Tribunal Criminal Tribunal for the Former Yugoslavia

Page 672

 1                           Monday, 27 March 2017

 2                           [Open session]

 3                           [Appeals Hearing]

 4                           [The appellants entered court]

 5                           [The Appellant Pusic not present]

 6                           --- Upon commencing at 9.30 a.m.

 7             JUDGE AGIUS:  Good morning, everybody.

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

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

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

11             JUDGE AGIUS:  Thank you.

12             Appearances for the Prosecution.

13             MS. BASSETT:  Good morning, Your Honours.  Marisa Bassett for the

14     Prosecution appearing with senior appeals counsel, Barbara Goy; and

15     Douglas Stringer.

16             JUDGE AGIUS:  Thank you very much.

17             Appearances for Mr. Prlic.

18             MR. KARNAVAS:  Good morning, Mr. President; good morning,

19     Your Honours; and good morning to everyone in and around the courtroom.

20     I'm joined by Suzana Tomanovic.  Michael Karnavas for Dr. Jadranko Prlic.

21             JUDGE AGIUS:  Appearances for Mr. Stojic.

22             MS. NOZICA: [Interpretation] Good morning, Your Honour.  I am

23     today here together with Ivan Bellis and Bert Bertrand.  My make is

24     Senka Nozica, counsel.  Your Honours, I can see that you are trying to

25     locate us in the courtroom.  It is difficult because we keep rotating.

Page 673

 1     We just let our colleagues take our place where we sat previously because

 2     of their PowerPoint presentation.

 3             JUDGE AGIUS:  Thank you very much and good morning to you.

 4             Appearances for Mr. Praljak.

 5             MS. PINTER: [Interpretation] Good morning, Your Honour.  Good

 6     morning to everyone in and around the courtroom.  General Praljak is

 7     represented by Natacha Fauveau-Ivanovic and Nika Pinter.

 8             JUDGE AGIUS:  Thank you very much, madam, and welcome to both of

 9     you.

10             Appearances for Mr. Petkovic.

11             MS. ALABURIC: [Interpretation] Good morning, Your Honour.  Good

12     morning to everyone present in the courtroom.  General Petkovic's Defence

13     is still in the same composition:  Mr. Mateskovic; Mr. Lazic; and myself,

14     Ms. Alaburic.

15             JUDGE AGIUS:  Thank you very much.

16             And finally appearances for Mr. Coric.

17             MS. TOMASEGOVIC-TOMIC: [Interpretation] Good morning, Your

18     Honour.  On behalf of Mr. Coric, Ms. Tomasegovic-Tomic appearing;

19     Mr. Plavec; and our legal consultant, Dan Ivetic.

20             JUDGE AGIUS:  Thank you, madam, and welcome.

21             Appearances for Mr. Pusic.

22             MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honour.  On

23     behalf of Mr. Pusic, Mr. Mulalic, Mr. Sahota, and Mr. Ibrisimovic

24     appearing.

25             JUDGE AGIUS:  Thank you.

Page 674

 1             Today it's your turn, Defence for Mr. Pusic.  You've got two

 2     hours starting from now.  Thank you.

 3             MR. SAHOTA:  Thank you.  Good morning, Your Honours.

 4             JUDGE AGIUS:  Good morning.

 5             MR. SAHOTA:  There is one seat empty in the dock.  Mr. Pusic

 6     cannot be here today; the Appeals Chamber knows why.  I ask that his

 7     absence should not taken as any sign of disrespect to the Court or

 8     disrespect to any of those that have suffered because of this conflict.

 9     Mr. Pusic has made it plain in Court during this case, he said that what

10     hit the him hardest is having to listen to the victims in this case; he

11     finds that unbearable.  He said that almost ten years ago on the 5th of

12     October, that's transcript reference 7950.  He's also asked that we, as

13     his Defence team, make it clear that nothing we say today in the course

14     of this appeal should be taken in any way to minimise the distress, pain,

15     and suffering that is felt by victims of this conflict.

16             Your Honours, today our order of submissions will be that we will

17     begin firstly be briefly commenting on the JCE.  The majority of our time

18     will, however, be spent on directly addressing the questions that you

19     have raised in the Scheduling Order in the order that they are contained

20     therein, beginning with question 1, then 4, and then question 9.

21             I am -- hope not to use all the time that's been allocated to me.

22     I also hope that you will forgive me if I do.  One of the advantages of

23     being last on the indictment is that we can listen to what others have

24     said and that can also be a big disadvantage in a multi-handed trial, but

25     today I will try whenever possible to save time but adopting submission

Page 675

 1     that applied to the Pusic Defence which have been already rehearsed by

 2     others.  I would also encourage and invite questions from the Bench at

 3     any time.  I've always found this helps focus attention on the issues

 4     that are most relevant, although I do hope that I do not come to later

 5     regret making this invitation.

 6             Your Honours, if I may begin with ground 3 of our appeal brief,

 7     which is our submission that there is no evidence of a JCE in this case.

 8     Our position remains.  We say that the Trial Chamber erred in coming to a

 9     conclusion that a JCE existed.  We would define the JCE in this case as a

10     two-tier JCE.  Tier 1 we refer to the ultimate goal which I will call, by

11     way of shorthand, the Banovina reunification theory, which Your Honours

12     will be familiar with volume 4, paragraph 24.  The Banovina reunification

13     theory we would say is a non-criminal and political aspiration.  Tier 2

14     of the JCE, we say, is that there are the specified criminal means which

15     are cited to achieve that goal which also form part of the JCE.  Before

16     going any further, we would just clarify what we say the law governing

17     the JCE is, the extracts that are relevant.  We accept the law allows

18     evidence of a JCE to be inferred from circumstantial evidence.  There

19     does not have to be direct evidence of an explicit agreement.

20             We also accept that the law allows the Trial Chamber to rely on

21     evidence of the way in which crimes were committed as evidence of a JCE,

22     hence the often repeated mantra relied on by the Prosecution that the

23     best evidence that the accused is part of a common plan lies in evidence

24     of what the accused actually did or said.

25             THE INTERPRETER:  Kindly slow down for the interpreters.  Thank

Page 676

 1     you.

 2             MR. SAHOTA:  Nonetheless --

 3             JUDGE AGIUS:  Mr. Sahota, please, if you can kindly slow down a

 4     little bit.  Thank you.

 5             MR. SAHOTA:  What troubles us nonetheless is that the evidence

 6     that those inferences are drawn from is, we say, too ambiguous,

 7     conflicting, and contradictory to support the Chamber's conclusions,

 8     particularly when the standard of proof is so high - it's the criminal

 9     standard - and these facts have to be proved beyond reasonable doubt.

10             The reasons we cite in support of that proposition are set out in

11     detail in our appeal brief.  I do not intend to rehearse them again here,

12     nor do we intend to repeat all the other relevant points that the Court

13     has already heard in relation to this submission.  We would, however,

14     like just to develop one aspect, one point, concerning the Chamber's

15     reasoning.  We say that underpinning the Trial Chamber's JCE theory is

16     the notion that the Croatian and HVO HZ HB military and political

17     structure was a tool or instrument in the hands of their leaders, a tool

18     or instrument used to further a particular end, their vision of a Greater

19     Croatia, the tier 1 of the JCE which I referred to earlier.

20             Now I use the word "instrument" here because when reading the

21     Trial Chamber's decision, I was reminded of the debate in political

22     science between instrumentalists and structuralists.  I should just say

23     here that my first degree was history.  The instrumentalists believe that

24     the state is a direct instrument of the ruling class, so applying that

25     concept to the JCE in this cases, we could say that the state and its

Page 677

 1     apparatus were an instrument in the hands of Tudjman and his cohorts.

 2     He/they gave orders.  What he/they wanted was executed.  And it's obvious

 3     from the Trial Chamber's judgement and the indictment that Tudjman is

 4     given almost dictatorial powers in their analysis of the JCE to shape

 5     policy and events.

 6             Structuralists, on the other hand, believe that the state is not

 7     an instrument at all.  They believe that the state does not exist as a

 8     thing in itself that can be bent to the will of a ruler or the ruling

 9     class; instead, it's a neutral arena.  And to use a quite delightful

10     expression from a philosopher, Nicos Poulantzas, he described the state

11     as a neutral arena for the condensation of a balance of forces.

12             Your Honour, this discussion is relevant to our submission

13     because we say the Trial Chamber has erred in adopting this

14     instrumentalist approach in formulating their JCE, in particular, tier 1

15     of the JCE theory.  The Trial Chamber has come up with a very simple and

16     elegant solution to a most complicated problem which boils down to this:

17     Tudjman always wanted a Greater Croatia.  When he got the opportunity to

18     put this policy in action, he had the ability and used the state

19     apparatus in Croatia and the HVO HZ HB apparatus as a tool or instrument

20     to execute that policy.  And the other leaders, the other accused in this

21     case and others mensed in the JCE, agreed and went along with him.

22             We can see that this is an elegant and superficially attractive

23     formulation, especially when compared to the Prosecution's original

24     contention in the indictment that there were several JCEs, not just one.

25     However, our submission is that while this approach has the virtue of

Page 678

 1     simplicity, it is it also fundamentally flawed because what this

 2     instrumentalist JCE theory can't explain is the complexities of the

 3     situation that arise when important evidence conflicts with the Trial

 4     Chamber's analysis.

 5             You've heard in the past few days many examples of what I will

 6     term inconvenient facts, facts that don't fit in with the Trial Chamber's

 7     instrumentalist analysis.  I don't intend to rehearse them again, but

 8     they include evidence of Tudjman's conflictive motives.  His motives seem

 9     to change and shift over time and in response to external events.

10     Indeed, Your Honours, I said that I was a historian by training in my

11     first degree.  It is ironic when one reviews the historical literature to

12     see how historians are divided as what Tudjman's motives are, almost in

13     the same way the Trial Chamber was divided as to what Tudjman's motives

14     are, contrast the minority and majority decisions, examine the lengthy

15     narrative in the minority dissent.  And, Your Honours, we say this is

16     important because the ultimate objective of the JCE, tier 1, this must be

17     also proved beyond a reasonable doubt.  There are other inconvenient

18     facts.  Again, I don't intend to rehearse them all.  Broad categories

19     include submissions you've heard that the HVO at times was acting

20     defensively and not pursuing an aggressive policy in terms of expanding

21     the land mass under their control, submissions you've heard that the HVO

22     at times or throughout did not pursue an aggressive policy of ethnic

23     cleansing.  And, Your Honours, what seems to be the case is that we say

24     this evidence of inconvenient facts, which suggest that those named as

25     the framers of the JCE actually had varying objectives which suggests

Page 679

 1     that their modes of execution depended and changed on the dynamics of

 2     power; these inconvenient facts are largely ignored by the Trial Chamber.

 3             May I clarify here.  We are not saying that there is anything

 4     necessarily wrong or incorrect with this instrumentalist JCE approach

 5     being taken in cases where an international tribunal is dealing with a

 6     large-scale conflict.  But there is a very strong argument that the fever

 7     of the mind that formed the background for the Second World War and the

 8     Rwandan conflict, by way of an example, lent itself to an instrumentalist

 9     analysis.  In those conflicts, in contrast to the facts that we are

10     dealing with today, there was clear evidence of a -- of centralised

11     control of the state.  There was evidence of a clear and consistent

12     policy agenda, suggesting a unity of purpose amongst the political actors

13     and military actors and a narrative of conflict that suggested that one

14     party acted aggressively.  These are common threads present in those

15     cases, not necessarily present in the more complicated factual background

16     of the particular situation we are dealing with today in the Balkans.  To

17     put it simply, JCE theory is not an easy fit against this background.

18     That's why deliberately in my submissions today, Your Honours, we have

19     referred to the JCE as formulated in the majority decision as a theory,

20     because that's what it is.  It sounds great as a theory, but when you

21     apply it to the facts it just doesn't stand up; because it's a theory

22     that provides a factually incomplete and inaccurate characterisation of

23     the background to the conflict; because it's a theory that's based on a

24     highly selective reading of the evidence and a gross oversimplification

25     of the issued raised by that evidence; and also because it's a theory

Page 680

 1     that directly impacts on the reputation of the Government of Croatia,

 2     when that country has not been given the opportunity to respond to it.

 3     That's why we say that JCE as formulated is a theory that should sit

 4     alongside the many other narratives that historians and politicians and

 5     members of the public will debate in academic circles, in their

 6     parliaments, in coffeehouses for years to come.  It should not and cannot

 7     stand alone as a definitive finding of fact proved beyond reasonable

 8     doubt in an international court of law.  It should and cannot stand as

 9     the final word or not just what happened during the conflict and who was

10     responsible, but also on why it happened.

11             I ask the Chamber to pause here and consider for Your Honours to

12     ask yourself:  Was it even necessary for the Court to address and devote

13     so much time to this question of why the conflict happened, when this is

14     an issue that occupies historians and causes so much controversy?  I

15     remind Your Honours of what was said in Krstic, where it was re-stated

16     that the purpose of this Court is not to set the historical record on the

17     causes of the conflict.  In Krstic the Appeals [sic] Chamber said that:

18             "... historians and social psychologists" should be left to

19     "plumb the depths of this episode of the Balkans conflict and to profile

20     deep-seated causes.  The task at hand is a more modest one:  To find,

21     from the evidence presented at trial, what happened ..."

22             And, Your Honours, that's cited at footnote 182 to paragraph 104

23     of our trial brief.

24             Your Honours, we say that profiling deep-seated causes is exactly

25     what the Trial Chamber has done in this case.  One cannot fail but to

Page 681

 1     have those words from Krstic in mind when reading paragraphs 6 to 24 of

 2     volume 4 of the Trial Chamber's judgement.

 3             So in concluding our JCE submissions, we ask you to review the

 4     evidence cited in support of the JCE.  We are confident that if you do

 5     you will find that not only was it unnecessary for the Court to consider

 6     the causes of the conflict in the detail it did, but you will find that

 7     findings it came to concerning the existence of a JCE are erroneous and

 8     unsafe.

 9             Your Honours, four years ago I addressed the Trial Chamber in my

10     closing speech, and I said then that the Prosecution had overreached in

11     its theory of many overlapping JCEs in the indictment.  Today I submit

12     that the Trial Chamber has overreached either further than the

13     Prosecution did - if that is at all possible - in finding that one JCE, a

14     grand overarching scheme, existed rather than several interlocking JCEs.

15             Your Honours, that concludes my submissions on JCE.  If I may

16     turn now to the questions in the order that were provided by the Chamber.

17     And if I may address each question in turn, turning to question 1 which

18     is an inquiry into the state of occupation.  Ask the Appeals Chamber at

19     this junction to note that one of the ways in which we will be submitting

20     in due course that the case of Mr. Pusic is different and should be

21     distinguished from the co-accused lies in the fact that he is not

22     actually charged in respect of any crimes that took place in

23     Gornji Vakuf, and confirmation of this can be found at paragraphs 73 and

24     230 of the indictment.  Thus reinforcing submissions in our appeal brief

25     that he was not a leader or high-level official.  Also apparent from the

Page 682

 1     fact that he was not charged with any of the crimes that are said to have

 2     taken place in Prozor in October 1992.  And it was further said in the

 3     Trial Chamber's judgement that in their opinion, he is only considered to

 4     have joined the JCE later than the others, in April 1993, the events in

 5     Gornji Vakuf having taken place some months earlier in January of that

 6     year.

 7             Your Honour, in direct response to the question raised by this

 8     Chamber at question 1, we simply adopt submissions made previously,

 9     particularly those made by the Stojic team which we don't feel that we

10     can improve on.

11             Moving on to the next question that directly addresses Mr. Pusic,

12     that's question 4.  Again, Your Honours, the incident in Dusa takes place

13     in Gornji Vakuf, which is in relation to a crime that Mr. Pusic is not

14     charged with directly.  However, turning to question 4(a) there were, in

15     our submission, be some impact on Mr. Pusic if the Appeals Chamber were

16     to reverse their finding on Dusa; if, in turn, that finding lead to the

17     Appeals Chamber redefining the parameters of the JCE; if a reversal of

18     the Dusa finding lead the Appeals Chamber to reverse all the convictions

19     for the other defendants for any crimes of wilful killing and murder that

20     took place in the course of any attacks, on the basis that those crimes

21     were not within the scope of the common plan; then we say that Mr. Pusic

22     should also be acquitted of similar crime, in his case his convictions

23     pursuant to JCE 1 for Counts 2 and 3 which are said to be wilful killings

24     and murders that took place in the course of an attack in Mostar.  So if

25     those crimes are by implication found not to be part of the common

Page 683

 1     criminal plan, then he should be also acquitted of them.

 2             Question 4(b), it follows that as Mr. Pusic was not charged with

 3     the events in Dusa, the Trial Chamber made no findings in relation to his

 4     mens rea, and we say there should be no impact on his mens rea for JCE

 5     following any reversal unless the Appeals Chamber decides to define a new

 6     legal definition of mens rea in JCE, which I frankly can't imagine is

 7     going to happen in this case.

 8             Question 4(c), Your Honours, the short answer is that we take the

 9     view that a reversal should have no impact on Mr. Pusic's acquittal for

10     any JCE 3 crimes.  We do, however, take the position that we will wait to

11     hear what the Prosecution says in regards to this point and reserve our

12     right to respond fully until we have heard that reply.

13             Moving on now, Your Honours, to question 9, where the Appeals

14     Chamber has asked for us to examine the Trial Chamber's finding that

15     Mr. Pusic had the power to resolve problems related to conditions of

16     confinement and the mistreatment of detainees in the network of HVO

17     detention centres.  We will focus on the Trial Chamber's findings in

18     paragraph 1056 of volume 4, that is the paragraph cited in the footnote

19     to question 9 in the Scheduling Order.  We propose to deal with the

20     issues raised in paragraph 1056 in this particular order:  Firstly, we

21     will look at the issue of forced labour, we will then turn to look at the

22     question of Mr. Pusic's powers over the conditions of detention and his

23     ability to remedy the mistreatment of detainees.

24             So the first issue:  Forced labour.

25             Your Honours, the Trial Chamber's findings -- relevant findings

Page 684

 1     can be found at paragraph 1054.  Mr. Pusic is said to be amongst those

 2     with the power to authorise the sending of detainees on forced labour

 3     assignments in the Heliodrom.  Another relevant finding is at

 4     paragraph 1203, where it's said that Mr. Pusic played a significant role

 5     in the use of Heliodrom detainees to work on the front line, as he was

 6     one of the authorities who authorised or approved this.  Your Honours, I

 7     would ask you just to note the use of the word "significant" here,

 8     contrast it with the use of the word "substantial" to describe

 9     Mr. Pusic's powers elsewhere the judgement, particularly in passages that

10     deal with detention centres.  Your Honours, we suggest - and I will

11     elaborate on this later - that this indicates a rather muddled approach

12     on the part of the Trial Chamber.

13             Paragraph 1203 continues with a Trial Chamber finding that

14     Mr. Pusic continued sending detainees to work on the front line although

15     he knew that detainees had died and had been wounded.  These allegations

16     form, we would suggest, probably the most serious allegations that have

17     been laid against Mr. Pusic so that we will address them in some detail.

18             The principal evidence relied on in support of these assertions

19     by the Trial Chamber is the evidence of one Josip Praljak.  Mr. Praljak

20     is one of the wardens at the Heliodrom.  The first point that we would

21     emphasise in relation to his testimony is that the Trial Chamber

22     acknowledged that this witness lied on oath before an international

23     court.  The appropriate reference can be found at paragraph 1589 of

24     volume 2.  The Trial Chamber found that Mr. Praljak, Josip Praljak, lied

25     about most important issue in his testimony, when he claimed that he had

Page 685

 1     no knowledge of any detainee abuses in the Heliodrom during the time that

 2     he worked there.  This was a patently absurd claim; the Trial Chamber was

 3     right to reject it.  However, in our submission, the Trial Chamber did

 4     not go far enough.  It should have, as a consequence, rejected his

 5     evidence in its entirety instead of cherry-picking and taking a

 6     compartmentalised approach.  And what we find particularly troubling with

 7     the Trial Chamber's findings is that the Chamber accepted that Praljak

 8     was lying when it came to the issue of who was responsible or knew for

 9     what happened at the Heliodrom; but when to the same end in his testimony

10     he pointed the finger at others, they accepted his version of events

11     unreservedly and uncritically.  And they did so without explaining why

12     they could discard one part of his testimony but rely on another, again

13     to make a finding beyond reasonable doubt, also suggesting that they

14     failed to make a reasoned finding in relation to his evidence.

15             Your Honours, it also follows that we have concerns because there

16     is no finding made by the Trial Chamber that Josip Praljak was

17     Mr. Pusic's subordinate and that Mr. Pusic had the authority to give him

18     orders.  And I remind the Appeals Chamber of the evidence that was heard

19     on Friday last, when the Prosecution asserted - that's at transcript page

20     641 - when the Prosecution asserted its position as to who the wardens

21     and commanders of the Heliodrom reported to and did not cite Mr. Pusic

22     that regard.  What troubles us here again is that the Trial Chamber made

23     no finding that Mr. Pusic held any official position within the prison

24     network.  It made no finding that Mr. Pusic had any direct authority over

25     prison governors or prison wardens or prison staff in each facility.  It

Page 686

 1     made no finding that he had any powers over military personnel stationed

 2     at any of the detention centres; many of those personnel were ultimately

 3     responsible for the forced label assignments, we say.  It made no finding

 4     that he had any powers over the superiors of any of the officials at the

 5     prisons or to any of the military personnel stationed there.

 6             Your Honours, this point is developed at paragraphs 16 to 21 of

 7     our appeal brief.  I won't repeat the submissions here, but this does go

 8     to what we've said earlier, that Mr. Pusic's case is different from the

 9     other co-accused.  He is not in the cabinet.  He's not a high-level

10     political figure.  There is mention in the Trial Chamber's judgement that

11     they don't even consider him to be a high-level official.  We say that it

12     cannot be inferred from evidence of the position or any position he held

13     that he had powers over prison staff or military commanders.  That is a

14     conclusion the Prosecution have to prove beyond reasonable doubt.

15             And at this point we would issue a handle-with-care warning in

16     respect of certain categories of evidence, in particular in respect of

17     any reference by the Trial Chamber or the Prosecution to Mr. Pusic having

18     de jure powers by virtue of any positions he held, by virtue of any

19     position he held on the 5th of July Service for Exchange established in

20     1993, by virtue of any position he held or powers he had from his

21     position that the 6th of August, 1993, commission for exchange and

22     prisons.  Your Honours, this particular organisation is the subject of

23     several citations by the Trial Chamber, and it is puzzling to us that so

24     much reliance is placed on evidence is connected to it when at other

25     parts of the judgement the Trial Chamber concedes that they thought the

Page 687

 1     commission was entirely ineffective.  And they accept that there was no

 2     evidence it ever met.  And, Your Honours, rather than rehearse this again

 3     today, I would refer to our appeals brief paragraphs 28 to 31, where we

 4     do explore this issue in more detail.

 5             Your Honours, we would also say that the Chamber should handle

 6     with care any reference to his role following the 10th of December, 1993,

 7     which is the date that Mate Boban made an order mandating that the

 8     operation of HVO detention centres should be dismantled.  Our case is,

 9     quite simply, that Mr. Pusic did not have any de jure powers by virtue of

10     any of these positions.  And that is why, Your Honours, we intend to

11     focus in the remainder of these submissions on evidence of his de facto

12     powers.  And we will continue by looking briefly at what Praljak actually

13     said, having addressed you on his credibility.  Josip Praljak gave

14     evidence on what the Trial Chamber described as 30 -- he gave evidence of

15     what Trial Chamber described as 30 verbal orders, each authorising the

16     use of detainees for forced labour, and that's cited at Trial Chamber's

17     judgement paragraph 1147 of volume 4 and also paragraph 1472 of volume 2.

18     In summary, Josip Praljak said that he regularly received orders from the

19     military police or military brigade officials, such as Witness NO, who

20     was the commander of all the HVO forces in Mostar; or another witness,

21     Pavlovic.  Neither of these individuals did Mr. Pusic have any authority

22     over.  These orders were such that these military officials required

23     detainees to be sent to the front line to perform labour assignments.

24     The order would be passed down to the Heliodrom staff and it would be

25     eventually handed and land on Mr. Josip Praljak's desk.  Mr. Pusic at

Page 688

 1     this point has no role whatsoever in this process.  But for some reason

 2     when giving evidence, Josip Praljak claimed that having received this

 3     notification Mr. Pusic also had to be contacted and had to be asked to

 4     approve the use of prisoners for labour.  Josip Praljak continued, he

 5     said that whoever spoke to Pusic would then have to make a note or

 6     written memorandum of their conversation and that would take the form of

 7     a note or memorandum in the Heliodrom log-book.

 8             Your Honours, in accordance with our handle-with-care warning, we

 9     would ask you to look at these orders closely.  We would ask you to --

10     whenever you're presented with a document or order that is cited by the

11     Prosecution or Chamber and it says that this document proves that

12     Mr. Pusic had the power to do X, Y, or Z, we would ask you to scrutinise

13     and look at whether the label or a conclusion applied to that document is

14     actually justified.  We would ask the Appeals Chamber to ask some basic

15     questions.  Did Mr. Pusic write or author the document or did someone

16     else write it?  And does the document really in context support the

17     conclusions to which the Trial Chamber or Prosecution seek to draw?

18             In relation to these 30 verbal orders, if we perform this

19     analysis, you will find that they are documents that are not written by

20     Mr. Pusic.  They're actually notes of a conversation, and again

21     Your Honours have heard our submissions that there is no predicate

22     finding that Mr. Pusic had any power over Josip Praljak or the military

23     commanders making these requests.  What's also interesting is that there

24     is a conspicuous lack of corroboration from other witnesses when they

25     deal with this issue of who had the authority to order these forced

Page 689

 1     labour assignments at the Heliodrom.  No other witness who testified on

 2     this issue -- I apologise.  If I do err in any way, I do obviously mean

 3     Josip Praljak.

 4             No other witness -- Josip.  Thank you.

 5             No other witness who testified on this issue, and that includes

 6     Witness Pavlovic - and I apologise again if I have these pronunciations

 7     wrong, ten years at the Tribunal and I haven't improved very much but I'm

 8     trying - neither Pavlovic not Witness NO, when they gave evidence, made

 9     any reference to Pusic as a superior who had to approve these requests

10     for forced labour assignments.  And most importantly, we say, when

11     Marjan Biskic, who was the HVO assistant minister of security, somebody

12     parachuted in by the Croatian government towards the end of 1993 to help

13     the Croats in BiH, if I can use the colloquial expression, to help them

14     clean up their act.  And when tasked with looking at forced labour

15     assignments, he gave evidence at some length on the procedures that were

16     followed at the Heliodrom.  He made no mention of Mr. Pusic in his

17     analysis.  And indeed, when he was asked to comment on Mr. Pusic's

18     authority in general, he made a comment that is at the very forefront of

19     our submissions and not addressed at any point by the Trial Chamber he

20     said these words.  He said that:

21             "Mr. Pusic could not give orders to me or anyone else."

22             Your Honours, we accept and we hope the Appeals Chamber

23     acknowledges that we are trying to be realistic here.  There is evidence

24     that could support a conclusion that Mr. Pusic was aware of what was

25     happening in the detention centres, in that detainees were being sent out

Page 690

 1     to work - sometimes on the front line - and that there were many

 2     casualties as a result of this.  And in saying that, we don't necessarily

 3     concede that simply because reports were sent to him that he must have

 4     had constructive notice of their contents.  But our position remains.

 5     The evidence cited by Trial Chamber, the evidentiary lied on by the

 6     Prosecution does not show that he had any authority to do anything about

 7     these forced labour assignments.  And when we look at the Chamber's

 8     finding of fact that Mr. Pusic could give orders for detainees to be

 9     taken out on these assignments, when we undertake a penetrating analysis

10     of that evidence - which we say the Trial Chamber abjectly failed to do -

11     we are sure that you will find that no reasonable Chamber could have

12     arrived at the conclusion that the Trial Chamber did in this instance.

13             Your Honours, turning to the second question, conditions of

14     detention or the second issue that arises from question 9, conditions of

15     detention.  The Trial Chamber's findings -- and in this area they refer

16     to Mr. Pusic as having so-called substantial powers.  Those findings can

17     be found at paragraphs 1056, 1203 of volume 4.  The Trial Chamber further

18     elaborates on the evidence it relies on to support its conclusions at

19     paragraphs 1137 to 1145 of volume 4.  Their findings follow a distinctive

20     pattern, and these are -- this is the pattern that's applied to all their

21     findings in relation to all the detention centres in respect of

22     Mr. Pusic.  They say - the Trial Chamber says - that Mr. Pusic was aware

23     and had the power to remedy serious problems at each detention centre,

24     but because he omitted to do so - and he then remained in situ performing

25     his functions - it deems his omission to act as acceptance and says that

Page 691

 1     amounts to a substantial contribution to the JCE.  Your Honours, in

 2     response, our starting point is that, again - and we hope the Appeals

 3     Chamber accepts that we are being realistic here - we again accept that

 4     there is evidence that could support the conclusion that Mr. Pusic was

 5     made aware of what was happening in the detention centres to some degree.

 6     So, for example, in relation to and dealing with the Heliodrom first, if

 7     you look at paragraphs 1137 through to 1141 of volume 4, we note there is

 8     material that the Trial Chamber relies on to show that Mr. Pusic may have

 9     been aware of the conditions pertaining to the Heliodrom.  For example,

10     there is the fact that he attend a meeting with the ECMM monitors on the

11     16th of July, 1993, at paragraph 1137 where this issue is mentioned, it's

12     clear.  There is also evidence of reports that are sent to him, and again

13     we repeat this point about constructive motive.  Just because reports are

14     sent to you doesn't mean that it can be deemed that you have no notice of

15     their contents.  It is evidence that can't be ignored; we concede that.

16     But we don't accept that the Trial Chamber was right in inferring that he

17     had a power to remedy a problem simply from the evidence which suggests

18     that he had notice or knowledge of it.  We also don't accept that the

19     Trial Chamber was correct in inferring that he had a power to remedy the

20     problems at the Heliodrom and other detention centres from other factors

21     that the Trial Chamber cited, including firstly the fact of his de jure

22     authority emanating from many of the positions he held 5th of July,

23     Service for Exchange; the 6th of August commission for exchange; powers

24     that he had after the 10th of December.  I have already addressed you in

25     response to those findings.

Page 692

 1             Secondly, we don't accept that the conclusion reached by the

 2     Trial Chamber that Mr. Pusic had powers to remedy the appalling

 3     conditions at these detention centres can be inferred from evidence that

 4     he had the authority to transfer prisoners out of one detention facility

 5     to another.  This is a factor that's heavily relied on by the Trial

 6     Chamber, and they say that Mr. Pusic had the power to transfer prisoners

 7     from one facility to another, not just in respect of the Heliodrom but

 8     also other detention facilities.  It's our position in response that the

 9     evidence cited by the Trial Chamber does not go to establish this.  If we

10     look just at paragraph 1144 [Realtime transcript read in error "1044"] of

11     volume 4 of the Trial Chamber's judgement, there's reference to a report

12     which is dated the 5th of July, 1993.  This is a report -- I have been

13     asked to correct the paragraph reference.  It should actually be 1144 not

14     1044.

15             Your Honours, I was referring to a report dated the 5th of July,

16     1993.  This is a report that was sent by Josip Praljak's superior,

17     Stanko Bozic, who was also a warden at the Heliodrom; and remember what

18     was said by the Prosecution on Friday as to who had ultimate control over

19     the wardens and commanders at the Heliodrom.  Mr. Bozic complained that

20     soldiers were firing at random at detainees.  He in his report requested

21     reinforcements to stop this happening again.  We apply our

22     handle-with-care warning to this document once again.  When look at this

23     closely, Your Honours, you will see that this is not an order that was

24     written by Mr. Pusic.  It was a report sent to him and not just sent to

25     him exclusively but also circulated to others, we would suggest, who are

Page 693

 1     far higher in the chain of command.  There's no evidence that he ever

 2     replied.  Your Honours, in a similar vein, there is another document, a

 3     report, this time that he sent, Mr. Pusic sent, on the 6th of January,

 4     1994, that is relied on by the Trial Chamber once again to support the

 5     same conclusion that Mr. Pusic had the authority to order the transfer of

 6     prisoners between facilities.  This is referred to at

 7     paragraph 1140 [sic] at volume 4.  It's a report he September to Marjan

 8     Biskic asking for permission to move detainees from one facility to

 9     another.  It's not an order, it's a request.  If anything, it proves

10     exactly the opposite of what the Trial Chamber tried to infer or asked us

11     to infer.  It shows that Mr. Pusic did not have the power/authority to

12     transfer -- order the transfer the prisoners himself unilaterally from

13     any facility.  We go further than that, we also say that he did not have

14     the power to unilaterally order the release of prisoners, and that's an

15     additional submission that's documented at length in our appeal brief.

16     And if I may briefly at this conjuncture just correct the last transcript

17     reference, it should read "1142" rather than "1140."

18             But, Your Honours, we say that in this and every case cited by

19     the Trial Chamber, the evidence shows that whenever Mr. Pusic did

20     anything, he had to seek the approval of higher authorities and could

21     only act on their orders.  And in this particular case, he had to seek

22     authorisation from Mr. Biskic - a man who was never charged, a man who

23     was presented as a Prosecution witness at his trial.

24             We would also say something briefly about the timing of this

25     request.  The date is the 6th of January, 1994.  Remember, Mate Boban's

Page 694

 1     order on the 10th of December, the efforts made to dismantle detention

 2     centres thereafter.  It's clear that there is evidence that Mr. Pusic

 3     attends meetings often with senior figures present, but the decision to

 4     dismantle HVO detention centres was taken by others at a much higher

 5     level than his.  It's clear there is evidence that he presents reports at

 6     these meetings, but we say his interaction with the leadership, the

 7     others present, is one way that he presents reports, there's no real

 8     evidence of any feedback.  Can it seriously be suggested that Mr. Pusic

 9     decided policy, made decisions at these meetings?  We would say that his

10     role is more appropriately described as that of a subordinate or clerical

11     officer, someone charged with collating information and issuing discharge

12     papers.  Again this is a submission that's repeated at length in our

13     appeal brief, but it's also something that has some grounding in the

14     Trial Chamber's decision if one looks at volume 4, paragraph 1166.

15             And we apply this analysis to evidence relied on by the Trial

16     Chamber in December 1993 in respect of Ljubuski detention facilities that

17     Mr. Pusic issued documents that allowed the release of detainees from

18     that facility to third countries and also issued documents that

19     authorised their transfer to other detention centres; and that's cited at

20     volume 2 paragraph 2229.  Your Honours, this evidence does not prove to

21     the criminal standard that Mr. Pusic had any significant or unilateral

22     powers to order the release or transfer of prisoners.

23             Moving on to Dretelj.  I would refer Your Honours to

24     paragraphs 1167 to 1170 of volume 4 of the Trial Chamber's judgement.

25     Once again, the Trial Chamber adopts the same pattern in its reasoning as

Page 695

 1     evidence of Mr. Pusic's so-called powers.  It cites the fact - and this

 2     is at paragraph 1167 - it cites the fact that on the 20th of July, 1993,

 3     he is appointed as part of a working group to deal with overcrowding in

 4     the various HVO detention facilities.  As we state in our appeal brief,

 5     Mr. Pusic is very much the junior member of this commission.  Indeed, the

 6     evidence shows that on the next day, the 21st of July, 1993, when the

 7     same commission reports back to the cabinet, he is not one of the

 8     individuals present at that meeting.  And, Your Honours, this is

 9     rehearsed at paragraph 206 of our appeal brief.

10             If we look now and turn to the Trial Chamber's findings in

11     relation to the Gabela detention facility, paragraph 1174 at volume 4,

12     again reference is made to Mr. Pusic's de jure powers arising from his

13     membership of the 6th of August, 1993, commission.  I won't repeat the

14     position we take in relation to that assertion, but I would refer you to

15     paragraph 1169.  Again, the Chamber places reliance on Mr. Pusic's

16     present membership of that commission on the 20th of September -- sorry,

17     July -- I apologise, Your Honours.  What I'm referring to is Mr. Pusic's

18     presence at a meeting on the 20th of September where he is addressed by

19     members of the ICRC and he is told that they have reports that detainees

20     are suffering malnutrition at the Gabela detention facility.  So as we've

21     said before, being realistic, we accept that could be inferred as

22     evidence that Mr. Pusic knew what was going on; doesn't necessarily mean

23     that he had any powers to remedy those conditions.

24             The same analysis applies if we turn to the report cited at

25     paragraph 1175, also in relation to Gabela.  This is evidence of a report

Page 696

 1     that is circulated to Mr. Pusic on the 29th of September, 1993, by

 2     Ivo Kuric [phoen].  Again, it may establish knowledge; doesn't go to

 3     establish authority or power.

 4             Turning now to the Ljubuski detention facility, referring

 5     Your Honours to paragraph 1182 at volume 4.  There is evidence cited by

 6     the Trial Chamber that Mr. Pusic visited this facility at least twice.

 7     The Trial Chamber goes on to say that he knew that it had limited

 8     capacity, that there was overcrowding.  These matters all go to establish

 9     knowledge on his part; we concede that.  But we fail to see how the

10     Chamber can infer that he had any powers to remedy those conditions from

11     this evidence.  Again, at paragraph 1182, there is reference made by the

12     Chamber to the -- or to evidence that suggests that Mr. Pusic ordered or

13     could order the transfer of detainees between facilities and there are

14     documents produced to show that this is what occurred between May and

15     September 1993.  Your Honours, we issue our handle-with-care warning

16     again.  These orders are, in fact, notes not written by Mr. Pusic but by

17     Witness E.  They are notes of orders presumably received orally by

18     Witness E, and it says on the documents:  Orders from Mr. Pusic and

19     Mr. Koric [phoen].  Note their respective positions in the hierarchy.

20     Note what was said on Friday.

21             Your Honours, our submissions are further elaborated in our

22     appeals brief; I don't intend to rehearse them here.  I'm simply trying

23     to draw your attention to these points that we have raised that we say

24     the Trial Chamber failed to address.  I know that at your leisure, once

25     this hearing concludes, you will have the opportunity to look at them in

Page 697

 1     more detail.  But what we say in drawing your attention to this material

 2     is that there is no evidence that -- as the Trial Chamber found that

 3     Mr. Pusic had the power to remedy these issues and no justification for

 4     the findings that the Trial Chamber arrived at.

 5             Your Honours, in detailing with this section, our overall

 6     submission is this:  We say that it has not been proved beyond reasonable

 7     doubt that Mr. Pusic made any significance contribution to the JCE

 8     because of the way he exercised certain powers he is said to have in

 9     respect of forced labour or because of the way he failed to exercise any

10     powers he is said to have in respect of the conditions of detention.  We

11     say those findings are unwarranted.

12             Your Honours, if you are with us in respect of our submissions so

13     far, dealing with question 9, dealing with this issue of forced labour

14     dealing with this issue of the conditionals of detention and the

15     mistreatment of detainees and Mr. Pusic's power to remedy those problems;

16     if you are with us, then we submit that this will have important

17     ramifications for Mr. Pusic's conviction in general.  It will have

18     ramifications for his conviction for the other offenses on the indictment

19     which he was also acquitted for which don't feature in the list of

20     questions that you have provided us.  Because we say that the same

21     analysis that we have just outlined and developed applies to his

22     so-called powers over less serious but nonetheless important aspects of

23     the crimes he was convicted of, specifically his role in prisoner

24     releases, his role in exchanges, humanitarian evacuations, and the

25     allegation that he deliberately spread false information.

Page 698

 1             Your Honours, once again I do not intend to repeat what is in the

 2     brief and I will be finishing very shortly.  I would say that any

 3     incisive, penetrating examination of the evidence in this case will show

 4     that Mr. Pusic did not have any unilateral powers in any of these areas

 5     to issue orders.  We say the Trial Chamber erred in its decision globally

 6     because they tried to compartmentalise its findings.  It said that in

 7     respect of any dealings with detention centres, Mr. Pusic had substantial

 8     powers; but on the other hand it said that when looking at non-detention

 9     centre-related matters, Mr. Pusic only had significant powers.  Your

10     Honours, we suggest that what should have happened is that the Trial

11     Chamber should have linked the evidence to do with detention centre

12     matters and non-detention matters together.  It should have linked the

13     evidence of witnesses such as DZ and DV - and I refer you to our appeal

14     brief - witnesses who gave evidence about their dealings with Mr. Pusic

15     on the issues of humanitarian evacuations, prisoner releases, prisoner

16     exchanges.  What DZ and DV said is that it appeared to them that

17     Mr. Pusic had to have the permission of his superiors to take decisions

18     and to act.  It should have linked those findings with the evidence of

19     Mr. Biskic, who said as you will recall that Mr. Pusic could not give

20     orders to him or to anyone else.  We say the only way that you can make

21     sense of Mr. Pusic's role is by linking this evidence, particularly as

22     all three witnesses - DZ, DV, Biskic - were Prosecution witnesses.

23             Your Honours, we understand the Trial Chamber's desire to make

24     sure that those responsible for the appalling events at the Heliodrom and

25     other detention facilities should be prosecuted and punished.  We

Page 699

 1     understand their revulsion when confronted with the evidence of the

 2     terrible things that happened at those centres.  We saw some of that

 3     evidence on Friday.  We may see more of that evidence later today.  But

 4     we say even if that evidence shows that Mr. Pusic may been informed of

 5     what was happening on the ground in those centres, when it is viewed

 6     clinically and dispassionately - as it must be in any court of law - it

 7     does not prove to the criminal standard that he could have remedied those

 8     problems.  And it follows from that, we say, that Mr. Pusic could not and

 9     did not make a substantial contribution to the JCE.

10             Your Honours, I don't need to remind you that it's not for the

11     Defence to prove anything in this case.  We didn't put on a positive case

12     at trial; that's because we took the view - and we stick to this view -

13     the Prosecution evidence adduced did not come close to establishing

14     Mr. Pusic's guilt beyond reasonable doubt.  Your Honours, I will end here

15     with a quote from an author, Robert Caro.  This quote came to mind

16     because I've just finished his third 1.000-page volume, a monumental

17     biography of Lyndon Johnson, which is now what I consider to be light

18     reading, having practised here for ten years.  But, Your Honour, Mr. Caro

19     is a useful author I would suggest to refer to whenever one is called to

20     examine the extent and ways in which political power can be wielded.

21     There are two famous quotes attributed to Mr. Caro.  First he said:

22             "What I believe is always true about power is that power

23     reveals."

24             Second, he said:

25             "You can use a biography to examine political power but only if

Page 700

 1     you pick the right guy."

 2             Your Honours, we say the Prosecution and the Trial Chamber who

 3     relied on the evidence adduced at trial did not pick the right guy in

 4     this case.  They picked a guy who when Slobodan Praljak was told of his

 5     name as one of the accused, he said he had to ask his secretary who he

 6     was.  Who is Mr. Pusic?  And, Your Honours, can you find that at

 7     transcript reference 41502 to -3.

 8             Consequently, substitute "biography" for "trial" in the quote

 9     from Mr. Caro, we say were a proper, thorough, incisive, penetrating

10     analysis of the evidence of his role in this case reveals is not the

11     exercise of any significant degree of power in the hands of Mr. Pusic but

12     quite the opposite:  A glaring absence of power.

13             Thank you, Your Honours.

14             JUDGE AGIUS:  Thank you.  Is that all from the Pusic -- yeah,

15     okay.  Thank you.

16             One moment.

17                           [Trial Chamber confers]

18             JUDGE AGIUS:  Okay, there is agreement amongst the Bench.  You

19     will start and we will stop at 11.30 for a break.  All right?  And then

20     continue.

21             MR. STRINGER:  Yes, Mr. President, thank you.  My colleague

22     Ms. Bassett will be starting the Prosecution's submissions in respect of

23     Mr. Pusic, and then she will be followed by Ms. Goy.

24             MS. BASSETT:  Good morning, Your Honours.  Marisa Bassett for the

25     Prosecution.

Page 701

 1             JUDGE AGIUS:  Good morning.

 2             MS. BASSETT:  My colleague Mr. Sahota has told you that Mr. Pusic

 3     is a person of little consequence.  His appeal makes him out to be a

 4     clerk without significant or substantial powers, charged with collating

 5     information and processing discharge papers.  This picture is misleading.

 6     Berislav Pusic was a trusted implementer of the common criminal plan.

 7     Although the Trial Chamber found - as Mr. Sahota has told you - that

 8     Pusic was not a high-ranking HVO official, it concluded in volume 4,

 9     paragraph 1093, that he was entrusted by high-ranking officials with

10     powers that allowed him to play an important role in implementing the

11     common criminal plan.  The confidence that other JCE members placed in

12     Mr. Pusic allowed him to take on increasingly important roles in areas

13     central to the implementation of this plan.

14             Pusic accepted more and more responsibility and used his powers

15     to further the common criminal plan, volume 4, paragraphs 1202 and 1204.

16     Between October 1992 and the summer of 1993, he rose.  He rose from

17     having occasional involvement in prisoner exchange in late 1992 and

18     ordering prisoners to perform labour assignments in early 1993, to

19     serving with other JCE members on commissions and delegations related to

20     detention to - by the summer of 1993 - becoming head of the HVO's

21     exchange service and head of the commission for HVO prisons and detention

22     centres.

23             It was as head of the exchange service - officially called the

24     Service for the Exchange of Prisoners and Other Persons - that Pusic

25     played his most important role in the JCE, strategically exchanging and

Page 702

 1     releasing Bosnian Muslims held by the HVO in its network of detention

 2     centres in order to advance the HVO's objective of removing the Muslim

 3     population from the so-called Croatian provinces.  Volume 4,

 4     paragraph 1202.

 5             Pusic frequently interacted with other JCE members who assigned

 6     him important tasks and appointed him to official posts.  The Chamber

 7     found particularly that Pusic had regular contact with Prlic and Coric

 8     throughout his JCE membership between April 1993 and April 1994.

 9     Volume 4, paragraphs 1093 and 1221.  But the Chamber's findings also show

10     him interacting with most of the named JCE members.

11             In April 1993, Coric appointed Pusic to participate in exchanges

12     on behalf of the military police.  As time went on, Pusic's interaction

13     with Coric on issues related to detention became so constant that

14     representatives of international organisations came to see Pusic as

15     Coric's right-hand man.  Pusic served alongside Petkovic on a joint

16     ABiH-HVO delegation to Sovici and Doljani following the April 1993

17     attack.  On the 5th of July, 1993, Prlic appointed Pusic head of the new

18     exchange service.  Later that month, Prlic also assigned Pusic to a

19     working group to inspect detention sites in Capljina.  In August 1993,

20     Stojic appointed Pusic to head of the commission for HVO prisons and

21     detention centres.

22             Pusic also played a key role on the working group, implementing

23     Mate Boban's 10th of December, 1993, decision to close the network of HVO

24     detention centres while systematically removing the detainees from

25     Herceg-Bosna to advance the criminal plan.  Pusic also frequently

Page 703

 1     reported to Prlic's government on this topic.

 2             Your Honours, all of these men trusted Pusic with roles important

 3     to the implementation of the common criminal plan, and Pusic continued to

 4     accept these positions - positions with greater and greater

 5     responsibility - demonstrating that he embraced the common plan and the

 6     means used to implement it.

 7             The Chamber's conclusion - that Pusic was a JCE member who

 8     significantly contributed to the common plan and shared the intent for

 9     the crimes forming part of it - was reasonable.  My colleague Ms. Goy

10     will address these issues and the grounds of appeal in detail in her

11     submission.  She will also answer the Chamber's questions 4(c) and 9.

12             But before I turn the floor over to Ms. Goy, I'm going to provide

13     an overview of the HVO's network of prisons and how it served as a

14     vehicle to implement the common plan to remove the Muslim population from

15     Herceg-Bosna.  Your Honours have heard about this network from some of my

16     colleagues last week already, but understanding this network is important

17     to understanding Pusic's contributions to the common criminal plan

18     because it is within this network that Pusic played his most important

19     roles.  He ordered prisoners to perform dangerous, unlawful forced

20     labour.  He organised prisoner exchanges and releases for the purpose of

21     removing these persons from Herceg-Bosna.  He played a key role in

22     closing the detention centres in the network, methodically expelling

23     detainees in this process.  And he served as the link between the network

24     and the most important JCE members.  Volume 4, paragraphs 1202 to 1204

25     and 1209.

Page 704

 1             The Chamber refers to the HVO detention centres as a "unified

 2     network," volume 4, paragraphs 980 and 982.  This network included the

 3     major detention centres of Heliodrom, Ljubuski, Dretelj, Gabela, Vojno,

 4     and Vitina Otok, as well as smaller locations throughout Herceg-Bosna.

 5     Volume 4, paragraph 890 and footnote 1677.  These detention centres were

 6     connected.  We can see this, in particular, from the co-ordinated

 7     movements of detainees between centres, often for the purpose of

 8     eventually removing these detainees from Herceg-Bosna.

 9             There is a clear summary of the network's functioning at

10     volume 4, paragraph 999, where the Chamber explained it as a part of a

11     system to "expel the Muslim population."  The centres were linked to the

12     expulsions at the very heart of the JCE.

13             The Chamber summarised:

14             "The members of the JCE set up a system to expel the Muslim

15     population which, more specifically, consisted of detaining civilians,

16     holding detainees in bad detention conditions, sending some detainees to

17     work on the front line, and removing detainees and their families from

18     the territory of the HZ(R)HB on their release."

19             As the JCE pursued its plan to remove the Muslims from the

20     provinces it considered Croatian, HVO forces conducted large-scale

21     arrested of Muslims.  This included arrests also of Muslims in

22     West Mostar.  Many were detained in HVO detention centre network.

23             By June 1993, removals became - in the Chamber's words - "more

24     efficient," as the JCE introduced an organised system of deportation

25     using releases from the prison network.  Volume 4, paragraph 64.

Page 705

 1             Across the network, terrible conditions prevailed.  These

 2     conditions were calculated to coerce detainees into agreeing to leave

 3     Herceg-Bosna for ABiH-held territory or for third countries.  Volume 4,

 4     paragraph 64.  Facilities were overcrowded and unhygienic.  Food was

 5     scarce.  One detainee lost 47 kilos during his nine months of

 6     imprisonment.  Heliodrom was so overcrowded that detainees had to take

 7     turns lying down.  At Ljubuski there was only one toilet for up to 262

 8     men.  Prisoners were brutally treated.  One was administered electric

 9     shocks while his ears were filled with water.  Another had his teeth

10     broken by a pistol that was shoved into and then pulled out of his mouth.

11     They were humiliated.  After being beaten with a pickax, a prisoner was

12     told to lick his balija blood from the ground.  Detainees were killed.

13     Another terrifying aspect of the conditions was the use of prisoners for

14     dangerous and unlawful forced labour.  As Your Honours have heard,

15     detainees from Heliodrom, Vojno, and Ljubuski were made to reinforce

16     fortifications, collect HVO bodies on the front line, and serve as human

17     shields.  They were sent to mingle with HVO forces to prevent sniper fire

18     or were dressed in uniform, given fake rifles, and placed in positions

19     where they would draw fire.  They were routinely shot and killed.

20     Detainees faced the risk of getting one of these work assignments every

21     day.

22             There's powerful testimony from numerous victims in evidence.

23     Let me tell you about one of the victims, Halid Jazvin.  Jazvin was a

24     detainee who performed labour almost every day for the four months that

25     he was detained at the Heliodrom.  One day, an HVO soldier took Jazvin

Page 706

 1     and 12 others, including a prisoner named Aziz, to the front line in

 2     Mostar.  Jazvin was ordered to move sandbags to build barricades.  As the

 3     battle became intense, the soldier ordered Jazvin to collect wounded HVO

 4     soldiers.  Jazvin said:

 5             "When we arrived outside, there was a wounded HVO soldier but

 6     about 20 metres away I noticed three or four bodies lying together in a

 7     pile.  I immediately recognised one of these bodies as Aziz.  I ran over

 8     to Aziz's body to see if he was alive.  While I was approaching him I was

 9     shot in the leg.  I crawled and I touched Aziz's body to see if he was

10     alive.  He was dead.  The other two or three bodies were also prisoners."

11             The HVO soldier, Jazvin reflected, had only cared about that

12     wounded HVO soldier and not the lives of any of those Muslim prisoners.

13     Your Honours, that's from Exhibit P10213, paragraph 20.

14             These conditions and mistreatment served their intended coercive

15     purpose.  Given the option, many detainees agreed to leave their homes

16     permanently in order to be released from detention.  Of the thousands

17     detained, many were released on the promise that they would depart for

18     third countries via Croatia.  Croatian officials helped facilitate this

19     process by ensuring that the expelled were issued transit visas allowing

20     a brief, temporary stay in Croatia before moving on to their final

21     destinations.  Volume 2, paragraph 1644.  I also refer Your Honours to

22     volume 4, paragraphs 1210 and 120, citing Exhibit P9679.  And I further

23     refer Your Honours to Exhibit P10048.

24             Other detainees were released to ABiH-held territory, including

25     to besieged East Mostar, where they continued to be terrorised.  This

Page 707

 1     co-ordinated expulsion process was a core aspect of the implementation of

 2     the common criminal plan.

 3             To secure a release, a detainee needed to sign a form indicating

 4     their third country destination.  The detainee would be returned home,

 5     given a few hours, if any, to pack, gather their family, and then they

 6     would be taken to Croatia by bus where they were allowed to remain

 7     temporarily until they could move on to their destination state.  The

 8     Chamber makes findings about these types of releases in volume 2,

 9     paragraphs 1642 to 1650 with regard to Heliodrom; as well in 1870 to 1875

10     for Ljubuski; and in volume 3, paragraphs 143 to 145 and 272 to 274 for

11     Dretelj and Gabela respectfully.  I also refer Your Honours, in

12     particular, to Exhibit P9680.

13             This expulsion process was a major part of the implementation of

14     the common plan, so much so that Pusic referred to such deportations as

15     "standard practice" in a proposal that he sent to Prlic in December 1993.

16     Your Honours, this is Exhibit P7102, which can you see is a proposal from

17     Pusic sent to Prlic personally.  At page five he writes:

18             "A recent standard practice has been that persons in possession

19     of proper documentation (letters of guarantee, transit visas by the

20     Republic of Croatia office for displaced persons) are released after the

21     SIS checking and they go to third countries."

22             The SIS, Your Honours, is the HVO's security and information

23     service.

24             Many who did not agree to leave or who were unable were kept in

25     HVO's detention system and used - in the Chamber's words - "as a form of

Page 708

 1     currency."  Volume 4, paragraph 1121.  I also direct Your Honours to

 2     Exhibit P7158 as an example.  They would be exchanged to ABiH-held

 3     territory for Croats to further the HVO's efforts to alter the ethnic

 4     composition of the so-called Croatian provinces.  This practice too is

 5     reflected in Pusic's proposal to Prlic.

 6             After months of effecting deportations, he tells Prlic that the

 7     exchange service is only interested in prisons "only for the purpose of

 8     seeking certain persons for exchange."

 9             JCE members used these methods - release and release through

10     exchange - for the purpose of removal of Muslims both before and after

11     Mate Boban issued his 10th of December, 1993, order -- decision excuse

12     me, to close the HVO's detention centres.  The evidence, however, shows

13     that these removals began to happen at a more rapid pace from

14     mid-December 1993.

15             The Chamber found that Pusic had a significant role in this

16     process.  His powers increased as he took on his key role in the closure

17     of the detention centre network, serving as a member of Boban's working

18     group and diligently and methodically working to ensure that those

19     leaving the facilities also left Herceg-Bosna.  Volume 4,

20     paragraphs 1050, 1203, and 1209.  The last detainees in the HVO detention

21     network were released through exchange in April 1994.

22             Unless Your Honours have any questions, I will now turn the floor

23     over to my colleague, Ms. Goy.

24             JUDGE AGIUS:  Yes, Ms. Goy.

25             MS. GOY:  Good morning, Your Honours.

Page 709

 1             I will start my submissions by briefly addressing the submissions

 2     on ground 3 of Pusic's appeal on the ultimate purpose and the common

 3     criminal purpose before moving to Pusic's criminal responsibility under

 4     joint criminal enterprise.

 5             Your Honours, counsel for Mr. Pusic has today challenged the

 6     Chamber's findings on the ultimate purpose and the common criminal

 7     purpose.  The Chamber's findings on the JCE members' ultimate purpose

 8     have been addressed throughout last week and they are amply supported by

 9     a wealth of evidence cited in volume 4, paragraphs 6 through 24.  This

10     includes Tudjman's voluminous presidential transcripts, the evidence of

11     those with whom Tudjman worked closely, such as Croatian Prime Minister

12     Josip Manolic, and international representatives such as US Ambassador

13     Peter Galbraith and Herbert Okun.

14             Counsel for Mr. Pusic today asked whether it was necessary for

15     the Trial Chamber to go into a lengthy discussion of the ultimate

16     purpose.  While Pusic's liability does not hinge on the ultimate purpose

17     in the sense of the JCE members' long-term plans what to do after they

18     had achieved ethnic domination, it was nevertheless proper for the Trial

19     Chamber to conduct their inquiry into the ultimate purpose, as the

20     ultimate purpose defines the overall goal that the common criminal

21     purpose sought to achieve and therefore constitutes the relevant context

22     for the common criminal purpose.  And this common criminal purpose was

23     amply supported by the evidence, the evidence that included the pattern

24     of crimes; the co-ordination of the political and military leadership of

25     Herceg-Bosna; the collaboration of this leadership with Croatian

Page 710

 1     authorities; the co-operation of the accused and others to carry out

 2     criminal attacks, denials, and cover-ups; and the co-ordinated efforts to

 3     move Croats into areas claimed as Croatian; in addition to the JCE

 4     members' direct expressions of intent.  And I refer Your Honours to

 5     volume 4, paragraph 51, 54, 58, 62 through 66, and 1219.

 6             I would now like to turn to Mr. Pusic's individual criminal

 7     responsibility as a member of the joint criminal enterprise.

 8             And I would like to first address Mr. Pusic's significant

 9     contributions to the common criminal plan, that is grounds 1 and 6 of his

10     appeal, before turning to his shared intent.

11             Before responding to the individual contributions in more detail,

12     I would first like to address two challenges that were repeated today

13     which are based on an erroneous understanding of the legal framework of

14     JCE liability and, therefore, cannot undermine the Chamber's conclusion.

15             First is that counsel today said that Pusic had no power, no

16     authority over others, but Pusic's contributions do not hinge on his

17     authority over others on a superior/subordinate relationship vis-à-vis

18     the perpetrators.  As I will address in a moment, Pusic had authority in

19     areas of forced labour and prison release and this did not require that

20     he had overall superior/subordinate relationship vis-à-vis those that

21     actually opened the prison doors or that took the persons out for forced

22     labour.  Rather, all that was required was that Pusic had the power in

23     relation to the use of forced labour and release, and the evidence shows

24     that he did.

25             Second, I would like to address Pusic's challenges based on lack

Page 711

 1     of autonomous decision-making.  To constitute a contribution to a JCE,

 2     the conduct does not have to be based on an autonomous decision.  The

 3     jurisprudence only requires assistance in or contribution to the common

 4     criminal plan.  Even the implementation of somebody else's decision can

 5     contribute to that plan.  For example, in Kvocka the Appeals Chamber

 6     upheld the finding that Prcac contributed to the JCE.  Prcac had some

 7     influence in his position as administrative aide at Omarska camp and

 8     contributed to the functioning of the camp and, therefore, to the common

 9     criminal purpose.  That's in the Kvocka appeal judgement paragraph 622.

10     Therefore, Pusic's arguments regarding the lack of autonomous

11     decision-making power should be dismissed.

12             But, Your Honours, let me now turn to the reasonableness of the

13     Chamber's factual conclusion that Pusic made a significant contribution

14     to the common criminal purpose.  Pusic's contributions centred mainly

15     around the network of detention facilities, a network which - as my

16     colleague Ms. Bassett has explained - was central to the implementation

17     of the common plan.  Pusic mainly contributed to the common plan in four

18     ways:  One, by authorising the use of Muslim detainees for dangerous

19     unlawful forced labour, including at the front line, forced labour which

20     contributed to the horrible detention conditions that coerced the

21     detainees into agreeing to leave Herceg-Bosna upon release; two, by using

22     his powers over HVO detainees to remove them from Herceg-Bosna, including

23     when implementing Boban's decision to close detention facilities; three,

24     by being the link between the network of the detention facilities and the

25     most important members of the JCE, such as by keeping them updated on the

Page 712

 1     implementation of Boban's decision; and four, by keeping persons detained

 2     who he knew were unlawfully detained and who were held in terrible

 3     conditions and were mistreated.  I will address all four contributions in

 4     turn and - in this context - will also respond to Your Honours' question

 5     number 9.

 6             The Defence challenges Pusic's power and contributions, but his

 7     powers are only relevant inasmuch as they are used or intentionally not

 8     used to further the plan.  The evidence shows that Pusic did use his

 9     powers to further the plan.  Pusic used his power to authorise unlawful

10     forced labour, labour of a military nature or purpose and extremely

11     dangerous.  Volume 4, paragraphs 1054 and 1149.  Forced labour was one of

12     the means to expel the Bosnian Muslims from Herceg-Bosna.  The detainees

13     were exposed to the daily risk of being selected for highly dangerous

14     forced labour on the front line, so dangerous that they risked being

15     killed.  And it formed part of the horrible features of the detention

16     that the detainees could only avoid by agreeing to leave Herceg-Bosna

17     with their families upon release.

18             The Chamber's findings that Pusic authorised forced labour is

19     reasonable.  Although the Chamber could not pin-point to the exact source

20     of Pusic 's power to authorise forced labour, the record is replete with

21     evidence showing that Pusic, in fact, exercised it; that Pusic had no

22     de jure power here is irrelevant.  Importantly the Chamber noted that the

23     term "order" and "approval" that occur in the documents are used

24     interchangeably to refer to the step in the process that preceded the

25     sending out of detainees for forced labour.  That's volume 2,

Page 713

 1     paragraph 1471.  The evidence shows that Pusic approved requests for

 2     forced labour for Heliodrom detainees to build bunkers, collect bodies of

 3     fallen HVO soldiers, and to work on the front line.  Volume 4,

 4     paragraph 1149.  And I would like to emphasise here that the Chamber did

 5     not only rely on the evidence of Josip Praljak.  Here, for example, we

 6     see a request for group of prisoners of 5 July 1993, and we can see in

 7     the left bottom corner highlighted in yellow "approved by Berko Pusic."

 8     And we know from Exhibit P2020, page 2, that Berko is Berislav Pusic.

 9     And the request says:

10             "Please provide us a group of five prisoners for building

11     bunkers."  Exhibit P03194.

12             A look at the military police administration log-book of requests

13     and approvals for forced labour, Exhibit P08043, shows that in July 1993

14     alone Pusic approved or ordered close to 700 labour assignments.

15     Your Honours see here the second page of the log-book and you see the

16     line number, the subject of the work assignment, the date, and the file

17     number, and the formation that submitted the request, and also who

18     approved it.  And we have collected from this document the lines where

19     labour was approved by Pusic in July 1993, and this adds up to 700

20     individual assignments.

21             Your Honours, I would just like to note here that we relied on

22     the B/C/S original because the translation unfortunately contains a

23     number of mistakes, so not all numbers reflected on our compilation are

24     found in the translation but they are found in the B/C/S original.

25             Detainees were also sent to perform labour on the front line

Page 714

 1     pursuant to general orders of Pusic.  This means that Pusic had broad

 2     powers in relation to forced labour.  And I refer Your Honours to

 3     Exhibit P03583 and P03633.

 4             Contrary to the suggestions by the Defence, Marjan Biskic's

 5     testimony does not undermine the Chamber's conclusion.  Biskic was deputy

 6     minister of defence for security and military police of Herceg-Bosna from

 7     December 1993, and he only arrived in Herceg-Bosna on 8 November; and

 8     therefore, his knowledge was limited to late 1993.  Transcript pages 1534

 9     and 153 -- 15034, excuse me, and 15317.

10             And in any event, Biskic confirmed that while there was a de jure

11     procedure and chain of command:

12             "In practice things were somewhat different."  Transcript page

13     15241.

14             Biskic also added that Heliodrom Warden Bozic never refused

15     permission to send detainees on forced labour.  That's transcript page

16     15301 through 15302.  And the evidence shows that had included times when

17     Pusic ordered or approved the labour, Exhibit P02385 and Exhibit P03596.

18     Therefore, the Chamber's conclusion that Pusic contributed to the common

19     criminal purpose by authorising unlawful forced labour is reasonable,

20     that Pusic was not the only one who authorised forced labour is without

21     consequence.

22             Pusic also contributed to the joint criminal enterprise by using

23     his power over Muslim detainees to remove them from Herceg-Bosna, in

24     particular when implementing Boban's decision to close the detention

25     facilities.  Volume 4, paragraphs 1203 and 1204.

Page 715

 1             As Ms. Bassett explained, the Muslim detainees were often

 2     released under the condition that they left Herceg-Bosna, often even BiH,

 3     with their families.  Volume 4, paragraph 1132.  Expelling these Muslim

 4     detainees and their families was at the heart of the common criminal

 5     purpose.  The evidence shows that Pusic was involved in these expulsions,

 6     such as from the Heliodrom, Gabela, and Ljubuski prison.

 7             To find that Pusic had the power and did organise and approve

 8     releases as of May 1993, the Chamber relied on numerous documents showing

 9     that Pusic ordered and approved releases.  Volume 4, paragraph 1049.  In

10     particular, the evidence shows that Pusic was authorising and approving

11     releases from the Heliodrom in the summer and autumn of 1993, according

12     to a procedure that Pusic has set out in the decision of 12 August 1993

13     as head of the commission for HVO prisons and detention centres.

14     Volume 4, paragraph 1158.  And this procedure included - in addition to

15     approval by Pusic - approval by the SIS, the HVO's information and

16     security service; and the Department of Criminal Investigations of the

17     military police; as well as guarantees that the detainees would leave the

18     territory of Herceg-Bosna.  I refer Your Honours, for example, to Exhibit

19     P04450, P4686, P4799, P05094, and P5748.  And Your Honours will find

20     these exhibits in footnote 2172 of volume 4.

21             The Chamber reasonably concluded also that Pusic's powers in

22     organising releases increased in December 1993.  Volume 4,

23     paragraph 1050.  In particular, following Mate Boban's 10

24     December decision to close the detention facilities, Pusic was involved

25     in expulsions of Muslim detainees from Heliodrom, Gabela, and Ljubuski

Page 716

 1     prison.  The very same day, on 10 December 1993, Pusic proposed

 2     re-organisation of the work of the exchange commission and service.

 3     Exhibit P07102.  This proposal included the task of "establishing the

 4     lists of persons who voluntarily want to leave the areas of the HR HB

 5     with the aim of reuniting the families."

 6             And here, of course, the meaning of "voluntarily" has to be

 7     interpreted in light of the coercive context.

 8             Pusic was also part of the working group established to implement

 9     Boban's decision.  Volume 4, paragraph 1092.  And the minutes of the

10     working group session of 11 December reveal Pusic's attitude.

11             "Mr. Pusic believes that they," that's the detainees, "should be

12     released, but that at the same time all measures of organisation,

13     protection, and security should be taken and, in particular, preparing

14     the detainees so that they can be sent abroad."

15             Exhibit P07148, page 5.  And then a bit later:

16             "Mr. Pusic believes that people over 50 years of age should be

17     sent or, rather, handed over to the Muslims side on the left bank of the

18     Neretva."

19             That's Exhibit P07148, page 10.

20             And the left bank, as Your Honours will recall, was besieged

21     East Mostar, overcrowded and subject to heavy shelling and sniping.

22             In the working group sessions two days later on 13 December,

23     Mr. Ivica Lucic, the chief of the SIS, the HVO information and security

24     service, presented some data.  There are a total of 2.912 persons in five

25     detention centres - and this included Heliodrom, Gabela, and Ljubuski -

Page 717

 1     and of these persons, 1.238 will be transferred to the territory held by

 2     Muslim armed forces and 295 with proper documentation will be transferred

 3     to third countries.  Exhibit P07143, page 4.

 4             So this was the plan, and the plan was followed through.  And

 5     Pusic was involved in the execution by organising the expulsions of

 6     detainees from the Heliodrom, Gabela, and Ljubuski prison to ABiH-held

 7     territory, including East Mostar or third countries, sometimes from

 8     Heliodrom via Gabela prison.

 9             For example, on 13 December Pusic co-signs an order for release

10     of 14 persons from the Heliodrom to the left bank, i.e., ABiH-held

11     territory in besieged East Mostar.  Exhibit P07141.

12             Also on 13 December 1993, Pusic co-signs another order releasing

13     17 persons going to third countries, with a note that they were

14     transferred from Ljubuski to Gabela on 15 December.  Exhibit P07140.  And

15     I refer Your Honours to volume 4, paragraph 1160, in relation to the

16     Heliodrom; para 1178 for Gabela; and 1183 for Ljubuski prison.

17             As of late December 1993, numerous releases from the Heliodrom

18     were carried out through exchanges.  Volume 4, paragraph 1162.  And

19     again, Pusic - the head of the Service for Exchange of Detainees and

20     Other Persons - was involved.  In this context Pusic did not hesitate to

21     keep some of the prisoners in detention for several months more when that

22     allowed him to negotiate the release of HVO soldiers.  Volume 4,

23     paragraph 1166.

24             For example, starting in mid-December 1993, Pusic ordered that a

25     certain number of Muslims remain in detention in the Heliodrom in order

Page 718

 1     to be used for exchanges.  On 1 March 1994, the HVO, through Pusic, sent

 2     121 Heliodrom detainees to Jablanica under ABiH control to be exchanged

 3     for 61 POW HVO members and 200 civilians.  Volume 4, paragraph 1163.

 4     This shows that the exchanges were not limited to POWs but also included

 5     civilians.  In this regard, I also refer Your Honours to Pusic's report

 6     of 31 March 1994, attachment 2.  That's Exhibit P08136, pages 2 and 3.

 7             Although Boban took the decision to close detention centres on 10

 8     December 1993, the last releases conducted through exchanges were

 9     organised by Pusic in April 1994.  Volume 4, paragraph 1164.  Pusic thus

10     clearly contributed to the common plan through releases.

11             Pusic also contributed to the common plan by being the link

12     between the workings of the network of detention facilities and the most

13     important members of the JCE.  Volume 4, paragraph 1209.  The Chamber

14     based this, in particular, on Pusic regularly informing the HVO

15     leadership about the progress of the implementation of Boban's 10

16     December decision.

17             This finding is reasonable on the evidence, which shows that

18     Pusic sent numerous reports about the implementation of this decision to,

19     among others, the Herceg-Bosna government, the minister of defence, the

20     military police administration, and the embassy of Croatia.  Pusic

21     reported twice on 15 December 1993, twice on 18 December, again on the

22     3rd of January, 1994.  He also reported without explicit mention of

23     Boban's decision on 24 February 1994, 2 March 1994, 31 March 1994, and 29

24     April 1994.  And all reports are listed in footnotes 319 and 320 of the

25     Prosecution response brief.

Page 719

 1             For example, on 15 December 1993, Pusic sent the following

 2     report.  We can see the date in the top left corner, and in the bottom

 3     right corner we see that Pusic sent the report as head of the exchange

 4     service.  And Your Honours can see from the headings that the report

 5     relates to Ljubuski, Heliodrom, and Gabela.  And I will take Your Honours

 6     through these three locations in more detail.  It says the following has

 7     been done.

 8             In relation to Ljubuski:

 9             "14 persons were released from prison in Ljubuski and they will

10     go to the left bank on their own will."

11             This own will needs to be read in context, Your Honours.

12     East Mostar remained under siege under intense shelling and sniping and

13     was significantly overcrowded.

14             "(2) 17 persons who will go to the third countries were released

15     and they have necessary documents.

16             "(3) Eight persons who will stay in HR HB in Citluk will go to

17     third countries together with their family members.

18             "Heliodrom.

19             "(1) 57 persons who live in mixed marriages and have Croatian

20     spouse were released from prison in Heliodrom.  They will stay in the

21     HR HB, whereas five persons want to go to the left bank because their

22     families are there (expelled before).

23             "(2) 12 Muslim women were released and they stayed on the right

24     bank.

25             "Gabela.

Page 720

 1             "With mediation of the ICRC, 83 persons of Muslim ethnicity were

 2     released from Gabela.  They were transferred to Split from where they

 3     will go to the third countries."  Exhibit P07187.

 4             On 3 January 1994, Pusic reports that a total of 3.167 persons

 5     have been released.  Of those, 1.935 were released to the left bank -

 6     besieged East Mostar - and area under the control of the ABiH; and 343

 7     persons were -- 743, apologies, were released to third countries.

 8     Exhibit P07468.

 9             Your Honours, would this be an appropriate time for the break

10     before I turn to the next contribution?

11             JUDGE AGIUS: [Microphone not activated] -- you've so far used 50

12     minutes of your two hours.

13             MS. GOY:  Thank you very much.

14             JUDGE AGIUS:  So we will have a break now and reconvene at 12.00,

15     12.00 noon.

16             MS. GOY:  Thank you very much.

17             JUDGE AGIUS:  Thank you.

18                           --- Recess taken at 11.26 a.m.

19                           --- On resuming at 12.00 p.m.

20             JUDGE AGIUS:  Yes, Ms. Goy.

21             MS. GOY:  Thank you, Your Honour.

22             I would like to continue with the fourth contribution, namely,

23     Pusic's contribution to the common plan by keeping persons detained who

24     he knew were unlawfully detained and who were held in terrible conditions

25     and were mistreated.

Page 721

 1             Pusic was clearly aware that persons who -- were unlawfully

 2     detained.  He made and received lists which indicated, from the age of

 3     the detainee or from their description as civilians, that they were not

 4     lawfully detained.

 5             As head of the Service for the Exchange of Prisoners or Other

 6     Persons, it was his task to set up a database on prisoners and other

 7     persons, Exhibit P03191.  In particular, Pusic compiled lists of

 8     Heliodrom detainees on 15 September 1993 and received lists of Gabela and

 9     Ljubuski detainees.  Volume 4, paragraphs 1135, 1171, 1172, and 1181.

10     But Pusic did not release those detained civilians.

11             Pusic was also clearly aware of terrible detention conditions, of

12     overcrowding and mistreatment in detention.  Through his role in the

13     network of detention facilities, he had the power to do something about

14     it but, for the most part, he did not.  Rather, he contributed to the

15     mistreatment by authorising or approving dangerous forced labour on the

16     front line.  Based on personal visits and reports he received, the

17     Chamber reasonably concluded that Pusic knew of problems with the

18     conditions of detention and of overcrowding in relation to Heliodrom and

19     Ljubuski the entire time they functioned, volume 4, paragraph 1143 and

20     1182; in relation to Dretelj and Gabela from July 1993, volume 4,

21     paragraph 1170; volume 3, paragraph 59; volume 4, paragraph 1176.  And

22     starting in July 1993, Pusic was also informed of mistreatment of

23     detainees at the Heliodrom volume 4, paragraph 1145.

24             This brings me to question 9 of Your Honours' preparation order.

25     In question 9 Your Honours asked for the basis of the Chamber's finding

Page 722

 1     in volume 4, paragraph 1056, that Pusic had the power to resolve problems

 2     related to conditions of confinement and mistreatment of detainees in the

 3     network of HVO detention centres.  The answer is given in the same

 4     paragraph, notably Pusic's power to transfer detainees from one detention

 5     centre to another.  In addition, the Chamber in this paragraph also

 6     relied on the power to release detainees.

 7             The relevant part of volume 4, paragraph 1056, says:

 8             "Berislav Pusic had a role and significant powers in the

 9     detention centres, notably the power to transfer detainees from one

10     detention centre to another, to resolve problems related to conditions of

11     confinement and mistreatment of detainees."

12             This becomes even clearly maybe in the original French version of

13     the judgement:  [French spoken] [No interpretation]

14             "... Berislav Pusic avait un rôle et des pouvoirs suffisamment

15     importants dans les centres de détention, et notamment celui de

16     transférer les détenus d'un centre de détention à un autre, pour remédier

17     aux problèmes liés aux conditions de détention et aux mauvais traitements

18     des personnes détenues."

19             This reading is further confirmed by volume 4, paragraph 1143, as

20     well as the Chamber's findings on Pusic's responsibility under JCE 1 in

21     volume 4, paragraph 1203, where the Chamber noted that Pusic:

22             "... never took the necessary measures to improve the conditions

23     or to put a stop to the mistreatment such as moving the detainees to

24     another detention centre or notifying the relevant authorities."

25             Thus, Pusic could have improved the conditions in detention and

Page 723

 1     alleviated the mistreatment by releasing and transferring detainees or by

 2     notifying the relevant authorities.  Pusic had the power to do so.

 3             I have already discussed Pusic's power in relation to release.

 4     In addition, he could have transferred detainees.  Pusic had the power to

 5     transfer detainees from one detention facility to another.  In addition

 6     to the two pieces of evidence relied on by the Trial Chamber in volume 4,

 7     paragraph 1056, the record shows that Pusic on numerous occasions -

 8     either individually or jointly with others - ordered transfers of

 9     detainees between detention facilities.  We have listed them in

10     paragraph 51 of the Prosecution's response brief.

11             In particular, the Chamber found in volume 4, paragraph 1182,

12     that between May and September 1993 Pusic ordered the transfer of more

13     than 100 detainees from Ljubuski prison to another detention facility.

14     The evidence shows two transfers, one of 106 and one of 130 prisoners.

15     That's Exhibit P2535 and P05083.  The Chamber thus reasonably found Pusic

16     could take action to transfer detainees.

17             To challenge this conclusion the Defence has today in particular

18     pointed to the fact that Pusic proposed transfer of detainees from the

19     Heliodrom to Gabela due to overcrowding at the Heliodrom in January 1994.

20     This proposal was rejected by Biskic, the deputy minister of defence for

21     security and the military police of Herceg-Bosna.

22             But, first of all, in testimony, Biskic explained the reasons he

23     did not approve of this transfer.  Namely, because they had established a

24     company to provide security at the Heliodrom and that detainees should be

25     exchanged from there.  Transcript page 15130 and 15326.

Page 724

 1             Moreover, Biskic only came to Herceg-Bosna on 8 November 1993 and

 2     only had contact with Pusic after Boban's 10 December order.  Biskic

 3     blocking one of Pusic's attempt from moving detainees does not undermine

 4     Pusic's general ability to take measures to transfer detainees.

 5     Moreover, the evidence shows that prior to Biskic's arrival in

 6     Herceg-Bosna, Pusic did order the transfer of detainees.  For example, on

 7     6 November 1993 two detainees were transferred from Heliodrom to Gabela

 8     or order of Berislav Pusic.  Exhibit P00352, page 31; and volume 1 of the

 9     judgement, paragraph 196.

10             In addition, Pusic had the power to report to the authorities in

11     charge of prisons, not only when he became part of the working group set

12     up to inspect detention centres, but also as president of the commission

13     for HVO prisons and detention centres.

14             As president of the commission for HVO prisoners and detention

15     centres, it was his formal responsibility to resolve problems relating to

16     detention centres and prisons.  Volume 1, paragraph 622.

17             As the detention centres in the network were controlled by the

18     military police administration, the HVO, or both, Pusic could have

19     reported to Coric - the head of the MPA with whom he worked closely - or

20     Pusic could have used his connections with other JCE members, such as

21     Stojic, who ap pointed him as head of the commission on HVO prisons and

22     detention centres, to report on the situation in HVO-run facilities.

23             Despite his ability to take measures to improve detention

24     conditions, Pusic failed to take action.  Only in a few limited instances

25     during his JCE membership, Pusic tried to improve conditions by

Page 725

 1     suggesting to move people such as in January 1993 in the memorandum to

 2     Biskic or proposed new sites to hold detainees and to address

 3     overcrowding as part of delegation sent to Dretelj and Gabela in

 4     July 1993.  This is clearly insufficient.  Therefore, the Chamber

 5     reasonably found Pusic failed to take measures to address conditions of

 6     and mistreatment in detention.  Volume 4, paragraph 1143, 1145, 1176,

 7     1170, and 1182.

 8             Had Pusic raised issues in relation to detention facilities, he

 9     would have made the continuation of mistreatment more difficult.  Those

10     with powers over the detention centres would have been forced to either

11     address Pusic's concern or remove Pusic from his role in the detention

12     centre network or replace him.  This would have disrupted the efficient

13     implementation of the common criminal plan through the network of

14     detention facilities.  Pusic's failure to address prison conditions and

15     mistreatment thus furthered the common criminal plan.

16             To conclude on the contributions, Your Honours, on the basis of

17     the totality of the evidence, there can be no doubt that Pusic's

18     contributions taken cumulatively significantly contributed to the common

19     plan.  In particular, Pusic authorised and ordered highly dangerous

20     forced labour, which forced Muslim detainees to agree to leave

21     Herceg-Bosna and was a key player in implementing these expulsions of

22     detainees.  Grounds 1 and 6 of Pusic's appeal should be dismissed.

23             This brings me to the last part of my submissions, namely,

24     Pusic's shared intend, that is Ground 5.  Pusic's conduct including the

25     contributions I just described as well as his utterances show that he

Page 726

 1     accepted all means necessary to ethnically the areas that Croats claimed,

 2     persecutions; forcible displacement, including to third countries;

 3     unlawful detention; cruel and inhumane treatment, including through

 4     detention conditions; killings and attacks and through forced labour;

 5     unlawful attack and terror; and destruction of Muslim property, including

 6     mosques.  Deeply involved in detention matters, Pusic was clearly aware

 7     that they happened for a purpose.  To displace Muslims from Herceg-Bosna

 8     with their families, including to third countries.  Already in April 1993

 9     Pusic knew about mass arrests.  Volume 4, paragraph 1203.  Pusic knew

10     that terrible detention conditions, mistreatment during detention on

11     forced labour were used to force detainees to agree to leave Herceg-Bosna

12     and BiH if they were released.  These Muslims had no real choice.  They

13     could either remain detained in extremely harsh conditions where they

14     risked their life during dangerous forced labour or leave Herceg-Bosna.

15     These displacements were not done for the security of the detainees or

16     compelling military reasons.  There were no measures in place for the

17     return of detainees or their families.  Quite the opposite.  By

18     destroying their houses, the HVO made sure they had nowhere to return to.

19     Volume 3, paragraph 787.

20             Pusic saw this in Sovici and Doljani.  When Pusic entered Sovici

21     and Doljani on 4 May 1993, together with Petkovic and other members of

22     the delegation, Pusic saw that the villages were burned down.  He saw

23     that the men of working age and younger boys were held in harsh

24     conditions, undernourished, and exhausted.  One of the commission

25     members, Hasan Rizvic talked about what the delegation saw in Sovici

Page 727

 1     school:  "We entered the school and what we saw was terrible.  The people

 2     were exhausted and dirty."

 3             And then one line down --

 4             JUDGE AGIUS:  Ms. Goy, slow down a little bit.  Thank you.

 5             MS. GOY:  Apologies.

 6             One line down he said:

 7             "They could not sleep without laying on their sides so that they

 8     would take up less space.  Most started to cry, but still they told us

 9     they had not been mistreated.  You could tell, however, that this was not

10     true."

11             Exhibit P10358, paragraph 40.  And the Chamber's finding show he

12     was right.

13             Rizvic also explained that the delegation heard there were groups

14     of women and children held in another hamlet.  That's on paragraph 42 of

15     Exhibit 10358.  On the basis of this and other evidence, the Chamber

16     reasonably concluded that Pusic was fully informed about the arrest and

17     detention of the population of the villages.  He knew of detention of

18     civilians and of the harsh detention conditions, was aware of the

19     destruction of Muslim property and the mosques.  He also knew of the

20     displacement of the detainees from Sovici and Doljani the next day.

21     Nevertheless, Pusic continued to carry out his functions within the HVO.

22     Volume 4, paragraphs 1102, 1104.

23             Pusic was aware not only of the detention but also of the

24     horrific conditions, that they were a necessary means to achieve the

25     expulsion, but he failed to take necessary measures to improve the

Page 728

 1     conditions or report the mistreatment.  Rather, he tried to conceal and

 2     hide HVO responsibility.  Volume 4, paragraph 1201.

 3             At a meeting organised by ECMM representatives on 16 June 1993,

 4     Pusic and Coric denied the information reported to them regarding

 5     evictions of Muslims from West Mostar to East Mostar.  They told ECMM

 6     that the evictions never happened, and if they had, there were the acts

 7     of criminals over whom the HVO had no control.  Volume 4, paragraph 1198.

 8             Pusic's intent is also shown in a comment he made in

 9     September 1993 in relation to the situation in Mostar.  Pusic said the

10     only suitable solution was to "send all the Muslims from West Herzegovina

11     to East Mostar where they come from."  Volume 4, paragraph 1115.

12             If we could move into private session for just one moment,

13     Your Honours.

14             JUDGE AGIUS:  Yes, let's move into private session for a short

15     while, please.

16                           [Private session]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 729

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16                           [Open session]

17             JUDGE AGIUS:  We are in open session, Ms. Goy.  And slow down,

18     please.

19             MS. GOY:  Yes, apologies.

20             In addition, as I already mentioned, in the meeting of

21     11 December 1993 to implement Boban's 10 December decision, Pusic

22     insisted on the fact that all the detainees should be sent abroad.  In

23     the working group meeting two days later, on 13 December 1993, Pusic

24     continued to assert that Muslim detainees needed to be sent to third

25     countries.  Volume 4, paragraph 1128.

Page 730

 1             In light of these statements, his key role in detention matters

 2     and his failure to improve the conditions and his attempt to hide HVO

 3     responsibility, it was reasonable for the Chamber to infer that Pusic not

 4     only shared the intent for unlawful detention and horrible conditions and

 5     mistreatment, the destruction of property and of mosques, but also for

 6     the displacement itself that he shared the discriminatory intent for

 7     persecution.

 8             Pusic's disrespect for human life and his willingness to accept

 9     whatever means it takes to implement the plan becomes clear when one

10     looks at how Pusic behaved during the siege of East Mostar.  Pusic had

11     his office in West Mostar and was therefore aware from the beginning what

12     was happening.  Prior to the siege, Pusic was not only aware of arrest

13     and detention of Muslims from West Mostar, he took part in the arrest

14     campaign in May 1993 and in the operation to remove Muslims from

15     West Mostar to East Mostar.  Volume 4, paragraphs 1110 and 1111.  And as

16     I already mentioned, he tried to conceal these evictions and denied them

17     in the meeting with the ECMM on 16 June 1993.

18             With his office in West Mostar, Pusic would have been aware of

19     the suffering of the civilian population trapped in East Mostar, of the

20     shelling and sniping and terror.  How would someone react who did not

21     share the intent for the crimes forming part of the siege?  One would

22     expect that this person would use the means at his or her disposal to

23     protest against this behaviour and try to help the trapped Muslims.  And

24     what did Pusic do?  Rather than protesting, Pusic hindered, even

25     paralysed humanitarian evacuations.  Rather than assisting the people

Page 731

 1     trapped in East Mostar, Pusic made living conditions worse.  Volume 4,

 2     paragraph 1122.

 3             Pusic participated in negotiations with representatives of

 4     international organisations but showed little willingness to co-operate.

 5     He made negotiations difficult, insisted on special evacuation permits.

 6     For one Muslim to be evacuated from East Mostar, a Croat had to be moved

 7     from a besieged enclave.  Volume 4, paragraph 1121.  This shows that

 8     Pusic was committed to the common purpose, that he accepted and shared

 9     the intent for the types of crimes committed in East Mostar to achieve

10     Croat domination.  Murder, unlawful attack, and terror.  This attitude is

11     in line with Pusic's continued approval for forced labour even after he

12     was on notice that some detainees had not returned from their assignments

13     on the front line.  Volume 4, paragraph 1151.

14             Pusic not only shared the intent for unlawful forced labour but

15     also for killings during forced labour assignments.  On the totality of

16     Pusic's conduct, the Chamber's finding is therefore reasonable, that

17     Pusic shared the intent for the common purpose crimes.  Ground 5 should

18     be dismissed.

19             Let me end my submissions with an answer to Your Honours'

20     question number 4 about the impact of the reversal of the finding of

21     murder and wilful killing in relation to the killing of civilians in

22     Enver Sljivo's house in Dusa.  Ms. Gustafson explained last week in the

23     Prosecutions response to Prlic's appeal that this would not change the

24     scope of the common purpose nor the shared intent of Mr. Pusic.  That's

25     at questions 4(a) and (b).

Page 732

 1             As regards question 4(c), Your Honours will recall that Pusic is

 2     not convicted under JCE 3 for murder and wilful killing, so this question

 3     technically relates to the Prosecution appeal but since counsel for

 4     Mr. Pusic raised it today, I will also respond today.

 5             If a finding on murder and wilful killing in relation to the

 6     attack on Enver Sljivo's house were overturned, this would not impact

 7     Pusic's liability under JCE 3 as alleged in the Prosecution's appeal.

 8     Pusic was not a JCE member at the time of the Gornji Vakuf attack in

 9     January 1993.  He only joined in April 1993.  In the appeal, the

10     Prosecution therefore has not relied on Pusic's knowledge regarding

11     specific events in Gornji Vakuf in support of the appeal.

12             To conclude, Your Honours, on the basis of the totality of the

13     evidence, the Chamber's conclusions are reasonable.  Pusic was a JCE

14     member who significantly contributed and shared the intent for the common

15     purpose crimes.  His appeal should be dismissed.

16             Unless Your Honours have any questions, this ends the

17     Prosecution's submission.

18             JUDGE AGIUS:  Okay, Thank you.

19             So no nothing else, Mr. Stringer?

20             MR. STRINGER:  No, Your Honour.

21             JUDGE AGIUS:  Okay, thank you.

22             We proceed now to the reply.

23             MR. SAHOTA:  Your Honours, may I ask for a break at this stage.

24     We are well in advance of the anticipated schedule and a bewildering

25     number of documents have been raised in the Prosecution's reply.  If I

Page 733

 1     could have a short period of time as all the other Defence teams had

 2     before making their final response, it's only fair, I would say, on the

 3     basis of an equality of arms --

 4             JUDGE AGIUS:  How much time are you asking for?

 5             MR. SAHOTA:  Could we resume at 2.00?

 6             JUDGE AGIUS:  Oh, no.  Oh, no, no.

 7             MR. SAHOTA:  No?

 8             JUDGE AGIUS:  I can give you 15 minutes but not more than that.

 9     You are used to the same system that I am used to.

10             MR. SAHOTA:  I am indeed.

11             JUDGE AGIUS:  You have to live with it.  If it happens, it

12     happens.  How many times have I and you been asked to start doing your

13     work when you were not ready for it.

14             MR. SAHOTA:  Never in a case of this complexity, never with so

15     many documents cited.

16             JUDGE AGIUS:  Oh, come on, Mr. Sahota.  I'm perfectly sure after

17     ten years that you are quite familiar with all the documents that have

18     been mentioned, in particular since these are just dealing with the case

19     of your client and nothing else.

20             MR. SAHOTA:  Your Honours, can I say this:  I would be grateful

21     for any time that you would give me.

22                           [Trial Chamber confers]

23             JUDGE AGIUS:  All right.  We're going to give you 15 minutes and

24     get the machine cracking.

25             MR. SAHOTA:  Thank you. 

Page 734

 1                            --- Break taken at 12.30 p.m.

 2                           --- On resuming at 12.45 p.m.

 3             JUDGE AGIUS:  Yes, Mr. Sahota.  You have 30 minutes.

 4             MR. SAHOTA:  Your Honours, can I, first of all, thank you for the

 5     time.  I don't propose to, nor is it possible for me to, reply to every

 6     argument that's been advanced this morning by the Prosecutor,

 7     particularly when the reply of the Prosecution, in my respectful

 8     submission, has in large parts consisted of a resuscitation or

 9     regurgitation of passages from the Trial Chamber's findings.  These have

10     been repeated uncritically.  We have our arguments, our position is clear

11     from our appeal brief, and I hope from what I've said this morning, one

12     of our main concerns remains that the arguments that we've advanced in

13     our appeal brief have not been engaged with and directly addressed by the

14     Trial Chamber, a Chamber that only dedicated a few pages in its many

15     thousands of pages of findings to Mr. Pusic.  So, Your Honour, if there

16     are any points that I haven't addressed that were raised this morning, by

17     no means does that mean that we accept or concede anything.

18             And, Your Honours, I'll start with this reply by just looking

19     at -- I'm going to focus on question 4 and the issue of forced labour,

20     I'm deliberately focusing on that because, really, in my opinion, that's

21     the most serious allegation against Mr. Pusic.  That is the most grave

22     crime that he is alleged to have a direct input in.

23             And, Your Honour, what I said this morning is there is, in my

24     submission, some confusion in the Trial Chamber's reasoning, there is --

25     I don't have the references at hand, they were referred to this morning.

Page 735

 1     At one point the Chamber talks of significant powers that Mr. Pusic had

 2     to order forced labour assignments.  In other parts of the judgement

 3     there is reference to substantial powers.  So there is something of a

 4     muddle there, and I was wondering if Prosecution this morning would be

 5     able to sort of -- or to assist us in determining what the position was,

 6     is it the case of significant powers, is it the case of substantial

 7     powers, and I'm not entirely clear that the picture -- well, I think it

 8     remains just as opaque as it was before.

 9             JUDGE AGIUS:  Yes, Judge Pocar.

10             JUDGE POCAR:  Excuse me.  You mentioned this morning even before,

11     significant substantial powers in the difference.  Can you give us a

12     couple of examples where the substantial is mentioned in the text in the

13     judgement?

14             MR. SAHOTA:  Would Your Honours just bear with me for a second.

15                           [Defence counsel confer]

16             MR. SAHOTA:  Well, Your Honour, I think what I'm alluding to is a

17     general conclusion, and I will put my finger on it at some point, that

18     Mr. Pusic, in opinion of the Chamber, had substantial powers over the

19     network of detention facilities, which I would assume is a finding that

20     incorporates his powers over forced labour.  And the finding at

21     paragraph 104 -- sorry, 1203, at volume 4, that he also played a

22     significant role in the use of Heliodrom detainees, sending them on

23     forced labour assignments, that's paragraph 1203.  And I think it is

24     implicit from what is said with references to orders and the general

25     context and tenor of the Chamber's findings in the relation to his powers

Page 736

 1     over detention centres in general, that some confusion arises.

 2             JUDGE POCAR:  Mm-hm.

 3             MR. SAHOTA:  I think the problem is that the Trial Chamber never

 4     really nails its colours to the mast as to what Mr. Pusic's powers are

 5     and what the source of those powers are.  So in my mind, and perhaps you

 6     share this confusion, it is not entirely clear whether they're saying

 7     that he played a significant role or he had substantial powers.  Although

 8     they use the word "significant" in paragraph 1203, when one looks at the

 9     general tenor and context of the findings on detention centres, it seems

10     as if the Trial Chamber's conclusion is that he had substantial powers

11     when it came to the HVO network of detention centres.

12             And, Your Honour, I say that because one can contrast the

13     Chamber's findings on detention centres and separate those with the other

14     crimes on the indictment, if you look at prisoner releases, exchanges,

15     humanitarian evacuations, it is quite clear that in respect of those

16     areas, the Chamber has found that that Mr. Pusic had significant powers.

17     But under the umbrella heading of detention centres it uses and is more

18     prepared to use the word "substantial powers."

19             So I'm not entirely -- I hope that assists.  I have been also

20     passed references to the following paragraphs, I don't have the ability

21     to look at themselves on my feet, but if I can cite these to you now,

22     they're all in volume 4.  Obviously there is some opportunity for me

23     tomorrow to address these.  Paragraphs -- but volume 4, paragraphs 1202,

24     1023, and 1379.

25             JUDGE POCAR:  Okay, thank you.

Page 737

 1             MR. SAHOTA:  But, Your Honours, it's on the basis of these rather

 2     muddled and confusing at times findings that ...

 3             May I have just a minute, Your Honours, just to resume as to

 4     where I left off.

 5             Well, Your Honours, it's on the basis of what we say this rather

 6     muddled analysis that nonetheless the Chamber comes to the conclusion

 7     that it does, that Mr. Pusic made a significant contribution to the JCE;

 8     and it finds that he made a significant contribution in respect of forced

 9     labour.  The allegations relevant to forced labour not on the basis of --

10     only on the basis of what he did, i.e., these orders that we dispute but

11     also on the basis of his omissions to act, i.e., his acceptance in the

12     general context.  And what concerns us is that the evidence is so

13     unclear, we would say, that it really prohibits any finding beyond

14     reasonable doubt in respect of this particular area.  And we have already

15     highlighted our concerns in respect of Mr. Pusic's position within the

16     HVO hierarchy.

17             Can I just directly address some of the documents that were

18     produced this morning by the Prosecution as further evidence that he

19     could give orders.  There were two of the documents that were adduced

20     this morning.  The first is P3583, and this was referred to as a general

21     order from Mr. Pusic.  Your Honours, we would ask you to examine this

22     document, apply what we called our handle-with-care warning.  This is

23     again a document not signed by Mr. Pusic.  There is endorsed on it in

24     writing by a member of the Heliodrom staff the words as "per the general

25     order by Mr. Pusic," and it's a document that refers to a request, a

Page 738

 1     request made on the 20th of July, 1993, for 15 prisoners to be taken out

 2     to perform work.  And that's a request made by Mile Pulik [phoen] who is

 3     the HVO Mostar battalion commander.  So what was said this morning is

 4     that we, the Defence, were incorrect in saying that the only evidence of

 5     any orders or approvals emanated from Mr. Josip Praljak.  What we should

 6     have said, perhaps just to clarify, is that the only witness who gave

 7     evidence of these orders was Mr. Josip Praljak.  However, the documents

 8     are indeed endorsed by other individuals which include other staff at the

 9     Heliodrom.  But I think the basic thrust of our submission, which is that

10     these are not orders.  They're notes of conversations where the

11     endorsements are written by either Mr. Praljak in the main - Josip

12     Praljak, that is - or by other staff at the Heliodrom and they should not

13     be construed as evidence of any powers that Mr. Pusic has.

14             And we would make the same submission again in regards to I think

15     a think a reference that you were shown to a document.  I don't have it

16     at hand, but there was a reference to 700 detainees in total, a schedule.

17     And that was taken from the Heliodrom log-book.  In that log-book it

18     would appear that endorsements were made as approved by Mr. Pusic and in

19     the hand of whoever was making entries into the log-book at the time, and

20     that may or may not have been Mr. Josip Praljak.  So if we could clarify

21     that, but our position remains as -- you're well aware that those

22     documents do not provide the foundation for a finding beyond reasonable

23     doubt that Mr. Pusic had the power to issue orders for detainees to be

24     taken out on forced labour assignments.

25             Your Honours, it's interesting and we've said again this morning

Page 739

 1     that those orders, we say, have to be read against the general context

 2     which is that as conceded by the Prosecution this morning, that the

 3     Chamber cannot precisely specify the source of Mr. Pusic's powers when it

 4     comes to this issue of forced labour.  We would apply that perhaps more

 5     generally.  It can't precisely satisfy the source of his powers in

 6     respect of any activities that he is said to have engaged in.

 7             What was also said this morning is that it wasn't important and

 8     what seemed to be implied is that it didn't really matter whether he had

 9     de jure powers or not; we should consider the evidence of his de facto

10     powers in this area.  And it was also said by the Prosecution this

11     morning that it didn't really matter whether we could make a firm finding

12     as to whether he had any subordinates because he wasn't -- or this isn't

13     a case where we're considering his 7(3) liability.  We're looking at his

14     liability as a member of the JCE, and all that needs to be proved there

15     is that he made a significant contribution.  That contribution can be

16     made on the basis of not just his acts but also his omissions to act if

17     they constitute acceptance.  What remains troubling for us is that -

18     again, as I've said earlier today - the evidence of or the evidence that

19     these conclusions as to his influence and powers are drawn from are --

20     well, the evidence is so unclear, it's so conflicting, it's so

21     contradictory.  How can it support any findings beyond reasonable doubt?

22     That is the question that we advance.

23             Your Honours, I would refer you to paragraph 25 of our appeal

24     brief.  In that paragraph, we talk about the Pusic paradox and what we

25     say is that it's because of this -- these multiple failures on the part

Page 740

 1     of the Trial Chamber.  Their failure to specify who his subordinates are,

 2     their failure to specify - as the Prosecution conceded this morning -

 3     what the precise source of his power is.  It's because of those failures

 4     there remains a conundrum.  There remain an uncertainty as to the exact

 5     ambit of Mr. Pusic's powers and influence.  And there must remain some

 6     concern as to whether the Chamber properly applied the burden of proof

 7     when making their findings.  And that, Your Honours, really is in summary

 8     the thrust of our submissions when it comes to this particular issue of

 9     forced labour.  So we say that this paradox, the Pusic paradox we call

10     it, we also say that applies more generally to all the findings in the

11     Trial Chamber's judgement in respect of all the other areas of activity

12     that he was involved in.

13             Your Honours, in response to what was said this morning in

14     regards to detention centres and the conditions of detention, there was

15     no reference in the narrative you heard in the first part of the

16     Prosecution's submissions to Mr. Pusic having any role in the setting up

17     of the network of detention centres.  And you know from the Trial

18     Chamber's judgement that he is not said to have joined the JCE until

19     April 1993.

20             Your Honour, in respect of his role before the 10th of December,

21     1993, as regards detention centres, we -- we're not going to add anything

22     to what we've already addressed you on this morning and what's in our

23     appeal brief.  I would like to address you on what was said about

24     Mr. Pusic's role in detention centres, in releases, in exchanges after

25     the 10th of December.  In particular what was said this morning about the

Page 741

 1     role of Marjan Biskic role.  And, Your Honours, I think the Prosecution

 2     referred to the fact that he was posted -- parachuted in I said this

 3     morning from Croatia in November 1993, remained in situ working with the

 4     HVO HZ HB until 1994.  And, Your Honours, central to our case is his

 5     assessment that Mr. Pusic could not give orders to him or anyone else.

 6     And we say that analysis which directly applies to this question of

 7     detention centres - that was the area that he was intimately involved

 8     with - directly contradicts the account that you heard this morning from

 9     the Prosecution of Mr. Pusic's powers increasing.  His powers increased

10     after the 10th of December, 1993, a phrase that was repeated many times

11     and is taken verbatim from the Trial Chamber's judgement.  His powers

12     were such that he was somebody who played a key role in organising the

13     exchanges and releases of detainees after that date.  Well, how does that

14     square with Mr. Biskic's assessment?  It doesn't.  And, Your Honours, how

15     does it square with the failure of the Trial Chamber and the Prosecution

16     to identify Mr. Pusic's subordinates and to identify his source of power?

17     We say that same paradox applies in relation to detention centres.

18             Turning now to releases.  Our case is as set out in the appeal

19     brief.  We say Mr. Pusic had no unilateral power to order the release of

20     prisoners, their exchange, or their transfer.  In reference to prisoner

21     releases specifically, you heard this morning reference to Mr. Pusic

22     describing the procedure that had to be followed before a detainee could

23     be released.  Reference would have to be made to other departments within

24     the HVO, to the security department known as the SIS, also to the

25     criminal investigation department known as the CID.  So, Your Honours,

Page 742

 1     what I would say the narrative and account that you were presented this

 2     morning really oversimplifies the position when it comes to releases and

 3     exchanges.  Whatever happened in respect to those that were detained in

 4     the HVO network of detention centres, if they remained in detention, if

 5     they were sent to third countries, if they were released to ABiH

 6     territory, if they were forced to stay in their homes or to stay in

 7     Mostar when there was a conflict going on, whatever happened we say the

 8     evidence does not show that Mr. Pusic had the power to influence or

 9     dictate their fate.  When it comes to the one-for-one or all-for-all

10     exchange policies, again we say that Mr. Pusic did not have the power to

11     determine these issues so we say the evidence does not show that

12     Mr. Pusic had the power to determine these issues.  And so, Your Honour,

13     we say that's not a black-and-white issue as you may have had the

14     impression from what you've heard this morning.

15             There was also, Your Honours, reference to the decision in Kvocka

16     this morning alluded by my learned friend for the Prosecution.  What I

17     would say here is that in contrast in distinguishing that particular

18     case, the Prosecution and the Trial Chamber didn't find that Mr. Pusic

19     was just a clerk or administrator; that's not what the import of the

20     Trial Chamber's findings are.  It's also not said by the Trial Chamber or

21     by the Prosecution that Mr. Pusic was just a link between the leadership

22     and what happened on the ground.  And, Your Honour, it's -- we would

23     suggest that the evidence would not even support a conviction for

24     Mr. Pusic if it were the case that he was just shown to be a clerk or

25     administrative officer.  We would still maintain the position that that

Page 743

 1     finding would not support the conclusion that he made a significant

 2     contribution to the JCE.

 3             So, Your Honour, I'm just going to end quickly.  I think we would

 4     ask the Chamber to look at the evidence regarding Mr. Pusic's conduct in

 5     totality, not to view elements of it in isolation, not to bifurcate in

 6     the way the Trial Chamber has evidence about detention centres, separate

 7     that from evidence concerning the activities of Mr. Pusic in the areas of

 8     prisoner exchange, in the areas of humanitarian evacuation releases and

 9     transfers.  We'll ask you to take a global approach in this case.  And in

10     response directly to what was said this morning, we would consider that

11     the Prosecution are really at times asking and expecting the impossible

12     of Mr. Pusic on the ground.  Judging him by today's standards, it was

13     said that -- or it was directly raised the question of why he -- why did

14     he not protest?  Why did he not report some of the atrocities that he

15     must have known about?  Well, Your Honour, this is a criminal trial.

16     It's the Prosecution's burden to prove beyond reasonable doubt; it's the

17     Trial Chamber's obligation to find that evidences that has been brought

18     to show beyond reasonable doubt that Mr. Pusic is guilty.  And, Your

19     Honours, our concerns about this judgement really rest upon the fact that

20     what remains unclear, what remains opaque is the question of exactly what

21     subordinates Mr. Pusic had, what the extent of his power was, what his

22     ability was to influence events.  And that, Your Honour, are questions

23     that remain -- the answers to those questions remain unclear, despite

24     what you've heard this morning.

25             Thank you.

Page 744

 1             JUDGE AGIUS:  Thank you, Mr. Sahota.  That brings us to the end

 2     of today's session.  Tomorrow we have a long day, as you know.  The

 3     submissions will be followed by any statement that each one of the

 4     appellants may wish to make.

 5             I would suggest that -- to counsel that if any one of the

 6     appellants doesn't wish or does not intend to make a statement to let us

 7     know so that we can make the necessary arrangements.

 8             Thank you.

 9                           --- Whereupon the hearing adjourned at 1.09 p.m.,

10                           to be reconvened on Tuesday, the 28th day of March,

11                           2017, at 9.00 a.m.