Tribunal Criminal Tribunal for the Former Yugoslavia

Page 179

1 Friday, 7 April 2006

2 [Sentencing Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.03 p.m.

6 JUDGE VAN DEN WYNGAERT: Good afternoon, ladies and gentlemen.

7 Can I ask the registrar to call the case, please.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case number

9 IT-95-12, the Prosecutor versus Ivica Rajic.

10 JUDGE VAN DEN WYNGAERT: Thank you very much.

11 Mr. Rajic, can you understand me in a language that you can

12 understand? The microphone works? Thank you. You may sit down.

13 Can we have the appearances now for the sake of the record. First

14 the Prosecution.

15 MR. SCOTT: Good afternoon, Your Honours. My name is Kenneth

16 Scott, for the Prosecution. I am joined today by Ms. Josee D'Aoust, and

17 also our case manager, Ms. Skye Winner.

18 JUDGE VAN DEN WYNGAERT: Thank you very much.

19 The Defence, please.

20 MS. KOSTA: [Interpretation] Good afternoon, Your Honours. My name

21 is Doris Kosta, and I am Defence counsel for Ivica Rajic.

22 JUDGE VAN DEN WYNGAERT: Before we start the proceeding, I want to

23 express the feeling of the Chamber of satisfaction that the matters that

24 were raised at the previous hearing seems to have been resolved in a

25 satisfactory way, and I'm very pleased to see Mr. Rajic here present at

Page 180

1 the hearing today.

2 Let me recall the ordering to the proceedings that has been agreed

3 upon with the parties. So we will have first the submissions of the

4 Prosecution, which will last for 50 minutes, more or less, which then will

5 be followed by questions by the Judges. The same applies to the Defence:

6 We will have 50 minutes for the Defence, also followed by questions by the

7 Judges. Then we will have a statement by Mr. Rajic, also followed by

8 questions. And the session will be ended with closing arguments by the

9 Prosecution and the Defence. We will have a short break after the

10 Prosecution's submissions. I hope this is still in agreement with all of

11 you.

12 Let me start by first summarising what this case is about. The

13 case concerns the attacks of 22/23 October 1993, upon the villages of

14 Stupni Do and Bogos Hill in Vares municipality which caused the deaths of

15 several Bosnian Muslim men, women, elderly, and children. The case also

16 concerns the round-up of a large number of Bosnian Muslims in Vares town

17 and their subsequent inhumane treatment in two schools; the Ivan Goran

18 Kovacic school and the Vladimir Nazor school. As a commander of the 2nd

19 Operational Group, based in Kiseljak, Mr. Rajic ordered these attacks and

20 the rounding up of civilians, knowing the substantial likelihood of the

21 criminal consequences of the orders.

22 In October, on the 26th of October, Mr. Rajic pleaded guilty to

23 counts 1, 3, 7, and 9 of the amended indictment, each of these counts

24 being a grave breach of the Geneva Conventions of 1949 and each punishable

25 under Article 2 of the Tribunal's Statute. His guilty plea was based on a

Page 181

1 plea agreement entered into on the 25th of October with the Prosecutor, to

2 which the factual basis of the plea is appended. And the next day, on the

3 26th of October, the Trial Chamber entered a finding of guilt for those

4 four counts.

5 The Prosecution indicated that it would ask the remaining counts

6 in the amended indictment to be dismissed at the sentencing hearing. I

7 take it that this will happen in the course of today's hearing.

8 Following the hearing of the 26th of October there has been an

9 additional clarification decision on the convictions entered following

10 some confusion that may have been raised by the way in which the plea

11 agreement was formulated. So following that clarification decision, it is

12 now very clear that the conviction that was entered was a conviction under

13 Article 7(1) of the Statute and not under Article 7(3) of the Statute.

14 Important in the chronology of this case is also that in July of

15 last year the Prosecutor filed a motion before the Referral Bench to have

16 the amended indictment referred to Bosnia and Herzegovina under Rule 11

17 bis of the Rules of Procedure and Evidence, and Mr. Rajic opposed this

18 referral. On 10 November of last year, which was after the guilty plea,

19 on 10 November of last year the Prosecution informed the Referral Bench of

20 its intention to withdraw the motion for referral upon completion of the

21 sentencing procedure.

22 What we are doing today in this hearing, or the purposes of

23 today's hearing is the sentencing. So we are hearing the oral

24 presentation of the evidence on both sides. We are not discussing the

25 facts, so this is something that we leave behind us because of the plea

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1 agreement and the conviction that has been entered already on that basis.

2 So may I now turn to Mr. Scott to submit the highlights of the Prosecution

3 sentencing brief.

4 MR. SCOTT: May it please the Court. Before I proceed with our

5 comments or our argument, I would just like to point out a couple of

6 procedural matters. First, two of the photos that I have been referring

7 to --

8 JUDGE VAN DEN WYNGAERT: I can't switch mine off. I should be

9 able to switch it off. Mine's off.

10 MR. SCOTT: I'll begin again, Your Honour.

11 There are two photos that will be displayed in the course of our

12 presentation this afternoon, and to avoid any problems or confusion, I

13 wanted to indicate that these had previously, at the Prosecution's

14 request, been placed under seal. However, on further reflection and

15 consideration, we do not believe that there is any need for these

16 documents or photos to be confidential and can be shown. They are hard

17 pictures, if you will, in terms of the emotional impact, but they do not

18 need to be protected in terms of their confidentiality in terms of the

19 victims at this point in time.

20 Secondly, just so there's no misunderstanding, when I make

21 references to some statements by witnesses who are still protected, I have

22 paraphrased or omitted certain references to names just to protect that.

23 So if counsel or someone might detect some discrepancy, it would be

24 because I have paraphrased a couple of things to protect sensitive

25 information.

Page 183

1 May it please the Court, Your Honours, for the people of

2 Stupni Do, the 23rd of October, 1993, was hell. There is simply no other

3 way to describe it. On that day, the village of Stupni Do became a

4 blazing inferno of death and destruction. The sounds of gun-fire and

5 shelling of explosions were later replaced by the sounds of women and

6 children and, indeed, I am sure grown men crying. Unfortunately, Stupni

7 Do was one of the signature events in the Balkan wars, together with the

8 Sarajevo siege, Ahmici, Vukovar Hospital, Mostar, and Srebrenica. Only

9 five days after this massacre, only five days, on the 28th of October,

10 1993, the atrocity came before the United Nations Security Council, which

11 demanded an investigation.

12 If I can have that on the screen, please. From the UN report, the

13 Secretary-General's report, we have this excerpt:

14 "The horrendous crimes committed by the HVO in Vares and Stupni Do

15 in October 1993 were immediately broadcast and reported around the world

16 and received the United Nations Security Council's immediate attention.

17 On the 28th of October" -- again, as I've said, only five days after these

18 horrendous events -- "the president of the Security Council requested that

19 the Secretary-General report on the massacre as soon as possible. The

20 Secretary-General communicated his report -- his subsequent report on the

21 10th of February, 1994, indicating the results of an investigation at that

22 time by the military police of the United Nations Protection Force," or

23 UNPROFOR, "which stated in part:

24 "Investigations to date have shown that crimes against innocent

25 civilians in Stupni Do took place on the 23rd of October 1993. 23 victims

Page 184

1 so far have been clearly identified. A further 13 villagers are

2 unaccounted for and presumed dead, bringing the preliminary total number

3 of victims to 36. The main suspects for the commission of these crimes

4 appear to be extremist elements of the Croatian Defence Council from

5 Kiseljak, Travnik, and Kakanj, under the command of Ivica Rajic. The HVO

6 Bobovac Brigade, operating under its deputy commander, Kresimir Bozic,

7 prevented UNPROFOR units from entering the village after the attack."

8 Paragraph 13 of the Secretary-General's report: "Investigations

9 are continuing in order to gain as much evidence as possible with a view

10 to identifying the perpetrators for eventual trial before the

11 International Tribunal for the Prosecution of persons responsible for

12 serious violations ..." that is, this Tribunal. "The Security Council

13 will be kept informed of the progress made in the investigation."

14 And Ms. President, Your Honours, here we are some 12 years later

15 of this report to the UN and we have Mr. Rajic standing before us -- or

16 seated before us, convicted of these crimes. The victims have waited a

17 very long time for justice to be done.

18 Before discussing the facts of the case as they relate to

19 sentencing, let me touch on a few aspects of sentencing at the ICTY. The

20 primary principles and purposes of sentencing in international criminal

21 justice are, first, retribution, and that simply means giving voice to

22 public condemnation and international rejection of the charged conduct;

23 that is, it is wholly unacceptable to the international community.

24 The second major principle and purpose of sentencing is individual

25 and general deterrence. Not only concerning the accused but, perhaps even

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1 more importantly, to others. To commanders and other officials and senior

2 persons who might be tempted or may consider engaging in similar conduct

3 in the future. The principle of deterrence requires that the penalty

4 imposed by the Court and by Your Honours have sufficient deterrent value

5 to ensure that those who would consider committing similar crimes will be

6 dissuaded from doing so.

7 In terms of sentencing factors, the Tribunal has consistently held

8 that the gravity of the criminal conduct is the most important factor to

9 consider in determining sentence. This, in turn, of course, involves and

10 must reflect the particular circumstances of the case, that is, on a

11 case-by-case basis.

12 As Your Honour has already indicated a moment ago, Mr. Rajic

13 stands before this Chamber convicted on four counts; wilful killing,

14 inhumane treatment, appropriation of property, and extensive destruction,

15 all grave breaches of the Geneva Conventions. There can be no doubt that

16 the crimes for which Ivica Rajic has been convicted are among the most

17 horrific crimes that one human being can commit against another. While

18 the number of victims in this particular case may be less than the number

19 concerning some of the other crimes that have come before this Tribunal,

20 that fact cannot in any way detract from the terrible nature of the crimes

21 themselves and the horrible harms suffered by these victims.

22 Let me give a very, very brief overview of the facts of the case

23 as they relate to sentencing and for the Chamber's consideration. The

24 territory of Vares municipality, which included both the town of Vares and

25 the village of Stupni Do, was included in the 18 November 1991 declaration

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1 by Mate Boban, Dario Kordic, and others that established the so-called

2 Croatian community of Herceg-Bosna. As in other claimed municipalities,

3 the Herceg-Bosna HVO authorities took over the Vares municipal government

4 in early July 1992. On the 23rd of October, 1993, on the accused's,

5 Mr. Rajic's, orders, HVO forces, including members of the Apostoli special

6 unit of HVO military police, rounded up more than 250 primarily Muslim men

7 in Vares town. During and as part of this process, HVO soldiers entered

8 houses and systematically abused the inhabitants, cursing them, hitting

9 them, forcing them out of their homes, sometimes half dressed, and

10 systematically stole their valuables and money. The rounded-up Muslim men

11 were detained at the Ivan Goran Kovacic and the Vladimir Nazor schools

12 until the 3rd of November 1993. During their detention, HVO soldiers

13 entered the schools and physically abused the prisoners. The prisoners,

14 often including family members, were forced to beat each other.

15 Also on the same morning of the 23rd of October, 1993, on the

16 accused's orders, the HVO forces, including the Maturice special unit,

17 attacked the village of Stupni Do. More than 200 civilians were in the

18 village when the HVO launched the attack which continued until late

19 afternoon. HVO soldiers forced civilians out of their homes and hiding

20 places, robbed them of their valuables, executed and murdered Muslim men,

21 women, elderly, and children, and sexually assaulted Muslim women. It

22 was, indeed, a nightmare.

23 When one group of Muslims - a man, nine women, and three children

24 - attempted to flee, the man was shot and killed. His half-burned body

25 was later found at the same location where he had been shot, and two of

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1 the women and all three children were murdered in front of their home.

2 Three young Muslim women who escaped an initial encounter with the HVO

3 soldiers were found hiding in a small cellar and murdered. I'll come back

4 to these young women in a few minutes. Seven members of a Muslim family

5 were found burned in their house, including two children ages 2 and 3.

6 There were others, but for the purposes of this short presentation, these

7 are the ones I will mention here.

8 The HVO massacre at Stupni Do resulted in the deaths of at least

9 37 Bosnian Muslim men, women, elderly, and children. The Prosecution

10 submits that approximately six of these persons might fairly be described

11 as combatants or as having been combatants prior to the time they were

12 killed.

13 The accused has made claims that one -- perhaps an issue that may

14 come up in today's hearing, the accused has made claims that substantially

15 more of the victims were actually combatants, claiming that approximately

16 ten of the victims were "fighters" and six were members of the "civil

17 defence."

18 Let's look, Your Honours, however, at some examples of how some of

19 these persons who the accused says were combatants were killed.

20 Refik Likic. He was forced with another 16 persons out of a

21 house. All of the villagers were told to give the HVO soldiers their

22 valuables. While this was happening, HVO soldiers cut Likic's throat with

23 a knife. When he fell to the ground, they shot and killed him at close

24 range. Hardly a combat death.

25 Mehmet Likic was another victim. After Refik Likic was killed,

Page 188

1 HVO soldiers ordered these two men -- excuse me, Mr. Mehmet Likic and Edin

2 Mahmutovic [phoen]. HVO soldiers ordered these two men to lie on the

3 ground and then executed them at close range.

4 Ramiz Likic. He was shot several times at close range after he

5 refused to give an HVO soldier his money.

6 After four Muslims were murdered in front of their very eyes, 12

7 other Muslim villagers were forced into a shed which the HVO soldiers then

8 set on fire, but fortunately, the 12 Muslims were able to escape, but

9 listen to the account of one of the victims:

10 "I approached the window and looked outside. I could hardly see

11 anything because there was so much smoke. I just saw one soldier down in

12 the village, running, and fire. From the higher location of the summer

13 house, I saw the whole village in flames. Some houses were already fully

14 burnt down. Others were burning. No house was spared. I suddenly felt

15 that the summer house we were confined in was burning. It was coming from

16 the roof. The summer house was shrouded in smoke. The window that I was

17 looking through was shut and its glass panes were hot. Then the glass

18 panes started shattering. Each of us thought we should do something to

19 get out. Children wept. I was the first one to suggest that we should do

20 something to get out. The only way was to escape through the door. But

21 everyone thought that the soldiers were outside and if we came out the

22 door, they would kill us. I went and picked up an axe. I approached the

23 door. I wanted to break it open but hesitated. Everybody pleaded not to

24 do it. They said we have water and we will extinguish the fire, we will

25 find a way out. All of us were scared they would kill us if we tried to

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1 break the doors open. We nonetheless managed to break the door. I looked

2 outside to see whether there were any soldiers there. I did not see any.

3 I stepped outside the summer house. I had seen two corpses being thrown

4 into the fire of someone's house and now I wanted to look for other

5 corpses and see whether my husband's corpse had been spared the

6 incineration or not."

7 The HVO soldiers continued setting houses on fire and by the 24th

8 of October, Your Honours, the HVO forces had destroyed virtually the

9 entire village. It was a scene of utter destruction strewn with the human

10 wreckage of Ivica Rajic's victims.

11 If there is any further need to confirm that the Stupni Do

12 massacre was plainly contemplated and intended and that the behaviour

13 there was horrible in the extreme, let me mention the statements made by

14 HVO soldiers to some of the victims. On the 22nd of October, 1993, the

15 day before the attack, a member of the Maturice special unit told a Muslim

16 man who had been previously detained in the area: "Tomorrow, Balija, we

17 are going to attack your village and kill everything that is alive and

18 moving in it."

19 On the 3rd of November, 1993, four HVO soldiers arrived at one of

20 the locations in Vares where the Muslim men were being detained. One of

21 the soldiers called out to the Muslim men: "Is there any Likic here? If

22 there is I want to show him my condolences because I slaughtered Rama

23 Likic in Stupni Do. Then the soldier took his knife and cut one of the

24 prisoners' left cheek, after which he licked the blood off his knife,

25 saying: "Balija, your blood tastes sweet. Then he cut off one of the

Page 190

1 prisoners' beard and forced him to eat it.

2 Before the evening of the 23rd of October -- excuse me, between

3 the evening of the 23rd October and the 26th of October, Ivica Rajic and

4 his subordinates refused several attempts by UN Protection Forces, that is

5 UNPROFOR, to enter Stupni Do and the two schools in Vares town when they

6 sought to investigate what had happened at these locations. While the

7 accused has submitted that this was done because of concerns that the

8 Muslim forces might attempt to use UNPROFOR's presence to gain some

9 military advantage, there was simply no justification for denying access

10 to the schools or to the surrounding of Stupni Do. And the fact that HVO

11 forces fired -- fired upon and hit two UNPROFOR armoured personnel

12 carriers serving as observation posts in Vares town, with one of those

13 vehicles -- at least one of them, conspicuously marked with the Red Cross

14 medical emblem, or for firing at the Vares UNPROFOR headquarters located

15 approximately seven kilometres from Stupni Do and only 300 metres, in

16 fact, from the nearby -- or the regional HVO headquarters.

17 THE INTERPRETER: The speaker is kindly invited to slow down a bit

18 for interpretation and the record.

19 MR. SCOTT: Thank you.

20 The Prosecution submits, Your Honours, that this conduct was

21 instead a deliberate attempt to block and impede international observers

22 from discovering the crimes in Stupni Do and Vares until they were at

23 least partially cleaned.

24 On the 26th of October, 1993, when UNPROFOR finally gained access

25 to Stupni Do, they saw that some of the houses seemed to have been used as

Page 191

1 crematoria, that some of the bodies were so destroyed that they had to

2 have been burned repeatedly to reduce them to such a condition. With all

3 of these things in mind, Madam President, Your Honours, the Prosecution

4 would like to show a video clip to give the Chamber a better idea of what

5 happened in Stupni Do, and the tape is approximately 12 minutes.

6 Are you getting it?

7 [Videotape played]

8 MR. SCOTT: In case there's any confusion, there's no sound. We

9 just wanted to just not to be confused or to be distracted by any of the

10 background noise. So it's just the visual.

11 Might I just add that this is -- I seem to be having a lot of

12 technical problems. Sorry.

13 This is looking down into Vares town, or it was a moment ago, just

14 so you can -- it was also talked about not only about the village but also

15 Vares town, and when you were looking down into the valley, you were

16 looking down into Vares.

17 Well, you're now seeing a number of these clips are actual burned

18 bodies. These are the remains, the only thing that remained of a number

19 of bodies that were in the village.

20 That's the video, Your Honours.

21 Just to show a few very briefly -- a few still photos, a couple

22 I'll come back to in a moment, but I'm just going to go through these

23 quite quickly at first.

24 [Photos displayed]

25 MR. SCOTT: Your Honour, I said a few moments ago that three young

Page 192

1 Muslim women were killed in a -- murdered in a small cellar, and I would

2 like to come back to those for a moment, if we could go back to those,

3 those first two photographs, the still photos.

4 [Photos displayed]

5 MR. SCOTT: Three Muslim women hiding in a small cellar. One of

6 these -- there's been apparently some claim or information that at least

7 one of these women was a "combatant."

8 This is what a witness said about the killing of Medina Likic and

9 the two other women. "The sounds were coming closer and increasing. Is

10 there anybody in the basement, a male voice coming from the other side of

11 the door. We did not respond. We kept quiet. Somebody entered the door

12 of the basement. The same man who was calling for us in the basement and

13 seemed to be entering inside called out for someone by the name of

14 Kakanjac and asked him to come in the basement.

15 "Kakanjac asked: What? And there was a reply. I have found

16 three Balija's women. The soldiers were cursing and swearing. I think

17 there were just two soldiers inside the basement. Then I heard a burst of

18 gun-fire. It was just the sound of a burst of gun-fire and I did not hear

19 any voices, neither Nevzeta nor Medina nor Hatidza. Then the voices -- I

20 couldn't hear them. Then the voices who were inside cursing and swearing

21 stopped.

22 "It was again quiet inside the basement. I realised that the

23 voices were gone. I opened my eyes. I called Nevzeta, Hatidza and Medina

24 in a low whisper. There was no response. I called Medina's name again

25 and I touched her hand."

Page 193

1 One of these women in this photo.

2 "I touched her hand and she did not respond. Nevzeta, Hatidza,

3 and Medina still sat crouching in the pit, their heads bent over, their

4 chins touching their chest. I tried to shake the body of my Medina, but

5 she was dead. All three of them were dead."

6 I think without needing to look at any additional photos from what

7 the Chamber's already seen, let me just mention what a couple of the other

8 observers have said about these burned bodies that you've seen both in the

9 video and in the still photographs.

10 One of, the UN investigators said: "The third body was that of a

11 child. I made this judgement based on the size of the pelvis. The child

12 may have been a female aged between 13 or 15, or a male between 10 and 12,

13 again based on the size of the pelvis. The size of the skull also

14 appeared to be that of a child. The skull appeared to have been smashed

15 by some means. The edges of the skull bones were fragmented, splintered

16 and sharp. I could not smell any gasoline but I believe the body was

17 intentionally burned based on the amount of destruction."

18 And from a second report on another body. "Bodies were also found

19 inside the building but on top of the roofing material. The bodies were

20 badly burned, but I did not see burn damage and soot on the bricks

21 surrounding the body. Since the bodies were on top of the roofing

22 material, this indicated to me that the bodies were placed on top of the

23 roof after the roof was destroyed or that someone had found the bodies

24 under the roof, removed them, and placed them on top and burned them."

25 An additional aspect, Your Honours, of what happened at Stupni Do

Page 194

1 and in the aftermath of Stupni Do and Vares, which is a further horrendous

2 fact about what happened there was that there was an immediate and

3 coordinated cover-up, including at the highest levels of the HVO. This

4 included a false investigation which was only meant to appease the

5 international community that began immediately to make demands to know

6 what had happened. And you saw yourself that even just five days later

7 this event, the event that you've seen on these videos, five days later

8 was being discussed in the Security Council in New York. In fact and as

9 part of the cover-up, UNPROFOR was kept out of the area until at least a

10 partial clean-up could be made. As we've already seen, bodies were

11 virtually entirely burned down to nothing. With the knowledge of senior

12 HVO commander Milivoj Petkovic, Ivica Rajic took on the false name Viktor

13 Andric, and Ivica Rajic was fraudulently dismissed and replaced by Viktor

14 Andric. In fact, neither the HVO nor the Herceg-Bosna or Croatian

15 authorities ever punished, ever disciplined a single commander or soldier,

16 including the accused, for the crimes committed in Vares and Stupni Do.

17 Indeed, and to the contrary, and only a few days later on the 1st of

18 November, 1993, when these crimes were plainly known, when they were being

19 disused in the Security Council, that UNPROFOR had already been on the

20 site, with everyone in the world press what had happened, on the 1st of

21 November, Ivica Rajic was promoted to the rank of colonel after these

22 events took place and were known.

23 On the 10th of November, 1993, in a meeting involving the

24 President of the Republic of Croatia, Franjo Tudjman, in Zagreb, it was

25 decided, because of the events in Stupni Do and the repercussions for the

Page 195

1 Republic of Croatia that Rajic should be replaced and assigned to another

2 area and that a public statement should be issued indicating that a

3 judicial inquiry had been initiated. And in that meeting, President

4 Tudjman referred to all this as a political game. Of course Rajic, in

5 fact, was not replaced except in name. A judicial inquiry was never

6 conducted. It was all smoke and mirrors.

7 On the 30th of December, 1993, the HVO commander Tihomir Blaskic

8 dismissed - I say "dismissed" - Ivica Rajic from command. According to

9 Blaskic's own order "due to a series of apparent weaknesses in command and

10 control and an irresponsible influence on the units while carrying out

11 combat operations." And at the same time Commander Blaskic issued another

12 order appointing Viktor Andric to the same exact position in the command

13 of the same exact troops, the same exact soldiers, who committed the

14 crimes in Vares and Stupni Do, and Viktor Andric of course was none other

15 than the accused, the same Ivica Rajic who had been just dismissed in the

16 other order.

17 As we've indicated on the 10th of February, 1994, the

18 Secretary-General made his report to the Security Council expressly

19 stating that the main suspects included Ivica Rajic.

20 On the 23rd of August, 1995, the accused, Rajic, was indicted by

21 the ICTY on six counts of serious violations of international law. An

22 ICTY arrest warrant for Mr. Rajic was provided to Croatia's minister of

23 justice on the 8th of December, 1995, more than ten years ago -- almost 11

24 years ago, going on 11 years ago.

25 On the 23rd of January, 1996, the registrar requested both the

Page 196

1 Republic of Croatia and the Republic of Bosnia and Herzegovina to arrange

2 for the publication of the indictment. Ivica Rajic, knowing that he had

3 been indicted, knowing that he was wanted by the ICTY and the

4 international community, willfully avoided arrest for almost eight years

5 with the active assistance of persons and organisations in the Republic of

6 Croatia. The accused used one or more false identities and false papers,

7 including papers issued by the Republic of Croatia giving Ivica Rajic yet

8 another false name, this time Jakov Kovac, and by at least the 30th of

9 June, 1994, and continuing until at least the 30th of June, 1996, Ivica

10 Rajic was financially supported and on the payroll, on the payroll, of the

11 Republic of Croatia Ministry of Defence and living, at least part of the

12 time, in Croatia while he was known by the Tudjman government to be under

13 indictment and wanted by the international community.

14 Finally, after much pressure and with the assistance of the ICTY,

15 finally on the 5th of April, 2003, Mr. Rajic was arrested in Croatia and

16 ultimately brought to this Tribunal a short time later.

17 Just to conclude on two or three factors about sentencing. In

18 terms of aggravating factors, Your Honour, given the horrendous nature of

19 the crimes that you've seen this afternoon and the documents and the

20 evidence that you've had before you and the factual basis from the other

21 material that's been provided to you, it is hardly necessary to talk about

22 aggravating factors; however, let me mention two. One is the accused's

23 position of authority and its abuse. Those in positions of authority may

24 consider such positions a matter of privilege and honour, but they also

25 bring increased responsibility because their behaviour and its effects are

Page 197

1 so often multiplied by the conduct of their subordinates to whom they set

2 an example and to whom they issue orders and concerning whose conduct they

3 approve or condone. Here the accused, Mr. Rajic, abused his senior

4 position in repeatedly failing to punish prior misconduct and repeatedly

5 sending criminal soldiers into action.

6 Ivica Rajic, unfortunately, in some respects, was considered a

7 hero by many of his subordinates. They looked up at him, they wanted to

8 emulate him, they wanted to please him. He was a hero. And the fact that

9 various known prior misconduct had not been punished sent a not-so-subtle

10 message to his soldiers on the 22nd to the 24th of October as to what was

11 expected of them.

12 Consider the HVO soldier and the accused's subordinate Miroslav

13 Anic, also known as Firga, who only a short time prior to Stupni Do to the

14 Stupni Do atrocities mutilated Bosnian Muslims and hung their heads in the

15 Kiseljak town square and the accused, nonetheless, ordered this same Firga

16 a few days later into Stupni Do.

17 Such circumstances are directly related to the crimes committed.

18 The failure to punish, the false investigation was a direct endorsement of

19 these and other crimes. Once again, it sent a clear message to all the

20 accused's subordinates that no matter what crimes they were committing,

21 even if these crimes were exposed, even if they were strongly denounced by

22 the international community, the perpetrators would be protected and would

23 go unpunished, thus promoting an atmosphere and a culture of impunity.

24 Indeed, his HVO subordinates know that Rajic's identity as Viktor Andric

25 was a complete farce. We can only sit in this courtroom today and think

Page 198

1 that they must have thought it was quite a joke on the international

2 community that the international community had been told that Ivica Rajic

3 had been replaced, and all of them had to know, his soldiers, his

4 lieutenants, his officers, there he was, using the name Viktor Andric.

5 This could only have contributed to a further lack of respect for

6 the international monitors when their very own HVO commanders, Petkovic,

7 Blaskic, and Rajic, directly participated in a fraud on the international

8 community.

9 A second aggravating factor, Your Honours, is -- in terms of

10 victim impact is the involvement of vulnerable and young victims. In the

11 village of Stupni Do, the injuries caused and the harm done by the accused

12 and his soldiers have lasted long after the 23rd of October, 1993.

13 Individuals of whole families were traumatised. Many were left without

14 husbands, fathers, wives, mothers, and children. The accused's victims

15 included at least five children; one aged 13, another aged 8, two who were

16 3 years old, and one who was 2 years old. And at least 14 women. Some

17 women and men were executed in front of close relatives. Young women were

18 forced into some of the houses and were sexually abused. One of the

19 victims lost most of his family; he lost his parents, he lost his spouse,

20 and he lost one of his children, all in one day. While many others mourn

21 the death of their husbands, and children. As you've seen in the still

22 photos and in the video the village itself was almost completely

23 destroyed. Most of the villagers lost everything they had worked for all

24 of their lives.

25 In Vares town, down in the valley, Muslim men were rounded up and

Page 199

1 detained in two schools where they were severely beaten or forced to beat

2 each other, often being members of the same family. Brother made to beat

3 brother, father made to beat son. Some of the men were so badly beaten,

4 they were suffering -- they still suffer today in terms of some of the

5 medical certificates that we have provided to Your Honours continuing,

6 long-term injuries.

7 Your Honour, before I conclude, I will mention on the other hand

8 some mitigating factors, in fairness to the accused and consistent with

9 the plea agreement and consistent with keeping this Chamber fully informed

10 of the facts and circumstances surrounding the underlying conduct and what

11 is before the Court at this time.

12 A guilty plea is -- I'm quoting from some of the other Tribunal

13 cases. A guilty plea is always important for the purpose of establishing

14 the truth in relation to a crime. The establishment of the truth is a

15 fundamental step on the way to reconciliation and prevents all forms of

16 revisionism. For the people who, even today, say that these events never

17 happened, for the people who, today, still say Stupni Do didn't happen

18 like this, this guilty plea and Mr. Rajic standing up and saying: Yes,

19 these things happen and, yes, I'm responsible for it, defeats and

20 overcomes that revisionism. No more can someone stand up and say: These

21 things didn't happen.

22 As one Trial Chamber noted: Guilty pleas may contribute to the

23 process of reconciliation among the peoples in Bosnia and Herzegovina.

24 Therefore, while the Prosecution in no way minimises -- I'm sure you can

25 tell by my comments and what we've put before you this afternoon. While

Page 200

1 we in no way minimise the horrible crimes concerning which this accused

2 has pled guilty and stands convicted, it must be said that this accused is

3 the only one concerning these crimes who to date has stood up and said: I

4 am guilty, and I accept responsible for what I did. The Prosecution

5 submits that the accused's guilty plea is, indeed, a factor which the

6 Chamber can and should consider in determining an appropriate sentence.

7 One last factor is cooperation. Rule 101(B)(ii) specifically

8 identifies: "Substantial cooperation with the Prosecutor as a mitigating

9 factor to be considered in sentencing."

10 The weight to be attached to cooperation: "Depends on the extent

11 and the quality of the information provided to the Prosecution."

12 We inform the Chamber, as we have in our papers, that Mr. Rajic

13 has indeed substantially cooperated with the Prosecutor and he continues

14 to do so. He has met with us on a number of occasions. He has provided

15 documentation, and he has been of substantial assistance to the

16 Prosecution, as I say, and his cooperation continues. Therefore, the

17 Prosecution does inform the Chamber that this is a factor -- a mitigating

18 factor that the Chamber can consider in connection with determining

19 sentence.

20 I should say, however, so that there's no confusion: In making

21 its recommendation of a 15-year sentence, the Prosecution has taken both

22 of these factors into account, that is, Mr. Rajic's guilty plea and his

23 cooperation. And I can say to Your Honours that without those two factors

24 our sentencing recommendation would have certainly been more severe than

25 that.

Page 201

1 Your Honour, I have a few additional comments, but I will save

2 them until the final comments that you have allowed on the schedule.

3 Thank you very much.

4 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Scott. I have a number of

5 questions that I would want to ask you, six in number.

6 The first question relates to what you consider as a factor

7 concerning the overall gravity of the offence. If I understand you

8 correctly, you seem to suggest that the exposure of the crimes in the

9 Security Council and in the General Assembly is something that contributes

10 to the gravity of the offence because it sort of offers evidence of the

11 indignation of the international community. But I have a question about

12 this, because would you then suggest that if there would not have been

13 such exposure that the gravity would be less and would crimes that have

14 not been exposed, if it -- let me call it the CNN factor, would those

15 crimes then be less serious than crimes that have been exposed. My first

16 question.

17 May I list them in a row?

18 MR. SCOTT: Yes, of course.

19 JUDGE VAN DEN WYNGAERT: Okay. My second question has to do with

20 what you were mentioned I think as an aggravating factor; mainly the fact

21 that Mr. Rajic has not engaged in the punishment of people previous to the

22 attacks of Stupni Do and then included a certain person, I note here

23 Miroslav Anic as an example.

24 My question is the following: Wouldn't that be rather a relevant

25 element in assessing responsibility under Article 7(3) but given the fact

Page 202

1 that the conviction that has been entered is based on 7(1). Is this

2 something that this Court can take into account as an aggravating factor

3 still, given the fact that the Appeals Chamber in Nikolic has just

4 reminded us of the fact that we cannot double-count elements on the one

5 hand to assess the gravity and, on the other hand, in addition to that, to

6 aggravate the sentence.

7 My third question has to do with the two new aggravating

8 circumstances that you advance, the participation in a cover-up and the

9 absconding and obstruction -- obstructing of criminal justice. This is,

10 as far as I can see, something that has never been decided by this Court.

11 And I would wish to know whether what you in your additional brief give as

12 examples of legislations where this really is taken into account as an

13 aggravating factor, whether that is sufficient for this Trial Chamber to

14 find a general principle of law in which we could -- on which we would

15 base an eventual finding of an aggravating factor.

16 My fourth question is something that does not relate to what you

17 have said or what is in your briefs, your written briefs, but I would wish

18 to know - and we may go into closed session if you so wish - whether there

19 is a link with the 11 bis proceeding and whether the fact that you have

20 withdrawn your 11 bis application waiting for the outcome of the

21 sentencing procedure has something to do with the plea agreement.

22 I'll drop my fifth question because otherwise I will be too long.

23 My sixth question, and also for that we may want to go in closed

24 session if you so decide or if you so ask us to do is: Could we get more

25 information about what the cooperation with the Prosecution consists of

Page 203

1 and whether -- what this could possibly mean for he future in concrete

2 cases.

3 Thank you very much. Sorry for inundating you with such a long

4 list.

5 MR. SCOTT: Thank you, Your Honour. I'll try to answer as many of

6 those as I can in open session and, indeed, it may be that as we get

7 toward the end of your questions we might want to go into private session.

8 In terms of the fact that these crimes were known, for instance,

9 to the Security Council as early as 1993 and to the UN, I'm not sure that

10 it's an aggravating factor in a -- in a technical sentencing sense, but

11 the cover-up -- and this really relates to the issue of the cover-up as

12 well, if I can perhaps answer both those questions at once. It goes to

13 the accused's state of mind, his knowledge that something indeed very

14 terrible had happened there. This was known right away, and the efforts

15 to engage in a cover-up took place right away. And I think that that --

16 we submit, Your Honours, that that is evidence of state of mind. It's

17 a -- where I come from of a guilty mind. One does not have to cover up

18 something that is innocent, something that is not improper. And the fact

19 that this was reported to the Security Council and in the international

20 media put a spotlight on these events at every level, whether in

21 Stupni Do, in Vares, in Kiseljak where Mr. Rajic was, or in Zagreb with

22 President Tudjman, or anywhere in between. And under that spotlight,

23 nonetheless, these very serious and very coordinated steps to cover this

24 up, for everything from burning the bodies virtually beyond recognition,

25 to taking on a false name, Viktor Andric, to a false investigation that

Page 204

1 Mr. Rajic now admits was intended to mislead, these things are aggravating

2 in that broader sense. These were not -- these were not just combat

3 deaths. These weren't -- this wasn't collateral damage. These were

4 people that were executed followed by a cover-up. And it's in that

5 context that we believe that the Chamber --

6 JUDGE VAN DEN WYNGAERT: Could I just interrupt you for a moment.

7 Would you to assess the state of mind of an accused also take into account

8 what happened after the crime? To assess the state of mind when the

9 accused committed the crime? Is that the way you look at it?

10 MR. SCOTT: I would consider it, if you will, Your Honour, a

11 continuing state of mind. Again, where I come from -- I was a prosecutor

12 in the United States which perhaps you figured out by now. Where I come

13 from a cover-up in a sense is a continuation of the crime, and it's a

14 continuation of that sense of guilty mind. It's a continuation, another

15 phase, a second or third, fourth phase of the crime. So we would consider

16 it just as part of the continuing conduct that Mr. Rajic and others around

17 him engaged in which seems to us, and we would respectfully submit this

18 would be contrary to this being again collateral damage or two armies

19 fighting each other in some sort of legitimate combat way. There would be

20 no need for him to cover-up. There would be no need for a false

21 investigation. There would be no need to take on a false name, and those

22 are the factors that we would put before the Court for its consideration.

23 On your second question, Madam President, on the failure to

24 punish. Clearly in a more tradition sense I think it is directly related

25 to 7(3), but again what we have tried to do, and again in sentencing

Page 205

1 practices that I'm accustomed to the sentencing court wants to have as

2 much information as possible, about the individual, about the history of

3 the individual, about what happened, the crimes that were committed, about

4 the accused's role in those crimes, so we have simply taken the position

5 to try to advise the Chamber of as much relevant information as possible.

6 Perhaps if putting the word in some -- in a technical jurisprudential

7 sense, putting the word "aggravating" on it, if that causes some concern,

8 I think let's just look at it as it's relevant information. We would

9 submit it's relevant information of the totality of the circumstances for

10 the Chamber to consider.

11 There -- having said that, the ICTY jurisprudence does recognise a

12 direct relationship between 7(1) and 7(3), and indeed where -- the

13 repeated failures to punish under 7(3) can become 7(1), instigation; 7(1),

14 encouragement, approval, whatever. If you have troops -- you have

15 subordinates with you and you repeatedly fail to punish similar conduct,

16 after a while that sends the affirmative message that I approve, I

17 condone, this is the conduct that I expect. And it becomes instigation,

18 it becomes 7(1), I think at least offhand I can remember in the Blaskic

19 trial judgement I know Judge Jorda addressed that question and made that

20 point.

21 Absconding. Again, Your Honour, it's the totality of the

22 circumstances. The fact that, just as we've seen with many people at the

23 Tribunal, whether it's Ratko Mladic or Karadzic or Gotovina or Mr. Rajic

24 or others, it is -- great efforts have been made to avoid coming before

25 this Tribunal. Great efforts have been made to avoid justice, and again I

Page 206

1 guess our bottom-line position on that is we think it's fair for the

2 Chamber to be aware of that.

3 Mr. Rajic had many opportunities to come forward. This indictment

4 was known to him. It was published in the local -- in the regional media.

5 He was employed by the government of Croatia at the time that arrest

6 warrants had been given to that government. Mr. Rajic had numerous

7 opportunities over an eight-year period to come forward and let justice be

8 done. Either attempt to clear his name or let the process run its course,

9 but he had many opportunities to come before this Tribunal. And it took

10 eight years. And not then -- even not still then a surrender. He was

11 arrested finally after eight years to come before this Tribunal.

12 Your Honours, in terms of the 11 bis proceeding, perhaps I can

13 give a general answer without going into private session. And then if the

14 Chamber wants more detail, I suppose we could go into private session.

15 There is no -- there is no link per se between the 11 bis

16 proceeding and the guilty plea. If you will, I hope it won't be difficult

17 to understand, those two things were simply happening on parallel tracks.

18 There was consideration at the time that, as you know, there was - how

19 shall I say it? - there was significant external concern about the docket

20 of the Tribunal and the case-load of the Tribunal and referring some of

21 these cases to the national courts. Mr. Rajic's case was identified as

22 one which might, although having been fully proper to bring it here, I

23 think the crimes speak for itself. Mr. Rajic was a senior HVO officer.

24 Nonetheless, the case was identified as a candidate for the 11 bis

25 proceeding.

Page 207

1 While all of that was happening, conversations had already taken

2 place and been initiated about the possibility of a guilty plea, which

3 then initially, by the fact that we're standing here this afternoon, did

4 come about. But there was no linkage between the two. If this happens

5 this happens, or if this, it was simply going down two parallel tracks,

6 and once the guilty plea agreement was reached, then there was of course

7 no reason to -- in our view to proceed under 11 bis.

8 As to Your Honour's last question about cooperation, I think it

9 would be better to go into private session.

10 JUDGE VAN DEN WYNGAERT: We'll go in private session.

11 [Private session]

12 (redacted)

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16 [Open session]

17 THE REGISTRAR: We are in open session, Your Honours.

18 JUDGE VAN DEN WYNGAERT: Thank you very much.

19 MR. SCOTT: Thank you, Your Honour.


21 MR. SCOTT: Yes, Your Honour.

22 JUDGE NOSWORTHY: We may have to go into private session once

23 again because I'm going to revisit that area that our President, Judge

24 Van den Wyngaert has just gone into.

25 So may I ask the President if we could go into private session.

Page 209

1 JUDGE VAN DEN WYNGAERT: Private session.

2 [Private session]

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21 [Open session]

22 JUDGE NOSWORTHY: Now to deal with an aggravating factor, and the

23 question of the avoidance of responsibility, and the escape from justice

24 and from submission to the Court for eight years, I believe, for a number

25 of years, I would like to make this inquiry: Do you have any evidence of

Page 211

1 when the fact of indictment first came to the attention of the accused?

2 When did it first come to his knowledge that he was so indicted and,

3 further, when did it come to his knowledge that a warrant had been issued

4 for his arrest? Please give us that information, if you have it.

5 MR. SCOTT: Thank you, Your Honour. The most concrete information

6 on that point -- and by point of reference, on the 23rd of August, 1995,

7 Mr. Rajic was indicted on the original indictment, the 23rd of August. We

8 do know that at least by 19th of January, 1996, Mr. Rajic signed a power

9 of attorney at a time when he happened to be in Kiseljak in Bosnia, not in

10 Croatia but back in Bosnia, and he signed a power of attorney authorising

11 an attorney to represent him in -- concerning the indictment against him

12 and then seemed to disappear again.

13 So there is a signed document. I'll have to say I don't have it

14 in my hand this afternoon, Your Honour, but there is a signed document

15 dated approximately the 19th of January, 1996, in which Mr. Rajic would

16 indicate his knowledge of these proceedings.

17 JUDGE NOSWORTHY: I'm most grateful to you.

18 There is something else, and it concerns, I believe, one of the

19 still photos. I would like to visit that area.

20 MR. SCOTT: All right.

21 JUDGE NOSWORTHY: It was, I believe, photograph number 0332706

22 before the one of the three Muslim ladies who had been killed, huddled

23 together.

24 MR. SCOTT: Yes.

25 JUDGE NOSWORTHY: They were Nevzeta, Medina, and Hatidza.

Page 212

1 MR. SCOTT: Yes.

2 JUDGE NOSWORTHY: Sorry about my pronunciation. But in that prior

3 photograph, the still that was shown, what was that still of? I would

4 like to find out.

5 MR. SCOTT: Yes, Your Honour, I'm sorry. We're having -- I

6 apologise to Your Honour. We're having some difficulty identifying the

7 photograph.

8 JUDGE NOSWORTHY: [Microphone not activated].

9 THE INTERPRETER: Microphone, Your Honour, please.

10 Microphone, Your Honour.

11 JUDGE NOSWORTHY: My apologies are in order for not having the

12 microphone on.

13 00332706. It was immediately before the one that showed the three

14 ladies huddling together.

15 MR. SCOTT: There are two photographs of the ladies, the young --

16 the Muslim women, and maybe -- I'm sorry, I've tried -- obviously I'm

17 going to try assist the Chamber as much as possible. It could be the

18 first one is a further -- the photograph is further away, where you get

19 the perspective of the entire -- well, not the entire --

20 JUDGE VAN DEN WYNGAERT: Don't worry, Mr. Scott, we have found.

21 We have it here.

22 JUDGE NOSWORTHY: Could I help to identify it for you. Judge

23 President has very kindly assisted me. And in the booklet which you

24 provided it's 00332910. I'm very grateful to our President for that.

25 MR. SCOTT: All right. I think it's -- what we've considered

Page 213

1 2910 -- is this the -- can you see what's on the screen now?

2 JUDGE NOSWORTHY: Yes, I wanted to know --

3 MR. SCOTT: Is that the photograph?


5 MR. SCOTT: Thank you very much. I'm sorry.

6 And your question -- what is this? This is the -- this is the

7 cellar where the three women were killed and it is just from a further

8 distance away. And if you look forward the lower centre part of the

9 photo, you see the same three women in the small little pit below --

10 excuse me, behind the two barrels of what looks to be potatoes or -- I

11 would say potatoes.

12 And the next photo is simply -- hard to say simply in this

13 context, but is a closer photo.

14 JUDGE NOSWORTHY: Yes. I'm grateful to you, because in that first

15 one behind the green pail I had not initially picked up the three bodies

16 that were there. So I'm most grateful to you there.

17 MR. SCOTT: Yeah, surely.

18 JUDGE NOSWORTHY: And this would be my last question, really for

19 my own education and for clarification. I don't know if other members of

20 the Chamber are having a difficulty with understanding. But in your

21 submission you had mentioned that a member of the Maturice special unit,

22 after having said the blood was sweet in respect of the throat that had

23 been cut, he cut off one of the prisoner's beards and forced him to eat

24 it. One of the prisoner's beards?

25 MR. SCOTT: Yes, Your Honour, one of the Muslim prisoner's beards.

Page 214

1 JUDGE NOSWORTHY: He would have had two beards.

2 MR. SCOTT: I think you would say it in terms of there were a

3 number of Muslim prisoners at that time, and as to one of the prisoners he

4 forced him to cut off his beard.

5 JUDGE NOSWORTHY: Okay. I see. I stand corrected.

6 MR. SCOTT: Sorry if the grammar --

7 JUDGE NOSWORTHY: No, no, not at all. Not at all. I just wanted

8 clarification.

9 Before I end my questions, there's just one thing I'd like to get

10 on the record. I believe earlier on at the start at page 3, somewhere in

11 the middle, there was a reference by our learned President to Counts 1, 3,

12 7, and 9 but they have gone down on the transcript as Counts 1, 2, 7,

13 and 9. So if that could be corrected.

14 Thank you, Mr. Scott.

15 MR. SCOTT: Thank you, Your Honour.

16 JUDGE VAN DEN WYNGAERT: Thank you very much, Judge Nosworthy.

17 Judge Hoepfel.

18 JUDGE HOEPFEL: Thank you. I have just one additional question.

19 In transcript page 11, lines 7 to 9, this is what you cited. You

20 said: "On the 22nd of October, 1993, the day before the attack a member

21 of the Maturice special unit told a Muslim man who had been previously

22 detained in the area: "Tomorrow, Balija," and then there is something

23 missing, "we are going to attack your village and kill everything that is

24 alive and moving in it."

25 Can you please complete this and explain me what that means in

Page 215

1 this special area, Balija and something.

2 MR. SCOTT: The -- yes, Your Honour. The missing word in terms of

3 the transcript, I think that's just, with all respect, I think just a

4 transcription error. There is no separate word, but let me just go back

5 to my original notes because I did try to quote it directly.

6 It was simply -- yes, it's: "Tomorrow, Balija, we are going to

7 attack your village."

8 So I don't think there's anything missing there. It may have been

9 my pronunciation of the word "Balija" which may have come across sounding

10 as if perhaps I was saying two words. If it was my mistake, I apologise

11 for that.

12 Balija is a very difficult -- in my experience, and having been

13 here for some years, a very difficult term to describe except to say that

14 it is considered to be an extremely derogatory term toward Muslims. I

15 literally do not know a literal translation, Your Honour. And I've asked

16 Muslims this, and I've asked people in Bosnia and people who have come to

17 The Hague. One might -- it's almost probably too not derogatory enough to

18 say something like you swine or you that are less than dirt, but it is an

19 extremely derogatory term that's applied towards Muslims.

20 JUDGE HOEPFEL: Thank you very much. No further questions.

21 JUDGE VAN DEN WYNGAERT: Thank you very much.

22 Well, we've been very well on schedule for this first session. We

23 will have our break now for 20 minutes and we will resume at 10 to 5.00.

24 --- Recess taken at 4.29 p.m.

25 --- On resuming at 4.55 p.m.

Page 216

1 JUDGE VAN DEN WYNGAERT: We will now hear the submissions for the

2 Defence. Ms. Kosta.

3 MS. KOSTA: [Interpretation] Your Honour, my learned colleagues,

4 after the Prosecution I shall be presenting the case in light of the

5 mitigating circumstances and of course all the aggravating circumstances

6 that were raised by the Prosecution.

7 I have to say first and foremost that I agree with a comment made

8 a moment ago by one of the members of the Trial Chamber, that we must take

9 into consideration that the subject of -- under discussion here -- one of

10 the points is that my client has pleaded accused -- pleaded guilty of 1,

11 3, 7, and 9 counts, and under 2(A) 2(B), and 2(D).

12 Now, as far as his responsibility is concerned and accountability

13 it has recorded under Article 7(3) of the Tribunal which states that no

14 commander will be rid of responsibility if a crime is committed by one of

15 his subordinates if he knew or had reason to know that the crime would be

16 committed.

17 I would just like to draw your attention in this portion to

18 Article 7(4) of the Statute, and I'll explain why later on, and that is

19 the fact that an accused person acted pursuant to an order may not be

20 considered in mitigation of a punishment --

21 JUDGE VAN DEN WYNGAERT: May I just interrupt you, Mrs. Kosta.

22 Referring to the clarification judgement, we are very clear on the point

23 that the guilty plea was entered for Article 7(1) and not for 7(3). So I

24 hope we agree on that because I wasn't quite sure of what you were saying

25 just now. But we agree that the conviction has been entered on the basis

Page 217

1 of 7(1), not 7(3).

2 Thank you.

3 MS. KOSTA: [Interpretation] Yes, 7(1).

4 First of all, I'd like to say that everything that happened and

5 the consequences of what happened in Stupni Do happened within the

6 frameworks of war and the storms of war in Bosnia-Herzegovina, and that

7 the Stupni Do case was an -- was not an individual one, that is to say, it

8 wasn't an individual location of war operations. At the -- it was taking

9 place at the same time when the Bosnia and Herzegovinian army as well as

10 the Serb army was active on that territory and also the very fact that an

11 action took place in Stupni Do indicates the fact that only one day before

12 the Stupni Do action we saw the fall of the village of Kopljari, which was

13 a Croatian village, and also in June 1993 from the town of Kakanj itself,

14 through an action launched by the Army of Bosnia-Herzegovina 13.000 Croats

15 were expelled, and all those 13.000 Croats came --

16 JUDGE NOSWORTHY: I'm sorry to interrupt. Ms. Kosta, please go a

17 bit slower for me because I'm having a bit of difficulty keeping up and I

18 would like to be able to comprehend. Just a little bit slower. I'm so

19 sorry. Thank you.

20 MS. KOSTA: [Interpretation] Very well. I do apologise.

21 JUDGE NOSWORTHY: Not at all.

22 MS. KOSTA: [Interpretation] As I was saying, 13.000 Croats were

23 expelled from Kakanj and they all found themselves in Vares, which means

24 that Ivica Rajic did not go to Vares because he wanted to do so but

25 because the entire situation with respect to the war operations demanded

Page 218

1 that intervention take place on the territory of the town of Vares. And

2 my client did not go to Vares because he wanted to do so but on the basis

3 of an order and after an appeal had been launched for

4 assistance from the people of Vares.

5 So he went there and he went several -- there with the Maturice

6 and Apostoli units several days after those units had suffered certain

7 casualties, namely, seven persons were killed. And I should also like to

8 say that within the frameworks of this case and these proceedings we heard

9 one of the commanders, Maturica. And I'd like to draw your attention here

10 to the fact that it -- when we say "special purpose units" that is a very

11 strong term, whereas we're talking about special purpose units then we

12 refer to them as the Maturices and the Apostoli, Apostoles.

13 In the legal context, military context we should draw attention to

14 the fact that these were in fact units which at all times were placed at

15 the disposal of the commander. If the commander deemed necessary to send

16 them to an area where intervention was necessary, for example, where there

17 was a breakthrough, where the separation line could not be held and so on

18 and so forth. So there were no other attributes to these special purpose

19 units except for the kind that I have described. That was their role.

20 As I said, one commander was examined, and we see that we mention

21 his name in the plea agreement and in the indictment itself. It was Como

22 Ilijasevic, and he said when he was examined by the Prosecution, Ms. Josee

23 was the Prosecutor, that they went but did not know why they were going

24 specifically and that they were beside themselves because of the previous

25 acts that had taken place and they didn't have any special weapons.

Page 219

1 I'm saying this for the following reason. Ivica Rajic, together

2 with those units of some 200 soldiers, pursuant to orders from General

3 Petkovic did not know what he would come across, what was waiting for him

4 when he arrived in Vares itself. With his arrival in Vares, and when he

5 arrived in -- before he arrived in Vares, there were written traces asking

6 for aid and assistance with respect to the fall of the village of

7 Kopljari. So when he reached Vares, Ivica Rajic was informed by those who

8 were engaged in putting up Vares's defence what the situation in and in

9 conformity with that that they were having quite a lot of problems if

10 Bogos hill were to fall or, rather, if Stupni Do were to fall.

11 Sizing up everything that he was told, all the information he was

12 given, Ivica Rajic took the decision that he should take control of Bogos

13 hill. And you can see that Bogos hill was not the subject of the

14 indictment because it is considered to be a very important strategic

15 military point. And at the same time they considered that if the Bogos

16 hill were to fall, then the inhabitants of Stupni Do would leave Stupni Do

17 and that there would be no need for any major interventions.

18 However, when Bogos hill fell, this did not happen. The people

19 did not leave. Neither did the soldiers who were in Stupni Do leave. And

20 this led to additional intervention, although there is proof and evidence,

21 and I should like to refer to that, that the inhabitants , and there were

22 about 40 of them, we have already discussed this matter, and it -- we have

23 reached agreement, that is to say, the Prosecution and Defence reached

24 agreement on that fact. There are about 36 military-able men, or

25 soldiers, as we call them, and they were individuals, and we have

Page 220

1 documents to that effect, who had packet communication and a certain

2 amount of weapons, too. And in a military sense they were well-armed as

3 we would term it.

4 Now, the Prosecution, during our negotiations and discussions over

5 the plea agreement, and also today, did not refer to and did not present

6 to the Trial Chamber a very vital document as far as the Defence is

7 concerned. I think it is very important to establish the legal

8 groundworks for aggravating and mitigating circumstances for sentencing

9 and judgement. They did not say how far the Bogos hill and Stupni Do was

10 very vital for the Army of Bosnia and Herzegovina. So when we take a

11 closer look at what the analysis contains, and the analysis was presented

12 as an exhibit when we spoke about vital facts in weighing up the

13 sentencing, then you will see that in June Ivica Rajic called upon the

14 inhabitants of Stupni Do and Dastanski village, which are both inhabited

15 by Muslims, to lay down their arms which the inhabitants of Dastanski

16 did. However, the inhabitants of Stupni Do did not lay down their arms

17 and were prevented from doing so by the BiH army and said that if NATO

18 insisted -- if the Croatian army insisted that the town of Vares would be

19 shelled.

20 I am very pleased that we were able to see a moment ago

21 photographic documents and also a film, a video was shown on the basis of

22 which you were able to see what I'm saying, that Bogos hill and Stupni Do

23 were very important to the BH army with respect to the town of Vares.

24 I would like now to deal with some of the facts the Defence

25 referred to -- or rather, the Prosecution referred to facts that are

Page 221

1 linked to show what crimes had taken place in Stupni Do and also they

2 indicated a certain -- certain statements from interviews conducted with

3 soldiers and people who were in Stupni Do themselves. That's what I would

4 like to do.

5 And may we go into private session for that because the

6 Prosecution and the Trial Chamber took note of the fact that this was

7 confidential information and confidential statements.

8 So might we go into private session, please?


10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 222











11 Pages 222-225 redacted. Private session.















Page 226

1 (redacted)

2 [Open session]

3 THE REGISTRAR: We are in open session, Your Honours.

4 MS. KOSTA: [Interpretation] I would like to turn to this issue now

5 dealing with the people under the command of Ivica Rajic, the troops that

6 were under his command.

7 We have to point out that this was a time of war. Ivica Rajic was

8 not the one who founded either Maturice or Apostoli. They were founded by

9 Mr. Tihomir Blaskic. And Ivica Rajic inherited them from him and he

10 changed the name, Lucic. These were professional soldiers, soldiers

11 concerning whom there was information that they had committed certain

12 crimes, as the Prosecution indicated. It says that one of them cut off

13 people's ears, one of them chopped several heads off. However, Ivica

14 Rajic was not the person who prevented any proceedings from being

15 instituted against these people in order to establish the criminal

16 responsibility. The OTP is aware, the Trial Chamber is aware, because

17 there is evidence proving this, that Ivica Rajic and the operations area

18 at the time were the only ones in the entire HVO who did prosecute people

19 for crimes that were committed. So in all cases when Ivica Rajic was

20 aware of the crimes, he did bring charges against the perpetrators.

21 These two facts pointed out by the Prosecution were not a result

22 of Ivica Rajic's decision. No. It was a result of a decision taken by a

23 group, and Ivica Rajic was just a member of that group, one of the

24 members.

25 When Maturice and Apostoli were issued an order to move towards

Page 227

1 Stupni Do and Vares, we have to say that Ivica Rajic did issue an order in

2 legal terms. However, he, under no circumstances, ordered his people to

3 exceed their authority which resulted in these grave consequences.

4 Similarly, I would also like to say something about the crimes

5 committed in Stupni Do. Now that we are discussing war crimes and conduct

6 associated with war crimes, we have to say that there is nothing that can

7 improve the impression of war crimes. Every war crime is an awful crime.

8 In addition to that, we must not neglect the fact, and I'm very happy that

9 the President of the Trial Chamber put this question to the Prosecution

10 when she said: Do you believe that in view of the high media profile

11 given to Stupni Do, do you think that it is in that light that the

12 Prosecution views the gravity of the crimes committed, to which the

13 Prosecution said: Absolutely no.

14 However, I would like to say this, that after the crimes in

15 Stupni Do, in a place called Donja Grabovica a massacre was committed.

16 Croatian residents were killed. This is a well-known fact. Muslims

17 killed 19 persons, mostly women, elderly, and children. They did not

18 simply kill them. They slit their throats, following which they cut off

19 each head and impaled it.

20 I have been following all crimes which took place in Bosnia and

21 Herzegovina, but I have to say that this crime was never publicised by the

22 media, at least not to the effect that, for example, a crime in Skabrnja

23 was. I have to say that precisely because of the way that Stupni Do was

24 presented to the public, certain arguments were brought forward to mark

25 this or to describe this as one of the gravest crimes ever committed in

Page 228

1 the territory of the former Yugoslavia.

2 Let me say something about the number of the victims in Stupni Do.

3 In the plea agreement, we agreed to the number of 36 victims. When we

4 spoke about the sentence, however, I considered it necessary to provide to

5 the Chamber two documents pertaining to the victims of Stupni Do. One

6 document was drafted immediately after the events, which is exactly when

7 the film and photographs you were shown today were made. And then the

8 other one was made up by a commission comprising people from Stupni Do.

9 Nowhere did they state that the fate of some other persons was not clear.

10 On the 23rd of October, 1993, however, they apparently identified and

11 buried the following persons, and then they go on to list the person of

12 the last name, year of birth, and place of residence. They go on to list

13 17 persons.

14 One year after that another list was drawn up which was a list of

15 victims containing at this time 38 names. This is all I have to say about

16 the number. In this second list you can see that the majority of the

17 victims were marked as soldiers, and you can also see that they did not

18 reside in Stupni Do.

19 Let me also say that once we signed the plea agreement and once my

20 client pleaded guilty, we acknowledged everything that took place in

21 Stupni Do. There were, however, testimonies given by eye-witnesses,

22 UNPROFOR representatives, monitors, and so on saying that bodies had been

23 set on fire but did not smell of petrol. It was also said that these were

24 the bones of bodies set on fire; however, it hasn't been possible until

25 today to discern whether these were human bones or animal bones.

Page 229

1 We must say that this was a hand-to-hand battle. The battle was

2 fought house to house. There was a very strong resistance put up in

3 Stupni Do. This is under which circumstances the battle took place. We

4 also have some witnesses saying that in one of the houses there was a

5 barrel of oil, and as a result of all the ammunition fired this led to an

6 explosion. Then there was also some collateral damage where people were

7 killed by stray bullets. It would be hard to say in certain circumstances

8 whether an injury on somebody's neck was a result of slitting throats or

9 whether that was inflicted by a bullet which went through somebody's neck.

10 Why are we bringing this up? We are bringing this up to show you

11 that these are facts available in this case which must not be neglected

12 because you have to hear the other side as well. You must hear not only

13 about the crimes but you must also hear how the crimes came to be

14 committed. Some things remain unclear or not clarified to this very day.

15 In addition to this, I must point out --

16 JUDGE VAN DEN WYNGAERT: May I interrupt counsel just for a second

17 because I'm looking at the time and -- something is wrong? Maybe it's my

18 microphone.

19 With the time limit that is left here, we have quarter to, and we

20 must be aware of the fact that we are bound by the plea agreement. So

21 there are a number of things that are, unfortunately for you, not relevant

22 anymore, and I would suggest that in the time that is left that you

23 concentrate on the sentencing and on the gravity of the crime and the

24 mitigating and aggravating circumstances.

25 Sorry for interrupting you, but I think in view of the time this

Page 230

1 is an important point to make. Thank you.

2 MS. KOSTA: [Interpretation] I would now like to say something

3 about my defence. My defence was conceived in a completely different

4 manner until I heard your four questions, Mrs. President. I have to say

5 that this prompted me to say something that I wasn't initially going to

6 say. I believe this to be very important for mitigating circumstances.

7 Now, since I have only 15 minutes left, allow me now to turn to

8 the following circumstances. I will be very brief and clear.

9 Ivica Rajic did not go to Vares because he wanted to. Ivica Rajic

10 went to Vares because he was issued an order by his superior, the general

11 who was there, which was Mr. Petkovic. Ivica Rajic was sent there in

12 order to assess the situation and take certain action. Ivica Rajic

13 certainly did not wish for the consequences that he is charged with to

14 happen. He, following this, went back to Kiseljak, wrote a report. And I

15 must say that this report was drafted on the basis of his initial

16 knowledge, which he acquired upon entering the village of Stupni Do. He

17 was able to see that a disproportionate force was used in the village.

18 And based on that, in his report, he wrote sufficient -- he put in

19 sufficient information that should have prompted his superiors to start an

20 investigation.

21 When Ivica Rajic reached Kiseljak -- in view of the fact that I'd

22 like to present now -- (redacted)

23 (redacted)

24 (redacted) Thank you.


Page 231

1 [Private session]

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 MS. KOSTA: [Interpretation] Ivica Rajic, after that, received a

22 promotion from Tihomir Blaskic on the 1st of November, 1993. The HVO

23 promoted him to the rank of brigadier in active service. Throughout that

24 time you must know that the top Croatian leadership had all the knowledge

25 about the event. And although we did not present this through our

Page 232

1 evidence, we would like to use our transcripts, which the Prosecution has

2 as well, and that is that at a meeting with President Tudjman, the

3 then-foreign affairs minister literally stated the following. He said

4 that for the public that it was sufficient not only to replace him but to

5 say that an investigation should be underway.

6 I state that in the context of what the Prosecution said when it

7 said that Ivica Rajic wanted to cover up the whole situation, that he

8 himself wished to cover it up, and that that is why he changed his name

9 later on. None of those two facts hold water. He did not cover this up,

10 and he did not change his name because he wanted to do so. He was ordered

11 to do so. I think we provided all the necessary documents to bear that

12 out and showed them to the Prosecution. I think those are the mitigating

13 circumstances.

14 Ivica Rajic came to Croatia pursuant to orders from the Croatian

15 authorities, and he was there in 1994 until the middle of 1996. It is

16 true what my learned friend of the Prosecution said today, Mr. Scott, when

17 he said yes in answer to one of your questions. When was the date that he

18 first knew that the indictment was raised against him, and he said that it

19 was sometime around the 9th of January, 1996.

20 You know what happened then? He signed a power of attorney to

21 attorney Hodak. And after talking to his attorney Hodak, who informed him

22 of the facts, that is to say, how he should prevent his defence in order

23 to protect Croatia and not to protect himself and not to state what

24 actually happened, that is to say, not to tell the truth.

25 After that Ivica Rajic revoked his power of attorney to attorney

Page 233

1 Hodak, and I must say that he was in hiding and managed to amass and

2 collect documentation which he has now placed at the disposal of the OTP.

3 That is what I wanted to say with respect to the aggravating

4 circumstances.

5 Now, the fact that he was a fugitive, let me say that his escape

6 and the consequences of his escape have been hardest on Ivica Rajic. You

7 might ask yourselves why. Well, because he -- the fact that he did not

8 come before The Hague Tribunal, he did that following orders from his

9 superiors. And during that time there were proceedings held before this

10 Tribunal which were very bloody proceedings compared to the proceedings

11 against General Tihomir Blaskic. With his lack of appearance, he was not

12 able to challenge many of the assertions made by that accused, the accused

13 who was later convicted of crimes.

14 So that is what I want to say with regard to the aggravating

15 circumstances that were mentioned.

16 Now, as regards to mitigating circumstances, I would like to say

17 the following. Ivica Rajic agreed to cooperate with The Hague Tribunal

18 and The Hague Tribunal's Prosecution and therefore acknowledged his guilt

19 because the reason was that he wanted in a direct way, without exposing

20 victims to additional torture, to tell the Tribunal what actually happened

21 in Central Bosnia or, rather, within the frameworks of his operative zone.

22 And I would also like to stress one additional fact. Ivica Rajic,

23 after having changed his name, because this was something that he was

24 ordered to do, to become Viktor Andric, remained a commander of the

25 forward command post, and I must say that at that time he took part in

Page 234

1 breaking through the corridor towards Busovaca with those same people.

2 No -- not a single crime was ever committed in doing so.

3 That would be all.

4 I do apologise, but there was another circumstance that I would

5 like to raise and that is the circumstance relating to the impossibility

6 of UNPROFOR and UNPROFOR's entrance into Stupni Do and Vares. I would

7 like to say that there, too, Ivica Rajic was acting upon orders from

8 Mr. Blaskic, and they have been attached to these files. It was not an

9 action or operation that was characteristic of Ivica Rajic.

10 That is something that the other side did as well, the Army of

11 Bosnia-Herzegovina did that kind of thing, too. And we will see in the

12 document 01813328 that it is unchallenged that Rasim Delic also prevented

13 UNPROFOR from entering the Croatian villages and the territory where

14 action -- the arm -- Bosnia-Herzegovina undertook its actions and

15 operations.

16 Ivica Rajic, and that is something that the Prosecution are aware

17 of -- well, the question is: Why did UNPROFOR not enter Stupni Do? Well,

18 precisely because there was a package link, and in Stupni Do you did not

19 only have unprotected citizens, unprotected inhabitants, but it was

20 established -- but with the entrance of UNPROFOR that this would enable

21 soldiers who were there, who were in Stupni Do themselves, to leave. We

22 see this on the basis of a document that was verified by the

23 Tribunal, and the number of that document is 00793182, in which

24 specifically one of the participants in the action on the part of the BH

25 army in Stupni Do states the following: "We were told through packet link

Page 235

1 that us soldiers would be transported -- we soldiers would be transported

2 by UNPROFOR, three of us with weapons, but we have to leave our weapons in

3 the woods and also take down all our military insignia."

4 And he says: "I took my insignia off my uniform and put on

5 civilian clothes."

6 So what Mr. Rajic says is this: He says that when war operations

7 were ongoing, there was -- it was not his own will not to allow UNPROFOR

8 to enter. There were realistic circumstances who -- which indicated the

9 fact that UNPROFOR could be abused if it were to do so.

10 The Defence and Mr. Rajic signed the plea agreement, the guilty

11 plea. We stated that we were guilty of the counts in the indictment,

12 charges made in the indictment. We have shown sincere remorse, and that

13 is why we propose that this Trial Chamber set a sentence of 12 years for

14 my defendant.

15 I should also like to mention that in my written submissions I

16 include a series of facts and figures which I consider give the Trial

17 Chamber an overall view of the situation and that they will be able to

18 weigh up the sentence with all these facts before it.

19 I think that a 12-year sentence would serve as a deterrent and

20 serve justice.

21 JUDGE VAN DEN WYNGAERT: Can you please switch out your

22 microphone.

23 Thank you, counsel. I have one general observation and perhaps

24 one question.

25 My general observation is that in your submission now you have

Page 236

1 made a number of points that are in contradiction with the facts as they

2 have been agreed in the plea agreement. So you must be aware of the fact

3 that we, as the Trial Chamber, are bound by these facts and that we can't

4 re-open a discussion on a number of items that you now want to bring under

5 our attention or facts that you would wish to put in a different light.

6 This is something that cannot be done at this stage in time, so I'm not

7 going to go into that. I just want you to be aware of this.

8 I have a question, but perhaps this is something that I can -- a

9 question that I can address to the -- to Mr. Rajic when he makes his

10 statement later on.

11 The Trial Chamber knows very little about the personal

12 circumstances of Mr. Rajic. So you have referred just now at the end to

13 what you have been saying in your brief, but is there anything that you

14 could ask -- could add to help the Court in assessing the personal

15 circumstances of your client? Maybe you can leave it to him. I don't

16 know.

17 THE INTERPRETER: Microphone, please, for counsel.

18 MS. KOSTA: [Interpretation] Your Honour, as to the personal

19 circumstances of Mr. Rajic, the accused, I should like to say that the

20 accused to the present day, to the time he appeared before the Trial

21 Chamber, was never convicted of any crimes and he never came into

22 coalition with the war. He was an honourable and respectable man in his

23 unit and a member of the community in which he lived. He was also a man

24 who, during his youth, was an honourable person. He came from a very poor

25 background, and everything that he created he created through his own

Page 237

1 efforts and labour.

2 He is the father of three children and is expecting a fourth

3 child, a fourth child is on the way. His wife also works, and he was

4 always a respected member of the community.

5 That is what I can tell you about him.

6 As to his other personal circumstances, I'm sure he'll be able to

7 tell you those himself better than I would be able to. But that is what I

8 know so far about him as a man and a member of the community.

9 Thank you.

10 JUDGE VAN DEN WYNGAERT: Thank you very much, Ms. Kosta.

11 Judge Nosworthy.

12 JUDGE NOSWORTHY: Yes. Mrs. Kosta, or Ms. Kosta, I had really

13 noticed the same thing as the Presiding Judge, that you had overlooked the

14 question and the issue of the personal circumstances of the accused.

15 And you mentioned the fact that he was from a poor background. Do

16 you have any other instructions or material that would help the Trial

17 Chamber in terms of how he was brought up or the circumstances of his poor

18 background, how he related to his parents and so on. That would go to the

19 personal circumstances? Anything more to assist the Trial Chamber from

20 you, his counsel?

21 MS. KOSTA: [Interpretation] As far as his personal circumstances

22 are concerned, I think they are facts that hold true for every normal

23 person. That is why I didn't consider it necessary to bring any documents

24 with me to indicate this to you. Perhaps that is a mistake on my part

25 which I hope will not be reflected on my client.

Page 238

1 He was a very good student. He was a very good pupil during

2 secondary school. He completed military school, and his family was a very

3 poor one. He was supposed to be a priest. He was not linked to any

4 ground forces. He was an engineer, a radar engineer. Unfortunately the

5 war broke out and everything that happened happened.

6 I would just like to add amongst the mitigating circumstances one

7 more thing which we omitted to talk about, and that is that when we as the

8 Defence wanted to verify the statements and testimony of certain

9 individuals, statements given, such as Nenad Rajic, who lived in Kiseljak

10 and who spoke about his relationship towards Muslims, in June the village

11 of Rotilj, which is near Kiseljak, and this is in 1993, it had an

12 exclusively Muslim population. In that village there were 1.500 Muslims

13 who were expelled.

14 Now, that witness, Nenad Rajic, said that Ivica Rajic paid daily

15 visits and asked that those people -- that not a hair on the head of these

16 people should be harmed, regardless of whether those people were supposed

17 to be exchange or not.

18 There was also another testimony by a witness called Jakov

19 Bienfeld who, without any separate invitation, and there was a newspaper

20 article written about that, came and said that Ivica Rajic during the

21 siege of Jews in Sarajevo in 1993 organised -- that the departure of 2.000

22 Jews from Sarajevo without any remuneration or any conditions or strings

23 attached. He managed to arrange for 2.000 Jews to leave Sarajevo.

24 Those are additional data and circumstances that I could -- that I

25 was able to give you.

Page 239

1 JUDGE NOSWORTHY: I want to thank you, Madam Defence counsel.

2 There was no indictment on your competence as counsel, just in an effort

3 to get additional circumstances that might better help the Bench and the

4 Trial Chamber in determination of its functions and issues before them.

5 Thank you.

6 JUDGE HOEPFEL: I have no special questions.

7 Maybe the one point you underlined: "We have shown sincere

8 remorse." Can you maybe describe us -- before we come to talk the accused

9 himself, in how far this remorse was -- had been articulated so far.

10 MS. KOSTA: [Interpretation] Your Honours, the remorse was

11 expressed in a way which might sound absurd to you, but it was done right

12 at the outset when Mr. Rajic just found out that there was an indictment

13 against him, that this court issued an indictment against him. And at

14 that time he was willing to come to the court and say how things happened.

15 Why is it that the investigation was not carried out? Why is it that

16 things happened the way they did? Once he received the instructions that

17 he was supposed to keep silent, that he was supposed to say that Croatia

18 had never waged a war in the territory of Bosnia and Croatia, those were

19 his instructions. This may sound absurd to you, but under those

20 circumstances he started collecting documents, the documents which he

21 disclosed to the OTP recently, and made himself available to the

22 Prosecution as a witness in future cases.

23 I also have to say to you that after his arrest - and this is

24 something that can be corroborated by Mr. Scott - I was not Mr. Rajic's

25 lead counsel at the beginning. I was just his co-counsel. But I think

Page 240

1 that back in 2003 Mr. Rajic asked or told his then-counsel, Mr. Olujic,

2 that he was present to -- he was available to testify in the Blaskic

3 appeal case to challenge all the untruths that were said in those

4 proceedings.

5 When I asked Mr. Scott whether he was aware of that, because

6 Mr. Olujic used to claim that he had informed Mr. Scott, but Mr. Scott

7 failed to take any action in response to this. This left me speechless.

8 So the remorse was that and the remorse was expressed in such a

9 way that from the first day of his arrival here my client never wanted to

10 avoid his responsibility. And it's not that he wanted to cooperate only

11 because of the threat posed by 11 bis proceedings, no. He expressed a

12 desire to cooperate from the very beginning.

13 JUDGE HOEPFEL: Thank you.

14 JUDGE VAN DEN WYNGAERT: I take it, counsel, that you have no

15 further evidence of what you are just saying than your own statement of

16 today?

17 MS. KOSTA: [Interpretation] Your Honours, no, I have no additional

18 material to offer you.

19 But now that we are discussing all of these mitigating and

20 aggravating circumstances, allow me to offer another mitigating

21 circumstance; namely, in the documentation disclosed to us and to you by

22 the OTP, it seems clear that Stupni Do had about 50 houses and 250

23 inhabitants and that 50 houses had been destroyed. This has been proven.

24 However, on page 00332872A there is a paragraph showing that the cemetery,

25 the cemetery existing in the village of Stupni Do, was left intact, was

Page 241

1 completely preserved.

2 In addition to that through our exhibits, we disclosed to you

3 photographs showing that the Muslim mosque was also left intact. Why am I

4 bringing this up? I am bringing this up to show you just what kind of an

5 operation was conducted there in Bogos and Stupni Do, what kind of an

6 attack it was.

7 JUDGE VAN DEN WYNGAERT: Thank you, Mrs. Kosta.

8 We will now turn to Mr. Rajic.

9 Mr. Rajic, you have the opportunity to make a statement now, and

10 we understand that this is going to be a statement about your own

11 feelings, looking back at what happened in October 1993 and your own

12 involvement there. So in that case, I will refrain from asking you to

13 make a solemn declaration. Is it correct that you will be stating your

14 feelings?

15 THE ACCUSED: [No interpretation].

16 JUDGE VAN DEN WYNGAERT: Can you please proceed, Mr. Rajic.

17 THE INTERPRETER: Microphone, please, for the accused.

18 THE ACCUSED: [Interpretation] Before I start describing to you

19 what happened in that unfortunate war, I would like to thank you for the

20 understanding you have shown by cancelling our previous sentencing

21 hearing, and that was due to the situation that I was experiencing at the

22 time.

23 I need to inform you that one of the reasons for the condition

24 that I was in at the time was removed. I don't know how things are going

25 to unfold in the future, but we will keep you informed. At any rate, I

Page 242

1 would like to thank you for your understanding.

2 The proceedings today have been rather long, and since this

3 involves some very serious matters that will determine my fate, you will

4 understand that my concentration is not what it should be. Therefore, I

5 would like to use my notes in order to address you so that I can speak

6 from the heart.

7 Your Honours, thank you for giving me the opportunity in this

8 encounter with the truth to say a few words about myself and the war in

9 which I took part, about the reasons for the war, tragic consequences, and

10 my real role in the events which led me to appear before this Court.

11 I was born in a country where, at the time when I was a child,

12 when I attended school, an impression was created that all of the reasons

13 that had until then caused small peoples living there to fight had ceased.

14 I remember well my thoughts as a young man when I believed that I belonged

15 to this fortunate generation which will never experience war and that all

16 that was needed for a happy future was an honourable and proper attitude

17 to work the society and work.

18 Growing up with such beliefs and growing up in a poor family,

19 while still a high school student, I received a scholarship which enabled

20 me to continue my education. I enrolled into a very prestigious air force

21 academy where I achieved great results in my studies.

22 The profession that I required [as interpreted], that of a very

23 sophisticated radar engineer, opened up great possibilities for me in

24 life. In addition to that, a very brave, very decisive, young woman of a

25 different faith and ethnic background but with similar convictions and

Page 243

1 values became my wife. We started a family without any prejudice. We

2 were an example for all generations.

3 At the time it seemed that nothing could be better or happier.

4 However, different times came, times when people started splitting along

5 religious or ethnic lines, times that did not allow one a lot of choice.

6 The war broke out with lightning speed and forced me to accept the call

7 given by my friends and neighbours to assist in the defence of our people.

8 To remain with one's nation in difficult times was always considered an

9 honourable choice. Although I had some different plans for myself, this

10 unfortunate development of events determined my fate.

11 The chance to leave that hell decreased on a daily basis and as

12 did their demands to remain on their side, to stand by them. This is how

13 I came to be a member of the worst war whichever took place in that area.

14 The plans of great powers and ambitions of small nations to organise the

15 state of Bosnia and Herzegovina in accordance with their wishes were not

16 compatible. This conflict between great powers and small nations caused

17 violence, and overnight animosity was created, as were alliances which

18 were difficult to understand. Although I was not a political man, I had

19 sufficient background in history in order to know that my Croatian nation

20 which was not very numerous in Bosnia and Herzegovina had nevertheless

21 very deep roots in Bosnia-Herzegovina. Due to the aggression against

22 Bosnia and Herzegovina, our people were exposed to great suffering, and I

23 believe that it was my duty, my clear duty, to remain with my nation.

24 Your Honours, this is my belief to this day.

25 Since I was not active in politics nor did I participate in

Page 244

1 setting the goals of the war, I believed that the leadership was doing

2 this wisely, the leadership that was entrusted with this. Unfortunately,

3 the time and events which ensued showed that some of the decisions were

4 neither wise nor responsible. The conflict between Croats and Muslims

5 should not have happened. There are witnesses, and I have also provided

6 some evidence to the Prosecution clearly showing that back in the summer

7 of 1992 I took a decisive stand against mad action of Tihomir Blaskic and

8 those who protected him and provoked this conflict in Central Bosnia.

9 Due to my position, I was removed in early 1993 from all positions

10 I held at the time, so that this man with the support of the same people

11 could immediately after that start his second war against Muslims. Having

12 a good reputation in both nations and risking my own life, I played a key

13 role in stopping this completely senseless conflict which could not

14 produce a winner.

15 Your Honours, there are many witnesses who can testify about this,

16 and there are numerous documents which I, through my cooperation, provided

17 to the Prosecution. However, despite of everything, the same people

18 basically deported me from Kiseljak which was my town.

19 In late April of 1993, when visiting some relatives in Kiseljak, I

20 found myself amid crucial events when the same people started their third

21 war against Muslims. It was no longer possible to do anything that could

22 have stopped this senseless plight of people, destruction of their homes

23 and settlements. A scenario was set in motion, a scenario that I knew

24 nothing about, neither did many people that I spoke to.

25 However, based on what we could see, and based on what I could

Page 245

1 learn, it didn't take much to realise what was going on. There was no

2 double chain of command, nor was there an interruption in communication

3 between those issuing orders and what was going on. Everything unfolded

4 precisely as Blaskic requested it, pursuant his decision or somebody's

5 order. I hope that he will be forced to explain this.

6 The second issue was conceived in the eyes of cowards when they

7 had to avoid their own responsibility and catastrophic effects. Lack of

8 knowledge of what was going on on the ground and due to distance and poor

9 communication, all of these facts point to the direction of lack of

10 sensible leadership. However, as was easy to predict, the fortunes of war

11 changed direction and soon Croats were under an all-out attack. The

12 situation -- the status of Croats living in Central Bosnia became a

13 terrible one. They started making plans for moving out. I also provided

14 evidence about this to the Prosecution.

15 Then the same authors of war remembered me. Knowing that I

16 previously held a high reputation among Muslims and their military

17 commanders, they entrusted me with a role of a negotiator and later on

18 appointed me commander who was tasked with saving whatever was there left

19 to save. It was difficult to negotiate and convince the opposing side

20 that something that wasn't true in fact was true. Fully aware of tragic

21 consequences should the war continue, I did my best to put an end to this

22 madness.

23 Unannounced I went to the headquarters of the army of Bosnia and

24 Herzegovina in Visoko, and at the risk of being imprisoned, once again I

25 attempted to negotiate the end of war. I did everything that they asked

Page 246

1 me to do, even what they themselves believed to be impossible. However,

2 the spiral of violence had reached such a high level that it was

3 impossible to even discuss a truce. The desire to survive is such that it

4 is difficult to ensure that those who had suffered terrible personal

5 losses will always act reasonably. How to act in compliance with what was

6 permissible under the circumstances which themselves are so impermissible

7 as that war was.

8 Your Honours, I knew that a large number of people that were under

9 my command had suffered a personal loss, a loss of their family members or

10 homes. I knew that there were people with their human faults. However,

11 it was impossible for me to predict how each of them was going to react

12 under war circumstances. I carried out my tasks with the people I had

13 under my command, not the people I wish I had under my command. I never

14 ordered a crime to be committed. I only ordered the implementation of

15 what was necessary in terms of our operations.

16 Within the framework of my possibilities, I sanctioned certain

17 acts straight away, some upon the advice of my associates and the

18 authorities and institutions were recorded with the intention of taking

19 the necessary steps and procedure at a time when this would not be

20 counter-productive for the overall system of defence. I also stood up to

21 lawlessness, very often at the risk of my own life, and this is borne out

22 by the fact that the criminals from my own ethnic group attacked me very

23 often and a number of times tried to abduct me and kill me. There are

24 documents to bear that out and I have put them at the disposal of the

25 Prosecution.

Page 247

1 I have said all this in order to paint a realistic picture of the

2 situation and the circumstances I had to act in. My departure to Vares

3 did not have as its aim to perpetrate any crime which would create as a

4 response an attack by the BH army on Vares, after which the Croatian

5 people would have to leave that territory.

6 The attack launched by the BH army on Vares lasted for several

7 days. It was already ongoing. The HVO Vares asked for assistance, and in

8 following orders, the orders given to me by my superiors, I did everything

9 in my power to do what I could to save the situation. Unfortunately,

10 certain individuals and groups did not respect the instructions received

11 from their superiors and in that very difficult and unforeseeable

12 development of events a crime took place. Nonetheless, it should not have

13 been a justification for the serious crimes which happened to the Croatian

14 people later on in that same territory.

15 Your Honours, from everything that I have said and that you have

16 heard, I would like to say that I did not order that crime to take place

17 nor did it take place with my knowledge but it did happen. It was

18 affected by individuals and groups to which I was superior. So that is

19 why I am held accountable.

20 Just as a commander can bask in glory for his good acts, the acts

21 that he accomplishes together with his soldiers, so also military ethics

22 and honour make it incumbent upon him to accept responsibility for the

23 evil deeds that were committed.

24 I will accept your sentence and judgement bravely and

25 courageously. I am very sorry for all the victims and suffering that took

Page 248

1 place in Stupni Do and Vares. Those victims were unnecessary, just as the

2 war between two friendly nations was unnecessary.

3 I should like to apologise to the families of the people who have

4 suffered, expressing my full sympathies for having lost their -- and my

5 regrets for the loss of their nearest and dearest. This comes from the

6 heart, and it is my sincere regret, because I understand the pain and

7 suffering. I know this because the war brought pain and suffering to my

8 own family, as it did to many other families, regardless of their

9 ethnicity. All those victims deserve the truth and justice, and my

10 cooperation with the Prosecution is a contribution to the establishment of

11 the truth and the acceptance of my responsibility of a man who is

12 responsible but not broken, as my former attorney was prone to state.

13 I am convinced that this grain of truth will be recognised and

14 separated from the sea of lies which for years in Bosnia and Herzegovina

15 and the Republic of Croatia have been put about -- about me by individuals

16 and the intelligence services and media who are owned by various

17 proprietors in order to make me keep quiet, to remain silent, and to cover

18 up the truth, to cover up the truth about the policies and politics

19 pursued, policies which have made my own people both victims and

20 aggressors in their own country.

21 Only the truth can help future generations, and I will tell the

22 truth and defend the truth regardless of threats and physical assaults,

23 indeed, which I experienced in the Detention Unit. Since those threats

24 were not only held at me personally but at my entire family and, indeed,

25 my Defence counsel as well, I should like to ask this Honourable Trial

Page 249

1 Chamber to use its influence to protect them.

2 Those people who are afraid of the truth will stop at nothing and

3 use subtle and dangerous methods which confirms the well-devised

4 intelligence and media campaign launched in the Republic of Croatia

5 against me after I had reached a plea agreement with the Prosecution. How

6 else can one explain the writings of a very influential Croatian weekly

7 which refers to Croatian intelligence services and the lies they put out

8 that I was responsible for the terrible tragedy that took place at the

9 Markale market in Sarajevo and as a threat to my family. If along with

10 this monstrous lie they publish a photograph of my wife with my address

11 and even the licence plates of our family car. Is that not a covered up

12 invitation to the friends and family of those who suffered in that

13 terrible crime to lynch my family in retaliation and revenge. And even

14 more monstrous and worse lies were bandied about about me through a

15 programme that is very popular on Croatia television immediately after the

16 plea agreement was made and immediately after I recognised my guilt.

17 I should like to mention that my former attorney took part in that

18 television programme. I described him earlier on by just two words --

19 just two words. Such tricks that are being played and the fate of

20 individuals in Croatia who cooperated with this Tribunal are a lesson for

21 caution, that I should proceed with care and do everything to see that my

22 family are safe. They are well tried and tested methods of the lackeys of

23 the regime, of poodles and dogs from the intelligence service and security

24 services, of former political clans and present-day political clans who

25 were at the head of fateful events and who had our destiny in our hands in

Page 250

1 order to protect themselves. They are trying to cover up what actually

2 happened and are doing their best to provide false evidence and proof and

3 accuse others by doing so, and thus belittle this Tribunal before the eyes

4 of the Croatian public as well.

5 I know full well that the Prosecution is undertaking concrete

6 steps to unmask certain false constructions that have been slipped into

7 this Tribunal. And I sincerely hope that they will give me the

8 opportunity of personally taking part in unmasking these untruths.

9 Your Honours, I have done everything in my power to ensure that

10 you arrive at the whole truth. Proof and evidence about everything that

11 happened stand firmly, placed before you in your hands. I believe in your

12 courage and your wisdom in weighing up a just sentence. I pray to God to

13 give me the strength and health to persevere honourably and to go back to

14 my family, which is blameless and who needs me very much.

15 Thank you.

16 JUDGE VAN DEN WYNGAERT: You may sit down, Mr. Rajic.

17 Thank you very much for your statement, Mr. Rajic. I have -- like

18 after your counsel's submission, I have an observation and one, perhaps,

19 two questions.

20 My observation is the same as my observation towards counsel --

21 the points counsel made or some of her points, and it is that also you in

22 your statement have departed on a number of points from the facts as they

23 were agreed in the plea agreement. So this Trial Chamber will only look

24 at those facts and will base its sentencing judgement on those facts.

25 Let me come to two questions. And if you wish, you can ask us to

Page 251

1 proceed to closed or to private session if you feel that the answer may --

2 that it may better -- that it be better for you to have the answer in

3 closed session.

4 My first question relates to your remorse, and I'm thinking of

5 what counsel just said, that your remorse was first manifested on the

6 moment of your arrest and that as from the very beginning you were willing

7 to express your remorse. And so my question to you is: Why then did it

8 take so long for you to plead guilty? Why haven't you given a sooner

9 effect to that remorse?

10 The second question relates to a question that I have already

11 asked the Prosecutor and that is the possible connection to the procedure

12 that was envisaged at a certain moment in time to send you back for trial

13 to the courts in Bosnia-Herzegovina, which you opposed, if my

14 understanding is correct. And your guilty plea came on a crucial moment

15 in time in those months in 2005. Is there a link or is there no link?

16 These are the two questions I would like you to answer, if you

17 can. You may be seated.

18 THE ACCUSED: [Interpretation] Your Honour, the factual situation

19 which was placed before you and signed by the Defence and by myself and by

20 the Prosecution is the result of a compromise in a clash of arguments on

21 both sides.

22 What I am saying here today, I do not wish to challenge and

23 contest the factual basis which was signed and which is the document that

24 you have before you. I wanted to take advantage of this opportunity to

25 talk about a broader context of events and my special role therein, and I

Page 252

1 do not think that there is anything bad in that.

2 Since my case -- or rather, since I was a link in the chain, a

3 military chain of command as it is linked to my superiors and the people

4 before me, I wanted to briefly depict my role in everything that happened.

5 So I wanted to show you what the situation was like, what life was like.

6 Secondly, as far as my remorse is concerned, my remorse at this

7 moment, at this point in time. I would like to tell you that I did not

8 wish to escape the truth, not from the very first day. I informed my

9 superiors realistically about everything that was going on. However, as

10 you know, it was due to different interests that prevailed at that time

11 and decided -- matters that were decided upon by much higher authorities.

12 They asked me to behave in the way that I behaved. I had no choice in the

13 matter. I was asked, and the Prosecution knows this full well and has

14 received proof and evidence of that, that I was asked to behave in the

15 manner in which I behaved. So it wasn't my own personal choice, either to

16 be a fugitive, to hide, or to change my name.

17 The second point is this: As soon as the indictment against me

18 was raised, I asked - and there is written evidence about that - to be

19 allowed to prepare my defence in order to appear before this Tribunal. I

20 was told that they would help me -- that I would receive help, but that I

21 should defend official policy that came from Zagreb. And there is

22 evidence and proof of that as well. I showed these documents to the

23 Prosecution. I was not able to agree to that. I was not able to do that.

24 JUDGE VAN DEN WYNGAERT: Do you wish to go into private session?

25 No. Okay. Sorry to interrupt.

Page 253

1 THE ACCUSED: As far as I'm concerned, there's no need for us to

2 go into private session.

3 As I was saying, I did not agree to do that. I said that I would

4 defend myself and nobody else, because I am the person accused. As to the

5 other people who were accused, they could make their own choices and

6 defend whom they desire.

7 So faced with a situation of this kind, I was threatened. My

8 preparation to come before this Tribunal was threatened. So they tried to

9 manipulate me in order to open up the possibility for another accused,

10 Mr. Blaskic specifically, should go through his legal proceedings for his

11 trial to finish, because I -- they knew that I would not cover up the

12 truth. I would not cover up the actual situation and truth about what had

13 happened. They knew that, and they knew that this could be to the

14 detriment of Mr. Blaskic, and that is why I entered into a system whereby

15 I was manipulated. But once I came to realise that there were things

16 going on behind the scenes in order to save certain individuals at the

17 expense of others, I became active. I collected evidence and proof, and I

18 was arrested at the point in time when I had no more interest in hiding in

19 being a fugitive. So that's the truth of it.

20 So my remorse has been present from day one, but they tried to

21 manipulate me and I wasn't allowed to speak out and tell the truth because

22 this would not have been in the interests of certain institutions or

23 individuals. It would not have been to their advantage had I done so.

24 And now can you repeat your third question, please, I've forgotten

25 it?

Page 254

1 JUDGE VAN DEN WYNGAERT: The third question was whether there was

2 a connection between your guilty plea and your wish not to be sent back to

3 Bosnia and Herzegovina for a trial there, which was considered last year

4 as from July by the Prosecution, which was put before the Referral

5 Chamber. And then you entered your guilty plea, and after that the

6 Prosecution decided to suspend the proceeding in attendance of the

7 judgement on the sentencing.

8 So my question is: Is there a linkage between the two, or is this

9 just a coincidence?

10 THE ACCUSED: [Interpretation] No, no. There is no coincidence and

11 no link. There is no link. Because I expressed the desire to speak to

12 the Prosecution as soon as I came to The Hague, but Attorney Olujic tried

13 to obstruct that wish of mine.

14 And before discussions started about my possible return to

15 Sarajevo, I had a conversation with the Prosecution with the help of

16 Mrs. Kosta. Those negotiations had been going on for quite some time and

17 were almost nearing an end. All that remained to be done was to decide

18 upon certain points with respect to the final version of the plea

19 agreement, nothing more than that. So since the gentlemen of the

20 Prosecution were brought in a situation from higher-up institutions to

21 make a schedule of where people would be sent to complete their trials,

22 they entered into a formal procedure without my knowledge. So from day

23 one - and this can be borne out by Mr. Scott, I'm sure - from day one, I

24 never linked the two events, I never made any connection between those two

25 events. And I would like to appeal and call upon Mr. Scott to say that

Page 255

1 what I have been saying is indeed the truth.

2 JUDGE VAN DEN WYNGAERT: Thank you for that, Mr. Rajic.

3 Judge Nosworthy.

4 JUDGE NOSWORTHY: Yes. You have said on more than one occasion

5 during the course of your statement and in answer to questions that you

6 were forced and ordered to commit the acts that you committed or you've

7 pleaded guilty to, certainly, and to participate in the cover-up.

8 Now, what would have been the consequences of your not committing

9 the acts and not participating in the cover-up?

10 THE ACCUSED: [Interpretation] Right now it is going to be

11 difficult to explain all of the motives which lead to these things

12 happening.

13 However, at the time as this was unfolding, as they started the

14 game of cover-up, I was ordered and I was told that this was in the

15 interest of higher aims. I was clearly told that they knew I was not

16 responsible for what had happened. However, they had a different role for

17 me in mind. They wanted me --

18 JUDGE NOSWORTHY: I'm sorry, but I'm asking you what would have

19 happened to you, essentially. What would the consequences have been had

20 you not done what you were being requested to do. If you could try and

21 answer that for me. I'm sorry to stop you, but please do go directly to

22 what I asked you.

23 THE ACCUSED: [Interpretation] I would have been removed from the

24 HVO, disqualified, and this would have endangered my own life and that of

25 my family. That was what the circumstances were at the time. Our fate

Page 256

1 would have been very questionable.

2 JUDGE NOSWORTHY: Thank you very much.

3 Now, my next question is that you spoke of having married somebody

4 of a different ethnic group and religion. What ethnic group and religion

5 was your wife, or is she?

6 THE ACCUSED: [Interpretation] Fortunately she is still my wife and

7 the mother of our three children, and we are expecting the fourth child.

8 She hails from Macedonia. I married her while I served in the JNA in

9 Skopje.

10 JUDGE NOSWORTHY: My next question to you is that you had said

11 that your chance to leave hell decreased. Were you referring to your

12 participation in the war as hell, or what were you referring to? Could

13 you just briefly tell us a little bit more about this hell?

14 THE ACCUSED: [Interpretation] My profession was not of a military

15 nature. I had some other plans for myself because my education allowed me

16 to find job in some other fields outside of Bosnia and Herzegovina.

17 However, as you know yourself, the entire Bosnia transformed into

18 hell very quickly. All of the roads were very soon closed and obstructed

19 and it was difficult to leave it, especially leave it with your entire

20 family.

21 JUDGE NOSWORTHY: Now, you mentioned that a number of the persons

22 serving under you, under your command, had suffered personal losses as a

23 result of the war. What about you, yourself? Had you suffered any

24 personal losses or tragedies as a result of the war that you engaged in

25 or -- please tell the Trial Chamber.

Page 257

1 THE ACCUSED: [Interpretation] Yes. My oldest brother lost his

2 son, his only child, his only son. My younger brother became a disabled

3 person. He has a 60 per cent disability. My other close relative lost

4 his child, a minor at the time.

5 In addition to that, in my more distant family there were other

6 victims. So there is practically not a household within my whole family

7 that has not suffered significant losses.

8 JUDGE NOSWORTHY: Now, I'm going to ask you to be very pointed

9 when you're responding, and I want to find out from you, looking back at

10 your childhood, did any traumatic incidents took place or anything happen

11 during the course of your childhood, your formative years, your years as a

12 young person before you became an adult, that could have impacted

13 negatively on how you conducted yourself as an adult in later years and,

14 more particularly, how you responded during the war in the command of the

15 persons under you or in carrying out your duties as a man-of-war?

16 Please be very pointed and get to the issue that I place before

17 you.

18 THE ACCUSED: [Interpretation] I come from a traditional and

19 patriarchal and a very poor family.

20 As for a specific event from my childhood, I do not remember one.

21 As a boy, as a young man, and later as an officer and an adult I always

22 received praise and commendation for all of my achievements, both at

23 school and at work.

24 A war is something that no prior life can prepare you for. No

25 schooling can prepare you for war. I would like you to understand that.

Page 258

1 War puts you in a situation where you have to make split-second decisions,

2 and you usually have to choose out of several evils. You normally never

3 have to choose between good and evil.

4 JUDGE NOSWORTHY: Thank you very much, Mr. Rajic. No further

5 questions.


7 JUDGE HOEPFEL: Thank you.

8 Just to have the picture complete, this one question. Although

9 you were just saying no schooling can prepare you for war, I still would

10 like to know about your education. Could you give us a short overview.

11 It was mentioned that you attended secondary school. Where and how long

12 and what other education did you enjoy?

13 THE ACCUSED: [Interpretation] I completed secondary school for

14 mechanical technicians in Sarajevo. I was an excellent student and I

15 graduated with all straight A's.

16 Following that, as a person holding military scholarship, I

17 enrolled into air force academy department for computers. That was the

18 most difficult specialty within the air force academy. I also graduated

19 as top in my class. I was the best student in my class.

20 I was an exemplary officer later on when I served in the JNA. My

21 profession also allowed me to work as a flight controller in civilian

22 aviation, which was my original plan had I succeeded in getting myself out

23 of the hell of war which engulfed Bosnia and Herzegovina.

24 My profession had nothing to do with the war. I wasn't a

25 specialist needed in war. My profession is more of a civilian nature,

Page 259

1 that of an air flight controller. That was my occupation.

2 JUDGE HOEPFEL: Thank you.

3 JUDGE VAN DEN WYNGAERT: Thank you very much. We are just on

4 schedule. I think because we must close this session at 7.00. So

5 according to our schedule, it is now for the Prosecution to make some

6 closing remarks, five minutes maximum, and the same amount of time for the

7 Defence.

8 Mr. Scott.

9 MR. SCOTT: Thank you, Your Honours. I'll try to move quite

10 quickly in effect but hopefully not speak too fast for the translation.

11 There are two cases in response to the question that the Judges --

12 Your Honours raised some time ago now about the aggravating factor. In

13 the Celebici case, the appeal judgement, it's called the Delalic case but

14 referenced often as the Celebici case, did in fact indicate that where an

15 individual has been convicted of 7(1), the abuse of their role as a

16 superior is, indeed, an aggravating factor.

17 And more recently in the Stakic judgement of the 31st of July,

18 2003, in paragraph 9.12 indicates that, in fact -- and it says this: "If

19 a conviction is entered under Article 7(1) only, the accused's position as

20 a superior when proved beyond a reasonable doubt must be taken into

21 account as an aggravating factor."

22 So we bring those two items to the Court's attention. Also,

23 quickly, I do -- I was able to locate and can provide to the Chamber after

24 the hearing in the interests of time the copy of the document that

25 Mr. Rajic signed on the 19th of January, 1996, indicating his knowledge of

Page 260

1 the charges in the pending indictment against him. I have that here.

2 Also I have and I will give to the Registry a copy of the CD of

3 the video that we played. So of course we will make that part of the

4 record, and also I have a copy for each of the Judges, if you would like

5 that.

6 Very quickly, on the issue of the defenders in Stupni Do, let

7 there be no mistake about that, the Prosecution position has never been

8 that Stupni Do was a completely undefended village. And I believe we took

9 pains in the factual basis to make sure, such as in paragraph 20, I

10 believe, indicating exactly what the situation were. There were indeed

11 defenders in the village, and I just -- forgive my artwork, but just to

12 make the point. If this is the village and you put positions around the

13 village facing outward, that is a defensive position. You're defending

14 the village. If you surround a village and your positions are doing that,

15 that is an offensive position.

16 Stupni Do was defended. There were people there who did the best

17 they could to keep these terrible things from happening, but unfortunately

18 they couldn't stop it.

19 Point number 2 -- we've never said that there were only six

20 combatants in the village. What we have said was that we think -- we

21 consider in our calculations that of the people killed, six might have

22 been considered to be combatants, but not that there were only six

23 combatants altogether, defenders, if you will, in the village. So to

24 clarify that.

25 Mr. Rajic has indicated that he, in fact, prosecuted people when

Page 261

1 misconduct came to his attention. Your Honours may recall that we have

2 responded to that in our supplemental brief dated the 6th of March, 2006,

3 and in the interests of time I will not repeat our arguments, but we

4 provided the Chamber some additional documentation contrary to that

5 allegation in our filing of the 6th of March, 2006.

6 In connection with -- not perhaps a major point, but in connection

7 with the bodies not even being proved to be individuals but perhaps were

8 animals, all of these bodies, or at least those that could be recovered,

9 were in fact autopsied by professionals after the investigation -- as a

10 part of the investigation. They were identified as human remains.

11 I'm afraid that as to some of what Mr. Rajic has said this

12 afternoon about his involvement during the war, it's probably -- it's not

13 that Mr. -- it's not the Ivica Rajic that was known to the Muslims in the

14 Kiseljak region in 1993. And I would just in terms of time briefly refer

15 the Chamber to the Kordic trial judgement which details the crimes

16 committed throughout the Kiseljak region by Mr. Rajic's soldiers in

17 June -- in particular in June of 1993.

18 In terms of the mention about the cooperation that was made known

19 to me or offered to me about the Blaskic case, Your Honours, all I can say

20 is that there were times with Mr. Rajic's earlier counsel, previous

21 counsel, there were long periods of complete non-communication. There

22 were also times when certain information was offered to the Prosecution,

23 if you will, on terms that were not acceptable to us. We simply said we

24 were not interested in talking to them on that basis, and it was only

25 until some many months later that, in fact, we have gotten to where we

Page 262

1 were. So I don't want there to be any misunderstanding about that.

2 In terms of the 11 bis linkage, Mr. Rajic has asked me to confirm

3 his account, and on that point I'm happy to say that, yes, our position on

4 that is the same. There was no linkage except, as I said, we were on

5 somewhat parallel tracks. So I will confirm and I think there's no

6 disagreement on that.

7 Let me conclude, Your Honours, with this final statement. As we

8 said at the beginning, this Trial Chamber must impose a sentence upon the

9 accused for the commission of crimes of the utmost gravity in which he as

10 the commander was closely and substantially involved. The Tribunal must

11 once again send the message that the Latin saying "in times of war the law

12 falls silent" is no longer, if it ever was, international law, that

13 criminals, even during war, indeed especially during war, must be held

14 accountable.

15 For all the reasons discussed, it still remains the Prosecution

16 recommendation and our request to this Chamber and to your Honourable

17 Judges that Mr. Rajic be sentenced to a total imprisonment of 15 years'

18 imprisonment, taking into account about the aggravating and the mitigating

19 factors.

20 My final comment will be this, taking again from one of the

21 victims. Quite ironic in a way when you hear these words, they seem quite

22 gentle and quite soft in contrast to what happened on the 23rd of October.

23 "At about 2.00 of the night" -- they mean 2.00 the next morning,

24 in the middle of the night, on the morning of the -- 2.00 in the morning

25 of the 24th -- "it was decided to leave the basement, so all of us left

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1 the basement. Outside it had stopped raining. The dark of the night was

2 lightened by the flames that were eating the timber of our homes. The

3 silence of the night would every now and then be broken by the crackle of

4 the burning wood or the sound of ammunition going off on catching fire."

5 How quickly that silence must have been replaced by crying.

6 Thank you, Your Honours.

7 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Scott.

8 Ms. Kosta, five minutes. Do I take it that you don't want to make

9 a closing -- okay. Thank you very much.

10 Let me then turn to Mr. Rajic and ask him whether he has something

11 to add.

12 Ms. Kosta -- oh, I'm sorry.

13 MS. KOSTA: [Microphone not activated]

14 THE INTERPRETER: Microphone, please, for counsel.

15 MS. KOSTA: [Interpretation] I wanted to say that I was still

16 listening to the interpretation. I was listening to the interpretation,

17 so I was unable to respond to your invitation.

18 I would just like to say a few words, and then I would like to

19 yield the floor to my client so that he can also address you. As the

20 Prosecution stated that they provided valid evidence attempting to

21 convince you that a 15-year sentence is fully appropriate, I also believe

22 that within its ability the Defence provided all available documentation

23 to assure you that an appropriate sentence in this case would be a 12-year

24 sentence, in view of the status of my client at the time when the crime

25 was committed and the consequences. I would also like for you to apply

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1 the principle of mens rea.

2 I will now conclude my final address and say that the accused is

3 faced himself -- and if this Trial Chamber does its job, then this

4 sentence will be an exemplary sentence for the whole world. And I think

5 that through his words and actions, my client has shown to you that it is

6 human to err but it is divine to forgive. Thank you.

7 JUDGE VAN DEN WYNGAERT: Thank you, Mrs. Kosta.

8 Mr. Rajic, do you want to add something at this point in time?

9 THE ACCUSED: [Interpretation] I, who participated in all of these

10 events, am sometimes at a loss. It is difficult for me to explain the

11 events which took place in my immediate vicinity. It is also hard in a

12 short space of time to be convincing, even though I provided substantial

13 evidence to Mr. Scott and the Prosecution about my conduct and my attitude

14 towards Muslims, both in Kiseljak and elsewhere in Bosnia and Herzegovina,

15 as well as my attitude toward other ethnic groups. Once again, I regret

16 that there were any victims in the war. I wish there had been no war and

17 that I had not participated in that war, the war which took place in

18 Bosnia and Herzegovina, that type of war. There is no military school

19 that can prepare you for that type of war, and this is what I wanted to

20 make clear in the courtroom. This is something that defies description,

21 something that I will be unable to understand for the rest of my life.

22 Thank you. That's all I have to say.

23 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Rajic, you may sit down.

24 This brings this session to an end. The Trial Chamber will now

25 adjourn and we will deliberate and give this judgement in due course. We

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1 can't say exactly when, but we will do it at the earliest possible

2 moment. Thank you very much.

3 --- Whereupon the Sentencing Hearing

4 adjourned at 6.52 p.m.