Tribunal Criminal Tribunal for the Former Yugoslavia

Page 745

 1                           Tuesday, 28 March 2017

 2                           [Open session]

 3                           [Appeals Hearing]

 4                           [The appellants entered court]

 5                           [The Appellant Pusic not present]

 6                           --- Upon commencing at 9.00 a.m.

 7             JUDGE AGIUS:  Yes, Madam Registrar, please could you call the

 8     case.

 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             So today we have a long day ahead, so I count on the co-operation

13     of everyone and I'll start with appearances first.

14             For the Prosecution.

15             MS. BAIG:  Good morning, Your Honours.  Laurel Baig for the

16     Prosecution.  I'm joined by my colleague, Janet Stewart; and senior

17     counsel, Barbara Goy and Douglas Stringer.

18             JUDGE AGIUS:  Thank you very much.  And good morning to you.

19             Appearances for Mr. Prlic.

20             MR. KARNAVAS:  Good morning, Mr. President.  Good morning, Your

21     Honours.  And good morning to everyone in and around the courtroom.  I'm

22     joined by Ms. Suzana Tomanovic.  I'm Michael Karnavas for

23     Dr. Jadranko Prlic.

24             JUDGE AGIUS:  I thank you, Mr. Karnavas, and good morning to you

25     both.

Page 746

 1             Appearances for Mr. Stojic.

 2             MS. NOZICA: [Interpretation] Good morning, Your Honours.  I'm

 3     Senka Nozica representing Mr. Bruno Stojic with Aidan Ellis and

 4     Molly Martin.  Thank you.

 5             JUDGE AGIUS:  Thank you.

 6             Appearances for Mr. Praljak.

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

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

 9     represented by Natacha Fauveau-Ivanovic and Nika Pinter.

10             JUDGE AGIUS:  Thank you and good morning to you both.

11             Appearances for Mr. Petkovic.

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

13     Greetings to everyone in the courtroom.  General Petkovic is represented

14     by Vesna Alaburic, Mr. Davor Lazic, and Slavko Mateskovic.

15             JUDGE AGIUS:  Good morning, counsel, to you and your colleagues.

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

17     Honours.  Mr. Coric is represented by lead counsel,

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

19     Dan Ivetic.  Thank you.

20             JUDGE AGIUS:  Thank you.  Good morning to all of you.

21             Counsel for Mr. Pusic.

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

23     Mr. Pusic is represented by Mr. Sahota and Mr. Ibrisimovic.

24             JUDGE AGIUS:  Thank you.

25             Can I just have a confirmation from the appellants that they can

Page 747

 1     understand the proceedings in their own language?  All right.  So that's

 2     fine.

 3             Prosecution, you have two hours.

 4             MS. BAIG:  Your Honours, I will deal with the first three grounds

 5     of appeal concerning criminal responsibility.  In each of these grounds,

 6     the Prosecution focuses primarily on errors of omission, where the Trial

 7     Chamber leaves something incompletely adjudicated.

 8             I will then hand over to my colleague Ms. Goy, who will address

 9     ground 4 on sentencing.

10             Starting with ground 1, which raises five interrelated errors in

11     the Trial Chamber's JCE analysis.

12             I'd like to jump first to the heart of ground 1, the failure to

13     adjudicate or give reasons, which is subground 1(c).  The problem here is

14     a very simple one.  In relation to many of the JCE incidents, the Trial

15     Chamber did not adjudicate individual criminal responsibility for these

16     crimes in any meaningful way.  The Trial Chamber assesses the evidence

17     and finds that the crimes charged in the indictment were factually proven

18     beyond a reasonable doubt, and that's generally found in volume 2 or the

19     beginnings of volume 3.

20             And then the Chamber finds that the alleged incidents meet all of

21     the legal elements of the crimes charged in volume 3, and the Trial

22     Chamber goes on to find that the crimes were the "natural and foreseeable

23     consequence of the JCE 1 being carried out."

24             Volume 4, paragraph 72.

25             The Chamber diligently made all these findings.  However, when it

Page 748

 1     comes to who should be held criminally responsible, the Trial Chamber

 2     fails to systematically address whether each of the defendants could

 3     personally foresee the risk that each of these proven criminal incidents

 4     might occur.  And to the extent that this failure to adjudicate was an

 5     implicit acquittal, in the sense that no conviction was entered, the

 6     Prosecution has also appealed this as a failure to give reasons.

 7             I should point out at the outset that for Pusic these crimes are

 8     technically adjudicated, but they're all adjudicated in one single

 9     sentence.  Volume 4, paragraph 1216.

10             The Chamber gives a sweeping omnibus dismissal of all but two of

11     the JCE 3 incidents.  Without assessing the evidence, the Chamber just

12     says that it does not have any evidence of his JCE 3 guilt.  This bare

13     adjudication for Pusic is appealed only as a failure to give a reasoned

14     opinion.  So, Your Honours, let me take you to one example to illustrate

15     the nature of this problem.  In paragraph 161 of the indictment, the

16     Prosecution charges all six of the accused with the murder of

17     Sanida Kaplan in Stolac on 13 July 1993.  Her name is specified in the

18     indictment's annex.

19             Sanida was killed after HVO armed forces entered her tiny

20     village, which consisted of only 13 Muslim and two Croat houses.  She was

21     just shy of her 18th birthday.  The HVO forces came into the village and

22     they proceeded to violently expel the Muslim families from their homes.

23     They arrested the men who had not been rounded up in previous raids,

24     firing weapons and shouting death threats.

25             In the course of these expulsions, an HVO soldier named

Page 749

 1     Dragan Bonojza arrived at the front door of the Kaplan home.  As Sanida

 2     came to her front door, he opened fire at close range, killing her in a

 3     burst of gun-fire.  Her mother Fata watched helplessly as her daughter

 4     was shot in the head.  She testified before this Tribunal that the killer

 5     then forced her to leave her daughter's body.  Along with her neighbours

 6     and the rest of her family, Fata was then taken away by the HVO and

 7     detained in a school in a nearby village.  The Chamber's findings on

 8     these facts can be found at volume 2, paragraphs 1934 to 1938.

 9             The Chamber went on to find that Sanida Kaplan's killing was both

10     a murder as a crime against humanity charged under Count 2 and wilful

11     killing of a civilian charged as Count 3.  And that's volume 3,

12     paragraphs 684 and 735.

13             The Chamber found that in order to evict Muslims from their homes

14     in furtherance of the common criminal purpose, the HVO forces engaged in

15     acts of extreme violence, threatening and mistreating Muslims, making

16     such killings and other crimes a natural and foreseeable consequence of

17     the joint criminal enterprise.  That's volume 4, paragraph 72.

18             At volume 4, paragraphs 70, the Trial Chamber even lists this

19     exact killing as an example of the foreseeable JCE 3 crimes.  Despite

20     having made all of these specific findings about this killing: that it

21     happened as charged, who did it, that it was an international crime, and

22     even what mode of liability should apply, the Chamber fails to determine

23     if three of the six accused were criminally responsible.  It only

24     addresses the criminal responsibility of Petkovic and Coric.  And for

25     Pusic, this incident is one of the 33 dismissed without any reasons.

Page 750

 1             And this is not the only murder that was overlooked.  In fact,

 2     the Trial Chamber does not address whether Stojic or Praljak could

 3     foresee any of the 53 murders under JCE 3.  Fifty-three people were found

 4     to have been murdered in the execution of the joint criminal enterprise,

 5     and the Chamber didn't even consider whether Stojic or Praljak were

 6     responsible for any of them.

 7             And the Chamber fails to address the criminal responsibility of

 8     any of the defendants for any of the identified crimes in Prozor

 9     municipality under JCE 3.  None of the Prozor murders, none of the rapes

10     or sexual assaults, not the destruction of the Skrobucani mosque, and not

11     the thefts.  And the Chamber missed other entire municipalities of crimes

12     in relation to other defendants.

13             And when Your Honours exam this issue more closely, you will see

14     that the Chamber's treatment is inexplicably inconsistent across the six

15     defendants.

16             So to give you a sense of the scale of this problem -- I'm hoping

17     it will come up on the big screen.  To give you a sense of the scale of

18     the problem, so based on indictment and the trial judgement that we've

19     summarised in the tables in our appeals brief, there were approximately

20     36 JCE 3 incidents.  And I would note that each incident might comprise

21     more than one victim or occur over a period of time.  So you multiply

22     this by six accused.  And if you adjust a bit for those who joined the

23     JCE later or left earlier, there's a total of approximately of 211

24     incidents for which we would expect the Trial Chamber to address criminal

25     responsibility.  And the circle represents these 200 expected criminal

Page 751

 1     responsibility adjudications.

 2             Of the 211, around 150 of them are missing.  So this is the

 3     orange piece of the pie.  Either the Chamber did not address criminal

 4     responsibility at all or, for Pusic, dismissed the 33 incidents in a

 5     single unreferenced sentence.  So for more than 70 per cent of the proven

 6     JCE 3 incidents, we do not have a finding on individual criminal

 7     responsibility or at least not reasoned ones.

 8             The scale of this omission is unprecedented and it cannot stand.

 9     The Trial Chamber appears to have forgotten to determine which of the

10     defendants bears criminal responsibility for these serious crimes against

11     humanity and war crimes.  And this is an unacceptable outcome for

12     everyone, for the victims; for the witnesses, such as Fata Kaplan, the

13     bereaved mother who travelled to The Hague to tell the Chamber -- to tell

14     this Court about her daughter's murder and her family's ordeal.  And it's

15    an unacceptable outcome for the international community and for the legacy

16     of this Court.  It's the primary responsibility of the Trial Chamber to

17     fully adjudicate the indictment before it, and in this case justice has

18     been left incomplete.

19             Your Honours, I will turn now to the grounds of appeal that

20     concern the JCE 3 incidents that were adjudicated by the Trial Chamber.

21             Starting with ground 1(a), this is the mens rea error.  In short,

22     Your Honours, the Trial Chamber erred in applying the wrong mental

23     element for JCE 3.  The correct standard is whether the foreseeable

24     crimes were a possible consequence of the joint criminal enterprise.

25     According to the well-established case law, this test is not satisfied by

Page 752

 1     implausibly remote scenarios.  The law requires that the possibility that

 2     a crime might be committed is sufficiently substantial to be foreseeable

 3     to the accused.  And I'd refer Your Honours to Sainovic appeals

 4     judgement, paragraph 1557; and the Karadzic JCE 3 appeals decision cited

 5     in our brief.

 6             But in this case, in many instances, the Trial Chamber looked for

 7     a probable rather than a possible consequence that the crimes would be

 8     committed instead of could or might and that the crimes were a probable

 9     outcome of the furtherance of the common purpose instead of a possible

10     one.  And this sets the level of foreseeability too high.  Your Honours,

11     because the original language of the trial judgement is French, I'm

12     putting both the original and the translation of the paragraphs that I'll

13     be citing up on the screen.

14             And you can see that in volume 1, paragraph 216, the Chamber sets

15     the legal standard for JCE 3 too high.  The Chamber says that the JCE 3

16     requires that the accused deliberately assumed the risk that the crime

17     would be committed, because he knew that a crime of this sort was the

18     probable outcome of the furtherance of the common criminal purpose.

19             The Trial Chamber applied this heightened standard in many places

20     throughout its JCE 3 analysis.  And the Trial Chamber's analysis of

21     Stojic's criminal responsibility is a good example of this error in

22     action, because the Trial Chamber uses the heightened standard

23     consistently in its analysis.

24             So starting at volume 4, paragraph 433, the Trial Chamber sets

25     out to assess whether Stojic could reasonably have foreseen that the

Page 753

 1     JCE 3 crimes would be committed and took that risk.  The Trial Chamber

 2     then consistently applies the wrong standard to all nine of its findings.

 3     Applying the wrong standard, it convicts Stojic of five JCE 3 crimes.  At

 4     paragraph 437 it reasoned that he could foresee -- could have foreseen

 5     that HVO members would also commit sexual abuse during the Mostar

 6     evictions.  And at paragraphs 439, 445, 446, and 447, that he could

 7     foresee HVO would commit acts of theft.

 8             And then applying the wrong standard again, the Trial Chamber

 9     acquits him of four crimes, finding at paragraphs 441, 443, 448, and 449

10     of volume 4, that he could not have foreseen that thefts or religious

11     destruction would occur during certain operations.

12             The Trial Chamber is not consistent.  In some places, most

13     notably in its analysis of Prlic's responsibility, the Trial Chamber

14     refers to the correct level of foreseeability, a possibility.

15             But in relation to the majority of the adjudicated JCE 3 crimes,

16     the Trial Chamber applies the incorrect probability standard.  The

17     heightened legal standard results in erroneous acquittals in relation to

18     21 incidents.  To the extent that Pusic's omnibus acquittal was an

19     adjudication, it also seems to have been done at this heightened

20     standard, raising the total number of errors to 54.  These are the

21     incidents that the Prosecution has appealed.

22             For ten additional incidents, the foreseeability evidence was so

23     strong that the Trial Chamber convicted at the heightened standard.  And

24     let me pause here because this is the subject matter of question 10 from

25     the Bench.  Your Honours, even though there is a legal error in the

Page 754

 1     existing -- in some of the existing JCE 3 convictions, it is not one that

 2     invalidates the judgement.  The evidence that satisfies the higher

 3     standard probability would necessarily also satisfy the correct standard.

 4     Neither the Prosecution nor the Defence have appealed these legal errors

 5     because they have no impact.  Applying the correct test, the outcome is

 6     the same:  Conviction.

 7             Various respondents have suggested in their briefs that the Trial

 8     Chamber should be presumed to have applied the correct test despite its

 9     choice of language.  But, Your Honours, this is not a case where the

10     Chamber deliberately sets out to analyse the facts against the correct

11     legal standard and then uses a couple of stray words.  Here, the Chamber

12     sets out the law at the wrong standard and then actively refers to this

13     wrong standard in approximately 75 per cent of the JCE 3 crimes it

14     adjudicates.  For only 14 of the 60 adjudicated JCE 3 incidents does it

15     appear that the Chamber applied the correct standard, so there's no basis

16     to presume that the correct test was applied.

17             Your Honours, we ask that you apply the correct standard to the

18     Chamber's findings in the evidence and convict the respondents as set out

19     in our brief.

20             Turning now to ground 1(b) concerning the compartmentalisation of

21     the evidence.

22             Your Honours, in this ground, in this subground, the Prosecution

23     takes issue with the Chamber's restrictive assessment of the evidence

24     related to foreseeability.  In assessing whether the JCE 3 crimes were

25     foreseeable, the Trial Chamber was, of course, required to look at the

Page 755

 1     totality of the evidence, including the surrounding circumstances in

 2     which the crimes were committed.  And the totality of the accused's

 3     relevant intent and knowledge.  Instead, it focussed very narrowly on the

 4     particular location under consideration, assessing whether a particular

 5     crime was foreseeable based exclusively on events in and information

 6     about that particular municipality, village, or detention centre.

 7             I will illustrate this compartmentalisation error with a simple

 8     example.

 9             When considering Prlic's JCE 3 responsibility for the

10     5 December 1993 shooting death of a detainees in the Vojno detention

11     centre, the Trial Chamber found that Prlic was only informed of the

12     killings in that location by an ICRC letter on 20 January 1994, just over

13     a month later.  It reasoned that since the crime occurred before he

14     received the letter, it couldn't find that he could reasonably have

15     foreseen the murder.  That's at volume 4, paragraph 287.

16             But the Chamber erred in focussing exclusively on this one ICRC

17     letter as the exclusive evidence of the foreseeability of this killing.

18     Based on this piece of evidence, assessed in isolation, the Trial Chamber

19     acquitted; and that was wrong.  In order to properly assess whether Prlic

20     could foresee the risk that a murder might occur in Vojno detention

21     facility in December 1993 many months into the execution of the joint

22     criminal enterprise, the Trial Chamber was required to look beyond actual

23     notice of murders in that particular location.  And if it had done so, it

24     is clear from the Chamber's other findings that by December 1993 Prlic

25     could foresee the risk that murders of Muslims might occur in the HVO

Page 756

 1     network of detention facilities, including at Vojno.  So, for example, it

 2     would have been relevant to the Chamber's assessment that the JCE -- that

 3     the Trial Chamber concluded that Prlic could foresee murders in other

 4     detention facilities in the same network, for example, in Sovici and

 5     Doljani, as early as April 1993.  That's volume 4, paragraph 283.  And

 6     that Prlic knew of the life-threatening conditions in two other network

 7     detention facilities, Dretelj and Gabela by 19th of July, 1993.  Volume 4

 8     paragraph 286.  And that Prlic could foresee other murders during

 9     evictions from at least June 1993.  Volume 4, paragraph 284.  And let's

10     not forget that the Chamber's JCE 1 finding that Prlic shared the intent

11     to remove the Muslim population from Herceg-Bosna through commission of

12     crimes, including persecution and murder.  Volume 4, paragraph 276 and

13     287.  That he shared the intent to detain Muslims in cruel and inhuman

14     conditions and to mistreat them and to use them for forced labour

15     resulting in their death on the front line.  Volume 4, paragraph 23 --

16     sorry, 273, 274, and 287.

17             Had the Trial Chamber not made a legal error in looking only at

18     that Vojno evidence in isolation, the only conclusion available on the

19     totality of the evidence was that Prlic was aware of the possibility that

20     a Vojno detainee might be killed in December 1993, and he should be

21     convicted under JCE 3 for this crime.

22             As set out in our brief, this error - artificially

23     compartmentalising the evidence in this way - has resulted in and

24     contributed to erroneous acquittals.  And we ask Your Honours to correct

25     these errors as set out in our brief.

Page 757

 1             In relation to Coric, the Trial Chamber took this

 2     compartmentalisation to the extreme.  This is subground 1(d).  The Trial

 3     Chamber not only limited its evidentiary analysis to a specific location,

 4     it also required that Coric contributed to a particular JCE 1 crime in

 5     those locations as a precondition for JCE 3 responsibility.  The Trial

 6     Chamber was not even satisfied that Coric participated in related JCE 1

 7     crimes in those same localities.  So the Chamber found that Coric

 8     participated in the arrest and detention of the men in Stolac and

 9     Capljina, but because he did not personally have a hand in the concurrent

10     evictions of the women, children, and elderly, the Chamber found that he

11     was not responsible for those JCE 3 crimes, which included 16 murders

12     including Sanida Kaplan and the thefts.  And that's volume 4,

13     paragraph 1015, referring back to paragraph 953.

14             In doing so, the Trial Chamber adds a new requirement that the

15     accused must have specifically contributed to a particular JCE 1 crime in

16     a particular location, and this is an error.  There's no legal basis for

17     this additional requirement.  Indeed, any such requirement would run

18     contrary to the very foundation of the legal notion of joint criminal

19     enterprise, which is based on participants contributing to different

20     activities in order to achieve their shared common criminal purpose.

21             Finally, Your Honours, in ground 1(e), the Prosecution also

22     raises errors of fact.  No reasonable trier of fact could have acquitted

23     for these crimes.  For the detailed factual arguments in relation to each

24     respondent, we rely on the submissions set out in our briefs.  It

25     suffices for my oral submissions to point out that correcting these

Page 758

 1     errors would not require extensive appellant fact-finding.  Applying the

 2     correct legal and evidentiary standards, the respondents' convictions for

 3     JCE 3 responsibility in most instances can be entered based on the

 4     Chamber's own findings.

 5             In particular, Your Honours, the Chamber has already made

 6     findings on many of the contextual factors that the Appeals Chamber has

 7     previously identified as making the commission of a specific type of

 8     crime falling outside the common purpose foreseeable.  And I'd refer

 9     Your Honours to Sainovic appeals judgement paragraph 1089.

10             For example, the Trial Chamber found that each of the JCE members

11     intended a wide range of violent and persecutory crimes against Muslims -

12     these were the means by which the common purpose was to be achieved - and

13     not just for forcible displacement crimes, but also murders during

14     attacks and the wanton and extensive destruction of property not

15     justified by military necessity.  They intended illegal detentions and

16     the inhuman and cruel treatment of vulnerable detainees and murders

17     during dangerous and illegal front line forced labour.  And after (sic)

18     30 June 1993, the JCE members were found to have intended to spread

19     terror, to unlawfully attack Muslim civilians through sniping and

20     shelling, to destroy Muslim religious buildings.

21             And it's not only their intent to further the common criminal

22     purpose using incredibly violent means, they were each also aware of how

23     the JCE was being implemented on the ground.  The JCE members knew that

24     eviction operations involved a climate of extreme violence.  There are

25     many findings in the judgement on this.  Each of them was aware of the

Page 759

 1     climate of ethnic animosity, ethnic separation was their very purpose.

 2     Each of them participated in various aspects of the pattern of

 3     criminality in execution of the joint criminal enterprise across

 4     different municipalities and in various detention settings.  And they and

 5     their fellow JCE members were not taking any -- or at least not any

 6     effective steps to curb this criminality, further fuelling the

 7     possibility that it would occur again and again in the course of the

 8     JCE's implementation across Herceg-Bosna.  And each of them were aware of

 9     factors identified in previous cases as making victims more vulnerable,

10     thereby indicating a heightened risk of JCE 3 crimes.

11             For example, they knew about separations based on gender, that

12     the male Muslim population was being rounded up and detained, separating

13     them from the women, children, and the elderly.  Each of them knew that

14     detainees were being held in terrible conditions where they were

15     subjected to deprivations and violence.  And they knew of the presence of

16     criminals in units dispatched to carry out operations in close contact

17     with Muslim civilians, such as Naletilic's notorious convicts battalion.

18             The Chamber's compartmentalised assessment of JCE 3 crimes fails

19     to address this overall context.  But when you break down the

20     compartments and put the Chamber's factual findings back together, in

21     most instances this is already sufficient, sufficient to demonstrate

22     beyond a reasonable doubt that each of the respondents could foresee the

23     risk that murders, rapes, destruction of religious property, and thefts

24     might occur.

25             As an example, look at the Chamber's assessment of the

Page 760

 1     foreseeability of thefts, plunder and appropriation of property.  The

 2     Chamber found that all five of the defendants who were JCE members at

 3     that time could foresee JCE 3 threats following the attacks on

 4     Gornji Vakuf in January 1993.

 5             So from the very beginning of the JCE's implementation, each of

 6     them already knew that eviction operations were being conducted in a

 7     manner that made threats a possible consequence of the execution of the

 8     common criminal plan.  And the Chamber even convicted four of them for

 9     foreseeing the risk that thefts were a probable consequence of the JCE's

10     execution in Gornji Vakuf.  In addition, each of the five are also

11     convicted of thefts in at least one other municipality after

12     Gornji Vakuf, and this pattern of thefts from Muslims, plunder and

13     appropriation of property, continued through the execution of the common

14     criminal plan.

15             The Chamber's own findings are sufficient to fill the gaps that

16     the Chamber left.  Applying the correct legal and evidentiary standards,

17     the findings that they've already made are sufficient to convict each of

18     them for JCE 3 thefts.  Since each of the respondents, each of the five

19     respondents, already knew in January 1993 that thefts might occur in the

20     execution of the joint criminal enterprise, then they could also foresee

21     this risk in April in relation to Jablanica and May in Mostar and July in

22     Stolac and Capljina and then in Prozor and Vares, especially since their

23     knowledge of the violent discriminatory operations only grew over time

24     and since they took no or at least no effective steps to stop the

25     violence and property crimes.

Page 761

 1             Your Honours, foreseeability does not depend on whether a

 2     particular respondent knew or did not know that a military attack was

 3     planned on a certain day in a certain place.  Foreseeability does not

 4     require that kind of accurate prediction of the future.

 5             The Appeals Chamber already rejected that approach in the Krstic

 6     case.  In response to a Defence complaint that he was being held

 7     responsible for crimes that he was unaware were actually occurring, the

 8     Appeals Chamber explained that for JCE 3 liability:

 9             "It is not necessary to establish that he was aware, in fact,

10     that those other acts would have occurred."

11             It was unnecessary for the Trial Chamber to determine whether the

12     accused:

13             "... was actually aware that those other criminal acts were being

14     committed; it was sufficient that their occurrence was foreseeable to him

15     and that those other crimes did in fact occur."

16             And that's Krstic appeals judgement, paragraph 150.

17             In a JCE of this nature and scale, it is legally sufficient for

18     the type of crime to be foreseeable.  And I would refer Your Honours to

19     Sainovic appeals judgement, at paragraph 1089.

20             Based on the nature of the JCE and the means used to implement it

21     on the ground, the four types of JCE crimes were foreseeable to each of

22     the respondents, and they were foreseeable regardless of whether a

23     particular respondent knew about or was personally involved in the JCE 1

24     activities in that place on that day.

25             And, Your Honours, the case law makes clear that it's not

Page 762

 1     necessary for the purposes of JCE 3 responsibility that an accused be

 2     aware of the past occurrences of a crime for that type of crime to be

 3     foreseeable to him.  Stanisic/Zupljanin paragraph 627.  Actual notice of

 4     past crimes is not required.  But each of the respondents in this case

 5     did in fact get such notice of past occurrences:  Prlic as president,

 6     Stojic head of Department of Defence, Praljak and Petkovic at the top of

 7     the HVO's Main Staff, Coric as head of the military police

 8     administration, and Pusic in charge of prisoner releases and exchanges.

 9     From each of their positions and from their connections with each other

10     and the other JCE members, each of them received information that serious

11     crimes against people and property - going beyond even their intended

12     crimes - were occurring in the course of their ethnic cleansing campaign.

13             And this, Your Honours, is a good place to address question 4(c)

14     from your order in relation to the Prosecution's appeal.  If the Appeals

15     Chamber were to reverse the Trial Chamber's conclusions concerning the

16     murders at Sljivo's house and Dusa, would this have any impact on JCE

17     liability?  And the Prosecution's answer is:  No, it would not.

18             You've heard answers to this question from the Prosecution as

19     respondent in relation to some of the Defence appeals last week; this

20     connects with those submissions.  Whether or not the killings of the

21     seven civilians were found to qualify as murder and whether or not any of

22     the respondents were privy to the contents of Siljeg's 28/29

23     January report, the fact remains that a clear pattern of attacks across

24     Gornji Vakuf municipality on the 18th of January and over the following

25     days followed a preconceived plan and unfolded in an atmosphere of

Page 763

 1     extreme violence.  And this climate of extreme violence continued

 2     throughout the implementation of the JCE, showing that this was the way

 3     that the common criminal purpose was intended to be implemented.

 4             In Sainovic, the Appeals Chamber considers that to foresee murder

 5     an accused must be aware not only of violence but of violence of such a

 6     level of gravity as to make the commission of murder foreseeable.  What's

 7     different in this case, Your Honours, is that each of the JCE members was

 8     already found to have intended not only forcible displacement and

 9     persecution against Muslims, but also to murder Muslims as a JCE 1 crime.

10     The Trial Chamber distinguished attack and forced labour murders as JCE 1

11     from eviction and detention murders as JCE 3, but it certainly bears on

12     the foreseeability of the additional JCE 3 murders that murdering Muslims

13     was already an intended means of achieving the common criminal purpose.

14             So to sum up, by the time of the first JCE 3 murders, all of the

15     respondents were aware of the extreme violence that was being used to

16     achieve their common purpose, making murder a foreseeable JCE 3 crime,

17     regardless of the legal classification of the Dusa killings or who

18     received or was privy to the information contained in one of the reports

19     about them.

20             Your Honours, the Trial Chamber's JCE 3 analysis is riddled with

21     overlapping errors.  The Chamber failed to properly adjudicate which of

22     the respondents were criminally responsible for more than 70 per cent of

23     the JCE 3 incidents; and for those incidents it did consider, it made

24     factual and legal errors.  We ask you to correct these errors and to

25     convict the respondents as set out in our brief.

Page 764

 1             Your Honours, I have a correction to transcript 14, line 5.  I

 2     believe I misspoke.  I said "after June 1993" the JCE members were found

 3     to have intended to spread terror and the other expanded crimes, and that

 4     should say "from June 1993."  And that's volume 4, paragraph 59.

 5             Turning to ground 2 of the Prosecution's appeal.  Again, this is

 6     the Chamber leaving the required analysis incomplete, entering an

 7     acquittal before all the charges in the indictment are adjudicated.

 8             The indictment charges each of the accused under Article 7(1) and

 9     Article 7(3).  And when the Chamber acquitted under 7(1), its task was

10     not yet finished; it still had to consider and adjudicate whether the

11     defendants bore criminal responsibility as superiors.  It did so with

12     regard to the crimes in Prozor in 1992.  Having found that there was no

13     common criminal purpose at that point in time, it considered whether any

14     of the defendants were nevertheless criminally responsible under

15     alternative modes charged in the indictment.  But for other crimes, when

16     it found no criminal responsibility under JCE, it stopped prematurely.

17     It entered an acquittal before addressing all of the charges in the

18     indictment.

19             We focussed on failure to punish because to be in this category

20     of incompletely adjudicated crimes, the Trial Chamber has already made

21     findings that there was no direct intent for JCE 1 and that the crimes

22     were not foreseeable to that defendant for JCE 3.  The only remaining

23     mode of liability not excluded by that analysis would be Article 7(3),

24     failure to punish.

25             And we've set out in our brief the compelling facts and findings

Page 765

 1     that should result in convictions for these crimes.  To illustrate this

 2     error, let me take you to one example.

 3             The Chamber acquitted Petkovic for JCE 3 responsibility for the

 4     killing of four Muslim detainees at Dretelj prison in mid-July 1993; one

 5     died from dehydration and the other three were shot.  The Chamber

 6     reasoned that Petkovic could not foresee these murders because he was

 7     only informed of them by the ICRC on 20 January 1994.

 8             THE INTERPRETER:  Kindly slow down for the interpretation.

 9             MS. BAIG:  But before entering an acquittal, the Trial Chamber

10     was required to look at the superior responsibility charges for this same

11     incident.  And this is not optional, it's not discretionary.  Before

12     entering an acquittal, the Trial Chamber has to adjudicate all of the

13     modes charged in the indictment; and its own findings show that a

14     conviction was warranted.

15             The Trial Chamber found that Petkovic in the HVO Main Staff was

16     the superior, he was the superior of and he had effective control over

17     the perpetrators.  Volume 4, paragraphs 663 and 679.

18             And as I've just mentioned, the Trial Chamber found that he

19     received -- that he was actually informed by the ICRC letter of these

20     specific murders, albeit after they occurred.

21             And the Chamber found that Petkovic accepted the mistreatment of

22     detainees at Dretelj, including killings, and specifically that he failed

23     to take any measures against the perpetrators.  That's at paragraph 816.

24             On the Chamber's own findings, all of the elements for superior

25     responsibility failure to punish were established, yet no conviction for

Page 766

 1     superior responsibility was entered.

 2             Instead, Petkovic has been acquitted of crimes even though the

 3     Chamber found that the elements of the crimes and the mode were proven.

 4             The Prosecution relies on the detailed arguments set out in our

 5     appeals brief.  These erroneous acquittals should be reversed.  Again,

 6     the Trial Chamber's primary responsibility is to fully adjudicate the

 7     indictment before it; and again, they've left justice left incomplete.

 8             And in ground 3, the Prosecution is again challenging a matter

 9     that is incomplete.  It concerns a technical oversight in the Chamber's

10     application of the cumulative convictions rule.  When applying this rule,

11     the Chamber erroneously allows four sets of incidents to fall out of the

12     conviction.  This error requires correction because the defendants were

13     found to have committed crimes for which no convictions are then entered.

14             Let me explain.  The Chamber correctly found that the cumulative

15     convictions rule prevented the Chamber from entering convictions based on

16     the same facts for both the Article 2, grave breach of extensive

17     destruction of property, which is charged as Count 19; and the Article 3

18     crime of wanton destruction, charged as Count 20.

19             This is because only extensive destruction under Article 2

20     contains a distinct element, namely, that the property is generally

21     protected under the Geneva Conventions or is located in occupied

22     territory.  All of the elements of the Article 3 wanton destruction are

23     fully reflected in the Article 2 grave breach.  Consequently, when the

24     elements of both crimes are met based on the same facts, a conviction may

25     only be entered for the extensive destruction under Article 2.  And you

Page 767

 1     can find that analysis at volume 4, paragraphs 1264 to 1266.

 2             The Chamber's analysis on this point is correct, and so far there

 3     is no dispute between the parties, no error in the trial judgement.

 4             The error occurs when the Trial Chamber applies the rule.  In

 5     relation to four sets of incidents, the Chamber overlooks that it did not

 6     find criminal conduct under both Article 2 and Article 3.  So in relation

 7     to these incidents, it overlooks that it doesn't really have a cumulative

 8     conviction situation in the first place.  This ground affects only the

 9     destruction crimes in relation to Muslim homes in the four Gornji Vakuf

10     villages on 18 January 1993, Muslim property in Prozor, ten mosques in

11     East Mostar, and the destruction of the Old Bridge.  Each of those four

12     incidents was found to constitute the crime of wanton destruction, a

13     violation of the laws and customs of war charged under Article 3 as

14     Count 20.

15             But for Count 19, the Chamber found that the elements were not

16     met for each of these groups of incidents because the destruction did not

17     occur on occupied territory and the property was not otherwise protected

18     under the Geneva Conventions.

19             Yet at the very end of judgement, the Chamber applies the

20     cumulative conviction rule to the counts, the whole counts, as if there

21     was perfect concurrence between the facts underlying the two crimes but

22     there was not.

23             So when the Chamber declined to enter a conviction for Count 20

24     based on the cumulative convictions rule, it drops these four incidents

25     out of the convictions all together.  You can find that at the

Page 768

 1     disposition on pages 430 and 431 of volume 4.  This was wrong.  To

 2     correct this error, convictions under Count 20 should be reinstated for

 3     these four groups of incidents.

 4             And this is where I come to Your Honours' remaining question,

 5     question number 5, which relates to the Chamber's underlying legal

 6     findings about whether the attacks on the villages in Gornji Vakuf

 7     constituted wanton destruction or devastation not justified by military

 8     necessity.  This is the Article 3 violation of the laws and customs of

 9     war charged as Count 20.  This is the count for which the Trial Chamber

10     did not enter a conviction because of its error in the application of the

11     cumulative convictions rule.

12             In the first part of the question, you've asked the Prosecution

13     to discuss the basis for the Chamber's findings that the property

14     destruction caused during the attacks on the villages of Dusa, Hrasnica,

15     Zdrimci, and Uzricje was wanton and not justified by military necessity.

16             Your Honours, in reaching its reasonable conclusion that the

17     attacks were wanton, the Trial Chamber referred to the pattern across the

18     four villages, noting that on 18 January 1993 the HVO damaged and

19     destroyed many Muslim homes across the municipality.  This was no

20     coincidence.  The attacks on the four villages were found by the Chamber

21     to have unfolded in exactly the same way, beginning with the HVO first

22     attacking the villages by firing shells at Muslim homes, then the HVO

23     entered the villages, arrested the population, destroyed the remaining

24     homes, and removed the villagers.  Volume 4, paragraphs 561, 704, and

25     922.

Page 769

 1             Based on this total similarity in the way that the operations

 2     unfolded and the crimes committed in each of the villages, the Chamber

 3     concluded that they corresponded to a preconceived plan.  The Chamber

 4     found that the HVO attacked each of the four villages with mortar shells,

 5     heavy machine-guns, and artillery.  Volume 2, paragraph 357.  It

 6     characterised the shelling as indiscriminate.  Volume 3, paragraph 711.

 7             As you heard last week, the HVO also used weapons to directly

 8     target Muslim civilian homes as happened in Dusa, where the HVO tank

 9     fired on and deliberately damaged Sljivo's house.  The Trial Chamber

10     reasonably concluded that the destruction of the homes lacked military

11     justification.  This was reasonable.  None of the destroyed houses were

12     military objects in and of themselves, and the Chamber took into

13     consideration that there were a few ABiH members present in the villages

14     at the times of the attacks.  You can see the Chamber's analysis at

15     volume 3, paragraph 1569; and volume 4, paragraph 45.  And even that in

16     one of the villages, Zdrimci, some armed Muslim men hid in houses from

17     time to time.  Again, volume 3, paragraph 1569; and volume 2, paragraph

18     382.  But the existence of these village defenders, particularly in light

19     of their small number and the fact that they were armed with hunting

20     rifles and other small-arms, does not offer a plausible military

21     justification for the selective destruction of Muslim property during

22     these attacks.

23             And the lack of military justification for the destructive

24     attacks on civilian homes on the 18th of January is confirmed by the

25     continuation of such destruction over the subsequent days, after the HVO

Page 770

 1     had taken control of the four villages.  The HVO removed the civilian

 2     population, it then systematically burned Muslim property that had not

 3     already been destroyed during the shelling operation, and the Trial

 4     Chamber found that this was done in order to prevent the Muslims from

 5     returning.  Croat property was left intact.  Volume 2, paragraph 414,

 6     432, 456, and many others.  In light of the totality of this evidence,

 7     the Chamber's finding that the destruction during the attack was wanton

 8     and not justified by military necessity is a reasonable one and should be

 9     upheld.

10             In the second part of question 5, Your Honours, you've asked

11     whether there would be any effect if this finding were overturned on the

12     finding that the property destruction caused during the attacks on

13     several localities in the municipalities was extensive.

14             With regard to the trial judgement, the answer is no.  There

15     would be no effect on the Trial Judgement because, as I have just

16     explained, as a result of the Chamber's cumulative conviction error,

17     there is presently no conviction for the crime of extensive destruction

18     on the 18th of January in the four villages.  As found by the Chamber,

19     the destruction in the days following the attacks would still meet the

20     large-scale requirements for both Article 2 and Article 3 destruction

21     crimes.

22             But with regard to the Prosecution's appeal, the answer would be

23     yes.  If Your Honours found error in the Chamber's conclusion that the

24     destruction was not justified by military necessity, then the only

25     remaining destruction on 18th of January would be that in Gornji Vakuf

Page 771

 1     town.  And, Your Honours, the Prosecution has not appealed a cumulative

 2     conviction error in relation to Gornji Vakuf town.

 3             Your Honours, again in ground 3 the Prosecution's appeal is

 4     focussed on an incomplete adjudication.  The Trial Chamber concluded that

 5     each of the respondents were guilty but then failed to enter a

 6     conviction.  In this third way, justice has been left incomplete.

 7             And with that, Your Honours, I'd conclude my submissions and hand

 8     the podium over to my colleague, Ms. Goy, to discuss sentencing.

 9             MS. GOY:  Good morning, Your Honours.

10             By sentencing the respondents to between 10 and 25 years of

11     imprisonment, the Chamber abused its discretion.  These sentences are

12     manifestly inadequate.

13             The respondents are convicted for having implemented a protracted

14     campaign of ethnic cleansing to create Croat domination in Herceg-Bosna.

15     The crimes occurred throughout a large part of BiH, covering eight

16     municipalities.  The crimes were massive in scale.  Tens of thousands of

17     Muslims were evicted from their homes, often expelled across the border

18     through an elaborate system, thousands were arrested and detained in

19     awful conditions, many were forced to perform dangerous labour on the

20     front line.  Muslims were killed during attacks or when forced to work on

21     the front line.  They were raped, they were sexually assaulted.  Muslim

22     houses and mosques were destroyed, Muslim property plundered.  Over

23     50.000 people were trapped in East Mostar by late August 1993.  They were

24     subjected to relentless shelling and sniping.

25          The respondents played key roles in the joint criminal enterprise to

Page 772

 1     create Croat domination by criminal means.  They were the JCE's

 2     architects and their leading implementers.  In light of the gravity of

 3     the crimes themselves and the key roles the respondents played in them,

 4     their sentences of 10 to 25 years are so unreasonable that they

 5     constitute an abuse of discretion.

 6             In today's hearing, I would invite Your Honours to look at the

 7     Chamber's sentencing analysis from two different perspectives.  Both

 8     perspectives show that the sentences imposed are too low and constitute

 9     an abuse of discretion.  First, I propose to look at the Chamber's own

10     conclusions on the gravity, the gravity of the crimes themselves and the

11     roles of the accused.  We will see that the Chamber's conclusions are not

12     in line with the sentences it imposed; this shows that the Chamber failed

13     to give gravity adequate weight.  Second, I propose to look at a number

14     of specific features of this case, features which confirm that the

15     sentences imposed are manifestly inadequate.

16             Starting with my first point.  The sentences of 25 years for

17     Prlic, 20 years for Stojic, Praljak and Petkovic, 16 years for Coric and,

18     10 years for Pusic are manifestly unreasonable when one looks at the

19     Chamber's own conclusions in the sentencing part of the judgement.  And

20     here we recognise that sentencing is a matter of discretion, but this

21     discretion has to be exercised in a way that gives adequate weight to the

22     gravity of the crimes themselves and the form and degree of participation

23     within the available sentencing range.

24             And the available sentencing range is up to life imprisonment.

25     The highest fixed-term sentences imposed at the ICTY and the ICTR are in

Page 773

 1     the 40s, with 40 years' imprisonment imposed against Milomir Stakic and

 2     47 years' imprisonment imposed by the Appeals Chamber for two accused in

 3     the Butare case.

 4             So this is the sentencing framework in which the Chamber has to

 5     exercise its discretion.  With this framework in mind, I would invite

 6     Your Honours now to look with me at three aspects of the Chamber's

 7     gravity analysis:  One, the Chamber's conclusion on the gravity of the

 8     crimes themselves; two, the Chamber's conclusion on the form of

 9     responsibility; and three, the Chamber's conclusion on the degree of

10     participation.

11             Starting with the Chamber's findings on the gravity of the

12     crimes.  The Trial Chamber concluded that the crimes of which the

13     respondents were found guilty were extremely serious.  It said:

14             "The scale and brutality of the crimes, on the one hand, and the

15     inherent nature of the offences, on the other, show that the crimes

16     committed by the accused are extremely serious."

17             Volume 4, paragraph 1302.

18             It is clear from the rest of the judgement that this conclusion

19     is an appropriate characterisation of the crimes committed by the

20     respondents.  These crimes included the eviction of tens of thousands,

21     killings during attack and while performing dangerous forced labour on

22     the front line, the detention in terrible conditions, the daily shelling

23     and shooting in the small area of East Mostar where more than 50.000

24     people were trapped from late August 1993.

25             Next, I would invite Your Honours to look at the Chamber's

Page 774

 1     findings on the form of responsibility.  The Chamber found all

 2     respondents criminally liable as members of a joint criminal enterprise.

 3     Joint criminal enterprise liability is considered one of the most serious

 4     forms of responsibility.  That's the Mrksic appeals judgement,

 5     paragraph 407; and Krnojelac appeals judgement, paragraph 75.

 6             Turning now to the Chamber's findings on the degree of

 7     participation.  The Chamber found all respondents played a key role, in

 8     the French original "un rôle majeur", in the commission of the crimes.

 9     Volume 4, paragraphs 1317, 1318 for Prlic; 1329, 1330 for Stojic; 1341,

10     1342 for Praljak; and 1354, 1355 for Petkovic; 1369, 1370 for Coric; and

11     1381 for Pusic.

12             Four of them, Prlic, Stojic, Praljak, and Petkovic, were even

13     found to be key members of the JCE.  In the French original, "des membres

14     les plus importants."  Volume 4, paragraphs 1315, 1328, 1340, and 1353.

15     To sum up, the Chamber found the crimes were extremely serious; it found

16     all respondents guilty under one of the most serious forms of

17     responsibility, joint criminal enterprise; and it found that Prlic,

18     Stojic, Petkovic, and Praljak were one of the most important members of

19     the JCE and that all of the respondents, including Coric and Pusic,

20     played a major role in the commission of the crimes.

21             On the basis of these conclusions, one would reasonably have

22     expected sentences in the high range of fixed-term sentences for Prlic,

23     Stojic, Petkovic, and Praljak, and at least in the upper part for Coric

24     and Pusic.  This raises the question:  Is there another explanation for

25     the far lower sentences imposed or can they only be explained by an abuse

Page 775

 1     of discretion?

 2             Can the mitigating factors explain the reduction that must have

 3     occurred had the Chamber given gravity and the form and degree of

 4     participation adequate weight?  The answer is no.

 5             As mitigating factors, the Chamber found for all respondents

 6     voluntary surrender and good behaviour in detention and on provisional

 7     release.  Voluntary surrender and good behaviour in detention may warrant

 8     some mitigation, as the Kordic appeal judgement found paragraph 1053.

 9             But they cannot explain the major reduction that must have

10     occurred had the Chamber given gravity and the form and degree of

11     participation adequate weight.

12             In particular, as the Appeals Chamber found in Krajisnik, good

13     conduct in detention could only have a limited impact on the sentences in

14     light of the gravities of the crimes.  That's the Krajisnik appeals

15     judgement in paragraphs 816, 817.

16             And in any event, in addition to the mitigating factors, the

17     Chamber also had to take into account the aggravating factor of abuse of

18     authority in relation to all respondents.

19             For Prlic and Petkovic, the Chamber took additional mitigating

20     factors into account.  For Prlic, the Trial Chamber also considered his

21     post-conflict conduct in mitigation; however, in light of the aggravating

22     factor, this cannot reduce a sentence in the high range of fixed-term

23     sentences to 25 years' imprisonment.

24             For Petkovic the Chamber found two other mitigating factors:

25     Absence of criminal records and preference for negotiations.  But the

Page 776

 1     Chamber determined itself that both had limited weight, in light of the

 2     gravity of the crimes and the scope of Petkovic's participation and his

 3     efforts to conceal HVO responsibility.  Volume 4, paragraphs 1359, 1361.

 4             Thus, here as well the mitigating factors cannot explain the

 5     reduction from what one could reasonably have expected to be a sentence

 6     in the high range of fixed-term sentences to 20 years' imprisonment.

 7             To conclude the first part of my submissions, the Chamber found

 8     that the crimes were extremely serious, the respondents were responsible

 9     under one of the most serious forms of responsibility, and they played

10     key roles in the commission of the crime.  Prlic, Stojic, Petkovic, and

11     Praljak were even found to be most important members of the JCE.

12             In light of these findings, the Chamber's sentences imposed are

13     manifestly inadequate.  These sentences cannot be explained by the

14     mitigating factors found.  The sentences imposed can simply not be

15     squared with the Chamber's own conclusions.  The Chamber 's own

16     conclusions are rather in line with the sentences requested by the

17     Prosecution, both at trial and now on appeal:  40 years for Prlic,

18     Stojic, Praljak, and Petkovic; 35 years for Coric; and 25 years for

19     Pusic.  The only explanation for the far lower sentences imposed is that

20     the Chamber did not give adequate weight to the gravity of the crimes

21     themselves and the form and degree of participation.  The only

22     explanation available is that the Chamber abused its discretion.

23             Let me now turn to the second part of my argument.  The Chamber's

24     abuse of discretion becomes not only obvious when one compares its

25     conclusion on the gravity with the sentences imposed.  That the sentences

Page 777

 1     are manifestly inadequate is also obvious when one looks at the features

 2     of the case, features that makes the crimes particularly grave.  I will

 3     address four of these features:  The scale of the crimes; the vicious

 4     siege of East Mostar; the system of expulsion through a network of

 5     detention facilities; and the use of unlawful, dangerous forced labour.

 6             First of all, the crimes were of a large scale.  Tens of

 7     thousands of Muslims were displaced, thousands were arrested and detained

 8     in terrible conditions, mistreated, or killed; over 50.000 were subjected

 9     to unlawful attack and terror in East Mostar.

10             Second, the vicious siege of East Mostar is another feature of

11     this case which made the crimes particularly grave.  To avoid any

12     misunderstanding, Your Honour, the Prosecution is not arguing that the

13     Trial Chamber overlooked the siege, but rather, that the Chamber failed

14     to analyse its inherent gravity and to give it sufficient weight.  Two

15     aspects indicate that the Chamber failed to give the siege sufficient

16     weight:  The cursory way the Chamber dealt with the siege in the

17     sentencing part of the judgement and a comparison with sentences imposed

18     in other cases involving a siege.

19             The Chamber failed to sufficiently analyse the inherent gravity

20     of the siege.  For ten months the HVO besieged east Mostar.  The HVO

21     subjected the besieged population to relentless shelling and sniping.

22     Over 50.000 people were trapped in overcrowded East Mostar by late

23     August 1993.  The HVO's shelling and sniping during the siege killed or

24     injured hundreds and caused substantial damage to homes, mosques, the

25     Old Bridge, and the only hospital.  The population of East Mostar,

Page 778

 1     including women, children, and elderly, lived under the constant shelling

 2     and gun-fire, under the constant threat of being hit, wounded, or killed.

 3     They were terrified.  The HVO made the situation even worse by blocking

 4     or hindering humanitarian aid.

 5             The brutality of the siege is clearly shown by the BBC

 6     documentary by Jeremy Bowen, who was present in East Mostar in August and

 7     September 1993, during a time when all respondents were JCE members.

 8     That is Exhibit P06365.

 9             Bowen said that Mostar was the most devastated city, worse than

10     Sarajevo and Vukovar.  That's at 34.56, through 35.05.

11             I would invite Your Honours now to watch three clips of the video

12     which show the conditions in besieged East Mostar.  And for the record,

13     these are at 1.25 through 4.05; 11.20 to 12.27; and 16.36 to 17.20.

14                           [Video-clip played]

15             "There are no safe places in East Mostar.  You can be killed or

16     maimed at any time on any street corner.  Until you see it happening,

17     it's hard to realise how quickly lives can be destroyed.  Franjo

18     Pavlovic, who was born a Croat, made the mistake of going out to repair

19     some shell damage on what had started out as quiet morning.  Because

20     Raima, his wife, is a Muslim, the Croats expelled them over the front

21     line into East Mostar in August.  He had one chance, a fire engine, the

22     only one left on this side of Mostar, was nearby.  Perhaps it could get

23     him to the hospital in time.  Nothing in her life before the war had

24     prepared Mrs. Pavlovic for this.  She's 53.  After they married, she

25     worked as an accountant in a graphic design business.  The last traces of

Page 779

 1     that life disappeared when her husband was hit.  The streets were empty

 2     and not just because of the shelling.  There is a six-hour-long day-time

 3     curfew; the idea is to stop people getting hurt.  The hospital was only a

 4     few minutes away.  Nothing is more than a few minutes away in

 5     East Mostar.

 6             "The doctor hardly had to look at him.  Mr. Pavlovic was dead.

 7     He had been killed by shrapnel in the chest.  For her sake he went

 8     through the motions.

 9             "'You haven't examined him yet,' she said.  'Please do more.'

10             "Everything from the explosion to this had taken about ten

11     minutes.  The hospital was ready for the next casualties."

12                           [Video-clip played]

13             "Refugees started appearing in no man's land.

14             ...

15             "He told them to hurry and to take cover.  Often the Croats start

16     shooting once they've forced Muslims out of West Mostar through this

17     section of the front line.  Fatima and Salin Matic had just been thrown

18     out of their home by Croat gunmen.  Mr. Matic, who is 72, managed to put

19     on three shirts and to grab two umbrellas as he left.

20             "His wife, who Is 70, was still in her nightclothes.  Their

21     neighbour, 84-year-old Mrs. Almassa Humo, arrived a few minutes later.

22     'Don't sit there,' they told her, 'they could kill you.'

23             "Even if Mrs. Humo still cared, she didn't have the strength to

24     move any further on her own."

25                           [Video-clip played]

Page 780

 1             "The civilians know that their only hope is to help themselves,

 2     to hang on until the killing ends, to survive the winter.  But how do you

 3     avoid pneumonia, bronchitis and worse when shells have smashed your roof.

 4     These people are refugees.  They live in a ruin, like thousands of others

 5     in East Mostar.

 6             "She can't walk.  She lies in stinking clothes on a soaking bed.

 7             "'What can I do?  Either I die or go on living like this.'"

 8             MS. GOY:  With the siege of East Mostar, the implementation of

 9   the JCE took up a new dimension.  The JCE members added unlawful attacks on

10     civilians, terror and destruction of religious property to the criminal

11     means used to achieve their purpose.

12             The sentences imposed show that the Chamber did not give this

13     vicious siege sufficient weight.

14             Another indication that the Chamber did not give the relentless

15     shelling and sniping during the siege sufficient weight is a comparison

16     with the sentences imposed in the cases against Stanislav Galic and

17     Dragomir Milosevic.  They were sentenced to life imprisonment and 29

18     years' imprisonment respectively for a shelling and sniping campaign

19     during the siege in Sarajevo.

20             And here we recognise that the cases of Galic and

21     Dragomir Milosevic are not identical to the ones of the respondents in

22     this case.  But the unlawful attack on civilians and terror during the

23     siege in both Sarajevo and Mostar show enough similarities to make a

24     comparison meaningful.  Galic and Dragomir Milosevic were sentenced to

25     life imprisonment and 29 years respectively for crimes committed during

Page 781

 1     the siege of Sarajevo, including unlawful attacks and terror.  In this

 2     case, the crimes for which the respondents were convicted include

 3     unlawful attacks and terror during the siege of Mostar, but the crime

 4     base is much broader.  It includes unlawful and dangerous forced labour,

 5     even murder during forced labour and during attacks on towns and

 6     villages; it includes unlawful imprisonment and detention in terrible

 7     conditions; and it includes the expulsion of tens of thousands.

 8             The comparison of the sentences imposed in this case with the

 9     sentences of life imprisonment and 29 years in Galic and

10     Dragomir Milosevic show that the sentences imposed by this Chamber are

11     unreasonable.

12             This brings me to the third feature I would like to address:  The

13     highly organised system of expelling Muslims from Croat-claimed areas and

14     BiH altogether.

15             In this case, the displacement was brought to near perfection

16     through the use of a highly organised and effective system of expulsion

17     involving a network of detention facilities.  The JCE members arrested

18     and detained thousands of Muslims.  They were detained in harsh

19     conditions, where they were mistreated beaten and abused.  To escape the

20     horrible conditions, the detainees had to agree to leave Herceg-Bosna and

21     BiH - often with their families - once released.  The releases were thus

22     made contingent upon the Muslims leaving from Croat-claimed territories.

23             The network of detention facilities was a key aspect of the joint

24     criminal enterprise.  It spanned across the Croat-claimed territories.

25     It included the Heliodrom in Mostar, Dretelj, and Gabela prisons in

Page 782

 1     Capljina; the Vitina Otok camp; the Vojno detention centre; Ljubuski

 2     prison; and numerous others which the Chamber listed in footnote 1677 of

 3     volume 4.

 4             This system of expulsion through the network of detention

 5     facilities was introduced at least by the end of June 1993, when all

 6     respondents were JCE members; through it, the implementation of the JCE

 7     became more efficient.  Volume 4, paragraph 64.  For example, in Stolac,

 8     none of the 8.000 Muslims remained.  The sentences imposed suggest that

 9     the Chamber did not give this sinister system adequate weight.

10             The fourth feature that makes the crimes of this case

11     particularly grave is the widespread use of detainees for dangerous,

12     unlawful forced labour at the front line.  The JCE members forced

13     prisoners of war as well as civilians, including at a very young age to

14     perform dangerous labour.  One victim was just 13 years old.  Volume 3,

15     paragraph 1510.  For ten months between May 1993 and March 1994, the JCE

16     members forced detainees to build or repair military fortifications or

17     shelters, dig trenches, lug heavy cases of ammunition, or collect and

18     bury bodies of soldiers.  Volume 3, paragraph 1514; volume 4, paragraph

19     1167.

20             The victims had to carry out forced labour under dangerous

21     conditions, some were wounded, others even killed.  This was part of the

22     JCE members' plan, and all respondents played key roles in the

23     implementation of this plan for various periods of time.  The Chamber

24     failed to give this widespread use of forced labour adequate weight.

25             To conclude, Your Honours, four specific features highlight the

Page 783

 1     extreme seriousness of the crimes for which the respondents were

 2     convicted:  Their large scale; the vicious siege of East Mostar; the

 3     highly organised system of expulsions; and the widespread and dangerous

 4     use of detainees for unlawful forced labour.  All respondents implemented

 5     the plan in which these criminal means were used to achieve Croat

 6     domination in Herceg-Bosna.  All respondents played key roles in its

 7     implementation.

 8             The sentences imposed show that the Chamber cannot have given the

 9     gravity of the crimes or the form and degree of participation adequate

10     weight.  Had the Chamber given these factors adequate weight, it would

11     have imposed sentences of between 25 and 40 years of imprisonment, 40

12     years for Prlic, Stojic, Praljak, and Petkovic, 35 for Coric, and 25

13     years for Pusic.

14             Such sentences would have been in line with the Chamber's own

15     conclusions on the gravity of the crime and the form and degree of

16     participation of the respondents.

17             Thank you, Your Honours.

18             Unless you have any questions, this ends the Prosecution's main

19     submissions.

20             JUDGE AGIUS:  Okay, thank you very much.

21                           [Trial Chamber confers]

22             JUDGE AGIUS:  So we will now start immediately with the responses

23     and it's your turn, Mr. Karnavas.  You will have half an hour.

24             MR. KARNAVAS:  Good morning, Mr. President.  Good morning, Your

25     Honours.

Page 784

 1             JUDGE AGIUS:  And not half an hour -- yeah, yeah, half an hour.

 2             MR. KARNAVAS:  Good morning again.  Dr. Prlic wishes to make the

 3     submissions.  He will be responding.

 4             THE APPELLANT PRLIC: [Interpretation] Your Honours, in its reply

 5     the Prosecution offers nothing new concerning its appeal, and that

 6     includes today's arguments presented.  Therefore, we stand by all of our

 7     grounds of appeal that we based on the four grounds of appeal of the

 8     Prosecution.  We ask that they be rejected.  In particular, it refers to

 9     ground -- counts --

10             THE INTERPRETER:  Interpreter's correction:  Paragraphs 74 and

11     paragraphs 185 and 243.

12             THE APPELLANT PRLIC: [Interpretation] Our position needs to be

13     viewed integrally through all of the submissions, the submissions being

14     the appeal brief, response and reply, as well as the oral arguments

15     presented by our Defence team and the rest of the Defence teams.

16             You have probably noticed that the common word to appear in this

17     courtroom is "context" on the one hand and on the other "puzzle."  A

18     puzzle that needs to be fit with pieces that have been devised beforehand

19     it seems.  The same method was applied in the judgement based on the

20     puzzle presented by the Prosecution, at the same time neglecting

21     thousands upon thousands of documents and witnesses presented by the

22     Defence, relying at the same time on Prosecution witnesses and experts of

23     questionable credibility as shown in our appeal grounds 2 to 7.  For

24     example, from day one we heard about the alleged frequent meetings

25     between Tudjman and Prlic.  We can see that first occurred on the 17th of

Page 785

 1     September, 1992, and the other in November 1993, 14 months later.

 2             JUDGE MOLOTO:  Slow down.  Please slow down.

 3             THE APPELLANT PRLIC:  I apologise.

 4             [Interpretation] That is something typical of a puzzle.  As

 5     regards the other -- or the second meeting, Exhibit P6454, the Prosecutor

 6     missed or omitted explaining what Herceg-Bosna is, and that is something

 7     I've been saying as of day one.  I quote page 34:

 8             "As a republic of 50-plus municipalities."

 9             However, they used many other terms to picture this alleged

10     rounding of Croatian territories which in their view fit the criminal

11     intent presented.  I will again quote something from page 36:

12             "As a government, last spring we brought forth conclusions and

13     proposals, including the transfer of certain brigades from certain areas

14     that would include moving the population residing in the same area."

15             I would like to continue that this was a military matter

16     concerning concentration of forces; however, it was our position that

17     everyone should remain in their respective areas.  That position can be

18     seen in P2881; P4208; P8155; 1D3032, page 535; then 1D2230, page 26; and

19     1D2224.

20             It seems that --

21             MS. BAIG:  Excuse me, sorry to interrupt.  Your Honours, we have

22     an objection here.  Prlic is replying to our response from last week, and

23     this is not properly the subject of the Prosecution's appeal today.

24             JUDGE AGIUS:  And I think counsel for the Prosecution is correct.

25             Is your profession that of a lawyer, Mr. Prlic, or not?

Page 786

 1             THE APPELLANT PRLIC:  We agreed that I'm going to conduct --

 2             JUDGE AGIUS:  No, I asked you a question.  Are you a lawyer by

 3     profession or not?

 4             THE APPELLANT PRLIC:  No, I am not a lawyer by profession.  I

 5     used to teach on law faculty, but I was teaching political economy.  And

 6     if the Chamber allows me to finish, I would appreciate it.

 7             JUDGE AGIUS:  No, it's not a question of whether we will allow

 8     you to finish.  Of course we will allow you to finish, but we will allow

 9     you to finish according to procedure.  And this is why I'm asking you

10     whether you have been trained as a lawyer, because to me it is obvious

11     that you haven't.  And since you have imposed on your lawyer your will to

12     defend yourself here now, at this most crucial juncture of the

13     proceedings, you have to also accept to observe the laws of procedure of

14     this Tribunal; otherwise, I will stop you.

15             THE APPELLANT PRLIC:  I -- Mr. President --

16             JUDGE AGIUS:  You can't -- let me make it clear.  You have to

17     reply to what was stated today by the two counsel for the Prosecution,

18     and not for what -- to what was stated earlier on last week.  And she is

19     right in her submission.

20             THE APPELLANT PRLIC:  May I answer, Mr. President?

21             JUDGE AGIUS:  Mm-hm.

22             THE APPELLANT PRLIC:  I answered at the beginning relating to

23     what was stating here.  In continuation, I'm going to speak about JCE 3

24     and how it was applied in this case.  If you allow me just to continue,

25     you would see at the end that I'm going -- that my submission is going to

Page 787

 1     be adequate -- I think so.

 2             JUDGE AGIUS:  Up to you, Mr. Prlic, but I will stop you if you do

 3     not observe the rules of this Tribunal.

 4             THE APPELLANT PRLIC:  Thank you, Mr. President.  I apologise.

 5             It was mentioned today the issue of moving of population, and I

 6     just want to continue on Croat language.

 7             [Interpretation] This proposal was reached on the 15th of June,

 8     1993, during the session of the HVO HZ HB, document 1D1669, and it was

 9     put in writing on the 13th of July.  I quote:

10             "The Supreme Commander Boban -- we propose to the Supreme

11     Commander Boban to urgently gather the Presidency of the HZ HB, the

12     Presidency of the HDZ, and presidents of Municipal Boards of the HDZ, in

13     order to organise a defence of the Croatian territory.  The Presidency of

14     the HZ HB and the supreme commander of the HVO are therefore being asked

15     to urgently demand military assistance from the Republic of Croatia in

16     order to protect the Croats in Bosnia-Herzegovina and also to make a

17     decision on the urgent withdrawal of all military units from a particular

18     area," and so on and so forth.

19             It is presented in our ground of appeal 7.  In all three contexts

20     the key word is "proposal."  Why so?  Immediately before these proposals

21     between the 9th and the 13th of June, Kakanj fell and Travnik as well.

22     Travnik was the capital of a Croatian majority province.  According to

23     the judgement and the indictment, the same area was supposedly cleansed

24     of Muslims by Croats.  However, between 30- and 40.000 Croats were

25     expelled.  It is 1D1263, 1D1264, P2875, P2750.

Page 788

 1             The information presented by the department of defence at a

 2     session of the HVO --

 3             JUDGE AGIUS:  Yes, Ms. Baig.

 4             MS. BAIG:  Pardon me.  Again, Your Honours, we're into ground 7

 5     of Prlic's appeal and not properly within the scope of the response.

 6             JUDGE AGIUS:  And again Ms. Baig is correct, Mr. Prlic.

 7             THE APPELLANT PRLIC:  May I react, Mr. President?

 8             JUDGE AGIUS:  Yes, but I think you better focus on what is more

 9     important --

10             THE APPELLANT PRLIC:  Yeah, it is important --

11             JUDGE AGIUS:  -- namely, this is do or die for you, and you have

12     taken the responsibility upon yourself.  And instead of focussing on what

13     you should be responding today, you're focussing on other things that

14     your lawyer spoke about already last week.

15             THE APPELLANT PRLIC:  This is --

16             JUDGE AGIUS:  I will stop you.  I mean, I can't accept anyone

17     here not to observe the Rules of Procedure and Evidence here.

18             THE APPELLANT PRLIC:  I agree fully, Mr. President.  I speak

19     about -- this is the reply of ground 2 of OTP appeal exactly.

20             JUDGE AGIUS:  This is a reply that you prepared before even

21     coming here, Mr. Prlic, because I'm not blind.

22             THE APPELLANT PRLIC:  Yeah, but this was related --

23             JUDGE AGIUS:  This is a reply that you prepared before you even

24     knew what the Prosecution was going to say.

25             THE APPELLANT PRLIC:  Well, Prosecution didn't say anything new.

Page 789

 1             JUDGE AGIUS:  Oh yeah?

 2             THE APPELLANT PRLIC:  May I continue?

 3             JUDGE AGIUS:  I -- but you are risking being stopped.  If I have

 4     another objection, I will stop you.

 5             THE APPELLANT PRLIC:  Yeah, but we are going to have objection

 6     because this is the way --

 7             JUDGE AGIUS:  Of course -- no, no, no, you're -- we will have an

 8     objection if you continue the way you have been going.

 9             THE APPELLANT PRLIC:  I just want to say -- to continue.  You are

10     going to see exactly on ground 2, and this is important to be said here.

11     This is related to alleged responsibility based on Statute 7(3).  If I'm

12     able to finish that, I think this is important; and later on I'm going to

13     speak about JCE.

14             JUDGE AGIUS:  One moment.

15                           [Trial Chamber confers]

16             JUDGE AGIUS:  Yes, Mr. Prlic, and this is our final direction to

17     you.  The Prosecution appeal is mainly -- not mainly, almost completely

18     on JCE 3 and then a question on sentencing, and you can only address

19     those two issues today.  Anything else I will stop you.

20             THE APPELLANT PRLIC:  Okay, I have to leave at that.

21             [Interpretation] Why was JCE applied as a type of liability with

22     a single criminal intent?  That remains to be a key issue in this

23     courtroom.  In our appeal we did not object to the jurisprudence of the

24     joint criminal enterprise, although that could be discussed at length,

25     but the way in which it was applied.  Because even the most liberally

Page 790

 1     applied variant could not be supported by the facts in this case.  The

 2     JCE cannot be derived only from a political intention or even a military

 3     order that my colleague Ms. Nozica discussed.  We have seen on last

 4     Thursday that there is -- all the orders of the Main Staff.  There is no

 5     order for attack by the HVO in the entire period.  Even an order to

 6     attack would not mean anything because - according to this logic - every

 7     military operation would mean culpability by the person who ordered it.

 8     There must be a criminal intent, which of course can be established based

 9     on circumstance --

10             JUDGE AGIUS:  Mr. Prlic, I stop you.  And, in any case, what you

11     are saying is not going to be taken into account because this is not

12     about JCE 3.

13             THE APPELLANT PRLIC:  I'm approaching to JCE 3.

14             JUDGE AGIUS:  No, no, go to JCE 3.  You're -- this is not an

15     interesting, touristic adventure.  Go straight to JCE 3 and to

16     sentencing, and that's it.

17             THE APPELLANT PRLIC: [Interpretation] [No interpretation] [In

18     English] ... to sentence before JCE 3.  [Interpretation] The criminal

19     enterprise --

20             JUDGE AGIUS:  I won't let you have it your way, Mr. Prlic.

21             THE APPELLANT PRLIC:  Okay, okay, apologise -- [overlapping

22     speakers] --

23             JUDGE AGIUS:  It's us five up here --

24             THE APPELLANT PRLIC:  Okay, okay, okay.

25             JUDGE AGIUS:  -- who conduct the orchestra.  Okay?  You do as we

Page 791

 1     say; otherwise, I will ask you to sit down and that will be the end of

 2     it.

 3             THE APPELLANT PRLIC:  Okay.  Thank you.

 4             [Interpretation] Under circumstances when the criminal enterprise

 5     is construed only based on a political idea, how can we discuss JCE 3

 6     when even the important elements of JCE 1 are not met?  We are coming

 7     close to the -- to a dangerous precedent, namely, accusing of crime

 8     anyone, a president, a commander at any level, even of the smallest unit,

 9     simply for sending soldiers to war, even if that commander, like me, was

10     never in the chain of command.  Judgement volume 4, paragraph 106.

11             And the political idea on which the criminal intent is based is

12     the alleged Tudjman's obsession with Banovina.  And whatever is said or

13     done, it's immediately dismissed as a double or duplicitous policy.  Even

14     the noblest act as the unparalleled support of Croatia and Croats to the

15     BH and Muslims was, with the basic aim to reject any federalisation of

16     the country, which was a constant of all international plans.

17             For those who want to see the consistently of Tudjman's position

18     that I discussed on day one, here is what he said in his intimate circle

19     between 1992 and 1994 on different topics important to this case which

20     are contrary to the taken out of context citations that served as a basis

21     for establishing the alleged criminal intent.

22             JUDGE AGIUS:  Mr. Prlic, I have to stop you again.  Mr. Prlic,

23     this -- it's perhaps due to your complete lack of knowledge about law and

24     procedure, but although you purported to mention and go straight to

25     JCE 3, we are being given a lesson in history.  I'm not interested in

Page 792

 1     that.  I'm only interested in the elements of JCE 3 as they have been

 2     suggested by the Prosecution and what's your defence for that.  The rest

 3     you can take back home with you.

 4             THE APPELLANT PRLIC:  I just want to say there is no JCE 3

 5     without JCE 1 and if JCE 1 --

 6             JUDGE AGIUS:  You could have said that already.

 7             THE APPELLANT PRLIC:  It is not resumed yet.  I had to strengthen

 8     my case.  There is no JCE 3.  This is direct answer on today discussion

 9     by OTP.  If it is possible to use my time, I will appreciate; if it is

10     not possible, I'm going to sit down and that's it.  I think it is

11     important if you want to have all elements to be able to make your

12     decision.  I just tried to help Bench, nothing else.

13             JUDGE AGIUS:  You're certainly not helping yourself, Mr. Prlic.

14             THE APPELLANT PRLIC:  Mr. President, I have taken my risk by

15     intending to say what I want to say.  I'm fully aware of that, and this

16     20 minutes doesn't mean anything.  But if you decide another way, I have

17     no other possibility than to accept it.

18             JUDGE AGIUS:  Go ahead, let's...

19             JUDGE MERON:  Mr. Prlic, the President has been trying to help

20     you and he has suggested that you would have been much better served in

21     your interests had you asked you lawyer to speak for you.

22             THE APPELLANT PRLIC:  Okay.

23             JUDGE MERON:  You still have a few minutes left and if I were you

24     I would give five minutes or so to your lawyer to present your case,

25     because you are not doing any good to yourself --

Page 793

 1             THE APPELLANT PRLIC:  Thank you.

 2             JUDGE MERON:  -- Mr. President has pointed out.

 3             THE APPELLANT PRLIC:  Thank you.

 4             JUDGE AGIUS:  Mr. Karnavas, don't tell me have you not prepared

 5     yourself.

 6             MR. KARNAVAS:  Mr. President, 35 years of practicing law I have

 7     never come to court unprepared.  I am prepared.  May I ask how much time

 8     do we have left?

 9             JUDGE AGIUS: [Microphone not activated]

10             THE INTERPRETER:  Microphone, please, for the President.

11             JUDGE AGIUS:  You have 12 or 13 minutes.

12             MR. KARNAVAS:  Since I won't be able to use all my 13 minutes

13     before we take a break, could we take a break now -- it doesn't matter to

14     me.  I can go now and go through the 13 minutes or take a break and --

15     whichever you wish, Your Honours.

16                           [Trial Chamber confers]

17             JUDGE AGIUS:  Go ahead now.

18             MR. KARNAVAS:  Mr. President, Your Honours, I will be very brief.

19             The Prosecution today said a couple of interesting things.

20     First, they said that the scale of omissions was unparalleled -- I think

21     it was unprecedented and unacceptable.  They also said the Trial Chamber

22     is responsible to fully adjudicate the indictment.  I could not agree

23     more.  But are they not also responsible for assessing all of the

24     evidence?  Are they also not responsible to issue reasoned decisions?

25     Now if you go through their brief, because -- and they mentioned this

Page 794

 1     throughout today's presentation, you will see that they occasionally say

 2     the Chamber unduly limited the scope of the evidence it deemed relevant,

 3     it erred by compartmentalising and analysing the evidence, that the

 4     Chamber analysed the evidence in isolation, that the Chamber must

 5     consider all evidence presented to it and assess and weigh the evidence

 6     in its totality and in context.  This is in their brief and this is what

 7     they were saying today, that for some reason - for some reason - when the

 8     Trial Chamber came to this part of the judgement they sort of stopped.

 9     The implication being with everything else they were doing a great job,

10     but with this part they just simply failed to analyse properly, they

11     compartmentalised.  They didn't take into account all of the evidence,

12     they failed to consider its own findings and relevant evidence that

13     provided context to the incidents, they limited their consideration of

14     evidence, and so on.

15             And I ask:  Is that not what we have been saying all along?  And

16     is that not what we believe runs throughout - permeates throughout - this

17     entire judgement?

18             The Prosecution says today:  Well, Dr. Jadranko Prlic and the

19     others committed all these other crimes, they were foreseeable, and the

20     Trial Chamber simply failed to look at all of the evidence.  For somehow

21     they were compartmentalising.  They didn't do their job.  They didn't

22     properly assess.

23             We submit, Your Honours, that that has merit, their argument has

24     merit, as our argument that in looking at all of the evidence, the Trial

25     Chamber failed or cherry-picked what it believed, you know, was relevant

Page 795

 1     to their version of the events, to where they wanted to go.  So we don't

 2     accept the idea that somehow the Trial Chamber failed to make a proper

 3     assessment with respect to JCE 3.  I think they were at a loss because

 4     there was a lot of evidence.  They were at a loss because the Prosecution

 5     had an overly broad indictment where they tried to charge anything and

 6     everything for everything to the accused as if they're omnipresent and

 7     omnipotent.

 8             If you look at our submissions concerning the sentencing, Your

 9     Honours, and I believe they're in - one moment - they're in

10     paragraphs 185 to 248 of our response.  We deal with the issue of the

11     sentence, because they say the sentence was relatively low in comparison

12     to the gravity of the events and what have you.  We don't minimise the

13     human tragedy in this case.  We don't minimise the fact that there was a

14     lot of destruction, loss of human life, inhumane treatment.  But if you

15     look at those paragraphs, in those paragraphs of our response, we go

16     chapter and verse through the responsibilities and the powers of

17     Dr. Prlic.  We tried to explain to the Appeals Chamber how the HZ HB

18     functioned, what were its responsibilities, why it was created, and what

19     it was intending to do.  It doesn't mean that crimes were not committed,

20     but the whole purpose of a trial is to determine who is responsible for

21     the crimes, not who is available to be tried.

22             We submit, Your Honour, that throughout this trial, the Trial

23     Chamber erred -as the Prosecution has said not just for their part but

24     for the entire trial, the entire judgement - they failed to assess the

25     evidence properly.  And we submit that as a matter of due process,

Page 796

 1     equality of arms -- because we believe equality of arms extends not just

 2     to the resources but also to the manner in which the case is tried and

 3     the evidence is assessed.  They come here today and they say:  Give us

 4     justice because the Trial Chamber did not assess the evidence properly;

 5     we say the same.  We say look at the evidence critically.  Look at what

 6     we've cited.  They continually use the Mladic diaries.  They use it in --

 7     they didn't say it today but they used it in their response.  We say look

 8     at chapter -- look at ground 5 of our appeal, look at ground 5 of our

 9     reply.  And therein you will see that the Trial Chamber - despite

10     Judge Antonetti's reasoned opinion or reasoned decision or his analysis -

11     that 38 out of 40 excerpts of the Mladic diaries should be assessed, this

12     is what we submitted, 38 out of 40.  It wasn't the Trial Chamber, as my

13     good friend Mr. Stringer said, but it was the minority -- the majority

14     that said no, they cannot come in.  The Prosecution comes in today and

15     say:  The Trial Chamber looked at things out of context with respect to

16     JCE 3.  We say they looked out of context with regard to JCE 1 and with

17     respect to the entire Defence case.

18             And so what's good for the goose is good for the gander.  We say:

19     Look at everything, not just some of it.

20             I don't want to take up your time because you have the briefs.

21     The briefs, in my humble submission, are very well written.  They are

22     very well -- we cite all the relevant authority.  And we present

23     everything that we think is necessary for your consideration.  The

24     Defence -- the Prosecution says:  Well, for some reason, the Trial

25     Chamber failed.  We submit for some reason the majority, in particular,

Page 797

 1     failed because they approached this case with a determination -- with a

 2     destination in mind, and here is where I want to end.

 3             If I could have the one slide, Suzana, up.

 4             The two slides I want to say, because I don't want to give the

 5     impression that I'm suggesting that the Judges were unfair, but I do make

 6     the suggestion - as I believe Mr. Khan did - that at some point the

 7     Judges, especially the majority, might have been looking at the evidence

 8     from a particular perspective because after all you will see -- this is

 9     on the web site.  If I could look at the other one.  This is on the

10     official web site of the ICTY and this was on the web site or flyers to

11     this effect were already in existence prior to the judgement.  The

12     republic's strategic position made it subject to both Serbia and Croatia

13     attempting to assert dominance --

14             MS. BAIG:  Pardon me, Mr. Karnavas.

15             MR. KARNAVAS:  -- over large chunks --

16             JUDGE AGIUS:  One moment.

17             Yes.

18             MS. BAIG:  Mr. Karnavas, you appear to be going again into your

19     grounds of appeal.

20             Your Honours, we have an objection again on this matter.

21             MR. KARNAVAS:  If I may respond, Your Honour.

22             JUDGE AGIUS:  Yes.

23             MR. KARNAVAS:  If I may respond.

24             JUDGE AGIUS:  Yes, Mr. --

25             MR. KARNAVAS:  The Prosecution was the one that was -- been

Page 798

 1     complaining all morning that for some reason when it came to their

 2     evidence on JCE 3, they totally ignored and compartmentalised.  I'm

 3     entitled to show that they did the same thing with us, and this is a good

 4     example --

 5             JUDGE AGIUS:  It is --

 6             MR. KARNAVAS:  -- and I know it may be embarrassing for the Court

 7     to be looking at this, but we suggest that when it came to assessing the

 8     evidence for the Defence, whether it was regard to JCE 3 or otherwise,

 9     Mr. President --

10             JUDGE AGIUS:  Two wrongs do not make a right.

11             You have already made your point as to how you were treated by

12     the first Court, by the Trial Chamber.  You had -- you had a good two

13     hours, one of which was stolen away from you by your client.  But what we

14     expect from you today is to tell us whether Ms. Baig and her colleague

15     are correct in their submission or not.

16             MR. KARNAVAS:  Well, I find it hard --

17             JUDGE AGIUS:  If you tell us:  We were treated like that as well,

18     you are indirectly telling us that they were right, they were ignored by

19     the Trial Chamber.

20             MR. KARNAVAS:  Well, I find it hard to believe, Your Honour, that

21     the Prosecution would have the temerity to suggest that the Trial Chamber

22     was only unfair to them and not unfair to the Defence.  Is it possible --

23     is it credible to suggest that only when it came to certain counts of the

24     JCE 3, the Trial Chamber adopted this compartmentalisation process, they

25     decided not to assess the evidence properly, they did not look at

Page 799

 1     everything that was available?  We suggest that that is not the case, but

 2     we do suggest that throughout the trial that is what happened to all of

 3     the accused; and that's why we ended up with the result that we ended.

 4             What Dr. Prlic was trying to say is with respect to JCE 3 that

 5     was mentioned today, that if you look at his role and his

 6     responsibilities and his functions and if you look at all of the facts

 7     that were presented, you will see that you don't get to JCE 1; and if you

 8     can't get to JCE 1, you can't get to JCE 3.  So for us at this stage to

 9     try to counter the points on JCE 3 that they're making today, we find

10     somewhat ludicrous, if you will, because we do not accept the notion that

11     Dr. Prlic was engaged in a joint criminal enterprise and was involved in

12     any capacity to any of those events and is not responsible for any of the

13     events.  And therefore, it is difficult to go and argue point by point on

14     whether the Trial Chamber should or should not have found Dr. Jadranko

15     Prlic guilty of JCE 3 with respect to certain events.  You have to look

16     at his responsibilities and you have to look at the Trial Chamber's

17     analysis of the facts and their conclusions that there was this

18     overarching JCE, which is why I believe my client was trying to address

19     some of the issues with respect to Tudjman.

20             We appreciate the time that you have given to us to make our

21     submissions, we apologise for any inconvenience, and we are certainly

22     grateful to your patience today.

23             JUDGE AGIUS:  Thank you.  We will have half an hour -- actually,

24     we will start at quarter to 12.00.

25                           --- Recess taken at 11.10 a.m.

Page 800

 1                           --- On resuming at 11.44 a.m.

 2             JUDGE AGIUS:  Yes, Defence for Mr. Stojic.  You have 30 minutes.

 3             MS. NOZICA: [Interpretation] Thank you, Your Honours.  Our reply

 4     to the appeal by the Prosecution and we have with us our consultant

 5     Aidan Ellis.

 6             MR. ELLIS:  In response to the Prosecution appeal, we don't

 7     assert that this trial judgement is perfect.  How could we, Your Honours,

 8     when we've asserted so many errors in it ourselves?  Your Honours will

 9     have noted already from our response brief that where points are clear

10     that there are errors, we've tried to concede the points.  For example,

11     in paragraphs 145 or 146 of our response brief.  But despite those

12     errors, Your Honours, we say that the Prosecution failed to eliminate any

13     reasonable doubt of Stojic's guilt in relation to grounds 1, 2, and

14     aspects of ground 3; and further, that they failed to show that the

15     20-year sentence imposed on Stojic is unjust and plainly unreasonable.

16     We propose to focus today on grounds 1 and ground 4, as the Prosecution

17     did.  For the detail, of course, we stand by every point in our written

18     submissions.

19             And, Your Honours, in those written submissions we deal with each

20     head of the Prosecution's ground 1 in relation to JCE 3.  But the

21     overarching reason why all of those heads of ground 1 should be dismissed

22     is a simple one.  When the correct legal standard is applied to the Trial

23     Chamber's findings, the Prosecution has failed to eliminate reasonable

24     doubt that the deviatory crimes were foreseeable to Stojic.  And

25     therefore, the Trial Chamber did not err in entering acquittals and no

Page 801

 1     new convictions should be entered.

 2             Your Honours, I'll deal with the law briefly because it seems

 3     there's no real distance between the Prosecution and the Defence on the

 4     key issue.  The Prosecution submit that the Trial Chamber erred by

 5     applying a probability standard rather than a possibility standard, and

 6     it's right that the test defined by the Appeals Chamber is not one of

 7     probability; although we do say it's not quite accurately described as a

 8     test of mere probability either.  It's important in our submission to

 9     preserve a meaningful test of foreseeability, and the reason why it's

10     important is that convicting the accused pursuant to JCE 3 means

11     convicting them of crimes that they did not intend and which fell outside

12     the scope of the common purpose.  That's why a meaningful foreseeability

13     threshold is required, otherwise the result is the involvement in a

14     common criminal purpose could lead to an open-ended liability for crimes

15     committed thereafter.  And we say the test defined in the Appeals

16     Chamber's jurisprudence is a meaningful threshold.

17             The Prosecution cited this morning to Sainovic, to paragraph 18

18     of the Karadzic JCE 3 foreseeability decision.  And the tests cited in

19     those cases isn't one of mere possibility; it's whether the possibility

20     that the crime could be committed is sufficiently substantial as to be

21     foreseeable to the accused, the accused as an individual.  That nuance,

22     that subtlety in the reasoning isn't caught by just describing this as a

23     possibility test.  There is a spectrum of likelihood.  On that spectrum,

24     the test isn't as high as probability, but it's not as low as mere

25     possibility either and it's not caught by implausibility remote

Page 802

 1     scenarios.

 2             We would highlight from the many detailed submissions in our

 3     brief two points today.  First, that considering relevant

 4     location-specific factors should lead the Appeals Chamber to dismiss all

 5     aspects of ground 1; and second, that the documents relied on by the

 6     Prosecution are insufficient in any event to eliminate doubt as to

 7     Stojic's guilt.  For clarity, when I refer to "incidents," Your Honours,

 8     I'm using the language and the numbering used by the Prosecution at

 9     tables 53 -- the table on page 53 to 57 of their appeal brief.

10             And to deal first with location-specific factors.  We say they

11     are important in this case because of the scale of the crime base

12     considered in the indictment.  Where there are so many different

13     locations and where crimes are committed over a period of so many month,

14     we say that what is foreseeable to one accused in one location at one

15     time is not necessarily foreseeable to them many months later, in a

16     distant location.  And it appears again there's a measure of agreement

17     between the parties here.  Paragraph 12 of the Prosecution consolidated

18     reply at least accepts that location-specific factors are not irrelevant.

19     And what's important about them is not to suggest that Stojic must make a

20     contribution to the crimes in each municipality.  We know that's not the

21     point.  The point about location-specific factors is that they identify

22     the knowledge that the accused have, knowledge of particular

23     vulnerabilities of civilian populations, knowledge of particular

24     propensities of particular units.  And the problem, we say, with this

25     judgement in relation to JCE 3 is that there are very limited factual

Page 803

 1     findings about Stojic's knowledge in many of the locations for which the

 2     Prosecution invite Your Honours to enter new convictions.

 3             Take the example of Stolac, with an apology if my pronunciation

 4     is wrong Your Honours.  There the Prosecution invites to you enter JCE 3

 5     convictions for two incidents of murder, one appropriation of property.

 6     That's incidents 5, 6, and 26.  What findings then did the Trial Chamber

 7     make about Stojic's role in crimes in that municipality or his personal

 8     knowledge of operations there?  None, we say, none whatsoever.  And in

 9     those circumstances, we say it's untenable to enter new convictions in

10     relation to that municipality.

11             And there are many other examples, Your Honours.  In Prozor

12     municipality, where the Prosecution invite you to enter six new

13     convictions, incidents 1, 14 through 16, 21, and 24.  In the section of

14     the judgement addressing Stojic's responsibility municipality by

15     municipality, it's only paragraph 329 of volume 4 that has anything to

16     say about Prozor.  And Your Honours will recall that factual finding from

17     the very final slide that we displayed in the course of our reply

18     submissions on Tuesday.  It's the occasion when a particular report,

19     P3418, was found to have been received by two of the defendants but the

20     Trial Chamber managed to reach opposite findings in respect of their

21     knowledge on the basis of that document.  Contrast paragraph 329 and

22     paragraph 799 of volume 4.

23             Apart from that unreasonable finding, no other findings about

24     Stojic's knowledge or the circumstances in Prozor at the time when the

25     deviatory crimes occur.  Very limited factual findings also in relation

Page 804

 1     to Vares, where taking volume 4, paragraph 380 at its highest - and of

 2     course Stojic has appealed those findings - but taken at their highest,

 3     his involvement comes days after the crimes were committed.

 4             And here is where we really part company with the Prosecution

 5     because it's said today that Your Honours can safely enter new

 6     convictions on the new JCE counts without requiring extensive appellate

 7     fact-finding, that you can move straight from the general findings about

 8     contextual factors to enter convictions against Stojic.  We say that's

 9     wrong, Your Honours.  We say that that would require Your Honours at

10     least to consider the factual position in relation to knowledge of

11     circumstances in each of the municipalities concerned.  And on that, the

12     Trial Chamber's judgement simply does not assist, Your Honours.  It

13     doesn't leave behind the necessary building blocks, the factual

14     foundations and findings, on which Your Honours could build new

15     convictions.  And we would say that reflects limited factual evidence in

16     the record about Stojic's knowledge of circumstances in those

17     municipalities.

18             Absent those location-specific factors, the Prosecution cannot

19     establish beyond reasonable doubt that deviatory crimes were foreseeable

20     to Stojic, and that should be fatal to ground 1 of the appeal on its own.

21     But in any event, Your Honours, my second point.  The documents and

22     findings relied on are not sufficient to establish that the deviatory

23     crimes, that the possibility that they might occur, were sufficiently

24     substantial as to be foreseeable to Stojic.

25             There is one error that we say crops up throughout the

Page 805

 1     Prosecution's submissions, and it's the repeated reliance on documents

 2     that were simply sent to the Defence Department generally as evidence

 3     that proves beyond reasonable doubt that Stojic knew about the content of

 4     those documents.  That does not necessarily follow, Your Honours.  The

 5     Department of Defence was not an insubstantial administrative body.  The

 6     Trial Chamber found that it had six sectors:  Main Staff, civil

 7     protection, security, health, ethics and morals, and procurement.  It was

 8     administered through various offices, and each of those sectors was

 9     headed by an assistant chief with their own responsibilities for the work

10     of that sector.  This is from volume 1, paragraph 540.

11             And, Your Honour, there was evidence about what was supposed to

12     happen when a document was actually received by the Defence Department.

13     There was evidence that the Defence Department stamped documents on

14     receipt.  That's not surprising.  Most administrative bodies do something

15     similar, but it appears in the transcript at 36247, lines 3 to 21.

16             Your Honours, I will admit that on occasion I struggled with the

17     different stamps applied to the original documents in this case, but I

18     commend P1880 to Your Honours as an example of a document bearing the

19     stamp to show it was received by the Defence Department.  And

20     Your Honours will see that the stamp simply says "Defence Department

21     Mostar."  Nothing else on it to indicate, for example, that it's gone to

22     a different branch, like the SIS, as we see on some documents.

23             But in relation to many of the documents that the Prosecution

24     relies on, there's no evidence or finding that they were actually seen by

25     Stojic.  Take paragraph 24 of the Prosecution reply which introduces

Page 806

 1     P1915 as evidence that the Defence Department were informed of the

 2     preparations for operations in Jablanica in April 1993.  No stamp on that

 3     document to indicate it was received by the Defence Department.  The

 4     stamp on the original that Your Honours will see relates to the

 5     Main Staff; that's presumably why the Trial Chamber specifically found it

 6     was received by the Main Staff.  Volume 4, paragraph 714.  But no

 7     equivalent finding that the Defence Department saw it.  In fact, the

 8     Trial Chamber established - it's volume 4, paragraph 441 - that Stojic

 9     was informed of HVO operations in Jablanica after they had taken place,

10     which is obviously inconsistent with the reliance now placed on P1915.

11     And there are many other documents cited in the appeal brief and the

12     reply brief of the Prosecution, where the same comments would apply.

13     P4161, P648, P4177, and P2063, to give only four examples, not addressed

14     to Stojic personally, not bearing Stojic's Department of Defence stamp,

15     and no other way to establish beyond doubt that they were received by

16     him.  No witness to testify that they passed the document to him.

17             The Defence tried to assist the Tribunal by locating the Defence

18     Department register, which would have conclusively listed all of these

19     documents that were received by that department; but unfortunately the

20     register could not be found.  See 2D1399 for our efforts to find that

21     document.

22             Your Honour, the result of the absence of that document is that

23     there is doubt that Stojic ever personally saw many of the documents

24     relied on throughout the Prosecution appeal brief.  For reasons of time,

25     I'll move swiftly through this, Your Honours, but we also assert in our

Page 807

 1     response brief that a number of the documents that the Prosecution rely

 2     on turn out to be dated after a number of the incidents on which they

 3     seek convictions.  In relation to murder or wilful killing in detention,

 4     amongst the documents cited by the Prosecution at P4352 and P4161, both

 5     dated August 1993.  But the Prosecution is inviting Your Honours to enter

 6     convictions for killings in detentions that begin with incident 2 in

 7     April 1993, four months earlier.  In fact, only part of one incident was

 8     committed after the date of P4352.

 9             So the submission on this part of ground 1 comes down to this.

10     In relation to each of the deviatory crimes the Prosecution rely on a

11     small number of documents to try to prove that Stojic was on notice that

12     those crimes might occur.  But once Your Honours exclude those documents

13     that post-date the incidents, once you exclude those documents which it

14     cannot be established that Stojic saw, once -- we hope Your Honours will

15     also exclude the evidence in relation to P1351 and Gornji Vakuf for the

16     reasons given last week.  We say what remains is wholly insufficient to

17     eliminate reasonable doubt that the deviatory crimes were foreseeable to

18     Stojic.  And so ground 1 of the Prosecution appeal should be dismissed.

19             Your Honours, I move now to ground 4, sentence.

20             At the start of this appeal hearing, Your Honour, the Presiding

21     Judge, remind the parties that these appeals are not a trial de novo,

22     that the parties must refrain from repeating their cases which were

23     presented at trial, but the Prosecution appeal against sentence is

24     exactly that; it's a repetition of their case which was presented at

25     trial.  The Prosecution continues its pursuit of a 40-year sentence for

Page 808

 1     Stojic, exactly the sentence it sought at trial.  And as we've pointed

 2     out in paragraph 182 of our response brief, many of the Prosecution's

 3     written submissions - indeed many of the oral submissions today - bear

 4     more than a passing resemblance to the final trial brief or the closing

 5     trial arguments.

 6             We say the Prosecution failed to identify error in the Chamber's

 7     approach to sentencing, that the Trial Chamber didn't impose the sentence

 8     that they asked for does not establish error.  Your Honours, we say the

 9     test was set down for similar Prosecution appeal against sentence in

10     Galic, with the majority concluding at paragraphs 455 and 456 that the

11     Appeal Chamber should only intervene where the Trial Chamber sentence was

12     so unreasonable or plainly unjust that it's able to infer that the Trial

13     Chamber failed to exercise its discretion properly or - in more

14     descriptive terms - where it was taken from the wrong shelf.  That's a

15     high threshold, Your Honours, and rightly so.  Trial Chambers have a

16     broad discretion on sentencing.

17             This Trial Chamber had the opportunity to hear the evidence in

18     this case over a period of years, including seeing the video that we were

19     shown today of East Mostar, including hearing directly from the victims

20     of these crimes.  Whatever view Your Honours take of the quality of the

21     legal reasoning in relation to the JCE or, we say, the absence of legal

22     reasoning, in relation to the crime base, the Trial Chamber chronicled

23     the crimes painstakingly across thousands of pages of a judgement.

24     Against that background, the Chamber's approach to the gravity of the

25     crimes can't be judged solely in relation to the sentencing section of

Page 809

 1     the judgement; it should be weighed against all the pages previously.  We

 2     say it can't properly be dismissed as cursory.  Do the sentences imposed

 3     by this Tribunal in comparable cases compel a conclusion that a 20-year

 4     sentence for Stojic would be unjust or plainly unreasonable?  They do

 5     not, in our submission.  Dealing with comparable cases are always

 6     problematic.  No two cases are truly alike.  No comparison will bind

 7     Your Honours.  And there's another danger that the Defence are conscious

 8     of because as soon as I start to compare cases, it would be very easy to

 9     suggest that I'm trying to minimise the crimes or trying to minimise our

10     responsibility.  Your Honours, that's not my intention.  Seeing the

11     videos that the Prosecution showed of East Mostar today hits us even

12     after reading the evidence in this case over so many years; it cannot

13     fail but be deeply affecting.

14             On Stojic's behalf counsel began our submissions last week by

15     extending our sincerest condolences to all the victims of the war in

16     former Yugoslavia, and in so doing he was echoing what Stojic himself

17     said in his statement to the Trial Chamber at the end of closing

18     arguments.  He said:

19             "From the bottom of my heart, I would like to say that I

20     sympathise.  I feel compassion for those people ... and," he continued,

21     "especially the Muslim victims of that war."

22             It's not our intention, nor his intention, to minimise that

23     suffering.  The reference is T52964, beginning at line 25.

24             But we do need to look at past cases in order to try and set out

25     what the range of reasonable sentences might be.  And we do maintain, as

Page 810

 1     in paragraphs 210 and 211 of our response, that Djordjevic and Sainovic

 2     and relevant.  Why those cases?  Because they're large JCE cases

 3     concerning the expulsion of civilian population on ethnic grounds,

 4     hundreds of thousands of civilians were displaced.  They can't be

 5     dismissed as smaller cases.  There was no or extremely limited personal

 6     mitigation in those cases.  Rather than co-operate with the Tribunal as

 7     Stojic did, Djordjevic evaded arrest for four years which prolonged the

 8     victims' distress.  The sentences in --

 9             JUDGE AGIUS:  We're looking at the clock.  You have got another

10     ten minutes.

11             MR. ELLIS:  I'm grateful, Your Honour.

12             The sentences imposed in those cases after appeal ranged from 14

13     to 22 years, and insofar as that comparison helps in drawing a range -- a

14     bracket of reasonable sentences, they don't suggest that the sentences in

15     this case come from the wrong shelf.  The Prosecution argue again today

16     that the Chamber should impose a higher sentence to take account of the

17     gravity of the siege of East Mostar.  And in so doing, the Prosecution

18     relied specifically in its reply on the level of criminality reflected in

19     a nine-month campaign of sniping, shelling, and terror.  A nine-month

20     campaign, Your Honours, because the siege of East Mostar on the Chamber's

21     findings began in June 1993 an ended in March 1994.  But by that time,

22     Stojic was no longer the head of the Defence Department.  He left the

23     Defence Department in mid-November 1993.  The Trial Chamber say the 15th

24     of November, the Stojic Defence say 10th of November, but for this point

25     it matters not.  There was no evidence that he remained a member of the

Page 811

 1     JCE after that point in November 1993.  His responsibility stops at that

 2     point halfway through the siege of East Mostar.  His sentence cannot be

 3     based on level of criminality reflected by a nine-month siege, and that's

 4     even if Your Honours uphold his conviction for the unlawful infliction of

 5     terror on a civilian population, which we invite Your Honours to overturn

 6     in the absence of a reasoned finding as to specific intent.

 7             In relying on Galic this morning, my learned friends opposite

 8     acknowledge that there are differences between that case and this one,

 9     and there are important differences.  According to Prosecution

10     submissions, the siege of Sarajevo affected about 300.000 civilians.  And

11     Galic's responsibility for that siege lasted for a period of 23 months,

12     significantly longer, significantly more civilians than this case.  So

13     the comparison offered by the Prosecution does not assist in showing that

14     this sentence in this case was wrong.

15             Your Honour, does the 40-year sentence proposed by the

16     Prosecution fit better?  Well, we've tried to set out in our response

17     brief at paragraph 215 the cases in which the Trial Chamber has imposed

18     similar sentences.  They don't fit with this case for the reasons given

19     in that brief, but I see that we're out of date now.

20             I see that the Trial Chamber has now passed sentence on Karadzic,

21     and he was sentenced to a 40-year term, the very term that the

22     Prosecution seek in relation to Stojic.  He was found to have

23     significantly contributed to a JCE to remove Muslims and Croats from

24     Bosnian Serb-claimed territory, but that's only one aspect of that case.

25     He was also the driving force behind an additional common purpose to take

Page 812

 1     UN personnel hostage.  He also significantly contributed to the shelling

 2     of Sarajevo, not for months, but for three and a half years.  He also

 3     significantly contributed to the Srebrenica genocide, which resulted in

 4     the death of more than 5.000 men and the transfer of tens of thousands of

 5     women, children, and elderly men.

 6             Your Honours, Stojic's sentence doesn't belong on the same wall

 7     as Karadzic, let alone the same shelf.

 8             The increased sentence sought by the Prosecution is dramatic.  If

 9     the Prosecution appeal is granted, the full term would not expire until

10     2047, at which point - if alive - Stojic would be 92 years old.  We say a

11     sentence of that severity is not warranted.  We say the Prosecution have

12     failed to show that the sentence was taken from the wrong shelf, failed

13     to show it was so unreasonable and plainly unjust that it is safe to

14     infer that the Trial Chamber failed to exercise its discretion.  And we

15     commend to Your Honours' attention in fact our grounds 56.2 in relation

16     to double counting and 57 in relation to time spent on provisional

17     release with significant restrictions on his liberty.

18             But, Your Honours, this is our final chance to say something to

19     the Bench.  We listened closely this morning to the Prosecution say that

20     there were unprecedented -- unprecedented omissions in this judgement and

21     that there were failures to assess all of the evidence in the case.

22     Your Honours, those errors are pervasive.  It's the point my learned

23     friend Mr. Karnavas was making I think in the end of his submissions.

24     Those errors are pervasive.  They don't stop where the Prosecution appeal

25     finishes.  They're symptoms of exactly the same problem that we

Page 813

 1     identified when we said that the Trial Chamber failed to consider the

 2     weapons, the munitions in particular, that were sent from Croatia and the

 3     HVO - the symptoms of the errors, the failure to consider all of the

 4     evidence in relation to the common purpose, single common purpose of the

 5     JCE.  And, Your Honours, as this hearing has gone on, you've heard more

 6     and more errors pointed out by more and more submissions on both sides of

 7     the courtroom.  And we say the inevitable conclusion at the end of that

 8     is unfortunately this is a judgement which does not meet the standards

 9     laid down by this Tribunal.  It doesn't provide a reasoned decision on

10     all of the evidence, it doesn't assess all of the arguments.  And what --

11     and we say, Your Honours, that the only possible response in the face of

12     all those errors is to reverse the convictions, to allow the Prosecution

13     appeal only to the extent set out in our written brief, and to overturn

14     the conviction of Stojic.

15             Your Honours, think I've used my time.

16             JUDGE AGIUS:  Thank you, Mr. Ellis.

17             We now move to the Defence team for Mr. Praljak.

18             Yes, Madam Fauveau.

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

20     Honours, I shall be extremely brief.

21             The appeal by the Prosecutor indicates that there are failings in

22     the judgement; this is undeniable.  The Prosecutor holds that this is

23     unacceptable as regards a legacy of this Tribunal and of the

24     international community.  Today's transcript page 7, line 4 to 5.

25             The judgement in its entirety is indeed full of mistakes which

Page 814

 1     are -- cannot be remedied.  Indeed, it is unacceptable.  But first and

 2     foremost, it is unacceptable for the accused; it is unacceptable for this

 3     Tribunal; and lastly, it is unacceptable for international criminal

 4     justice, since its credibility is challenged in this case.

 5             The first and third ground of the appeal of the Prosecution

 6     concerns crimes which would have resulted from the common purpose under

 7     Count 1 or that would have been committed as part of a common plan, i.e.,

 8     third ground of appeal.  But there was no common plan.  So as regards the

 9     first ground of appeal, we cannot talk about a JCE 3 if there is no

10     JCE 1.  And as regards or under the third count, we cannot talk about

11     crimes committed as part of a JCE if there is no JCE or JCE does not

12     exist.

13             As regards the remainder, we maintain all our written arguments

14     indicated in our response brief as regards grounds 1, 2, and 3 of the

15     Prosecution.

16             I would just like to add - without addressing what we have

17     already mentioned - one remark concerning the videos we were shown this

18     morning by the Prosecution.  These videos make no difference as regards

19     the evidence submitted by the Defence in these proceedings relating to

20     the siege of Mostar.  I would invite you to read our grounds of appeal

21     relating to Mostar.

22             Mr. President, Your Honours, we will not submit any arguments

23     concerning ground 4 on sentencing.  Any sentencing of Mr. Praljak would

24     be unjust, but first and foremost it would be contrary to the standards

25     and principles -- elementary standards and principles of international

Page 815

 1     law since his responsibility has not been established.  The conviction of

 2     Mr. Praljak is based on erroneous conclusions, mischaracterised facts, a

 3     conclusion which the Trial Chamber reached in which -- after proceedings

 4     in which the right of the accused on Article 21 of the Statute was

 5     breached.  The appeal of the Prosecution should be entirely rejected as

 6     well as the arguments -- all the arguments presented by the Prosecution.

 7             Thank you.

 8             JUDGE AGIUS:  Okay.  Are you okay if we take Petkovic?  Yeah, all

 9     right.

10             Defence team for Mr. Petkovic.  Yes, Defence team for

11     Mr. Petkovic, you can start.  Thank you.  And you have 30 minutes.

12             MS. ALABURIC: [Interpretation] Thank you, Your Honour.  We're

13     going to try to use our half an hour in the manner we believe to be the

14     best.

15             For a start, I will agree completely with my colleagues from the

16     Prosecution when they said that the judgement is inexplicably

17     inconsistent.  I know for a fact that they have spent days and weeks

18     trying to get a grip on what was going on with all 211 incidents and

19     which of the accused was convicted or not convicted for each of one of

20     those incidents.

21             At the start, I'm going talk about appeal ground 2 or the failure

22     by the Chamber to decide the responsibility of the accused according to

23     command responsibility after establishing that there was no

24     responsibility under JCE 3.  Slide 2, slide number 2, you can see what

25     the Prosecutor says.  I'm going to deal with the request to overturn the

Page 816

 1     judgement and convict my client according -- to counts according to

 2     command responsibility, and then I'm going to say a few words about

 3     alternative proposals for the Appeals Chamber to overturn this

 4     judgement -- or actually, to remand this issue to the Trial Chamber for

 5     reconsideration.

 6             As far as the acquittal and conviction according to command

 7     responsibility, Your Honours, I would like to say that we are aware that

 8     I'm embarking on a topic in which this Appeals Chamber holds different

 9     views.  We know that it's not wise to deal with topics on which there is

10     disagreement among the members of the Trial Chamber, but we will still do

11     that.

12             Slide number 3 is a brief explanation that we require for our

13     submission because in separate opinions of Judge Pocar in the Gotovina

14     case as well as in a series of other cases at this Tribunal, also at the

15     European Court, the position was that an acquittal must not be reversed

16     or overturned, regardless of the discretion of the Chamber to do so, if

17     thereby they deny the accused's right to an appeal.  Since the Statute or

18     the Rules of this Court do not foresee an appeal to an appeal decision,

19     then it's a question whether in such a case the right of our accused

20     would be violated, i.e., for a higher court to review a judgement reached

21     in such a way.

22             THE INTERPRETER:  Could the speaker please speak -- slow down.

23             JUDGE AGIUS:  Slow down a little bit.  Please slow down.

24             MS. ALABURIC: [Interpretation] I apologise.  I will do.

25             In view of the fact that I'm also focussed on human rights, this

Page 817

 1     standpoint is very dear to me.  I would like to point out what the

 2     practice was in the former Yugoslavia 50 years ago.  The following slides

 3     show an excerpt on the Law on Criminal Procedure of the SFRY.  The year

 4     is 1986, but this is a law from 1977 that has been revised.  And you can

 5     see from this text that this law during the time of Yugoslavia, which was

 6     a single-party Communist totalitarian country, accused had the right to

 7     appeal against the verdict of a court in the second instance and is ruled

 8     on in the third instances only in the following cases.  If the court in

 9     the second instance modified a verdict of acquittal of the court in the

10     first instance and pronounced a verdict finding the accused guilty, all

11     of this was very well conceived.  The Law on Criminal Procedure today of

12     the Republic of Croatia contains the same wording.  This is Article 490

13     of the law.

14             Also, this is contained in the regulations of Bosnia and

15     Herzegovina.  They included this right at the beginning of the 1990s

16     because all the countries created from the former Yugoslavia inherited

17     the Law on Criminal Procedure, and this provision is contained in the

18     criminal procedure law of Bosnia and Herzegovina at the moment.

19             In our countries, had this trial been conducted in Bosnia and

20     Herzegovina and Croatia, our appeal -- our appellants would be guaranteed

21     the right not to have an acquittal turned into a conviction without

22     assuring the adequate protection, meaning the appeal to -- the right to

23     appeal and for a higher court to review the legality of a decision by a

24     higher court.

25             What we expected from you, Your Honours, was to provide equal

Page 818

 1     rights to our accused before this Tribunal as the ones they would have

 2     had, had they been tried according to the laws of the former state which

 3     was a single-party Communist totalitarian state.

 4             As for our alternative request for the case to be -- to be

 5     re-tried, here we have explicitly heard of one crime that my client is

 6     being charged with in that context, that is the murder of six detainees

 7     in Dretelj.  My colleague Ms. Baig mentioned four such crimes.  I think

 8     that this was an error because our records indicate that there was six

 9     killings.

10             In the column we have tried to show what the Trial Chamber's

11     conclusions were regarding that incident and why it did not convict

12     Petkovic under JCE 3 of liability.  The Trial Chamber believed that

13     Petkovic was informed about the event seven months after the event, and

14     therefore that was not something that was foreseeable as far as he was

15     concerned.

16             The next column we have two brief paragraphs from the

17     Prosecution's appeal.  The Prosecutor considers that the factual

18     conclusions of the Trial Chamber are sufficient to overturn an acquittal

19     into a conviction.  Just a brief comment.  Now I'm going to try to be

20     very, very fast.

21             The whole story is based actually on a document by the

22     International Red Cross, P07636, which is the source of Petkovic's

23     information about the crime.  The slide will present this document.  I

24     would like to draw your attention to the fact that the document was set

25     to Mr. Marjan Biskic and it states here that he was the deputy minister

Page 819

 1     of defence.  He was actually assistant minister.  And for our purposes

 2     today, it is important that this was a person who was in charge at the

 3     Ministry of Defence for the military police and the security service

 4     called SIS, S-I-S, who was responsible for processing perpetrators of

 5     crimes and for conducting investigations.  Thus, he was the one who

 6     received this letter which was sent for the information to Petkovic,

 7     Prlic, and to the president's office and to the Supreme Command.  If we

 8     keep in mind some other circumstances that I'm referring to here, and

 9     because I have such a brief period of time at my disposal I'm only going

10     to refer to 4D01614.  The document clearly indicates that Petkovic,

11     although at that time in December 1993 was deputy head of the HVO

12     Main Staff, was not automatically the person in charge if the chief of

13     the HVO Main Staff was absent.  We see from the document that Ante Roso

14     who was the then-head of the Main Staff said that other than Petkovic

15     Matic, Vrbanac were also authorised to stand in for him when he was

16     absent.  So if we established who at which period was authorised to carry

17     out the tasks of the chief of the Main Staff, we need to be familiar with

18     a whole series of circumstances.  At this point I don't want to burden

19     you with the regulations dealing with who was in charge and how to

20     discipline soldiers; we don't have time for that.

21             But based on this, in brief, I can conclude in view of the fact

22     that a person authorised to process crime perpetrators was informed about

23     the crime and was authorised to undertake the necessary steps, there was

24     no reason for Petkovic, Prlic, or the Supreme Commander do anything in

25     particular in that regard.

Page 820

 1             The next slide, slide number 9 refers to the thefts in Stupni Do

 2     for which the Prosecution also cites Petkovic's responsibility according

 3     to the chain of command.  I'm going to try to be as brief as possible

 4     here because there's a lot of information that I wanted to go over.  The

 5     crime did happen; that is beyond dispute.  We discussed this in our

 6     submissions last Thursday, but what we would like to say is -- can we

 7     please look at the next slide and can it please not be broadcast because

 8     it contains statements by protected witnesses, so I just wanted to make

 9     sure that they remain confidential.

10             As for the investigation itself, (redacted)

11     (redacted)

12     (redacted) Witness Bandic spoke

13     about the activities of the military prosecutor.  This is transcript

14     38101.

15             Witness Jan Koet confirmed his contacts with the public

16     prosecutor regarding the accusations regarding crimes in Stupni Do.  This

17     is P10092, paragraph 22.  Engaging the military district prosecutor

18     involved to investigate the crimes in Stupni Do is seen on the basis of

19     document 4D00499.  Ivica Rajic who led the actions in Vares explicitly

20     communicated with the Supreme Commander Mate Boban, and the following

21     evidence speaks as to that.  (redacted)

22             Ivica Rajic sent reports directly to the Supreme Commander.

23     Exhibit P06291.

24             Boban spoke about the crimes in Stupni Do, the investigations,

25     and the necessity to punish the perpetrators at a meeting with

Page 821

 1     President Tudjman in Split on the 5th of November, 1993.  My client,

 2     General Petkovic, was also present.  This is the document P06575.

 3             Then-Defence Minister Perica Jukic contacted UNPROFOR in order to

 4     investigate the crimes in Stupni Do.  This is document 4D00506.

 5             And now we can show the next slide and then we will keep the

 6     following one confidential.  This is evidence that speaks about the

 7     security service, the SIS, and the one that investigated the crimes in

 8     Stupni Do.  This is document P06828.  It's a SIS report which was sent to

 9     the then-Minister of Defence Jukic and the then-Chief of the HVO

10     Main Staff Roso.  Witness Bandic also spoke about this.  This is

11     transcript 38324.  Witness Jan Koet?  Also spoke about the investigation,

12     same document, P10092.

13             If we accept the standard set by the Trial Chamber in the Blaskic

14     judgement, we are going to see that the organs authorised to investigate

15     and process perpetrators of crimes were absolutely involved in relation

16     to Stupni Do.  Other than that, at that point in time, Petkovic was the

17     deputy chief of the Main Staff, and I just need a couple of more minutes

18     to discuss how Ivica Rajic changed his name to Viktor Andric.  Can we

19     please not broadcast this slide.

20             We can see from the following documents that on the 10th of

21     November, 1993, Mate Boban issued a statement that Rajic was relieved of

22     duty.  This is document P10255.  (redacted)

23     (redacted)

24     (redacted) This is transcript 24532 to

25     323 (as interpreted).  Witness Bandic told us that Mate Boban decided to

Page 822

 1     keep Rajic but under the name of Viktor Andric.  This is transcript page

 2     38306.  And now there's a series of documents - I mentioned just a few

 3     here - but there are numerous such documents showing that the entire

 4     political and military structure of Herceg-Bosna knew that Rajic had

 5     changed his name.  I apologise if somebody perhaps didn't even know that,

 6     but my client, Mr. Petkovic, did know that.

 7             And then what happened then with Ivica Rajic?  In April 1994

 8     again he changed his name to Jakov Kovac this time.  In 1995 Rajic was

 9     arrested but he was not charged for the crimes in Stupni Do, and finally

10     the Mostar Court acquitted Rajic.  All this evidence and there are more,

11     we can conclude that Milivoj Petkovic cannot be held responsibility

12     according to command responsibility for the theft in Stupni Do.  Simply

13     speaking, all his superiors were equally as informed about all events,

14     and the organs of Herceg-Bosna entrusted with the investigation and

15     processing of crimes were informed about everything.

16             The conclusion about this is that we feel that this ground should

17     be denied as groundless.

18             As for the third ground of appeal, just briefly, I really tried

19     and read the judgement a million times.  And in my view and according to

20     my reading of judgement, the Prosecution is not correct when they say

21     that my client was not convicted of wilful destruction, wanton

22     destruction, in these four locations.  In the left-hand column you see

23     which locations are dealt with here.  I also tried to give excerpts from

24     volumes 3 and 4, the paragraphs that refer to those crimes, and my

25     conclusion is that my client was punished.  Perhaps this is one more

Page 823

 1     proof of how hard it is to read this judgement.

 2             I think that I still have -- I just have five minutes, ah, ten

 3     minutes.  Ten minutes.  Then I can slow down a little bit.

 4             JUDGE AGIUS:  You are correct, you have ten minutes left.

 5             MS. ALABURIC: [Interpretation] Now I'm going to talk about the

 6     first ground of appeal, and I'm going to round off with the topic of

 7     Mostar and the sentencing.

 8             As for the first ground of appeal is concerned, the Prosecution

 9     stated correctly that there is a total lack of uniformity as far as

10     terminology is concerned.  We tried to determine when probability and

11     possibility standards are being used.  For our purposes here,

12     General Petkovic, we believe that the standard has been properly set and

13     established, and we believe that there is a lot of linguistic confusion

14     here and that in essence the real, proper standard was applied; and that

15     for this reason, this ground of appeal is without basis.

16             As for analysing the crime base in such a way that each

17     individual crime is separately analysed, we hope that as in the

18     judgements -- in the judgement case, paragraph 413 and Martic appeal,

19     paragraph 169, we believe that an analysis should be carried out on a

20     case-by-case basis.

21             I will skip a couple of sides now because I don't have sufficient

22     time.  We will continue at page 20.

23             I am very happy when I come across a situation where I can agree

24     with the Prosecution and thank them for something they have done for my

25     client, as I would like to do so now.  According to their ground of

Page 824

 1     appeal 1(g) under (f), they were of the belief that General Petkovic was

 2     convicted for destructing religious facilities under JCE 1, but it should

 3     have been under JCE 3.  Given the fact that this works in favour of my

 4     client, I would like to thank them; but we nevertheless believe that

 5     there is no ground for liability under any of these aspects.

 6             Given the fact that my learned friends concluded their

 7     presentation by showing video footage of Mostar, which is upsetting

 8     enough, I also wanted to conclude my presentation discussing the siege of

 9     Mostar, its destruction and the terror of civilians.  We can play the

10     footage now.  It is slide 21.  We do not want to diminish the importance

11     of any victim.  What we wanted to provide the Appeals Chamber with,

12     according to our view, is a full picture of events.  All of these people

13     were protected witnesses, meaning that the transcript provided here is

14     also protected.  These three witnesses, Your Honours, were the

15     representatives of the international community:  Witnesses BB, BA, and

16     BC.  If you look again at what they said on the topic, we can see that

17     they established that the civilians could and wanted to leave East Mostar

18     but were not allowed by their authorities, the statements of these three

19     witnesses are identical.  They also referred the Bench to their reports.

20     In other words, they were aware of the situation, i.e., that the

21     civilians wanted to leave East Mostar.

22             We also wanted to specify a couple of Army of BiH documents,

23     meaning the people from their hierarchy who were placed there

24     East Mostar.  Document 4D719 is dated the 14th of October, 1993.  It is a

25     report by the commander of the ABiH.  He said that transporting the

Page 825

 1     civilian population presents a great problem as well as the transport of

 2     others leaving in the direction east and --

 3             THE INTERPRETER:  Interpreter's correction:  North and south of

 4     Mostar.

 5             MS. ALABURIC: [Interpretation] -- this was in October of 1993.

 6     The Army of Bosnia-Herzegovina wanted the civilian authorities to assume

 7     the proper role and take responsibility for transport of civilians.

 8             The next document is 4D545, an excerpt from Esad Sejtanic's book.

 9     He was an ABiH commander.  He literally wrote as follows:

10             "Many inhabitants want to go to Jablanica and further afield to

11     Bosnia.  By repressive measures regrettably, we prevented the outflow of

12     population and reduced any movement of population to a minimum."

13             Your Honours, we wanted to show you this, so as to keep in mind

14     that the situation in Mostar was not only the consequence of operations

15     conducted by the HVO.  The ABiH was very much active in the area at that

16     time as well.  As can you see, civilians remained in East Mostar, also

17     because the authorities in that part of town would not allow them to

18     leave.  Believing, Your Honours, that we managed to show that in the

19     first half of 1993 there were no mass movements of Muslims and that no

20     crime committed during that time can be reasonably concluded as a crime

21     having being committed with the idea of furthering the plan of ethnic

22     cleansing, and given that in mid-1993 there was an all-out war between

23     the HVO and the ABiH, and that the so-called siege of Mostar and the

24     plight of civilians came as a result of not only HVO actions but those of

25     the ABiH as well, primarily because they prohibited the civilians to

Page 826

 1     leave East Mostar - bearing all that in mind, as we specified in our

 2     submissions, we believe that my client's sentence, the sentence of

 3     General Petkovic, is not unreasonable or unjust from the point of view as

 4     discussed by the Prosecution.  It should not be increased.  It should

 5     either be reversed, rejected, or drastically reduced.

 6             Thank you very much.  I believe I have run out of time.

 7             JUDGE AGIUS:  Thank you, Madam.  We will have an hour-and-a-half

 8     break instead of the one hour that was communicated to you.  So we will

 9     resume at 15 minutes past 2.00.

10                           --- Luncheon recess taken at 12.47 p.m.

11                           --- On resuming at 2.16 p.m.

12             JUDGE AGIUS:  So thank you.  Mr. -- Defence for Mr. Coric, you

13     have 30 minutes.

14             MR. IVETIC:  Thank you, Mr. President.  Good afternoon,

15     Your Honours.

16             At this time we would like to try to utilize that time-period

17     which we have as efficiently as possible.  Since we already addressed the

18     Prosecution's ground 1A last week in -- at some great length in response

19     to Your Honours' questions, I believe it was question 10, we will not be

20     spending more time on that today repeating those same arguments.  Instead

21     we will focus more on the remaining grounds of the Prosecution appeal.

22             We also announce that we stand behind our written submissions

23     such that we are not conceding anything -- any topic that is in our

24     written submissions which we do not get to discuss in open court today

25     due to the time.

Page 827

 1             In essence, the Prosecution appeal presented in its brief and

 2     today presents several grounds seeking an increase of a sentence which we

 3     believe is already manifestly in excess and unjust given the

 4     circumstances.  The Prosecution relies upon Mr. Coric's position and

 5     alleged acts and omissions to allow a climate of impunity, and we submit

 6     that when viewed under the totality of the evidence as the trial --

 7     pardon me, as the Prosecution even asked Your Honours to do at temporary

 8     transcript page 12, lines 14 to 25, as to Coric, we believe that under

 9     that totality the conclusions of the Prosecution are wrong as to

10     Mr. Coric.

11             I will just say a few words about subground 1B of the Prosecution

12     appeal.  The Prosecution claims that the Trial Chamber disregarded

13     Prosecution evidence and thus wrongfully acquitted Mr. Coric of certain

14     incidents.  However, the Prosecution has failed to show what evidence was

15     alleged to be in existence which was disregarded and which showed that

16     Coric knew of the commission of crimes and that he was involved in the

17     crimes and that he also knew that they were not being punished or

18     processed by the relevant investigative or judicial entity.  To the

19     contrary, a review of the judgement and the underlying evidence

20     demonstrates that it was Defence evidence on this matter that was not

21     engaged and properly analysed by the Chamber and which now must be

22     analysed in light of the Prosecution's appeal.

23             At paragraph 29 of our response to the appeal, we have detailed

24     certain evidence that the Trial Chamber disregarded from the Defence,

25     including court registers of hundreds of criminal reports filed by both

Page 828

 1     the military and civilian police against perpetrators of crimes against

 2     Muslim victims.  Now you may ask why is that important.  Let me bring

 3     that to your attention.

 4             Today at temporary transcript page 4, we heard the Prosecution's

 5     very emotive rendering of the events surrounding the tragic death and

 6     murder of Sanida Kaplan.  And I apologise if the pronunciation of the

 7     name is off, I'm not sure exactly if it is Kaplan or Kaplan, but that is

 8     the individual at issue.  I would direct Your Honours to the evidence in

 9     the case, P9550, 5D4234, P -- pardon me, 5D4236.  These are precisely

10     court proceedings, indeed judgements, that have been entered against the

11     perpetrators of the crimes relating to the Kaplan family entered by the

12     appropriate organs in BiH.  And furthermore, if one reads those

13     judgements, you will see that the judicial authorities after the war cite

14     to and are greatly assisted by criminal reports and other documents that

15     date from 1993 that are precisely part of these court registers that the

16     Defence has been talking about that were transferred to the relevant

17     judicial organs to complete the investigative work that had been

18     accomplished by the police filing criminal reports against perpetrators.

19     And that is the -- the register we've been talking about is 5D4288.  We

20     have discussed it at length.  This is a large number of proceedings for

21     crimes against persons of all ethnicities.

22             So, Your Honours, we submit that the Prosecution was not entirely

23     correct this morning when they left Your Honours with the impression that

24     justice would be denied to the Kaplan family if these acquittals of

25     Mr. Coric were to stand.  Indeed, justice against the actual persons who

Page 829

 1     committed the crimes has already been undertaken by the organs at issue.

 2     And there's been no linkage to any acts or omissions of Mr. Coric.

 3             Thus, we submit, the Prosecution appeal has no merit if we

 4     consider this bulk of evidence that supports the proper processing of

 5     criminal reports by both the military and civilian police, and,

 6     therefore, the acquittal of Coric should be for even more crimes than

 7     those that the Trial Chamber acquitted him of.

 8             Given the presumption of innocence and the requirements of in

 9     dubio pro reo and given that the Prosecution bears the burden of proof,

10     we believe that any error made by the Chamber needs to be again evaluated

11     by this Appeals Chamber under the light of those same principles, and in

12     that sense, the Prosecution ground cannot be sustained.

13             I would move to ground 2 of the Prosecution's appeal relating to

14     Article 7(3) responsibility.  Your Honours have read in regards to

15     ground 2 of the appeal that the Prosecution focuses this ground on their

16     brief that Mr. Coric had effective control over military policemen and

17     that he was an architect, as they say in paragraph 404 of their appeal,

18     of the HVO network of detention centres.  And we've heard a lot today

19     about this network of HVO detention centres.  In fact, I was able to mark

20     down at least at temporary transcript page 32 and 36 that the Prosecutor

21     relied upon that network today.

22             And they claim that Mr. Coric failed to do anything to punish or

23     prevent crimes.  This morning, Your Honours, at temporary transcript

24     page 17, they claimed that Mr. Coric, among others, had knowledge of

25     crimes, and then at temporary transcript page 14, they said he did not

Page 830

 1     take steps to curb criminality.  We believe that the evidence and the

 2     incidents that the Prosecution relies upon do not support this

 3     conclusion.  And as an example, one incident relied upon by the

 4     Prosecution in its appeal brief, and they use this for both JCE 3 and

 5     7(3) liability of Mr. Coric, is the 14 July 1993 incident involving the

 6     killing of one and the wounding of two detainees at Dretelj.  And this is

 7     at Prosecution appeal brief, paragraph 279, and 317 through 321.

 8     However, if the facts of the same are review -- are dilated upon, it is

 9     clear that no 7(3) command responsibility nor other criminal liability

10     can be attributed to Mr. Coric.  And, again, Dretelj was mentioned at

11     temporary transcript page 20 today, albeit in a general sense as to

12     another appellant.

13             Now, in the Prosecution's appeal, they rely upon P3446 in

14     footnote 1016 for this ground.  But that document, from the commander of

15     the military police stationed at Dretelj, claims as to the perpetrator, a

16     Mr. Vulic, a military policemen who shot the inmates as follows:

17             "After giving a statement was then relieved of his duty as

18     military policeman, crime investigators will conduct a more detailed

19     investigation about all of this."

20             That's what the document the Prosecution relies upon says.  It is

21     clear from such a report that Mr. Coric as chief of the military police

22     administration was informed that after a shooting incident, all necessary

23     and appropriate steps foreseen under the law were taken by the

24     authorities, indeed by the superior officer of the perpetrator, who had

25     possibly committed a crime and that steps were under way by the

Page 831

 1     investigative organs to determine the consequences of the same.

 2             There was no reason for Mr. Coric to doubt that all appropriate

 3     investigative and disciplinary procedures, including legal steps, would

 4     be taken according to the relevant authorities after having received that

 5     report.  Thus, Coric could not be put on notice of any crime for which he

 6     needed to intervene to punish or discipline himself.  Indeed, we have

 7     other evidence, P3476, and a Prosecution protected witness who testified

 8     at 22401 to 22402 as to appropriate steps that were taken against the

 9     perpetrator of this shooting.

10             Now, under the prevailing ICTY jurisprudence, where reports were

11     made to the appropriate authorities by subordinates of the accused for

12     the institution of disciplinary matters, the accused has discharged his

13     duty and cannot be held criminally responsible under Article 3.  We have

14     that from the Boskoski and Tarculovski trial judgement, paragraph 536.

15     Further, we have from the Popovic appeals judgement, paragraph 1942, that

16     the use of disciplinary measures may be sufficient for a superior to

17     discharge his duty to punish crimes under Article 7(3).

18             As we stressed last week and as we stress again here today,

19     neither Coric nor the military police could undertake steps once a

20     criminal investigation and criminal report were submitted to the relevant

21     judicial organs to follow through on the initial disciplinary actions of

22     military policemen who may have committed crimes.

23             Contrary to what the Prosecution presents in their appeal, Coric

24     had no effective control over military policemen at Dretelj and Gabela

25     military remand prisons which were under the effective command and

Page 832

 1     control of the 1st Knez Domagoj Brigade and its commander, Obradovic.  We

 2     see that at P3731, P4253.

 3             The evidence shows the sole duty of the military police battalion

 4     within Dretelj was to assist the HVO brigade in security issues under the

 5     command of the brigade commander and to report on eventual criminal

 6     incidents connected to murders of the military police.  The evidence

 7     shows the military police administration did not have and Mr. Coric did

 8     not have authority nor influence over the conditions of detention at

 9     these two facilities.

10             Now, this relates to what the Prosecution said today at temporary

11     transcript page 17 and 14 as to steps not being taken by Coric to curb

12     criminality.

13             In our response brief to the Prosecution appeal, at paragraphs 52

14     and 81 through 83, we showed the variety and multitude of steps that

15     Mr. Coric undertook, his many efforts to try to positively affect

16     conditions in Dretelj despite his lack of authority over the same, by

17     addressing various higher organs.  We will not repeat those submissions

18     here today, but, rather, would refer Your Honours to look to those

19     sections of our response brief and consider those paragraphs and consider

20     those efforts of Coric when assessing whether the Prosecution's claim, as

21     presented today, bears merit or, as we submit, does not bear merit.

22             We submit that no Article 7(3) command liability can attach to

23     Mr. Coric for failing to take actions within his limited powers,

24     especially under the existing evidence on record.  And, again,

25     Your Honours at temporary transcript page 10, lines 10 through 19, and

Page 833

 1     temporary transcript page 12, lines 14 to 25, Madam Prosecutors asked

 2     that the Trial Chamber needed to look at the totality of the evidence.

 3     We believe if Your Honours look at the totality of the evidence, you will

 4     agree that Mr. Coric cannot bear criminal responsibility for these

 5     incidents.

 6             Now, again, as an extension of this same point and again

 7     responding to paragraph 404 of the Prosecution's appeal wherein Mr. Coric

 8     is named as an architect of this network of detention centres which was

 9     mentioned today at least two or three times, I have temporary transcript

10     pages 32 and 36 written down, and today also the Prosecution said that

11     the Trial Chamber erroneously acquitted Mr. Coric despite having made

12     findings that he should have been found guilty of.  Well, if we use this

13     same standard to review the trial judgement, the Defence submits that

14     exculpatory findings and contradictory conclusions of the Trial Chamber

15     are made as to Coric in finding him guilty.  We would point out, among

16     other things, the following.

17             Volume 4, paragraphs 905, 916, 1421, 1428 of the judgement,

18     wherein Coric never restricted access to representatives of international

19     organisations when requested.  This doesn't fit into the Prosecution's

20     scenario as presented today.  Therefore, their appeal cannot stand.

21             Next, volume 4, paragraph 955, the Trial Chamber found that Coric

22     was not informed of mistreatment and had no reason to believe detainees

23     were mistreated.  This also does not support the Prosecution appeal

24     today.

25             Volume 2, paragraph 1470, finding that beginning October 1992,

Page 834

 1     there is no evidence that detainees were sent to perform labour with

 2     Coric's approval.

 3             Volume 2, paragraph 1612, 1617, 1633, that neither the military

 4     police administration nor the military police were involved in any

 5     incident inducing the alleged mistreatment of detainees working in the

 6     front lines.

 7             We believe that Your Honours should also look at the

 8     contradictory finding of the Trial Chamber at volume 2, 1446, insisting

 9     that Coric ordered release of detained persons upon letters of guarantee

10     despite confirming that no such orders existed in evidence.  And we would

11     also point to the --  volume 4, paragraph 960 to 961, that restrictions

12     or obstructions to access to the detention centres could not be said to

13     be ordered by Coric.

14             And just two more.  Volume 4, 897, 899, and paragraphs 955, 957,

15     962, 985, 988, 1018, that demonstrate that Coric lacked access to reports

16     about prison conditions.  Again, this does not support the version of

17     events that the Prosecution has presented as part of their appeal today.

18             And lastly, in this regard, volume 4, 904, the finding that Coric

19     was not involved in health matters or logistics for the prisons which,

20     again, goes contrary to the Prosecution's appeal.

21             Respectfully, if the Prosecution wishes to look at the

22     Trial Chamber's errors, it must concede that these errors apply to the

23     convictions of Mr. Coric as to detention facilities.  Thus, we believe

24     that to grant the Prosecution appeal one would have to ignore these other

25     inconsistencies and these false convictions which would thus lead to a

Page 835

 1     miscarriage of justice.

 2             As to ground 3 of the Prosecution's appeal, I think we have been

 3     rather clear and succinct in our response brief and therefore we stand

 4     upon what is written therein and direct Your Honours to consider the

 5     same.

 6             I then move to ground 4, sentencing.  And Your Honours have heard

 7     today from the Prosecution that these sentences, and in particular the

 8     sentence against Mr. Coric, were manifestly insufficient or inadequate.

 9     I have recorded down at least four times when that was said.  Temporary

10     transcript page 26, 27, 31, and 32.

11             Your Honours, Mr. Coric received a 16-year sentence.  In

12     paragraph 137 to 140 of our response brief, we have pointed out that this

13     sentence is indeed in excess of the maximum sentence that was available

14     to be issued under the existing SFRY and SRBiH law at the time of the

15     alleged offences that formed the conviction.  Thus, it is inappropriate

16     to call such a sentence "manifestly insufficient."

17             And I know although the Tribunal has decided that it is not bound

18     by the SFRY sentencing provisions, we would draw Your Honours' attention

19     to international law and the principle of nullum crimen sine lege, nulla

20     poena sine lege.  The law in force at the time of the commission of the

21     crimes alleged was the 1976 Criminal Code which remained authoritative in

22     BiH until after the year 2000.  It dictated that war crimes were to be

23     punished by imprisonment that falls within five to 15 years or by the

24     death penalty for most crimes, but the death penalty was abolished and

25     substituted by the possibility to impose a 20-year term.  You can see

Page 836

 1     this from Articles 38, 142 and 37 of the relevant law.

 2             The prohibition on retroactivity inherently implies a prohibition

 3     on the retroactive application of the lex gravior, i.e., the more severe

 4     penalty.  Consequently, it is unlawful to impose a heavier penalty which

 5     did not exist at the material time of the commission of the crimes and

 6     the lesser sentence should be applied as per the favor libertatis

 7     principle.  Now, Your Honours, that's not just a submission of the

 8     Defence.  That is a holding of the European Court of Human Rights in

 9     Maktouf and Damjanovic v. BiH, page 11.  The principle of legality and

10     its corollary nulla poena sine lege inherently imply a prohibition on the

11     application of a more stringent penal code than that which existed at the

12     time of commission.  We submit that the prohibition on retroactivity is

13     part of customary international law and a preemptory norm of

14     international law permitting no derogations.  That's what the European of

15     Court of Human Rights in Maktouf and Damjanovic v BiH said at page 46.

16             So thus in dealing with the same issue --

17             JUDGE AGIUS:  You have four minutes left, Mr. Ivetic.

18             MR. IVETIC:  Thank you.

19             In dealing with the same issue, an application of the 2003 BiH

20     Criminal Code instead of the 1976 SFRY one, the European Court of Human

21     Rights found that it was a violation to apply the newer law which had

22     more stringent sentences than the prior law.  Under such a backdrop, this

23     sentence against Mr. Coric cannot be found manifestly inadequate.  For

24     this reason alone we would ask that Your Honours should not increase the

25     sentence but should lower the same.  But we have also addressed other

Page 837

 1     arguments in our response brief which I will not take the time to go

 2     through in detail but we believe each of them calls for a reduction in

 3     sentence or indeed no sentence, not an increase, irrespective of whether

 4     you accept the argument and holding of the European Court of Human

 5     Rights.

 6             Today Madam Prosecutor mentioned several other ICTY cases.  We

 7     have already dealt with those in paragraphs 129 through 133 of our

 8     response and stand on those submissions.  We also join in the submissions

 9     made today by Mr. Ellis of the Stojic Defence as to sentencing and will

10     not repeat the same.

11             We saw a very emotive video today.  And war, unfortunately, leads

12     to victims and it leads to emotions, and we believe that Your Honours

13     should view the law, view the facts absent emotion and should judge based

14     upon the evidence that we believe shows that Mr. Coric, from his

15     position, tried to act as an honourable police enforcement official,

16     first at the military police administration and later at the civilian

17     MUP, and he tried to prevent crimes and bring perpetrators to justice by

18     way of filing criminal reports and taking other steps.  And, therefore,

19     we reject the Prosecution's appeal that he should be convicted and that

20     his sentence should be further increased.

21             Thank you, Your Honours.  I hope that I have stayed within my

22     time-limits.

23             JUDGE AGIUS:  You did, Mr. Ivetic, and I thank you.

24             It is now the turn of the Defence team of Mr. Pusic.  Are you

25     comfortable there, Mr. Sahota, or do you wish to come in front?

Page 838

 1             MR. SAHOTA: [Microphone not activated]

 2             JUDGE AGIUS:  All right, okay.  Go ahead then.  You have

 3     30 minutes starting from now.

 4             MR. SAHOTA:  Your Honour, I intend now to address you on the

 5     aspects of the Prosecution's appeal which directly impinge and are

 6     relevant to my client Mr. Pusic.  As we tried yesterday, we will take the

 7     same approach.  We will endeavor to accept points made by the Prosecution

 8     where that's appropriate, we will endeavour to adopt submissions made by

 9     other parties where that is appropriate.

10             The theme of our submissions yesterday was that Mr. Pusic was not

11     a high-level official and was a -- one of the accused that should be

12     treated differently.  And one way we say that point is reinforced in

13     these appeal proceedings is that he is the only defendant who was not

14     convicted of JCE 3, and it follows that he is the only defendant for

15     which the Prosecution say the Trial Chamber's decision should be reversed

16     and his acquittals reversed.

17             Your Honours, I'll start by addressing with you on ground 1 of

18     the Prosecution's appeal brief.  Very briefly, I would touch on the

19     propositions made as to the correct mens rea standard for JCE 3.  In

20     short, we say that the position adopted by the Prosecution is erroneous.

21     We're not going to rehearse the points made earlier today by the Stojic

22     Defence.  We will simply say that the test of foreseeability that this

23     Chamber should adopt and the Trial Chamber should have implemented, did

24     implement, we say, involves a subjective element.  The Court has to

25     consider the possibility that the crime could have been committed as

Page 839

 1     sufficiently substantial so as to be foreseeable to the accused based on

 2     the information available to him.

 3             Your Honours, two points arise from that statement of the law.

 4     Firstly, as articulated by the Stojic Defence earlier today, the

 5     threshold is not so low as just to trigger criminal liability on the

 6     basis that the accused should have seen a certain event was possible.

 7     The second point that arises is that the foreseeability test should be

 8     individually tailored to the accused.  There are individually specific

 9     factors that should be considered, including, and not just limited to,

10     the location of the accused at any point during the time on the

11     indictment.  Your Honours, we intend to apply that individual --

12     individually tailored, specific foreseeability test to the evidence that

13     is cited by the Prosecution as, in their opinion, establishing

14     Mr. Pusic's guilt for deviatory JCE 3 crimes.

15             Your Honours, at this juncture I would also ask you to note what

16     is also accepted as the law on JCE 3, that depending on the information

17     available to accused, what may be foreseeable to one accused as a member

18     of the JCE may not be foreseeable to another.  Applying that -- the

19     correct test, we say there is nothing wrong with the Trial Chamber's

20     findings.  We say that the fact that Mr. Pusic was acquitted of all JCE 3

21     crimes should not be interfered with.

22             Your Honours, this morning you heard the Prosecution make

23     reference to 33 individual JCE 3 findings where the Prosecution's

24     position is that the Trial Chamber failed to provide a reasoned opinion.

25     I will refer to these as the remaining crimes and they're the crimes

Page 840

 1     which are addressed by the Prosecution in their appeal brief at pages 112

 2     to 116.  We say what explains the Trial Chamber's decision to acquit

 3     Mr. Pusic of all these JCE 3 crimes is the paucity of evidence linking

 4     him to these events.  The Chamber made very limited findings, often it

 5     made no findings at all, in relation to Mr. Pusic's responsibility for

 6     these matters because there was no evidence connecting him to these

 7     events.  They certainly didn't find any evidence of any link between

 8     Mr. Pusic and the perpetrators of these 33 JCE 3 crimes.

 9             Your Honours, nonetheless, it's the position of the Prosecution

10     that Mr. Pusic should be liable under the JCE 3 theory for these

11     deviatory acts, these individual wayward actions outside the shared

12     intent.  Your Honours, I would ask the Appeals Chamber to reflect on

13     whether that can be right as a proposition of facts applied to the law.

14     When you have heard what we've said about Mr. Pusic's role, he's

15     different, when you've heard what we've said about Mr. Pusic's powers and

16     the inconclusive evidence as to the extent of those powers, is it really

17     correct that despite there being any evidence linking him to the

18     perpetrators of these crimes in most of these 33 different instances,

19     that those crimes should have been foreseeable to him?  Is this a finding

20     that can properly be made to the criminal standard beyond a reasonable

21     doubt?

22             Your Honours, I'll turn now briefly to other crimes which are

23     more specifically addressed by the Prosecution at subground 1A(ii)

24     and (iii), pages 110 to 111 of the Prosecution's appeal brief.  In these

25     instances there are slightly more detailed factual findings that the

Page 841

 1     Prosecution is in a position to address.  When we examine these specific

 2     factual findings, we say that the Appeals Chamber should decide that the

 3     Trial Chamber rightly held that they did not warrant a conviction under

 4     JCE 3.

 5             Turning, first of all, to the Prosecution's appeal concerning the

 6     crimes that led to the destruction of the mosques in Sovici and Doljani,

 7     page 110 of their appeal brief, applying the individually tailored

 8     foreseeability test, noting that the offences in question took place in

 9     the same month the Chamber found that Mr. Pusic joined the JCE.  We're

10     talking about April 1993.  Noting that the evidence that is cited by the

11     OTP merely shows that Mr. Pusic learned of the destruction of the mosques

12     ex post facto after the event.  After the event.  Your Honours, that, we

13     would suggest, is not on its own or taken with other evidence of context

14     sufficient for any court to decide that that crime would have been

15     foreseeable to him.

16             Moving on to the Prosecution's submissions concerning Vojno.

17     This is ground 1A(ii), paragraphs 250 to -1 of the Prosecution's appeal

18     brief.  The Prosecution's position is that Mr. Pusic should be convicted

19     applying JCE 3 liability of the killing of a detainee at the Vojno

20     detention centre.  They similarly rely on the fact that he knew about

21     this killing, but the position is that he only learnt of this fatality

22     many months after the event.  Your Honours, we say that whether you look

23     at that evidence on its own or if you look at it taking into account

24     globally what the Prosecution say about his role, what the findings are

25     on JCE 1, it does not justify a finding that that particular fatality

Page 842

 1     would have been foreseeable to him applying the individually tailored

 2     foreseeability test.

 3             Your Honours, in respect of both these incidents, the Prosecution

 4     place great emphasis on the general evidence of Mr. Pusic's knowledge,

 5     his role, his powers, all the facts related to his conviction under JCE

 6     1, and there are large tracts from the Trial Chamber's decision that are

 7     cited in the reasoning provided by the Prosecution.  Your Honours, what

 8     they ask is that you should make a specific finding that these crimes

 9     were foreseeable to Mr. Pusic based largely on general evidence that

10     these crimes were foreseeable.  Your Honours, in summary, our position is

11     that there is an insufficient basis, an insufficient basis in logic and

12     an insufficient basis in law upon which this Chamber should impute

13     criminal responsibility applying JCE 3 to Mr. Pusic for these extended

14     and deviatory crimes.

15             We say that what the Prosecution is effectively inviting you to

16     do is to adopt what my learned friend for Mr. Stojic called this morning

17     an open-ended foreseeability test.  What they are asking you to do is to

18     apply too low a threshold for finding intent.  If you choose to adopt

19     this course of action what in effect will be happening is that the

20     Chamber will be casting the net so wide insofar as determining liability

21     for deviatory crimes that JCE theory as applied in this case would

22     achieve the opposite effect of what was intended by the Tadic Appeal

23     Chamber.  Your Honours, I'll refer you to a quite famous quote from the

24     Tadic appeal judgement, I'm sure you're familiar with it.  I'm sure it's

25     been rehearsed before you on many occasions.  Paragraph 428:

Page 843

 1             "... joint criminal enterprise is not an open-ended concept that

 2     permits convictions based on guilt by association."

 3             Your Honours, in regard to this specific limb of their appeal,

 4     ground 1, we say the Prosecution have failed to eliminate reasonable

 5     doubt that these deviatory crimes were foreseeable to Mr. Pusic, a

 6     low-ranking HVO official, which is all the evidence shows.

 7             I'm going to conclude very quickly by briefly addressing you on

 8     ground 4.  Your Honours, the Prosecution asked you to enhance the

 9     sentence that was imposed by the Trial Chamber of ten years imprisonment.

10     They do not -- and I adopt the submissions of the Stojic Defence, I think

11     what was said this morning applies equally to Mr. Pusic.  We do not

12     accept that they have failed to identify any material error on the part

13     of the Chamber in the approach that was adopted when to came to

14     determining sentence.  We also adopt what was said about the Trial

15     Chamber's -- the Prosecution's failure to demonstrate that the sentence

16     imposed is manifestly unfair or plainly unjust and meets the criteria set

17     out in the Galic appeals judgement.  What a reading of the Prosecution

18     appeal brief really demonstrates is their unhappiness and discontent at

19     the sentences imposed in general.

20             Your Honours, the Prosecution asked that Mr. Pusic's sentence be

21     enhanced because they claim that the sentence does not reflect his degree

22     of participation in the JCE.  You heard yesterday what they had to say.

23     They claimed that he a key role in detention centres.  They claim that he

24     had a key role in releases and evacuations of prisoners despite the fact,

25     we say, that there was evidence adduced that was ignored in the

Page 844

 1     Trial Chamber's decision that these orders were made by others higher up

 2     the food-chain and also that these evacuations and releases often took

 3     place with the involvement of organisations such as the ECMM and the

 4     ICRC.

 5             Your Honours, I will conclude by saying this.  The Prosecution

 6     asked for a sentence of 20 years to be substituted for the sentence

 7     imposed by the Trial Chamber.  Our simple reply is this, that this would

 8     be wholly and unjustifiably disproportionate in the circumstances based

 9     on the evidence that is before you and is referred to in detail in the

10     Trial Chamber's decision.

11             For these reasons, Your Honours, we ask that the Appeals Chamber

12     dismisses the arguments advanced in the Prosecution's appeal insofar as

13     they impact on Mr. Pusic.

14             Thank you.

15             JUDGE AGIUS:  Thank you, Mr. Sahota.

16             That brings us to the Prosecution.  You have 30 minutes,

17     Ms. Baig.

18             MS. BAIG:  Good afternoon, Your Honours.

19             JUDGE AGIUS:  Good afternoon.

20             MS. BAIG:  Just for the record, I would like to mention that we

21     have been joined by an additional colleague, Ms. Sarah Houlihan.

22             In his arguments this morning, counsel for Mr. Stojic falls into

23     the same trap as the Trial Chamber by favouring location-specific factors

24     at the expense of factors that show that Stojic was well aware of the

25     nature and scale of the common criminal purpose.  Stojic's foresight of

Page 845

 1     JCE 3 crimes does not depend on any municipality-specific factors that

 2     the Defence have alluded to this morning.  This argument is supported

 3     neither by the facts nor the law.  The law is clear that an accused's

 4     foresight of possible JCE 3 crimes depends on the totality of the

 5     circumstances surrounding the implementation of the common purpose.  And

 6     the accused's participation in it.  And that's Sainovic appeals

 7     judgement.  It does not support a compartmentalised location-specific

 8     approach.  None of the factors set out in the prior jurisprudence of this

 9     Tribunal, none of those indicators are location specific.  None require

10     the ability to predict where and when the JCE 3 crime might occur.  And

11     on the facts, the Defence has not pointed to anything that would support

12     assessing Stojic or any of the other respondents' ability to foresee JCE

13     3 crimes based only on their knowledge and involvement in a specific

14     municipality in question.  To the contrary, Your Honours.  Each of the

15     respondents shared a common purpose to commit a consistent pattern of

16     crimes across Herceg-Bosna in order to render this territory ethnically

17     homogeneous.  And each of them played a role in the JCE that related to

18     its implementation across Herceg-Bosna territory.

19             Stojic, I would remind you, was the head of the Defence

20     Department for the Herceg-Bosna government.  And from this senior

21     position, he was found to have played a key role in implementing the

22     common criminal purpose throughout Herceg-Bosna territory.  For Stojic,

23     just as for the other respondents in light of the central roles that they

24     played, it would make no sense to assess their ability to foresee the

25     possible commission of JCE 3 crimes based only on their knowledge and

Page 846

 1     involvement of crimes in a particular municipality where the crimes

 2     occurred.

 3             Counsel also falls into the trap of focusing on actual knowledge

 4     of past crimes which is not required for joint criminal enterprise 3

 5     liability.  But where actual knowledge or notice does exist as it does in

 6     many instances in this case, it is certainly relevant.

 7             And there were reports that were personally addressed to Stojic.

 8     And to give you just one more example in addition to Siljeg's report,

 9     Exhibit P2770.  And you heard about this report last week.  It was sent

10     to Stojic on 14 June 1993.  It contained information about rapes,

11     forcible moves into apartments, beatings, and "indications of new murders

12     of civilians" that accompanied eviction operations in West Mostar.

13     That's notice before all but two of the JCE 3 murder incidents that the

14     Prosecution has appealed.  It is information about rapes prior to any of

15     the incidents of sexual violence that the Prosecution has appealed.  And

16     that's information about theft before all but one of the JCE 3 incidents

17     that the Prosecution has appealed.

18             With regard to a few matters raised by the Petkovic Defence.  In

19     relation to the number of Dretelj detainees for my argument on ground 2,

20     the Defence is correct:  In ground 2, the Prosecution is requesting that

21     Petkovic be convicted for the murder and wilful killing of six rather

22     than four detainees at Dretelj prison.

23             And with regard to the thefts in Stupni Do.  The Defence's list

24     of measures taken in response to thefts and other crimes in Stupni Do

25     ignores how Petkovic covered up these crimes by instructing Rajic to

Page 847

 1     conduct a sham investigation, as Mr. Schneider discussed last week.  Nor

 2     could Petkovic rely on others to take measures to address these crimes,

 3     as the Defence has argued today, given his awareness that Boban and

 4     others were also trying to protect Rajic.

 5             As the Appeals Chamber has held in other cases, a superior cannot

 6     rely on a particular measure if he know it is likely to trigger a sham

 7     investigation.  And I'd refer you to Boskoski appeals judgement

 8     paragraph 234.  And that's exactly what happened here.

 9             And just to clarify one further point about Petkovic's authority

10     at the time he received the ICRC letter, P7636.  At that time Petkovic

11     was the deputy chief of the HVO Main Staff, and as Mr. Schneider

12     explained last week, at that time he retained his effective control over

13     HVO forces.  Exhibit 4D1614 cited by the Defence today does not undermine

14     the Chamber's findings on this point.

15             With regard to submissions on behalf of Mr. Coric.  First

16     concerning the convictions in relation to the Kaplan murder and the

17     crimes at that time in the same village, the two documents that Coric's

18     Defence has referred to relate to criminal proceedings in 1997 and 2004.

19     The Chamber addressed the issue of the filing of criminal reports at

20     volume 1, paragraphs 918 and 919, and volume 4, paragraphs 880 and 882,

21     and properly found that Coric failed to address crimes including eviction

22     and detention-related crimes.

23             Your Honours, what is important here is that the fact that

24     there's an investigation and potentially even criminal responsibility

25     later does not affect -- does not tell us anything about a particular

Page 848

 1     accused's ability to foresee that the crimes would have occurred in the

 2     first place.  So this sort of action taken long after the fact tells us

 3     nothing about the foreseeability of the crimes.

 4             And at temporary transcript page 85, in relation to Heliodrom,

 5     Coric's counsel has again claimed that "the Chamber even found Coric was

 6     not informed of mistreatment and had no reason to believe detainees were

 7     mistreated."

 8             Again, the paragraph that he cites, volume 4, paragraph 955,

 9     finds the opposite.  And I quote:  "Valentin Coric had reason to believe

10     that the Heliodrom detainees were being mistreated during detention."

11             That's clear in both the English and the French versions of the

12     judgement.

13             Finally, Coric has claimed that he took adequate steps upon

14     learning of the killings in Dretelj in 1993.  We've set out our response

15     for this, for example, in the Prosecution's response brief, at

16     paragraph 183.  In particular, where he claims to have raised this issue

17     at the 19 July 1993 government session.  None of the witnesses who

18     testified about this session mentioned Coric being there and the minutes

19     contain nothing to indicate that he was there.  That's P3560.

20             For the more general argument, I would point you to Prosecution's

21     reply, paragraph 129 and 131.

22             Concerning the lex mitior point as the Appeals Chamber held in

23     Dragan Nikolic sentencing appeals judgement at paragraph 81, the

24     principle of lex mitior only applies if a law that binds the

25     international Tribunal is subsequently changed to a more favourable law

Page 849

 1     by which the international Tribunal is also obliged to abide.

 2                           [Prosecution counsel confer]

 3             MS. BAIG:  Your Honours, a number of respondents have sought to

 4     draw comparisons between our appeal and their respective appeals and

 5     claimed that our appeals arguments support their appeals arguments.

 6     There is no meaningful parallel between our grounds of appeal and the

 7     Defence appeals and our arguments do not support theirs.

 8             In terms of compartmentalisation, we've argued that the Chamber

 9     erred in law in one discrete area of analysis on JCE 3 liability.  We

10     pointed out that the Chamber did not take into consideration plainly

11     relevant findings and evidence because it erroneously considered that

12     these findings and evidence were legally irrelevant to its analysis.

13     There is no analogous Defence appeal.  The Prosecution's arguments on

14     compartmentalisation focus on the specific issue of the Chamber's overly

15     restrictive application of the JCE 3 standard.  None of the respondents

16     have pointed to a legal error of this nature.

17             Likewise, where we argue that the Chamber made errors of

18     omission, we are pointing to areas where the Chamber neglected to conduct

19     any adjudication, where responsibility for crimes was left wholly

20     unadjudicated or, in the case of ground 3, where the Chamber omitted to

21     enter convictions due to oversight in its cumulative conviction analysis.

22     There is no corresponding Defence argument, and here again our grounds of

23     appeal do not support the Defence appeal arguments.  The omissions in the

24     judgement we've pointed to bear no relationship to the Defence claims.

25     The gaps in the adjudication bear no relationship, for example, to

Page 850

 1     Defence arguments that a tangential issue was not discussed to the extent

 2     that they would have preferred or that isolated pieces of evidence were

 3     not explicitly discussed.

 4             In making its factual findings on the existence of the joint

 5     criminal enterprise and the intent and the contributions of the

 6     respondents, the Chamber considered all of the evidence, including the

 7     Defence evidence and the Defence witnesses, making numerous express

 8     findings on the credibility and probative value of the parties' evidence.

 9     As was clear in the Defence submissions, they disagree with the

10     Trial Chamber's findings, but those findings are reasonable and based on

11     a thorough review of the evidence.

12             Your Honours, if you'll just give me a moment to consult.

13                           [Prosecution counsel confer]

14             MS. BAIG:  Your Honours, before I conclude, I have one small

15     housekeeping matter that I would like to address in closed session.

16             JUDGE AGIUS:  Yes, let's go in closed session for a while,

17     please.

18             MS. BAIG:  I apologise, private session.

19             JUDGE AGIUS:  Private session for a while, yes.

20                           [Private session]

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 851

 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   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             JUDGE AGIUS:  We are in open session, Ms. Baig.

22             MS. BAIG:  Thank you, Mr. President.  The Trial Chamber's

23     findings fell short of recognizing the full scope of the appellants'

24     criminal responsibility.  In relation to JCE 3 crimes, the Trial Chamber

25     omitted to enter appropriate convictions for a large number of crimes.

Page 852

 1     And it failed to fully reflect the criminal culpability of the

 2     respondents in relation to their superior responsibility and for wanton

 3     destruction.  The Prosecution requests that these errors be corrected and

 4     we ask the Appeals Chamber to ensure that the respondents' full

 5     culpability for these grave crimes is properly reflected in the

 6     judgements and sentence.

 7             Thank you.

 8             JUDGE AGIUS:  Yes, Ms. Baig, before we move on, Judge Moloto

 9     would like to put a question to you.

10             JUDGE MOLOTO:  Madam Baig, Mr. Sahota this afternoon submitted

11     that the foreseeability test for JCE 3 crimes should be subjective.  Do

12     you have any comment?

13             MS. BAIG:  Your Honours, the JCE 3 test has both a subjective and

14     an objective element.  Objectively, the crime must be one that is linked

15     to the execution of the common criminal purpose; and subjectively, the

16     accused must -- the accused has to willingly take the risk and the crime

17     must be subjectively foreseeable to that particular accused.

18             JUDGE MOLOTO:  Thank you.

19                           [Trial Chamber confers]

20             JUDGE AGIUS:  Thank you very much.  That, I understand, concludes

21     your submissions in reply.

22             Just for the record, when Mr. Ivetic was addressing us, page 93

23     of the transcript, between lines 10 and 17, he referred to paragraph and

24     quoted from paragraph 428 of the -- Mr. Sahota, not Mr. Ivetic, from

25     paragraph 428 of the Tadic appeal.  In reality I am correcting that.

Page 853

 1     It's from the Brdjanin appeal judgement.

 2             MR. SAHOTA:  Thank you, Your Honour.  I'll stand corrected if

 3     that is the mistake --

 4             JUDGE AGIUS:  All right.  No, no, it is, it is like that.

 5             MR. SAHOTA:  It's a famous quote, though, as I said.

 6             JUDGE AGIUS:  Okay, but it is the Brdjanin.  I know that quite

 7     well because it was an appeal from my own judgement so ... thank you.

 8             Now we have arrived at the last stage of today's proceedings

 9     during which we are allowing ten minutes to each of the appellants to

10     address the Appeals Chamber if they so desire.

11             I'll start with you, Mr. Pusic.  Do you wish to address the

12     Appeals Chamber?  And you have ten minutes.

13             THE APPELLANT PRLIC:  Mr. Pusic is not here.

14             JUDGE AGIUS:  Not Pusic.  Mr. Prlic, sorry.

15             THE APPELLANT PRLIC:  Mr. President, honourable member of

16     Chamber, [Interpretation] I'll speak in may own language.

17             Instead of the usual words on such occasions, I shall read a part

18     of the text called:  We need people of good will, clean hands and pure

19     honour.  It's part of the Ramadan rites pushed in a Muslim magazine in

20     1994:  "Considering and emphasizing how war brings misfortune on all the

21     citizens of Bosnia-Herzegovina, Muslims, Croats and Serbs alike, Prlic

22     stressed how equal treatment should be ensured for all the citizens.

23     However, to this day, we are not satisfied but we are trying hard to

24     ensure exercise of human rights for everybody.  In his own name, and on

25     behalf of the government of Herceg-Bosna, I owe everyone a big apology,

Page 854

 1     said Prlic."

 2             What I said at that time during the war I can only repeat now.  I

 3     am deeply aware of all the victims and all the sacrifices brought upon

 4     them by the war.  I have spent the war time in probably the hardest

 5     places to be then, Mostar and Sarajevo.  I know what it means to live

 6     without power or water, to be occupied within a city exposed to daily

 7     shelling and sniping, left at the mercy of the enemy side and the lack of

 8     care from the international community.  I have been always aware of

 9     everybody's misfortunes even though we were sometimes on different sides.

10     I spent entire years in that area, from 1989 to 2003.

11             2013 was a crucial year for me.  I am aware that judicial truth

12     may not always correspond to the real truth.  The two can diverge.  But

13     for facts to be contrary to the judicial truth even in this post-truth

14     era is too much.  I have been unnerved by this appeal hearing more than

15     by the entire trial and for that I apologise.

16             In the judgement, it seems to transpire that my greatest mistake

17     was not to have left, to have stayed.  Maybe it was a mistake.  Some

18     people, mainly foreigners, who have changed their minds meanwhile,

19     advised me to leave.  But if I had done that, I would have felt guilty my

20     whole life because I would have done nothing to improve the situation.  I

21     doubt it that my departure would have benefitted anyone.

22             I remained working there as co-president and then acting

23     president -- acting prime minister of the government of

24     Bosnia-Herzegovina from 1990 and I was one of the first persons who said

25     that it could be an independent state.  If you look at the minutes of

Page 855

 1     government meetings during the war and after the war, you can see that

 2     there was no interruption in my work, no break from my previous efforts.

 3     We had been trying to build a joint state, not a mono-ethnic state, with

 4     the support of the international community and in agreement with them.

 5     This is confirmed by more than 250 presidential transcripts that we have

 6     shown during the trial and in this hearing.  Some of them were excerpted

 7     in the judgement and they testified to the fact that there was no common

 8     criminal purpose.  It was just an error in the trial judgement.  It was

 9     an erroneous finding.

10             After the war, I continued working on building that country all

11     over again, from 1994, first as defence minister, and then as prime

12     minister I represented our country in the outside world for more than

13     five years.  And here, the judgement says that I worked against that

14     country and even occupied it for a while.

15             I am aware that the families of victims want someone to be

16     punished, and in this last war we know, all of us, we know more or less

17     who shot at whom.  As I said in my interview to the Prosecution in 2001

18     and as the President Agius said recently, many culprits are still walking

19     our streets freely.  I helped and co-operated from the establishment of

20     this Tribunal and continued that co-operation even though a commission

21     was never established.  But we have provided a lot of documents and a lot

22     of support, and I cannot resist citing one of them, 1D02243.

23             I participated in many international conferences, and I was

24     representing one of the countries who signed the initial agreement

25     establishing this Tribunal.

Page 856

 1             It's been 13 years since I arrived at the Detention Unit and

 2     awaiting judgement.  I want to say that the level of injustice in this

 3     trial was insufferable.  The greatest part of the time I didn't even wish

 4     to attend a trial of that kind.  At one point I asked I asked the

 5     Prosecution to take an oath that they would be telling the truth because

 6     they are the only ones who have a mission in this courtroom.  This trial

 7     is the dark side of international justice that will definitely slow down

 8     its development but must not call it into question.  If these 13 years

 9     were a price to pay for that, then let it be.

10             In any case, these 13 years no one can give back to me.

11             JUDGE AGIUS:  Certainly not.

12             MS. TOMASEGOVIC-TOMIC: [Interpretation] May I ask your leave to

13     just absent myself for two minutes.  I have a medical problem.  I need to

14     take some pills.

15             JUDGE AGIUS:  Thank you.

16             It's I understand, Mr. Stojic, that you have decided not to make

17     use of the allowance that -- okay.  So it's ...

18             THE APPELLANT STOJIC: [Interpretation] Good afternoon,

19     Your Honours.  I would like to say something after all.  If you permit.

20     Just for two or three minutes.

21             JUDGE AGIUS:  Yes, go ahead, please.

22             THE APPELLANT STOJIC: [Interpretation] Good afternoon,

23     Your Honours.  Good afternoon to everyone in and around the courtroom.  I

24     absolutely support the submissions of my team of attorneys and I would

25     like to thank them for all their work for these many years during these

Page 857

 1     proceedings and I've always had wonderful co-operation from them.  I

 2     would like to thank them for that.

 3    (redacted)

 4    (redacted)

 5             I would like to thank the staff for the Detention Unit.  Perhaps

 6     it is a little bit strange for me to being say this from my position, but

 7     I would still like to thank them on a humane and professional attitude

 8     towards me throughout the time that I have spent in The Hague.

 9             Your Honours, I voluntarily came to The Hague.  I believe in this

10     institution.  I believe in this Tribunal.  And I believe in you,

11     Your Honours, and I am sure that you will reach a just decision in the

12     end.  I am very sorry for all the victims of the war, Muslim ones, Serb

13     ones, and in particular, for the Muslim ones, because they were the

14     subject of these proceedings.

15             Thank you very much, Your Honours.  That is all that I wish to

16     say.

17             JUDGE AGIUS:  Thank you, Mr. Stojic.

18             Mr. Praljak.  Ten minutes.

19             THE APPELLANT PRALJAK: [Interpretation] Good afternoon,

20     Your Honours.  Last year, the German minister of the interior registered

21     3700 attacks, including arson, against immigrants received by that state.

22     On average it is ten per day.  Dozens upon dozens of powerful state and

23     societal attributes of this great civilised, rich and legally developed

24     country failed to prevent all that.  Social psychologists and

25     sociologists have foreseen such events.  The foreseeability of the

Page 858

 1     figures is more difficult than to foresee an individual --

 2             THE INTERPRETER:  Interpreter's correction.

 3             THE APPELLANT PRALJAK: [Interpretation] -- but to foresee an

 4     individual event is impossible.  The number of perpetrators who were

 5     detected is minimal.

 6             In New Orleans, Hurricane Katrina resulted in hundreds of rapes,

 7     burglaries and other crimes committed.  The powerful attributes of this

 8     powerful country failed to prevent such crimes and the number of

 9     perpetrators that was detected was minimal.  We know that even small

10     shifts in the social structure may bring about great numbers of

11     individuals who become criminally active.

12             In 1992, in Bosnia and Herzegovina, in only a few days, following

13     the Serb aggression, the entire state structure caved in.  All state

14     functions collapsed.  All the attributes of the state ceased to exist and

15     the state of singularity gained a foothold.  One can act in two ways

16     under such circumstances.  You can try and keep trying to reconstruct

17     normal channels of authority and the life of a community.  It is a

18     difficult task with no promises to be made and excruciatingly slow.  The

19     number of killed, wounded, expelled, the number of those who fled, the

20     failed attempts at peace conferences, the betrayal of the Muslim

21     politics, the aggression of the ABiH against Croats, the sheer duration

22     of that war, all of that made those efforts insignificant or devoid of

23     any value.

24             The other modus is acting as an example.  I can say for myself

25     that I conducted myself in such a way that now looking back, 13 years

Page 859

 1     later, I still don't know what else I could have done or in what other

 2     way.  The problem with such type of action amidst chaos has a very small

 3     temporal and geographical reach.  The methodological error usually turned

 4     wrong presumptions or wrong premises is a general occurrence among the

 5     western political and social elite.  The same goes for these proceedings.

 6             Making equal the terms to want to or wish to to the concept of

 7     power is something I cannot understand.  How come this war was brought

 8     about with such consequences if nobody wanted them?  And if everybody

 9     wanted to prevent them, why then are these power structures so helpless?

10     The degree of efficiency is something called command, control, and

11     communication within the NATO alliance.  This concept could be applied to

12     the HVO only if we put the sign of equation between the HVO and the

13     concept of western armies.  The sheer content of such terms is far too

14     apart to be compared in any significant element.  Such wrong premises

15     make understanding the truth impossible.

16             The aggression by Bosnia and Herzegovina at the front line longer

17     than 2 00 kilometres with the forces of three entire corps, the

18     fierceness of their attacks on the HVO while I was in command placed me

19     and my soldiers at the very edge of our mental and psychological ability

20     and physical ability.  Under such circumstances, commanding from the room

21     of a general is impossible.  One needs to be in the field 20 hours a day.

22     You have to be with your soldiers, you have to command, you have to

23     motivate and fight alongside them.  The amount of frustration among the

24     soldiers also came from the fact that they were attacked by their ally

25     and that everything that ally used in its attack came from the Croatian

Page 860

 1     side.  Can it be scientifically foreseen that individuals will commit a

 2     crime?  Yes.  But as to when, where and who is not.

 3             In the spring of 1992 and subsequently, as a regular occurrence

 4     all HVO members were acquainted with the rules of war.  It was done in

 5     co-operation with the ICRC.  What could we have done to avoid all this?

 6     As the Dr. Prlic said, we could have left.  We could have surrendered to

 7     the ABiH and to the VRS.  We could have fled across the border to

 8     Croatia, but that would not have reduced the amount of crime.  When

 9     western alliances fight against the soldiers of ISIS, then collateral

10     damage is unavoidable and it is all taking place.  If one does not wish

11     to have collateral victims, do not attack.  That's the alternative.

12             To end, in Mostar, the ABiH attacked the HVO.  Not the other way

13     around.  My participation and my actions during the war boiled down to

14     the Archimedes Praljak theory, if I may say so, and I've read my theorem

15     to the Trial Chamber on the 4th of May, 2009.  It is at transcript

16     page 39481 and 39482 of the record.  I stand by the validity of that

17     theorem.  If ultimately Your Honours conclude that I am guilty, I do not

18     seek for any mitigating circumstances.  My conscience is clear.

19             JUDGE AGIUS:  Thank you, Mr. Praljak.

20             Mr. Petkovic.

21             THE APPELLANT PETKOVIC: [Interpretation] Your Honours, I was born

22     in Croatia.  I was not born in Bosnia and Herzegovina, but it's the same

23     people.  Had I -- I was an ex-officer in an ex-army of an ex-state, and I

24     lived for a while in Slovenia, Croatia, and I never lived in Bosnia.

25             I came to Bosnia and Herzegovina in early April 1992, when the

Page 861

 1     Croatian army was getting ready to liberate the southern part of its

 2     territory.  That part of Croatia is very narrow.  Thus, all actions had

 3     to be planned along the border of Bosnia and Herzegovina with the

 4     knowledge and approval of Mr. Izetbegovic and the Bosnia-Herzegovina

 5     authorities.  The Croatian army at that time very closely co-operated

 6     with the Croatian Defence Council and with some units of the B and H army

 7     because they were protecting the left flank of the Croatian army that was

 8     advancing.

 9             I was not in Bosnia during the war.  From July 1991, I had

10     experience of war in Sibenik, in the Republic of Croatia, my home town.

11     Once I came to Bosnia-Herzegovina, I met Mr. Boban and dozens of people

12     who were trying to organise the Croatian Defence Council and put up

13     resistance to the Serb aggression.  In view of my professional education

14     and experience, I believed it to be my professional and human duty to

15     help them.  I planned, just like we all did, that all that would last for

16     just a few months.  However, I remained there for more than two years.

17             Even in the most difficult period of our conflict with the armija

18     in late 1993 I remained in Bosnia and Herzegovina because for me it would

19     have been cowardly and dishonourable to leave my colleagues behind and my

20     soldiers.  It would have been the easiest thing to leave, and in that

21     case, I probably would not even have been here today.  Still I repeat

22     that for myself, as a professional officer, that would have been treason

23     and abandoning my colleagues and my people in times of trouble.

24             What I would like to tell you today are two things, just two

25     things.  First, I really did want the HVO to be an Army of Croats and

Page 862

 1     Muslims and I was really happy about every new soldier.  I never paid

 2     attention to the ethnicity of any given soldier.  In mid-1992, the HVO

 3     liberated large swathes of Bosnia and Herzegovina together with certain

 4     sections of the B and H army.  That was an allied army or, better said,

 5     we considered ourselves to be two components of one and the same army.

 6     At least that is what I felt.

 7             I would just like to mention that in our annex 8, you can see my

 8     movements throughout that whole period.  But let's take the 18th of

 9     April and May.  I spent those months, ten or 15 days of each of those

10     months at least, with Sefer Halilovic touring all places that there were

11     conflicts in the territory of Bosnia-Herzegovina.  So during the two

12     months I spent more time with Halilovic than with my own commanders and

13     we tried to reach every single location.

14             Two, in all commands and contacts I always insisted that the army

15     treats civilians very carefully.  When I say "civilians," I mean women,

16     children, and the elderly, which we do not consider to be able-bodied men

17     by law.  I issued a series of commands that uncontrolled activities of

18     individuals and groups should be prevented, destruction of houses and

19     other property should be prevented, extremists should be punished,

20     civilian population should be protected in accordance international

21     rules.  There are numerous documents that we -- that speak in favour of

22     this.

23             I particularly warned that prisoners, civilians should be treated

24     humanely and afforded the proper protection.  I said that civilians had

25     no active role in war and that for that reason they must not be the

Page 863

 1     objects of attack.  This is not the occasion for me to point to those

 2     documents, Your Honours, but I note that they are in our final submission

 3     brief appeal and in the annexes.

 4             From my perspective today, it seems to me that I have could acted

 5     differently in certain situations.  Perhaps I really should have done so.

 6     What is certain and what I would not change today is my sincere wish for

 7     Croats and Muslims together to defend their homes.  Others in

 8     Herceg-Bosna also wanted the same thing.  That is why we built the HVO as

 9     a defensive army.  Each brigade comprised men who lived in that area,

10     regardless of whether they were Croats or Muslims.  And it was normal for

11     us for Muslims to be the majority in some HVO units.  Until June 1993, I

12     did not even believe that this could present a security problem for the

13     HVO.

14             And just a few words to conclude.  My Defence, Your Honours, has

15     shown that in 1993, I thought that it's better to negotiate for two years

16     than at that wage war for one day.  I think that still today.  I think

17     all other people think the same.  To see the misfortune that a single

18     shell can inflict upon people is enough to see that war is not the means

19     to resolve problems.  However, sooner or later all conflicts end at the

20     negotiating table.  It is unfortunate that that is preceded by misfortune

21     and tragedy.

22             I would like to say that I sincerely regret each victim of war in

23     Bosnia and Herzegovina.  I am particularly sad about the civilian victims

24     of war, and I hope that nothing like that would ever happen again in that

25     area.

Page 864

 1             Your Honours, thank you for your attention.

 2             MS. ALABURIC:  If I may just correct the transcript.

 3             JUDGE AGIUS:  Yes.

 4             MS. ALABURIC:  Please, just avoid any misunderstand.  Page 110,

 5     line 21, the sentence is:  "I was not in Bosnia during the war."  And

 6     actually General said:  I was not in Bosnia at the beginning of the war.

 7             JUDGE AGIUS:  All right.  Thank you for that clarification.

 8             MS. ALABURIC:  Thank you.

 9             JUDGE AGIUS:  Can we go -- before I ask you, Mr. Coric, can we go

10     into private session for a short while, please.  I need to clarify

11     something.

12                           [Private session]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

23             JUDGE AGIUS:  Mr. Coric, you've got ten minutes.

24             THE REGISTRAR:  We're now in open session, Your Honours.

25             THE APPELLANT CORIC: [Interpretation] Your Honours, from the

Page 865

 1     moment I was faced with very grave charges before this Court through 13

 2     years of my Hague, I have always searched my soul for an answer:  Did I

 3     in the past war, consciously or unconsciously or in other way, do any

 4     wrong to any person?  I carefully listened to all the testimony and read

 5     thousands and thousands of documents during the trial.  I know there are

 6     no faultless people.  I know that we, members of

 7     the HVO, are also not blameless, but I am convinced that I belong to the

 8     overwhelming majority of HVO member who, with the best intentions,

 9     honourably and with dignity, risking their lives, defended all the

10     innocent people and their homeland.  I hope and I believe that the

11     dishonourable HVO members shall not and cannot tarnish the image created

12     by the vast majority of honourable and honest Croatian defenders.

13     Your Honour, by The Hague indictment some attempted to send a message to me

14     that in the past war I was on the wrong side and part of some criminal

15    enterprise.  I would, therefore, like to recall that it is an indisputable

16     historical truth that the most responsible leaders of the Croatian top

17     political echelons, unlike the other parties in the BH, accepted all

18     the solutions and agreements proposed by the international community for

19     Bosnia and Herzegovina, beginning with the Cutileiro Plan through the

20     Vance-Owen Plan, the Washington, and finally the Dayton Peace Accords.

21     It is illogical and unjust that we should be blamed for those solutions

22     that were imposed on us; whereas those responsible are not even

23     mentioned, let alone held culpable.

24             Your Honours, the best indicators of the atrocities of war to

25     which we were exposed is the figure of those dead and wounded in the

Page 866

 1     ranks of the military police.  Out of 2.000 of our members in 19 months

 2     of war, when I was head of the military police administration, we lost

 3     164 men and had 720 military policeman wounded.  If you add to this all

 4     the losses in the Ministry of Interior, especially members of the special

 5     police and the military police, then the total number of policemen killed

 6     is closer to 300 and the number of wounded is over 1.000.

 7             Due to huge losses in personnel, we were forced to constantly

 8     fill our ranks with new employees.  That is why the segment of training new

 9     members was a very important one among the tasks of the military police.

10     An integral part of the training was also instruction on Geneva

11     Conventions and international humanitarian law and the law on warfare. 

12     Because of that approach and the enviable degree of professionalism

13     among our members, many human lives were saved and excellent performance

14     was achieved in combatting and prosecuting illegal activity by criminal

15     groups and individuals.  Unfortunately, the fundamental tasks of the

16     military and the civilian police, due to the overwhelming conflict,

17     were frequently put on the back burner despite my continuous warnings.

18     Especially important was the criminal investigations department of our

19     police.  In very difficult situations, members of that department

20     in cooperation with other members of the Military Police successfully

21     prevented, arrested and prosecuted offenders for numerous crimes

22     regardless of the army and the people to which the victims and the

23     perpetrators belonged.  In that period of war, the Military Police

24    submitted over 2.000 criminal reports to the relevant prosecutor’s office.

25              Your Honours, I carried out my duties as head and minister

Page 867

 1  continuously both inside Herceg-Bosna and in post-Dayton governments of

 2   the BH all the way up to 2002.  All that time my activity and the

 3   activities of my collaborators was always exposed to the public eye and

 4   all our public appearances and pronouncements on notorious events were

 5   timely, specific, and transparent.  In those times, I never planned,

 6   incited, ordered, covered up or in any other way participated in any

 7   criminal activity.  All my actions were directed to lawful and

 8   professional action with the emphasis on prevention and combatting crime.

 9   I first heard of a joint criminal enterprise from the indictment.  I had

10   never been aware of any plan, intent or criminal purpose, nor did anyone

11   ever ask me or suggested to me that I should participate in any such thing.

12   Your Honours, in this courtroom, we have heard over 400 witnesses.  Out

13   of all of them, I have not noticed a single professional or personal charge

14   against me.  That is why I am surprised that the Prosecutor attempted

15   to present the commendations addressed to me and testimony of witnesses and

16   war-time documents as culpable facts regarding my war-time activities.

17   With all due respect, looking back through the years at all the means used

18   by the Prosecution of this Tribunal in this particular case and some other

19    cases , it is obvious that they have no understanding of the circumstances

20   that prevailed during the war in Bosnia-Herzegovina.  The Prosecution cannot

21   or wishes not to distinguish what during the war was professionally and

22    humanely possible to do and what was impossible.  They do not distinguish

23   between those who fought against ill-fortune of all kinds and working always

24   for the benefit of all from the individuals and groups who acted unlawfully

25   and committed crimes pursuing their personal interests and objectives.  

Page 868

 1   In addition to that, the Prosecution used dirty methods and did not stop at

 2   striking bargains in order to engage as its collaborators in The Hague

 3   proceedings certain lawyers, certain suspicious security service operatives

 4   and certain state politicians of the highest rank.  These dishonourable

 5   individuals, usually from the Croatian people, sold themselves by their false

 6   testimony, secret cooperation with the Prosecution and by offering selected

 7   war- time documents and forgeries. In this way, the Prosecution consciously

 8  amnestied numerous war criminals while being perfectly aware that some of them

 9   have committed war crimes, and by covering up criminal activity, they

10   protected criminals and before this Court and other courts in Bosnia and

11   Herzegovina, they shifted blame onto innocent people. And, finally, permit me

12   two more sentences. Your Honours, I am not a man without faults, nor are HVO

13   members people without faults, but if you have a real perspective of war time

14   events in Bosnia and Herzegovina and compared police indicators of success of

15   a police formation, you will be hard put to find a police unit that was more

16   successful, more professional, and more humane in carrying out its tasks...

17   JUDGE AGIUS: Please conclude.

18   THE APPELLANT CORIC: [Interpretation]...than the units of the Military Police

19   and members of the Ministry of the Interior of the Croatian Republic of

20   Herceg-Bosna. Regardless of your decision, no matter what it may be, I will

21   always be proud of the fact that during the Homeland War I carried out the

22   duties of the Chief of the Military Police, Minister of the Interior and

23   member of the Presidential Council of the Croatian Republic of Herceg-Bosna.

24   I most sincerely thank all those who have contributed in any way to my

25   war-time activities, and may God forgive all those who made my job more

Page 869

 1   difficult. And, finally, your Honours, I most sincerely regret each victim,

 2    especially civilian victims and their suffering caused by this unfortunate

 3    war. If I have done anyone any injustice or caused them misfortune during

 4    the war, I sincerely beg their forgiveness. Thank you for your attention.

 5    JUDGE AGIUS:  Thank you, Mr. Coric.  Counsel for Mr. Pusic,

 6    I understand your client has chosen not to make a statement; correct? 

 7    MR. IBRISIMOVIC: [Interpretation] Your Honours, our client has decided

 8    not to make a statement.  His position is the same as the one he presented

 9    in the courtroom in October 1996 when he apologised to all the victims

10     THE INTERPRETER:  Interpreter's correction, 2006.

11     MR. IBRISIMOVIC: [Interpretation] And he is certain that this

12     Appeals Chamber is going to come to a just ruling.

13     JUDGE AGIUS:  Thank you, Mr. Ibrisimovic. One moment.  I need to consult.

14                        [Trial Chamber and Legal Officer confer]

15     JUDGE AGIUS:  Let's go into private session for a short moment, please.  

16                              [Private session]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24                         [Open session].

25                THE REGISTRAR:  We're back in open session, Your Honours.

Page 870

 1             JUDGE AGIUS:  Yes, Mr. Stringer

 2             MR. STRINGER:  Thank you, Mr. President.  And at the risk of

 3     incurring your wrath, I would like to state for the record that the

 4     Prosecution emphatically rejects the serious allegations that were made

 5     by Mr. Coric in respect of buying evidence and whatnot.  This is a new

 6     charge.  It's not been made before.  And we reject it emphatically.

 7             JUDGE AGIUS:  Thank you.  You're not surprising me.  I was

 8     expecting that.

 9             This, ladies and gentlemen, this concludes the hearing of the

10     seven appeals in this case.  I'd like to thank, first and foremost, the

11     parties, accused and counsel alike, for their work and their co-operation

12     with the Appeals Chamber.

13             I also wish to express my gratitude to the interpreters, the

14     court reporters, the IT section, and the audio-visual personnel, of

15     course, also the security officers, the Registry staff here in the

16     courtroom, and last, but certainly not least, our staff both inside and

17     outside the courtroom.  I must also refer to all other staff members who

18     have been involved in facilitating the hearing during these past two

19     weeks.  Thank you all for your very good work and for your assistance.

20             My colleagues and I will now enter the deliberative phase of the

21     appeal, and the Appeals Chamber will render its decision in due course

22     and by November at the latest.

23             The proceedings stand adjourned.  Thank you.

24                           --- Whereupon the hearing adjourned at 4.09 p.m.,

25                           sine die.