main Staff.  It is inconceivable that the substantial

25     commitment of HVO assets, its men, its materiel to perpetuating the

Page 445

 1     prolonged siege and attack on the Muslim population in East Mostar,

 2     including organised HVO operations to evict Muslims from West Mostar,

 3     targeting East Mostar with dozens or even hundreds of shells every day

 4     organised teams of snipers, it is inconceivable that this could have

 5     occurred for over three months, from the 24th of July to the 9th of

 6     November, 1993, without the knowledge and steadfast approval of the

 7     commander of the HVO Main Staff.

 8             Praljak's control and responsibility for the crimes in

 9     East Mostar was even confirmed by Croatia's leadership, specifically

10     Defence Minister Susak when he was confronted with the HVO's crimes in

11     East Mostar by US Ambassador Galbraith.  On the 31st of August 1993,

12     Galbraith spoke to Defence Minister Susak about reports of heavy shelling

13     in East Mostar.  He reported in the cable that he warned Susak of the

14     potentially disastrous consequences should UN personnel be injured by HVO

15     shelling.  The cable states that:  "Susak promised he would be

16     immediately in touch with HVO Commander Praljak to demand a stop to the

17     shelling."  That's P9506.

18             At trial, the Chamber asked Galbraith:  "Were you certain that

19     there was a link between Mr. Susak and Mr. Praljak and Mr. Praljak and

20     the bombing?"

21             And the answer was:  "Yes."

22             Croatia's conduit in Herceg-Bosnia had the authority to turn the

23     HVO shelling on and off.  The Chamber reasonably concluded that Praljak

24     contributed to the HVO's crimes there and intended them.

25             This brings me, Your Honours, to your question 8.  You've asked

Page 446

 1     us to consider whether the Trial Chamber made necessary findings on

 2     specific intent to spread terror and what the impact would be if the

 3     Trial Chamber were found not to have given a reasoned opinion on that.

 4             Our answer is that although the Trial Chamber did not explicitly

 5     say that Praljak possessed specific intent to spread terror, it did make

 6     the findings to that effect.  As I'll explain in a little bit of more

 7     detail in a moment, the Trial Chamber correctly set out the law.  It

 8     made, secondly, the underlying factual findings on terror.  It found the

 9     HVO intended to spread terror, and it found Praljak intended the

10     underlying components of the terror campaign.  These findings make clear

11     that in convicting Praljak of this crime, the Chamber concluded that he

12     possessed specific intent to spread terror.

13             First, on the law, the Trial Chamber addressed the elements of

14     unlawful infliction of terror on civilians as charged in Count 25 in

15     volume 4, paragraphs 195 to 197.  It cited the appeals judgement in the

16     Galic case when citing the elements.

17             Second, throughout the judgement the Trial Chamber makes

18     appropriate factual findings that the crime was committed.  I referred to

19     a number of these findings already in my submissions on Mostar and

20     Praljak's contribution.  The shelling, the siege, the sniping, the

21     overcrowding, the conditions.

22             In volume 3, paragraph 1689 to 1692, the Trial Chamber explicitly

23     found that by intensely shelling and sniping at the Muslims of East

24     Mostar, deliberately destroying the mosques as well as the Old Bridge,

25     blocking humanitarian aid, targeting internationals, all the while

Page 447

 1     keeping the civilians there in this increasingly overcrowded enclave,

 2     "the HVO primarily intended to spread terror among the civilian

 3     population of East Mostar."  That's volume 3, paragraph 1692.

 4             And this is a point that was raised by His Honour Judge Meron

 5     yesterday, the finding that it was the HVO that intended terror, and I

 6     will return to this in a moment, Your Honour.

 7             If the HVO was anyone, it was Slobodan Praljak between the 24th

 8     of July and the 9th of the November, 1993.  He contributed in multiple

 9     ways to those means that were used to spread terror in East Mostar.  He

10     intended the destruction of the structures and the mosques, the

11     deliberate targeting of civilians, the murders, the woundings, physical

12     and psychological abuse, and attacks on internationals.  That's the

13     Trial Chamber's finding at volume 4, paragraph 586.

14             After making its underlying findings in volumes 2 and 3, the

15     Trial Chamber expressly included unlawful infliction of terror as among

16     the JCE 1 crimes in volume 4, paragraph 68.  The Chamber expressly

17     included the HVO's crimes against East Mostar in the crimes intended by

18     Praljak.  Volume 4, paragraphs 586, 625.  Only after all of that did the

19     Trial Chamber convict him of Count 25, in volume 4, paragraph 630.

20             So yesterday, Your Honour, Judge Meron, you referred to the Galic

21     appeals judgement and you drew the distinction between the intent of the

22     accused versus the intent of a force.  That's at transcript page 88.  And

23     indeed the Trial Chamber did find that the force, the HVO, intended

24     terror.  That's at volume 3, paragraph 1692.  But it did not stop there.

25             As I've just indicated, the Trial Chamber then went on to

Page 448

 1     expressly include the crimes directed against East Mostar which form the

 2     basis of the overall terror finding and included those crimes in the

 3     crimes intended by Praljak.  And it then went on to include those crimes

 4     in its finding of what was -- what were the crimes of -- the shared

 5     intent crimes of the JCE 1 and ultimately convicted Praljak of the crime

 6     of intent to spread terror.

 7             And so, Your Honours, we say that the only reasonable

 8     interpretation of all these findings is that the Trial Chamber was

 9     satisfied beyond a reasonable doubt that it was Praljak and not just the

10     HVO who possessed specific intent to spread terror among the civilian

11     population.  And although the Trial Chamber could have made a more

12     explicit finding on this point, there is no error or reason to invalidate

13     Praljak's conviction.  On this point, I refer Your Honours to the Martic

14     appeal judgement, paragraph 181.

15             In any event, if the Appeals Chamber finds there is insufficient

16     reasoning in the judgement to uphold Praljak's Count 25 conviction, its

17     own examination, your own examination, Your Honours, of the evidence and

18     the underlying factual findings will lead to the same result of finding

19     that Praljak intended to spread terror.

20             In volume -- sorry, question 2, Your Honours, you have asked what

21     would be the impact on the Trial Chamber's findings on persecution and

22     infliction of terror as to Stojic and Praljak should it conclude that the

23     Trial Chamber erred in finding that the destruction of the Old Bridge

24     constituted wanton destruction as charged under Count 20?

25             Our assumption, based on the parts of the Stojic and Praljak

Page 449

 1     briefs that Your Honours have referred us to, is that Your Honours are

 2     inquiring what would be the impact if it were determined that the

 3     shelling attack on the Old Bridge was a proportionate, lawful attack;

 4     that is that the attack was justified by military necessity as opposed to

 5     the Trial Chamber's finding that it was a disproportionate attack.

 6             Were Your Honours to determine that the attack was justified by

 7     military necessity, there would be an impact on Stojic and Praljak's

 8     convictions for persecution and terror but it would be minimal.

 9             Before explaining why, I would like to preface my answer with an

10     observation that forms the foundation of the Prosecution position on the

11     relation between the crimes of wanton destruction, persecution, and

12     intentional infliction of terror as applied to the attack on the

13     Old Bridge.

14             If the Old Bridge was targeted primarily to spread terror, if it

15     was destroyed in order to contribute to the HVO's persecution campaign,

16     then its destruction was not justified by military necessity.  And this

17     holds true whether or not the Old Bridge remained a military target on

18     the date of its demise, the 9th of November, 1993.

19             But on your question, a determination that the attack on the Old

20     Bridge was proportionate and lawful would mean that the destruction of

21     the Old Bridge could not form a part of the persecution and unlawful

22     infliction of terror counts -- convictions, I should say.  This is

23     because the attack would not have been carried out with the primary

24     intent to inflict terror or with the intent to discriminate.  Since the

25     findings on persecution and infliction of terror are based on an

Page 450

 1     aggregation of numerous crimes and acts intended to discriminate against

 2     the Muslims or to inflict terror on those in Mostar, Stojic and Praljak's

 3     convictions for those crimes under Counts 1 and 25 would remain intact.

 4     On this, we refer Your Honours to the Trial Chamber's findings on the

 5     violations underpinning persecution, volume 3, paragraphs 1694 to 1741.

 6     And the findings such as shelling and sniping that comprise the overall

 7     finding on the crime of terror.  Those are at volume 3, paragraphs 1689

 8     to 1692.

 9             The destruction of the Old Bridge is just one feature of this,

10     and so the persecution and terror convictions would stand even if the

11     destruction of the Old Bridge is not a part of them.  That said,

12     Your Honours, we would offer these submissions on the unlawfulness of the

13     destruction of the Old Bridge in response to the appellants' submissions.

14             The attack implicates several different crimes as Your Honours

15     know, wanton destruction, persecution, infliction of terror.  All are

16     distinct crimes with elements, none of which can be considered in

17     isolation.  Above all, we stress that the attacks must be considered in

18     the context of the HVO's protracted campaign of persecution, shelling and

19     sniping, that is, terror, directed against the Muslims of Mostar.  We

20     know that by November of 1993, the HVO and these appellants had for ten

21     months been attacking, killing, imprisoning, violently expelling and

22     deporting Muslims throughout Herceg-Bosna.  This was ethnic cleansing on

23     an extraordinary scale and it was on discriminatory grounds.  We know

24     that the conflict in Mostar began in early May 1993, and that from that

25     point until the 9th of November, when the bridge collapsed into the

Page 451

 1     Neretva River, the ABiH held a narrow slice of territory on the west bank

 2     of the Neretva River and during this period the Old Bridge was used as a

 3     supply line for both the ABiH and the large Muslim population, civilian

 4     population living in Donja Mahala on the west bank of the Neretva.  So

 5     the Old Bridge was a lawful military target, but the totality of the

 6     evidence shows it was not targeted for that reason.

 7             We know that the repeated shelling attacks targeting the

 8     Old Bridge on the 8th of November rendered it completely unusable, that

 9     although it was still standing it could be considered destroyed.  That's

10     what the Trial Chamber found at volume 3, paragraphs 1300 and 1318.  In

11     other words, the bridge no longer had any military value.  There was no

12     military advantage to be gained by bringing about its complete

13     obliteration and collapse into the river on the following day, the 9th.

14             We know that the impetus for the final attack on the Old Bridge

15     was not anything that had happened in Mostar.  The impetus for this

16     attack was the fall of Vares to the ABiH forces in distant

17     Central Bosnia.  The fall of Vares is expressly referred to by Petkovic

18     in his 8 November 1993 attack order, P6534.  The Trial Chamber reasonably

19     concluded that the attack on Mostar on the 8th of November was a reaction

20     to the fall of Vares.  That's at volume 2, paragraph 1301.

21             The European Community Monitors, the ECMM, in Bosnia, in Mostar,

22     concluded the same thing on that very day.  At volume 2, paragraph 1352,

23     the Trial Chamber relied on an ECMM report of 9 November 1993.  The ECMM

24     assessment was:

25             "The timing of the HVO action against the Old Bridge in Mostar

Page 452

 1     could be linked to events in Vares and explained as a bloody-minded

 2     revenge.  The consequences of its destruction should not be

 3     underestimated.  It produced a feeling of despair in East Mostar,

 4     evidenced by the senior Muslim politicians literally reduced to tears.

 5     Evidence presented to ECMM convincingly demonstrates the targeting was

 6     deliberate and sustained.  By choosing to destroy a monument to ethnic

 7     tolerance, the HVO have sent a strong but negative message to the

 8     Muslims."

 9             So, Your Honours, this attack was a payback, it was retribution.

10     If the Old Bridge was targeted primarily to spread terror, if it was

11     destroyed to contribute to the persecution campaign, its destruction was

12     not justified by military necessity.  IHL makes this clear.  That an

13     object may be a lawful target does not mean that IHL, international

14     humanitarian law, will automatically authorise its destruction.

15     Identifying a potentially lawful target is just the beginning of the

16     inquiry.  And the inquiry here leads to the conclusion that the ultimate

17     destruction of the Old Bridge was not the result of a thoughtful, good

18     faith application of the proportionality test.

19             In his brief, Stojic refers to the literature telling us that a

20     bridge is the archetypical military target.  His brief paragraph 160.  As

21     though this bridge was no different --

22             MR. KHAN:  Objection.  Mr. President, I've remained seated on

23     several occasions when my learned friend has used his opportunity to

24     respond to General Petkovic's submissions by including the name and

25     arguments of Mr. Bruno Stojic.  Now, to raise arguments that are

Page 453

 1     contained in our brief is to -- is to deny the appellant Mr. Stojic the

 2     right to respond, and I would ask that he be prevented from doing so.

 3             Your Honour, these arguments could have been raised yesterday.

 4             JUDGE AGIUS:  Yes, let's hear what Mr. Stringer has to say and

 5     then we'll decide.

 6             Yes, Mr. Stringer.

 7             MR. STRINGER:  I think counsel's point is somewhat well taken.  I

 8     think the better solution is to allow them to respond to us if the

 9     Chamber is so inclined.  The Chamber's question number 2 --

10             JUDGE AGIUS:  No, I would skip straight away to your next

11     argument because I don't think what you did is the right thing to do.

12             MR. STRINGER:  Very well.

13             JUDGE AGIUS:  Yes, thank you.

14             MR. STRINGER:  And so in considering the Trial Chamber's finding

15     on the lawfulness of the destruction of the bridge, we submit,

16     Your Honours, that the bridge was not destroyed because it was a military

17     target, otherwise it would have been destroyed earlier, much earlier, in

18     this lengthy campaign and siege.

19             The cultural icon of the Old Bridge was destroyed in the latter

20     stages of a lengthy and violent ethnic cleansing campaign.  It was

21     destroyed as retribution for events that had occurred in Vares, far

22     removed from the Mostar battle-field.  Its destruction was an attack

23     directed against the Muslims of Mostar, not the ABiH.  It was intended to

24     spread terror and despair among the Muslim population who had been

25     hanging on in Mostar since the siege started five months earlier, to

Page 454

 1     extinguish any hope that their ordeal might end or their situation might

 2     improve.

 3             And so Your Honours' ruling affirming the unlawfulness of the

 4     destruction of the Old Bridge on the 9th of November would not undermine

 5     international law.  It would not affect or -- it would not certainly be

 6     inconsistent with a finding that the destruction of the bridge was not

 7     lawful.  It would, in fact, affirm that military commanders who do not

 8     apply principles of IHL in good faith, those whose targeting decisions

 9     are demonstrably intended to terrorise and persecute civilians based on

10     ethnicity will find no protection in the law of armed conflict.

11             Now, if Your Honours have any -- no more questions on this or any

12     of my submissions, I'm ready to pass the floor to my colleague,

13     Ms. Finnin.

14             Let me make one correction.  Line 75 -- transcript page 75,

15     line 23 should read "volume 1," paragraphs 195 to 197, not "volume 4."

16             MS. FINNIN:  Good afternoon, Your Honours.  My name is

17     Sarah Finnin and I will be addressing questions 6 and 7 which relate to

18     Stupni Do and conditions of confinement at Dretelj and Gabela.  For the

19     remainder of Praljak's arguments concerning Vares and his role in

20     detention centres, we rely on our written response to Grounds 32, 45, 46,

21     and 54.

22             In question 6, Your Honours have asked us to address whether the

23     evidence establishes that Praljak knew UNPROFOR was seeking access to

24     Stupni Do between 23 and 25 October 1993 and that he sought to prevent

25     such access.  Your Honours have asked us to focus in particular on

Page 455

 1     Exhibits P6068 and P6073.

 2             THE INTERPRETER:  Kindly slow down, please.  Thank you.

 3             MS. FINNIN:  I intend to give Your Honours a short outline of our

 4     answer and then I'll address each of our points in more detail.

 5             Our answer to Your Honours' question is yes.  The HVO's own

 6     communications as well as UNPROFOR and ECMM reports establish that in the

 7     days immediately following the attack on Stupni Do, Praljak and others

 8     within the HVO Main Staff were aware of allegations of a massacre.

 9     Instead of taking swift action against the perpetrators, they facilitated

10     efforts to keep UNPROFOR out of the village for as long as possible,

11     buying time while the HVO attempted to cover up their crimes.

12             The two exhibits Your Honours have referred to in the question

13     tell part of this story.  In the next few minutes I will put those

14     exhibits in the context of what was occurring at the time, both on the

15     ground and within the HVO Main Staff.

16             The Chamber found that HVO special units under the command of

17     Ivica Rajic attacked the Muslim of Stupni Do on the morning of Saturday,

18     23 October 1993.  During the attack, HVO soldiers murdered 28 civilians,

19     including women, elderly, and children as young as 2.  Some were shot at

20     close range.  Others had their throats cut.  Many were burned alive in

21     their homes.  Volume 3, paragraphs 410 to 467.

22             UNPROFOR became aware of the attack on Saturday afternoon when

23     patrols in the area sighted smoke and heard firing coming from the

24     direction of the village.

25             JUDGE MOLOTO:  Can I ask a question, please.  What was the date

Page 456

 1     on the Saturday afternoon?

 2             MS. FINNIN:  That was 23 October 1993.

 3             JUDGE MOLOTO:  Thank you.

 4             MS. FINNIN:  UNPROFOR became aware of attack on the Saturday,

 5     23 October.  That's P7838, page 2, and P10202, pages 1 to 2.

 6             They immediately made attempts to reach the village.  For three

 7     days these attempts were consistently blocked by HVO soldiers who set up

 8     roadblocks, mined check-points around the village, and fired on UNPROFOR

 9     vehicles.  P7838, page 2.

10             For those three days, the village continued to burn.  P6098, and

11     P10202, pages 1 and 8.

12             In the view of UNPROFOR's force commander, it was clear that the

13     HVO troops were "attempting to hide from us the atrocities they had

14     committed."  P6182.

15             But under unrelenting pressure from UNPROFOR and in the face of

16     widespread allegations of a massacre the HVO finally broke.

17             On Monday, 25 October, Un Military Observer Patrick Martin

18     managed to convince Commander Rajic to escort him through Stupni Do.

19     P7838, and P10202, pages 7 to 10.  Then believing there was nothing

20     implicating them in a massacre, the HVO at last gave UNPROFOR full access

21     to the village.  So on Tuesday, 26 October, UNPROFOR's Nordic Battalion

22     was allowed in, along with other internationals and members of the press.

23     P7838.

24             Despite the HVO's attempts to tamper with the scene, enough

25     evidence remained for UNPROFOR to confirm that a massacre had occurred.

Page 457

 1     P6182, and P10084, paragraphs 19 to 22.

 2             The Trial Chamber reasonably concluded that Praljak was

 3     specifically informed of murders and destruction of property occurring in

 4     Stupni Do no later than 5 November 1993.  That's volume 4, paragraph 595.

 5     This was the day he attended a meeting with Tudjman and other key JCE

 6     members where the events of Stupni Do were discussed at length.  P6454.

 7     However, the Chamber also recognised that Praljak was aware of

 8     allegations of crimes well before this meeting, when UNPROFOR was seeking

 9     access to the village.  That's volume 4, paragraph 621.  This finding is

10     well supported by the evidence.

11             The evidence establishes that Praljak began receiving reports

12     about what had happened in Stupni Do on the very same day as the attack.

13     That Saturday evening, Rajic sent a one-page report to Petkovic.  P6026.

14     Praljak admitted to receiving this report at around 11.00 that same

15     night, 23 October.  Transcript page 41900.

16             In this report, Rajic states that in the morning hours he carried

17     out an attack on Stupni Do and that "some civilians were killed."

18             In the days to follow, reports of a massacre began to spread.

19             On Sunday, 24 October, international representatives on the

20     ground are reporting to their superiors about a suspected massacre at

21     Stupni Do.  For example, P6055.

22             UNPROFOR's Nordic Battalion has already been tasked with getting

23     into the village to search for signs of a massacre.  P6053, page 3.

24             And UNPROFOR Command has already informed the HVO's liaison

25     officer of their concerns and has sent a letter of protest to Boban and

Page 458

 1     Petkovic.  P6053, page 3.

 2             The HVO Main Staff - Praljak's HVO Main Staff - immediately goes

 3     into damage control.  Their liaison officer to the UN tries to placate

 4     UNPROFOR, dismissing claims of a massacre as doubtful.  P6049.

 5             But by Monday, 25 October, the HVO has lost control of the story.

 6     Croatian TV is claiming to have footage of the massacre, and the

 7     Main Staff in Citluk is scrambling to come up with a position.  That's

 8     6104 and P6091.

 9             By now, Rajic has escorted Patrick Martin through Stupni Do and

10     believes there are no bodies to be found as "the area has been cleaned

11     up."  P6102.

12             Armed with Rajic's assurances that no footage of the massacre

13     exists, the Main Staff issues an announcement denying the allegations.

14     P6102 and P6083.

15             Late that evening, that's 25 October, Petkovic is summoned to

16     UNPROFOR to discuss access to Stupni Do.  P6144, and P6454, page 59.

17     It's at this point that the HVO finally buckles under the pressure.

18     Petkovic writes to Rajic urgently, ordering him to "allow the UN to enter

19     Stupni Do tomorrow, whatever the consequences (understand that the more

20     difficult it is made for them, the worse it is for us)."  P6078, and also

21     P6454, pages 59 to 60, and P6144.

22             The following day UNPROFOR is given full access to the village.

23             The evidence shows that during this critical period, Praljak and

24     the HVO Main Staff facilitated Rajic's efforts to keep UNPROFOR out of

25     Stupni Do.

Page 459

 1             I'll now take Your Honours to two examples which illustrate this.

 2             The first example is a series of orders or reports coming from

 3     within the HVO Main Staff on 24 and 25 October.  And this includes the

 4     exhibits referred to in Your Honours' question.

 5             At 5.00 p.m. on Sunday evening, that's the 24th, as UNPROFOR is

 6     continuing to seek access to Stupni Do, Rajic submits a report about

 7     UNPROFOR directly to Praljak himself.  This is P6067.  Rajic asks Praljak

 8     to please warn UNPROFOR to withdraw.  And he states:  "If not, we shall

 9     be forced to intervene and we cannot be held responsible for the

10     consequences."

11             As I said, Rajic's report was addressed to Praljak.  Within just

12     hours, Rajic receives a reply.  P6066.  That reply comes from Tole,

13     Praljak's Chief of Staff.  It orders that anti-armour weaponry be

14     positioned around UNPROFOR and that UNPROFOR be warned that they will be

15     destroyed if they interfere with the HVO's combat activities.

16             Through this order the Main Staff has effectively authorised the

17     use of force against UNPROFOR.  It is inconceivable that Tole, Praljak's

18     Chief of Staff, would do this without Praljak's approval, that he would

19     direct the HVO to essentially blockade UNPROFOR and potentially engage

20     them in combat.

21             That evening, UNPROFOR forces are fired upon by the HVO.

22     Transcript page 24437 to 24438, and Exhibit P2980, pages 15 to 16.

23             This brings me to the exhibits referred to in Your Honours'

24     question.

25             In Exhibit P6073, Petkovic informs Praljak that "in Vares our men

Page 460

 1     fired at the UN and drove them away.  I'm trying to rectify the

 2     situation."  And, Your Honours, this is coming after the HVO has fired on

 3     UNPROFOR the previous evening.

 4             Praljak responds in Exhibit P6068 by ordering Petkovic to

 5     disguise HVO's attempts to keep UNPROFOR out of Stupni Do.  He states:

 6     "Do whatever it takes to give the impression that we did not drive the UN

 7     away from Vares by opening fire."  That's also at transcript page 24572.

 8             This interaction confirms both that Praljak knew Rajic was

 9     preventing UNPROFOR from uncovering the HVO's crimes and that Praljak

10     supported it.

11             Turning now to the second example.  This is Praljak's order

12     issued on the evening of Saturday, 23 October.

13             As I mentioned earlier, at 11.00 p.m. on Saturday, 23 October,

14     Praljak received a report from Rajic stating that he had carried out an

15     attack on Stupni Do and that some civilians were killed.  The report also

16     indicated that three local HVO officials had been placed in isolation

17     because "they attempted to obstruct the planned activities."  P6026.

18             It is on the bottom of this report that Praljak handwrites his

19     order to "sort out the situation in Vares, showing no mercy towards

20     anyone."  P6026 and P6028.

21             In his appeal brief, Praljak has spoken at great length about

22     this order and what it means.  He claims, for example, that it isn't

23     really an order and he claims it wasn't intended to be distributed among

24     HVO soldiers.  But it is order.  It is an order coming from the commander

25     of the HVO Main Staff and it's treated that way.  It is typed and

Page 461

 1     distributed by packet communication to a number of Praljak's subordinates

 2     in Central Bosnia, including Rajic himself.  That's P6028.

 3             Praljak also claims in his brief that the Chamber misinterpreted

 4     his words.  He claims this instruction to sort out the situation was

 5     concerned with internal problems and local quarrels within the HVO and

 6     was issued in response to reports of smuggling.  And he denies the order

 7     had anything to do with the crimes committed in Stupni Do.

 8             Even taking Praljak at his word, this misses the point.  In this

 9     order, Praljak does not even acknowledge Rajic's report that civilians

10     were killed during the attack on Stupni Do.  He shows no concern

11     whatsoever for the possibility that his subordinates have committed

12     crimes.  Instead, through this order he effectively gives his

13     subordinates, including Rajic, the very commander responsible for the

14     attack, he effectively gives them carte blanche to act however they see

15     fit.  And he also gives Rajic all the authority that he needs to cover up

16     the HVO's crimes.

17             And Rajic did exactly that, giving direct orders to severely

18     restrict movement around Vares municipality while his forces attempted to

19     clean up Stupni Do.  P6114, P6126, and P10080, pages 221 to 228.

20             Even when more and more alarming information emerges about a

21     potential massacre, Praljak still doesn't act to hold Rajic to account or

22     even to curb his crimes.  Instead, he facilitates Rajic's efforts to

23     conceal those crimes by keeping UNPROFOR out, as we see in the

24     interaction occurring over the next two days.

25             On the basis of this evidence, Your Honours should uphold the

Page 462

 1     Chamber's reasonable conclusion that Praljak sought to prevent UNPROFOR

 2     from accessing Stupni Do and uncovering the consequences of the HVO's

 3     crimes.

 4             Unless Your Honours have any questions concerning Stupni Do, I'll

 5     now move to question 7.

 6             JUDGE AGIUS:  Go ahead.

 7             MS. FINNIN:  Before addressing Your Honours question, question 7,

 8     we would first note that by virtue of Praljak's shared intent and his

 9     significant contribution to the JCE, Praljak is criminally responsible

10     for all JCE 1 crimes committed in the HVO's network of detention

11     facilities, not just the crimes he was personally aware of and not just

12     the crimes he personally contributed to.  That's Sainovic appeals

13     judgement, paragraph 1491; and Karemera appeals judgement, paragraphs 109

14     and 153.

15             As such, Praljak's awareness of conditions of confinement in

16     Dretelj and Gabela does not impact his criminal responsibility for crimes

17     committed in those facilitates or in any other of the other HVO detention

18     facilities.  In terms of his JCE 1 liability, his awareness of the

19     conditions in those two prisons only bears on the question of his failure

20     to make any real effort to improve the conditions there, this being part

21     of his significant contribution to the JCE.

22             So to return to Your Honours' question, our answer is that

23     Praljak was aware that the conditions of confinement in those prisons

24     were so serious as to amount to crimes and he knew this by September 1993

25     at the latest, when publication of images of emaciated detainees sparked

Page 463

 1     international outrage.  Given this knowledge, his failure to make any

 2     real effort to improve those conditions properly formed part of his

 3     significant contribution to the JCE.

 4             Again, I'll give Your Honours an outline of our argument and then

 5     I'll address each our the points in more detail.

 6             The Trial Chamber took a conservative approach in its analysis of

 7     Praljak's awareness of crimes committed in Dretelj and Gabela.  It

 8     concluded that from September 1993, Praljak was aware that the conditions

 9     in Gabela were problematic enough to bring about Tudjman's intervention,

10     and that the conditions in Dretelj were poor.  That's volume 4,

11     paragraphs 609, 611, 614.  However, the evidence establishes much more

12     than that.

13             In light of the information that was available to Praljak once he

14     took control of the HVO Main Staff on 24 July 1993, it is simply

15     implausible that he was not aware of the deplorable nature of the

16     conditions to which Dretelj and Gabela detainees were subjected.

17             Even before taking up that position, Praljak was already playing

18     a crucial role as the link between Croatian officials and members of the

19     HVO, a role that required that he remain informed of developments on the

20     ground in Herceg-Bosna and that he keep Croatia informed of those

21     developments.  As a result, the only reasonable conclusion was that

22     Praljak was aware, just as Tudjman was, that the conditions in those

23     prisons were so serious as to amount to crimes.

24             And yet despite having the power to put a stop to those crimes,

25     Praljak allowed them to continue.  It was only in the face of an

Page 464

 1     international scandal which forced Tudjman himself to intervene.  It was

 2     only then that Praljak did anything.  And even then, he made no real

 3     effort to remedy the conditions.  In the end, nothing really changed.

 4             I'll spend the next few minutes taking Your Honours through each

 5     of these points in more detail.

 6             Beginning with Praljak's knowledge of the conditions in Dretelj

 7     and Gabela.  I'll take Your Honours through some of the information that

 8     was available to Praljak during the relevant period, information that was

 9     either in the public domain or information that was otherwise available

10     to him.  But before I do that, I'll just spend a moment setting out the

11     situation regarding the camps at the time Praljak took over as HVO

12     commander on 24 July.

13             Your Honours will recall that on 30 June 1993 Petkovic issued an

14     order which resulted in a massive campaign to arrest and detain Muslim

15     men.  Volume 4, paragraphs 57 and 890.  By the time Praljak took over as

16     commander of the HVO Main Staff on 24 July, several thousand Muslim

17     detainees were already unlawfully detained in both Dretelj and Gabela.

18     By that time, that's 24 July, the conditions in which those detainees

19     were being held were already so serious as to constitute inhumane acts

20     and inhumane treatment.  As Galbraith testified, by that time, 24 July,

21     the US had been putting pressure on Croatia to put a stop to HVO crimes,

22     including inhumane conditions of detention for over a month.  That's

23     transcript pages 6424 to 6425, 6477 to 6480, 6505, and 6541.

24             Also by that time, 24 July, while international representatives

25     had not yet been permitted access to Dretelj and Gabela, there was

Page 465

 1     growing concern about the treatment of detainees.  For example,

 2     transcript pages 17255, 17265, 17267 to 17268, and Exhibits P3271, P3952,

 3     and P4863.

 4             That was the situation Praljak faced when he took over from

 5     Petkovic as commander of the HVO Main Staff.  In just over a month,

 6     conditions at Dretelj and Gabela became world news.  By the end of

 7     August, there was graphic evidence of the appalling conditions at

 8     Dretelj, graphic evidence which was immediately reported on by the press.

 9     Praljak claims in his brief that he wasn't aware of this press coverage

10     at the time.  Before addressing Praljak's claim, let me just take

11     Your Honours to what was being reported and where.

12             The reports on conditions in the camps initially came from a

13     group of Muslim detainees who were released in late August and forced to

14     cross the front line into ABiH-held territory in Jablanica.  That's

15     2D411, page 3; P977B; and transcript page 17266.

16             Your Honours, if we could go into private session for just a

17     moment.

18             JUDGE AGIUS:  Let go into private session, please.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 466

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 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

22             JUDGE AGIUS:  We are in open session.

23             MS. FINNIN:  Thank you.

24             As described in Exhibit 4D801, page 3, the shocking images of

25     those detainees "went around the world, just like those of the Omarska

Page 467

 1     camp inmates a year before."

 2             For example, footage of those detainees appeared on both French

 3     TV 5 and also on Croatian TV.  Your Honours, in just a moment we will

 4     play that footage for you.  It takes about a minute.  It's Exhibit P977A,

 5     identified at trial by Malovic at transcript pages 14342 to 14344, and

 6     14346.

 7             JUDGE AGIUS:  May I remind you that you have just under ten

 8     minutes left.

 9             MS. FINNIN:  Thank you.

10                           [Video-clip played]

11             THE INTERPRETER: [Voiceover] "These people just arrived to

12     Jablanica a bit earlier during their release.  Their Croat captors amused

13     themselves by forcing them to run under rifle fire.  Four people got

14     killed on that occasion.  Their skinny bodies bear witness to a horrible

15     treatment they underwent and their statements reveal bestialities.

16     Packed in warehouses, starved, unbearably thirsty.  In order to survive

17     they had to drink their own urine.

18             "Detention in the Dretelj and Gabela camps confirms again the

19     daily horror that reigns in detention camps in Bosnia.  According to the

20     testimonies collected by the UNHCR, they were constantly beaten and

21     burned with cigarettes.  Some of them died immediately.  Croatian

22     soldiers amused themselves by opening fire from automatic rifles on

23     warehouses where they were kept.  Thirty of them got wounded in that way.

24     In addition to physical, there was also mental torture.  They had to sing

25     the songs that were derogatory for Muslims.  UNHCR employees claim that

Page 468

 1     those people are nowadays desperate and humiliated.  In the Dretelj camp,

 2     there are allegedly two to two and a half thousand detainees."

 3             MS. FINNIN:  The transcript of that video is attached to

 4     Exhibit P977A.

 5             An interview with UNHCR spokesperson Ray Wilkinson was also

 6     broadcast on CNN and Croatian TV.  That's Exhibit P977B, identified at

 7     transcript pages 14471 to 14474.  In that footage, Wilkinson described

 8     what these former Dretelj detainees were telling UNHCR about the

 9     conditions and he expressed UNHCR's concern that the conditions were

10     deteriorating rapidly.

11             Praljak denied seeing or even being told that this footage

12     existed, footage that appeared on Croatian TV.  He claimed at trial, for

13     example:  "I wasn't watching television during those days, nor did I have

14     the time or possibility to do so."  Transcript page 44328.

15             Praljak's claim that he was unaware of the seriousness of the

16     situation and the attention it was getting in the international press is

17     simply not worthy of belief.  Particularly in light of the evidence that

18     Praljak was taking a very active interest in the way the media was

19     reporting on the conflict.  This is revealed, for example, by his angry

20     complaints to ECMM in late September that:  "He was not prepared to see

21     more stories claiming that the Muslims are the victims."  P5356, pages 2

22     to 3.

23             In any event, Praljak admitted that in light of the international

24     scandal, Tudjman himself was forced to react.  Transcript page 44332.  By

25     6 September, that's one week after the story of the Dretelj detainees

Page 469

 1     broke, US ambassador Galbraith had met with Croatia's Foreign Minister

 2     Granic.  P9057.  Galbraith urged "in the strongest possible terms" that

 3     Zagreb demand the Bosnian Croats grant immediate access to detainees.

 4             That same day, 6 September, Tudjman sent a formal letter to

 5     Mate Boban calling on him to ensure international humanitarian law

 6     regarding the treatment of prisoners was strictly observed.  P9497, pages

 7     5 to 6, and also Galbraith, transcript pages 6505 to 6509, and

 8     Exhibit P9508.

 9             It's in the midst of all this that Praljak was allowing members

10     of the press into the prisons, when images of emaciated Dretelj detainees

11     were already appearing in the news, when Tudjman and other senior

12     Croatian officials were being put under increasing pressure by the US to

13     take action, and when the ICRC was finally being allowed entry into

14     Dretelj and Gabela.  This is when Praljak began to take action.

15             Information about the conditions continued to emerge throughout

16     September.  And on 14 September, even the UN Security Council was

17     expressing "its profound concern over recent reports that Bosnian Croats

18     have been holding Bosnian Muslims in detention camps under deplorable

19     conditions."  P5047.

20             By 24 September, Praljak himself was forced to admit during a

21     meeting with ECMM that Dretelj was "a bad thing."  P5356.

22             In light of this evidence, Your Honours, the only reasonable

23     conclusion was that Praljak was aware that the conditions in Dretelj and

24     Gabela constituted crimes by September 1993 at the latest.  In fact, it

25     was his job to know.  Praljak was not only commander of the HVO

Page 470

 1     Main Staff.  He was also the link between Croatia's senior leadership and

 2     the HVO.  As Mr. Stringer has already outlined, it was his job to provide

 3     advice to Croatia's leadership regarding the military and political

 4     situation in BiH and to implement Croatia's policies on BiH territory

 5     through his authority over the HVO.  So once the international pressure

 6     regarding the conditions of confinement in HVO detention facilities

 7     became so great that Tudjman himself was forced to do something, it was

 8     Praljak who stepped in and gave the impression that something was being

 9     done.  When in reality very little changed for the detainees in those

10     prisons.

11             The Chamber carefully examined Praljak's claims to have taken

12     steps to improve conditions and it reasonably concluded that these

13     measures did not constitute a real effort to remedy the situation.  This

14     conclusion is supported by the Chamber's factual findings that crimes

15     continued in Dretelj until it closed in early October 1993.  And rather

16     than being released, many Dretelj detainees were transferred to other HVO

17     facilities including Gabela.  There the crimes continued into

18     December 1993.

19             In these circumstances, the Chamber was correct to treat

20     Praljak's failure to remedy the conditions in those military prisons as

21     part of his contribution to the JCE.

22             Unless Your Honours have any questions, that completes our

23     response to Praljak's appeal.

24             JUDGE AGIUS:  No questions.  You have three minutes left.

25             MS. FINNIN:  That completes our submissions, Your Honour.

Page 471

 1             JUDGE AGIUS:  Okay.  Thank you very much.

 2             Yes, Ms. Pinter, your client took ten minutes.  You had still

 3     about five, six minutes left.  So you have 25, 26 minutes.

 4             MS. PINTER: [Interpretation] Thank you, Your Honour.

 5             I have reorganised myself during the break and I believe I will

 6     succeed in saying all that I wished.

 7             First of all, I would like to follow up on my presentation on

 8     appeal and then I would proceed to respond to the Prosecution.

 9             The Defence of Slobodan Praljak wishes to draw the attention of

10     the Appeals Chamber, that in assessing the grounds of appeal and the

11     determinations, the findings of the Trial Chamber in their verdict,

12     should bear in mind that the charges against Slobodan Praljak refer to

13     the time of the fiercest offensive in Bosnia-Herzegovina, that findings

14     should be made based on the actual state of facts and context of the time

15     not in the general vision of an armed conflict between two armies, which

16     would be impossible.  The Defence also wishes to draw your attention to

17     the fact that it's necessary to assess the incidents and events in the

18     context in which they belong, that is to say, regarding Slobodan Praljak,

19     to the extent that he was able to present the context and as we see it

20     from the case file, the testimony of witnesses and all our submissions.

21             The grounds of our appeal and the underlying arguments which we

22     adhere to in full point out to such a number of errors in law and in fact

23     made by the Trial Chamber, that is to say, the majority of the Trial

24     Chamber, and thereby negation of law and especially violations of due

25     process that even you cannot remedy.  The Trial Chamber should have

Page 472

 1     enabled the equality of arms to the parties in the presentation of

 2     evidence.  They should not have given advantage to any of the sides in

 3     the presentation of evidence, according to Article 2.4 of the Statute.

 4     The points in our appeal to the effect that Slobodan Praljak was deprived

 5     of a fair trial because the presumption of innocence principle was

 6     violated as well as the principle of equality of arms and the premises of

 7     fair trial, there were also violations of Article 23.2 of the Statute

 8     described in grounds of appeal 5, 10.1, 37.2, 49, 50.1, paragraphs 558,

 9     and Ground 55.1 and 53.

10             Without any statement of reasons given by the Trial Chamber,

11     Slobodan Praljak was also deprived of his right to appeal.  Equality of

12     arms was described in Grounds 39.1, 52, 51, and 53, as well as 10.1,

13     because the procedural rights of Slobodan Praljak and those of the

14     Prosecution were not balanced, and we are right in saying that Slobodan

15     Praljak did not have the right to a fair trial.

16             In addition to that, the facts were not determined properly and a

17     reduction of facts also leads to a negation of justice.  Da mihi factum,

18     dabo tibi ius is still a valid legal principle.  Failure to apply the

19     standard beyond a reasonable doubt is described in grounds of appeal 4,

20     9, 10.1, 12, 15, 20, 23, 38.2, 39.3, 41.3, 42, and 44.1.

21             The Trial Chamber also failed to apply the standard in dubio pro

22     reo that we referred to in our ground of appeal 38.

23             With regard to the ground of appeal 50, in connection with the

24     introduction of Ratko Mladic's diaries, we elaborated it in

25     paragraphs 539 to 565 of our appeal brief.

Page 473

 1             With the improper procedure described with all the references to

 2     findings and Defence submissions and the admission into evidence of the

 3     written statement ground of appeal 50.1, paragraphs 547 and 548, the

 4     majority made a decision with the intent of Slobodan Praljak regarding

 5     the joint criminal enterprise and joint criminal purpose without giving

 6     Slobodan Praljak the possibility to confront the said evidence, to

 7     provide explanations and to respond.  More detail is given in

 8     paragraph 564 of Ground 50.2.  We heard more today about Mladic's diaries

 9     and the evidence they are supposed to provide in a deformed procedure, we

10     submit, we led to violations of Defence rights and the right to a fair

11     trial.

12             In our ground of appeal 51, the Defence points out that the

13     Trial Chamber, that is to say, the majority, resorted to reducing some

14     facts, simplifying them, which simplification necessarily leads to errors

15     in findings and determination of key facts by rejecting a considerable

16     number of Defence evidence.  I am referring especially to the dissenting

17     opinion of the Presiding Judge of the 16th of February, 2010, which

18     dissenting opinion explains why he does not agree with the majority.  The

19     groundless simplification and reduction of facts that were to be assessed

20     meant, as far as Slobodan Praljak is concerned, a conviction with regard

21     to the existence of the JCE, de facto control, effective control, and at

22     the same time there was a failure to apply the in dubio pro reo

23     principles.

24             By decision of the Trial Chamber, that is to say, the majority,

25     most of the decisions regarding Slobodan Praljak were made by the

Page 474

 1     majority, Defence evidence was rejected, evidence that was in response

 2     and in rebuttal of Prosecution evidence.  Slobodan Praljak did not

 3     receive certification to appeal, and the Trial Chamber applied a double

 4     standard to the Prosecution and to the Defence.

 5             Concerning relevance, other failures to admit Defence evidence is

 6     referred to in paragraphs 567 to 576 of our appeal brief.  It is

 7     impossible to respond to all the charges in the indictment if the Defence

 8     is not given the opportunity to present the events and the reasons why

 9     certain incidents happened.

10             The Croatian community of Herceg-Bosna did not exist in a vacuum.

11     General Praljak did not operate in a vacuum.  Before making a verdict,

12     the Trial Chamber needs to have at its disposal all the available facts

13     in order to arrive at a just verdict.  Events cannot be taken out of

14     context.  It is impossible to judge the mens rea of General Praljak

15     without determining the pattern of conduct.  His motivations, his

16     actions.  And if all of this together is not linked into a causal nexus,

17     it is impossible to make a finding on criminal intent without hearing

18     evidence that explain the reasons for the conduct of the president of the

19     Republic of Croatia, the HVO, and General Praljak.

20             It is not in doubt that the crimes charged in the indictment have

21     been committed.  However, in order to conflict General Praljak of these

22     crimes, it is necessary to make a comprehensive presentation of events,

23     not a partial one.  It is necessary to assess the conduct of the

24     international community.  What were the actions of the important

25     international players and what they said about the events in

Page 475

 1     Bosnia-Herzegovina.

 2             I wish to draw your attention also to the allegations in the 51st

 3     ground of Prosecution's appeal pursuant to Rule 92 bis evidence and

 4     especially the statements regarding the Mujahedin in Central Bosnia and

 5     the situation in Central Bosnia.  Such evidence and statements were

 6     rejected as irrelevant.

 7             In footnote 1298 of the appeal brief, there are numbers of

 8     statements that were rejected, especially the statement of Ali Ahmad Ali

 9     Hamad [phoen] and the transcript of his evidence in case IT-04-83-T.  The

10     position of the majority that witness statements referring to the

11     Mujahedin and the events in Central Bosnia, Travnik, Bugojno, Kakanj were

12     not relevant to the present case was erroneous because it was precisely

13     the Prosecution that claimed in its indictment that one of the ways of

14     conducting, carrying out the JCE was the unjustified terrorising and

15     intimidation of Croats, telling them that they are threatened by the

16     Mujahedin in order to achieve reverse expulsion and transfer of Croats

17     from Central Bosnia to Herzegovina.

18             The stand of the majority regarding these statements, namely that

19     they were irrelevant, was certainly erroneous and, as such, enabled the

20     finding from paragraphs 54 and 55 of volume 4 that HVO and

21     Slobodan Praljak conceived a transfer of Croats and the threat from the

22     Mujahedin in the absence of any real danger.

23             Furthermore, I would like to emphasise our ground of appeal 53

24     just to show the bias of the Trial Chamber regarding the Defence of

25     General Praljak.  The Chamber rejected the expert report of

Page 476

 1     Professor Sakic, paragraph 377, volume 1, and concluded that the report

 2     was not credible because it originates from the Ivo Pilar Institute which

 3     is associated with the Croatian government and Croatian Intelligence

 4     Services, which casts doubt on the impartiality of expert Sakic.

 5     However, neither the Republic of Croatia nor its intelligence services

 6     were parties to the case.

 7             At the same time when expert Sakic was rejected as an expert

 8     because of his association with Croatia, Witness Tomljanovich was

 9     presenting his report which was admitted by the Chamber and it served as

10     a basis for the judgement.  The Defence of General Praljak finds this

11     conclusion of the Chamber as partial against Slobodan Praljak and judges

12     such a finding as a confirmation that his basic right to a fair trial and

13     the standard of presumption of innocence were violated.

14             In his reply to the appeal, the Prosecution emphasises that the

15     appeal of General Praljak is repetitive, that we repeat arguments and

16     facts made during the trial and which were rejected at the time.  It is

17     true that we are reiterating arguments even now, not only in our appeal

18     brief, we are repeating them in our submissions because they need to be

19     heard and read, and most importantly, Slobodan Praljak, in view of his

20     general right of the accused to receive clear and precise reasoning as to

21     which acts or omissions justify the rejection of his arguments and

22     evidence, what he should have done differently, more or better than he

23     had done, in order to receive a verdict that gives a proper answer to his

24     questions so that he may understand why he was convicted [as

25     interpreted].

Page 477

 1             The errors of the Trial Chamber emphasised in our appeal brief

 2     were made against the rights of Slobodan Praljak.  The Appeals Chamber

 3     cannot remedy them.  It would be contrary to the generally accepted

 4     standards in the appeal procedure to try to remedy them now.  The

 5     violations were made during the criminal procedure, and we should remain

 6     in that procedure.  So we stand by our submission that Slobodan Praljak

 7     should be acquitted on all charges and that the judgement, due to all the

 8     errors made, should be invalidated and a re-trial be reordered.

 9             That would be all our submissions for now, but if we have any

10     time left, I would like to proceed to respond to the Prosecution's reply.

11             MR. STRINGER:  Mr. President, could I please be heard very

12     briefly.

13             We have just heard at least 20 minutes of Praljak appeal, which

14     should have been a part of the appeals submissions.  I'm going to be

15     asking Your Honours to give us those three minutes, back, if I may.

16             JUDGE AGIUS:  You have three minutes.  You have three minutes.

17             MS. PINTER: [Interpretation] It wasn't up to me.  How much time

18     do I have left?  My colleagues are telling me to ask that first.

19             JUDGE AGIUS:  Two minutes.

20             MS. PINTER: [Interpretation] I wanted to say one thing, something

21     that we wanted to make part of our appeal, which is to invoke

22     Judge Trechsel's separate opinion in volume 5, page 18, whereby he said

23     that nobody should be asked to do something that they are not obliged to

24     do.  It had to do with the response to the question about Gabela and

25     Dretelj.  Somebody should not be charged with something that they were

Page 478

 1     not obliged to do.

 2             As regards the other answers to your questions, perhaps my

 3     learned friend Mr. Stringer can reply first and then I might make use of

 4     a minute or two I have left.

 5             JUDGE AGIUS:  I'm giving Mr. Stringer three minutes.  Because

 6     rather than replying to his submissions, you raised new issues.  I was

 7     expecting that because we gave you the floor during the reply time.  So,

 8     however, we have to rectify that.

 9             Mr. Stringer, you have three minutes.

10             MR. STRINGER:  Thank you, Mr. President.  Grateful for your

11     willingness to be flexible.

12             Just a few words in response to the submissions on the Mladic

13     diary entries.

14             The Trial Chamber, after granting the Prosecution motion to

15     re-open its case, the Mladic diaries came in at the very latter part of

16     the case, granted the Prosecution -- allowed the two excerpts that

17     Your Honours have seen in these proceedings.  The Chamber then invited

18     the Defence to file motions to re-open in order to respond to those which

19     had been admitted.

20             Slobodan Praljak tendered 24 exhibits, 22 of which were found by

21     the Trial Chamber not to have any bearing on the diary entries or really

22     much relevance to the case at all.  He tendered also an expert -- well, a

23     report of a handwriting expert but he tendered it under Rule 89, ICTY

24     Rule 89 as opposed to 94 bis on experts, and the Trial Chamber very

25     correctly ruled -- excluded the expert report.

Page 479

 1             Praljak never indicated to the Chamber what it was he would say.

 2     He never made a submission that would justify re-opening his case, and

 3     the Trial Chamber had no basis on which to really make a decision as to

 4     whether the standards for re-opening had been met or would be met by

 5     whatever it was that Slobodan Praljak wanted to say because he never gave

 6     the Trial Chamber any indication whatsoever.  It did note, however, that

 7     his desire to actually tender some of the Mladic diaries indicated that

 8     it was inconsistent with his challenges to the diaries on the other hand.

 9             Finally the Chamber offered and allowed him the opportunity to

10     brief and make submissions on the diaries in closing submissions, and

11     then at the closing submissions themselves, Defence counsel told the

12     Chamber that he did not wish to expand, in closing argument, on the

13     submissions made in the final trial brief about the Mladic diaries.  So

14     Praljak didn't give the Chamber a sufficient basis in which to re-open.

15     He was granted nonetheless the opportunity to address this in closing,

16     both written and orally.

17             And then last point, Your Honour, as we've heard, Banovina,

18     division of Bosnia, those points that are referred to in the Mladic diary

19     entries are found throughout lots of other evidence in this case and they

20     don't have an impact.

21             JUDGE AGIUS:  Thank you, Mr. Stringer.  Thank you, Ms. Pinter.

22             Yes ... yes.

23             MR. KARNAVAS:  Thank you, Mr. President.  And thank you,

24     Your Honour.  My recollection is vastly different.  It is not the Trial

25     Chamber, it is the majority --

Page 480

 1             JUDGE AGIUS:  No, no, wait.  Stop.

 2             MR. KARNAVAS:  Well, Your Honour, if you're going to be allowing

 3     the Prosecution to make these arguments -- very well.

 4             JUDGE AGIUS:  Mr. Karnavas, please sit down.

 5             MR. KARNAVAS:  Very well, Mr. President.

 6             JUDGE AGIUS:  Okay.  Finished.  We will reconvene tomorrow

 7     morning at 9.30, and it will be Defence for Mr. Petkovic.

 8             Finished, Ms. Fauveau.  Finished.

 9             MS. FAUVEAU-IVANOVIC: [No interpretation]

10                           --- Whereupon the hearing adjourned at 4.15 p.m.,

11                           to be reconvened on Thursday, the 23rd day of

12                           March, 2017, at 9.30 a.m.