Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16926

 1                           Thursday, 5 May 2011

 2                           [Rule 98 bis Judgement]

 3                           [Open session]

 4                           --- Upon commencing at 2.18 p.m.

 5                           [The accused entered court]

 6             JUDGE ANTONETTI: [Interpretation] Mr. Registrar, kindly call the

 7     case.

 8             THE REGISTRAR:  Thank you, and good afternoon, Your Honours.

 9     This is case number IT-03-67-T, the Prosecutor versus Vojislav Seselj.

10             JUDGE ANTONETTI: [Interpretation] Thank you, Registrar.

11             Today is Thursday, 5th of May, 2011.  Good afternoon to all the

12     people present in and out of the courtroom, Mr. Marcussen, Ms. Biersay,

13     and the other OTP representative.  Good afternoon to you, Mr. Seselj and

14     all the people assisting us.

15             I'm going to resume with reading out my dissenting opinion.  I

16     had reached paragraph (C) ordering under Article 7(1) of the Statute.

17             In paragraphs 144 and 145 of the Prosecution pre-trial brief, the

18     Prosecution argues, and I quote, that the -- that the accused "ordered,

19     himself, the crimes of persecution, murder, torture, cruel treatment, and

20     forcible transfer in Vukovar," Counts 1, 4, 8, 9, then 11.  Paragraphs 15

21     to 18, 20 and 28 to 32 of the indictment.

22             In ordering, I quote, "Not one Ustasha is to leave Vukovar

23     alive."  Testimony of Witness VS-027.  He also, I quote, "Order the

24     crimes of persecution, deportation, and forcible transfer in Hrtkovci,"

25     Counts 1, 10 and 11, paragraph 15 to 17, and 31 and 33 of the indictment.

Page 16927

 1             During meetings with associates and supporters in Vojvodina in

 2     1991 and 1992, and implicitly in his speech in Hrtkovci on the 6th May of

 3     1992.  And finally, that the intent of the accused to order the crimes in

 4     Vukovar and Hrtkovci can be inferred from the contents of his speeches

 5     and interviews and from the fact that the crimes were indeed carried out

 6     later.

 7             The Prosecution relied on the testimony of Witnesses VS-015,

 8     VS-026 and VS-1033.  With regard to the sentence in Vukovar, the above

 9     mentioned sentence, he spoke -- it is challenged by the accused and the

10     only witness speaking about it does not appear in my eyes to be

11     sufficiently reliable.  As a result, it cannot be inferred that the

12     accused is to be held responsible under this mode of responsibility under

13     Article 7(1) of the Statute.

14             Regarding his speech in Hrtkovci, the question is whether what he

15     said during the speech as characterised by the following sentence, I

16     quote:

17             "I am firmly convinced that you the Serbs in Hrtkovci and the

18     surrounding villages, you know how to remain united and live in harmony.

19     I know that you will swiftly get rid of the Croats remaining in your

20     village."

21             Is this an order?  That is the question.  All the more so since

22     the case law quoted by the Prosecution in footnotes 488, 489 and 490 in

23     the following cases, Kordic, Blaskic, Krstic, and Akayesu, predicates

24     that the individual issuing the order is in a position of authority and

25     that the status of the accused gave him the power to issue orders.

Page 16928

 1             At the time, the accused had no political or military authority

 2     whatsoever.  He did not have the requisite authority to issue any orders.

 3     A close scrutiny of the Hrtkovci speech on the 6th May 1992 amply

 4     confirms this inasmuch as it recalls that there is a regime in power and

 5     that there is an opposition, including the Serbian Radical Party, and

 6     it -- he says in the speech, I quote:

 7             "We condemn the current regime both in Serbia and in this Rump

 8     Yugoslavia."

 9             Furthermore, there is a blatant contradiction arising from the

10     modes of liability.  He cannot on the one hand be charged with issuing

11     orders and on the other hand with instigating to commit, let alone

12     committing.  It can only be one or the other mode of liability.

13     Therefore, the accused, in my view, should be acquitted of this mode of

14     responsibility based on issuing orders or ordering.

15             Very well.  Let me move to chapter (D), Committing.  I believe

16     this is the most important part in my dissenting opinion.

17             Before I move on to this chapter, let me say this by way of

18     introduction:  On page 43791 of Exhibit P00031, the accused, when he

19     testified in the Milosevic case, said the following answering a question

20     by Mr. Nice with regard to the solemn declaration with regard to the

21     Tribunal -- I am going to quote everything he said:

22              "I am of the view that it cannot be objective and that this

23     Tribunal is intensely, utterly biased."

24             As far as I'm concerned, I could sweep aside this type of

25     discourse when it comes to evidence, and I could say that all this is

Page 16929

 1     just part of folklore.  It's just something picturesque, and I could

 2     calmly wait until our final deliberations to address the key issue of the

 3     joint criminal enterprise.

 4             As a Judge of this Tribunal, I am part of it, and I can be of the

 5     view that the accused believes that I am biased on principle and that I

 6     am not going to go into the issue and the merits of the issue which is

 7     joint criminal enterprise as addressed in paragraph 6 of the indictment.

 8     Well, I'm going to do it.  And I am, by putting in the balance, the point

 9     of view of the Prosecution and that of the Defence in order to reach a

10     provisional conclusion at this stage of the proceedings.  This is an

11     utterly complex legal matter, and much to my regret, I cannot address all

12     the facets of it, because it is an oral type of proceeding.  However and

13     nevertheless, I'm going to devote 20 pages to the issue.  In other words,

14     a little under one-third of my dissenting opinion.

15             Very well.  Let us speak to the issue of the accused's alleged

16     responsibility as part of a -- as a participant in the joint criminal

17     enterprise.

18             Paragraph 6 of the indictment states as follows:

19             "Vojislav Seselj participated in a joint criminal enterprise.

20     The purpose of this joint criminal enterprise was the permanent forcible

21     removal through the commission of crimes in violation of Articles 3 and 5

22     of the Statute of the Tribunal of a majority of the Croat, Muslim, and

23     other non-Serb populations from approximately one-third of the territory

24     of the Republic of Croatia and large parts of Bosnia and Herzegovina and

25     from parts of Vojvodina in the Republic of Serbia in order to make these

Page 16930

 1     areas part of a new Serb-dominated state."

 2             As to paragraph 8, it lists the participants in this joint

 3     criminal enterprise.  They have to be named.  This is important.

 4     Slobodan Milosevic, General Veljko Kadijevic, General Blagoje Adzic,

 5     Colonel Ratko Mladic, Radmilo Bogdanovic, Jovica Stanisic,

 6     Franko Simatovic aka Frenki, Radovan Stojicic aka Badza, Milan Martic,

 7     Goran Hadzic, Milan Babic, Radovan Karadzic, Momcilo Krajisnik,

 8     Biljana Plavsic, Zeljko Raznjatovic aka Arkan, and other political

 9     figures of the former Yugoslavia from the Republic of Montenegro and of

10     the Bosnia and Croatian Serb leaders -- or leadership.

11             Equally, there were other participants.  They included Serb

12     forces collectively defined as members of the Yugoslav People's Army,

13     JNA, later the Yugoslav Army, VJ; the newly formed Serb

14     Territorial Defence of Croatia and of BiH; the Army of the Republika

15     Srpska Krajina, SVK; and the Army of the Republika Srpska, VRS; and the

16     TOs of Serbia and of Montenegro; local Serb Republic of Serbia and

17     Republika Srpska police forces; the police forces in Krajina and RSK

18     commonly referred to as Martic's police, Marticevci; SAO Krajina Police

19     or SAO Krajina milicija; and members of Serbian, Montenegrin, Bosnian and

20     Croatian Serb paramilitary forces and volunteer units, including Chetniks

21     or Seseljevci, translated as Seselj's men.

22             In support of the JCE, apart from the evidence they quoted in

23     their oral submission, the Prosecution refers in paragraph 4 of the

24     indictment to the participation of the accused in the JCE by breaking it

25     down into three categories.  I am going to list them.

Page 16931

 1             Firstly, the accused allegedly used his power as a politician to

 2     promote in the media or through the media his plan of creating

 3     Greater Serbia by violent means.

 4             Secondly, as the SRS president and as the chief of the SCP, he

 5     allegedly supervised the recruitment, indoctrination, funding, formation,

 6     co-ordination, supply, and assignment of volunteer units which often gave

 7     rise to forcible displacement of non-Serbs living in the targeted

 8     territories.

 9             Thirdly, the accused allegedly largely contributed to the

10     implementation of the JCE by crimes of persecution through hate speeches

11     in Vukovar, Zvornik, Hrtkovci, and to crimes of deportation and inhumane

12     acts, forcible transfer in Hrtkovci.

13             In support of the alleged JCE, the following documents were

14     mentioned in the Prosecution final -- pre-trial brief:  The Tomic report,

15     Exhibits P255, P1200, P32, P1176, P34, P35, P1196, P1197, P40, P1185,

16     P1176, P1196, P1220, P1186, P163, P34, P35, P644, P1003, P59, P513, P221,

17     and P915.

18             Sorry for reading out all these exhibit numbers, but I told you

19     that I was ready to look in a detailed fashion into the Prosecution case.

20     I had to do so.

21             Equally, the Prosecution mainly refers to the testimony of the

22     following witnesses:  VS-14, VS-26, VS-1104, VS-1133, VS-007, VS-010,

23     VS-011, VS-017, VS-027, VS-038, VS-1008, and VS-1136.

24             Very well.  So this is the entire Prosecution case as stated

25     above based on testimony and documents.

Page 16932

 1             At this stage of the proceedings, at the 98 bis stage of the

 2     proceedings, there's no need to dwell at length as to the applicable law

 3     in this case, because during the Prosecution case there are no witnesses,

 4     no expert witnesses, or even less amicus curiae dealing with legal

 5     matters that have to be dealt with only at the time of the final

 6     deliberation.  However, I have to briefly address the notion of joint

 7     criminal enterprise as introduced by the appeals judgement in the Tadic

 8     case.

 9             In this regard, the Tadic Appeals Chamber, in paragraph 227,

10     regarding the actus reus, said the following -- let me read this to

11     inform everybody:

12              "(i) Plurality of accused," but they don't have to be part of a

13     military or administrative structure as clearly shown of the Kurt Goebell

14     and the Essen cases.

15             Secondly, the existence of a common design or objective which is

16     to commit one of the crimes in the Statute or to imply its commission.

17     This plan, design or objective does not need to have been prepared or

18     expressed in a prior fashion.  It can be manifested in -- by chance and

19     can be inferred from the fact that several individuals act together in

20     order to carry out a joint criminal enterprise.

21             Thirdly, participation of the accused in the common design

22     involving the perpetration of one of the crimes provided for in this

23     Statute.  This participation need not involve commission of a specific

24     crime under one of those provisions - murder, extermination, torture,

25     rape, et cetera - but may take the form of assistance in or contribution

Page 16933

 1     to the execution of the common plan or purpose.

 2             With regard to the mens rea, the Appeals Chamber stated that it

 3     may defer -- differ according to the category of common design under

 4     consideration.  Well, there are three categories.  Let me name them all:

 5             The first category of cases requires the intent to perpetrate a

 6     specific crime, this intent being shared by all the co-perpetrators.

 7             The second category.  The accused must have personal knowledge of

 8     the system of ill-treatment whether proven by express testimony or

 9     inferred from the accused's position of authority as well as the intent

10     to further this concerted system of ill-treatment.

11             The third category, which is the extended category, requires the

12     intent to participate and to further the criminal activity or the

13     criminal purpose of a group and to contribute to the joint criminal

14     enterprise or in any event to the commission of a crime by the group.  In

15     addition, responsibility for a crime other than the one agreed upon in

16     the common plan arises only if in the circumstances of the case (i) it

17     was foreseeable that such crime might be perpetrated by one or other

18     members of the group and (ii) the accused willingly took that risk.

19             This case law is far from being accepted unanimously.  It is

20     indeed challenged within the very Tribunal by various Judges.  For

21     instance, by Judge Schomburg in his individual opinion regarding the

22     criminal liability of Milan Martic.

23             To make it short, I must remind you that there is no reference

24     whatsoever to joint criminal enterprise in the Statute of this Tribunal.

25     Furthermore, the UN General-Secretary in his report of 3rd of May, 1993,

Page 16934

 1     to the Security Council said the following -- I am going to quote the

 2     entire intervention:

 3              "The question, however, arises whether a legal entity, an

 4     association or an organisation may be regarded as such as perpetrator of

 5     a crime, the members of which would be for that very and only ground

 6     submitted to the jurisdiction of an International Tribunal.  The

 7     General-Secretary is of the view that this concept should not be adopted

 8     by the International Tribunal.  Criminal acts listed in the Statute were

 9     carried out by physical individuals, and they would come under the

10     jurisdiction of the International Tribunal irrespective of whether they

11     belonged to a group or not."

12             This is part of paragraph 51 of the General-Secretary's report.

13             Let me add that there cannot be any collective responsibility as

14     was stated by the Nuremberg Tribunal.  I quote:

15              "These are human beings.  They are not abstract concepts.  They

16     are men who commit crimes that must be punished in criminal -- in

17     international law."

18             I also note that the mention of collective responsibility is not

19     in keeping with the mission of this Tribunal, which is to encourage peace

20     and reconciliation in the territory of the former Yugoslavia.  In order

21     to complete this provisional survey, I have to refer to a recent decision

22     of the preliminary Chamber of the Extraordinary Chambers of the Cambodian

23     Tribunals, who whilst accepting the use of JCE I and II dismissed JCE III

24     holding that this mode had no foundation in customary international law

25     at the times of the indictment.

Page 16935

 1             I just have to read paragraph 83 of this decision.  At -- at the

 2     stage where we are now in the 98 bis procedure without finalising my

 3     position as to the JCE theory, I will integrate it, however, in order to

 4     examine whether the evidence adduced so far would make it possible to

 5     conclude that this alleged JCE did exist.

 6             To try and characterise this JCE, the Judge must, since it has no

 7     formal documents at hand to establish the existence of this common

 8     purpose, must go and fish for clues, and among these clues are indicia.

 9     I must mention for your information those who were mentioned in one of

10     the latest judgements of this Tribunal in the Djordjevic case, and this

11     is the list of these indicia:  Demographics; secondly, abusive use of

12     force by Serbian forces in violation to the October -- to the October

13     1998 agreements; motivations for the crimes; any co-ordinated management

14     of MUP and VJ units; a disproportionate use of force in an anti-terrorist

15     actions; the systematic control of IDs and registration plates for the

16     vehicles of Kosovo Albanians; and all efforts deployed to hide the crimes

17     committed against the Albanian civilians in Kosovo.

18             As you can see, fishing for clues can prove to be very

19     unsuccessful in this case, for example, because at first sight the only

20     clues that could be taken on board so far are the demographics and the

21     motivation of crimes.  A reasonable Judge could not conclude, therefore,

22     to the existence of a project bringing together all the people mentioned

23     even though, according to the Prosecution, the only inference is that a

24     common purpose connected and brought together all these people.  The

25     evidence adduced by the Prosecution do not formally go in this direction.

Page 16936

 1             It is obvious that the members of a JCE must have some kind of

 2     connection among themselves, either coming from professional meetings,

 3     from gatherings, from papers written jointly, from joint stances at one

 4     point in time, from belonging to the same party or from belonging to the

 5     same government.  It would be paradoxical to state that they are members

 6     of this JCE automatically just because of their beliefs, of their

 7     ethnicity, of their religion, of what they think, and how -- if -- if a

 8     Judge can analyse the most intimate thoughts of an individual.

 9     Therefore, as far as I'm concerned, I believe what is important is to

10     have intangible elements that could establish this connection between all

11     these members.  And the OTP didn't miss this, because they said that the

12     time-frame of this joint criminal enterprise would run from

13     August 1st, 1991, to September 1993.  It's quite interesting, actually,

14     to look into why this month of September was determined.

15             Prosecution, in paragraph 8 of the indictment, says and I quote:

16             "The aforesaid joint criminal enterprise came into existence

17     before 1st August 1991 and continued at least until December 1995.

18     Vojislav Seselj participated in the joint criminal enterprise until

19     September 1993, when he had a conflict with Slobodan Milosevic."

20             So the Prosecution recognises that there is a need to establish

21     this connection.  Obviously, after the conflict with Slobodan Milosevic,

22     there was no longer any common purpose, and in a very inconsistent way in

23     Radovan Karadzic's indictment, which is in the public domain, the

24     time-frame runs till December 1995 and mentions Vojislav Seselj as

25     belonging continuously to this JCE.

Page 16937

 1             The Prosecution explained it's position in its motion of

 2     May 17, 2010, in view of tendering bar-tabled evidence.  For the

 3     Prosecution, the -- these -- this evidence was relevant because they deal

 4     with the JCE, the accused's mens rea and his contribution to the joint

 5     criminal enterprise.  However, the Prosecution developed its point of

 6     view at length, saying that with the rise of Serbian nationalism during

 7     the carving out of former Yugoslavia, the accused became the ally of

 8     Slobodan Milosevic and of other Serbian leaders, and that together they

 9     pursued this objective which was to unite all Serbians within a single

10     state, which the accused called Greater Serbia.  The creation of this

11     Greater Serbia resulting in a forcible transfer of non-Serb population

12     and the commission of other crimes against this non-Serb population.

13             In this motion, these are the exhibits mentioned by the

14     Prosecution:  P1321, P1167, P1169, P1170, P1263, P1264, P1175, P1301,

15     P1206, P1388, and P1364.

16             For the Prosecution, the accused adopted the ideology advocated

17     by the Serbian cultural club and the Serbian Chetniks movement, P1170 and

18     P1172.  The Accused Seselj was appointed Vojvoda, P1170, P1322, P1180.

19             According to the Prosecution, the JCE was created in

20     February 1991.  In 1990, the accused had created SCP and tried to

21     register this SCP, but this was unsuccessful.  P1264.  He then founded

22     the SRS in February 1991, which at the time was recognised as a political

23     party.  P1265.

24             According to the Prosecution, the accused admitted that his party

25     understood the struggle for the defence of Serbian national interests as

Page 16938

 1     an opening door to have co-operation with the SPS of Slobodan Milosevic

 2     and the SDS.  Even though Prosecution does quote the following sentence,

 3     and I quote:

 4             "We disagree on everything else, but we must co-operate to defend

 5     Serbian identity.  We are waging a common struggle and nothing should

 6     come to divide us on this issue."  P1204.

 7             To support this, Prosecution mainly refers to documents P1282,

 8     P1187, P1233, P1312, P1243, P1251, P1252, and P1327.

 9             Out of all this evidence, the Prosecutor had tendered the

10     testimony of the accused in the Milosevic case.  This is document P00031.

11     According to the Prosecution, this qualifies the JCE.  It's a very long

12     document, more than 1,600 pages.  I scrutinised it word by word.  And the

13     review of this transcript, which goes from pages 42678 to 44370, shows

14     that the Accused Seselj did not know a number of members of this joint

15     criminal enterprise; Simatovic, for example.  I come back to this.  Or

16     only had very infrequent contact with others; for example, Babic.  And

17     regarding Milosevic, he only met him in April 1992, which as -- which is

18     long after this alleged JCE would have come into being.

19             It is true that Seselj's statements made under oath could, after

20     all, be false, could only provide us with part of the truth.  However,

21     during its cross-examination, the Prosecution did not rebut the

22     statements, so as things said, what Seselj -- the Witness Seselj said

23     under oath in the Milosevic case could be taken on board by a reasonable

24     Judge as being quite relevant and probative.

25             A few examples.  Page 43932.  The accused said when he was in the

Page 16939

 1     witness stand as a witness, and I quote:

 2             "I insist on the fact that Franko Simatovic is somebody that I

 3     have never met in my entire life."

 4             Now, regarding Slobodan Milosevic and his connections with him,

 5     he said on page 43943:

 6             "In May 1992, I started having meetings with Milosevic in a more

 7     regular fashion."

 8             On page 44333, this is what he says:

 9             "It was impossible to design any connection between us, because

10     up until April 1992, we didn't know each other at all.

11             Page 44100.  I'm quoting the witness again:

12             "You want me to tell you what the relationship was between

13     Mr. Milosevic and Mr. Hadzic, Hadzic being the famous accused at large.

14     Well, I've been in conflict with Mr. Hadzic since 1991, and I've only

15     made very negative statements as far as he's concerned."

16             And Judge Bonomy intervenes and puts the following question to

17     the witness:

18             "Didn't you say that it is totally out of the question that

19     Mr. Hadzic may be involved in a JCE with the accused?"  The accused being

20     Slobodan Milosevic here.

21             Answer of Vojislav Seselj:

22             "I said that it was impossible that he would participate with me

23     in anything, because there's always been a conflict between the both of

24     us."

25             The Prosecution, failing to adduce any relevant evidence

Page 16940

 1     regarding the members of this JCE does not prove that these people had a

 2     connection in the meaning of the case law given by the Appeals Chamber

 3     and mentioned earlier, or that they shared the same intent.  Therefore,

 4     what would be needed is evidence to establish that the members of this

 5     JCE had the same intent as the accused to deport non-Serbs, notably to

 6     make sure that Muslim and Croats leave forever about one-third of the

 7     territory of the Republic of Croatia, as well as large areas of the

 8     territory of Bosnia-Herzegovina and some areas of Vojvodina in order to

 9     integrate these regions in a new state that would be dominated by Serbs.

10             I will now go into further detail.  Therefore, the final goal of

11     the JCE, according to the Prosecution, would be to integrate these

12     regions in a new state dominated by Serbs.  This being the case, the

13     question any reasonable Judge should have is to know what exactly are the

14     boundaries of this Greater Serbia, as mentioned in paragraph 9 of the

15     indictment.

16             This says that the accused, and I quote "propagated a policy of

17     united all Serbian lands in a homogenous Serbian state.  He defined the

18     so-called Karlovac-Ogulin, Karlovac-Virovitica line as the western border

19     of this new Serbian state which he called Greater Serbia and which

20     included Serbia, Montenegro, Macedonia, and considerable parts of Croatia

21     and Bosnia-Herzegovina.

22             In the pre-trial brief, in the Prosecution's pre-trial brief, it

23     is also said that Vojislav Seselj greatly contributed to the joint

24     criminal enterprise by playing the role of leading propagandist of

25     creation through violence of a Greater Serbia, a unified state dominated

Page 16941

 1     by Serbs.  In the middle of the late 1990s, Vojislav Seselj relentlessly

 2     called for the creation of a Serbian state corresponding to the present

 3     borders of the Republics of Serbia and Montenegro, and to a major part of

 4     Croatia, Macedonia and Bosnia-Herzegovina.

 5             To support this, the Prosecution mainly refers to the following

 6     exhibits:  P1321, P1170, P1169, P150, P171, P1172, P1173, and P39.

 7             It's important to note that the speeches be -- the speech, the

 8     articles and the interviews of the accused were spread over time, and the

 9     Prosecution, itself, made a difference in its pre-trial brief between

10     several types of speech.  The speeches held in the middle of the 1990s,

11     P1321, P1170, P1169, P150, P1171, P1172, P1173, and P39.

12             It's important to note that these speeches call for the

13     unification of all Serbian territories into a single Serb state.

14             Then we have the speeches held at the end of 1990 which became

15     more extremist, P1174, P1175, and P37.  Please note that here there is a

16     claim for Serbian territories and Serbian people not to be separated from

17     their homeland.  And similarly, and I believe it is also important, it is

18     said that within this Serbian state Orthodox, Muslim, Catholic, and

19     Protestant Serbs, would all live united.  Obviously, there is no trace of

20     any ethnical consideration.

21             The extremist -- the alleged extremist nature does not seem

22     significant to have any direct or indirect consequences of the crimes

23     committed, as far as I'm concerned.

24             During the time period relevant to the indictment, the accused

25     took advantage of the situation and heightened it in order to achieve the

Page 16942

 1     creation of a Serbian state through force.  P1264, P1338, P56, P255,

 2     P256, P644, P179, P34, P62, and P56.

 3             The very concept of a joint criminal enterprise with its

 4     different members was, I believe, challenged by the decision issued on

 5     November 10, 2005, by Chamber III after the Prosecution motion for

 6     joinder of cases Milan Martic, Jovica Stanisic and Franko Simatovic and

 7     Vojislav Seselj.  At the time, the Prosecution wanted all three cases to

 8     be joined.  And it's quite interesting to look into why they wanted to do

 9     this.

10             In its motion of June 1, 2005, the Prosecution, on paragraph 23

11     of it's submission, alleged that there was a common purpose in this JCE

12     in the three indictments.

13             Chamber III, presided by Judge Robinson with Judge Agius and

14     Judge Liu denied this motion for joinder, saying on paragraphs 20 and 21

15     of their decision, and I will quote:

16             "The alleged joint criminal enterprise was not identical in all

17     indictments, while noting that there is a partial overlap among the

18     counts, the modes of responsibility, the time-frame and the location of

19     the crimes."

20             In passing, I note that the alleged JCE in the Mrksic, Radic, and

21     Sljvancanin case had been mentioned as follows in paragraph 569 of the

22     judgement, which is now -- which is now public knowledge and which you

23     can read.  I quote:

24             "The indictment alleges that the three accused, together with

25     other individuals including Miroljub Vujovic and Stanko Vujanovic,

Page 16943

 1     participated in a joint criminal enterprise, the purpose of which was the

 2     persecution of Croats and other non-Serbs who were present in the Vukovar

 3     Hospital.  It is also alleged that the crimes in the indictment were

 4     within the object of the joint criminal enterprise and that each of the

 5     accused held the state of mind necessary for the commission of each of

 6     these crimes."

 7             And at paragraph 608, the Trial Chamber says as follows:

 8             "The facts as the Chamber has found them to be established by

 9     evidence do not support the Prosecution case that there was a joint

10     criminal enterprise involving any of the three accused together with

11     others."  It adds "together with others."

12             This judgement is res judicata, and as far as I'm concerned, it's

13     not subject to judicial notice, but then if this is the case, if there

14     was no joint criminal enterprise in Vukovar with the members of the SRS,

15     that in this case, in our case, how could there be such a JCE?

16             This being said, I believe that we still have to go further into

17     detail, and before analysing the conditions we find in the Tadic

18     judgement, appeals judgement, we must check and examine whether there was

19     a joint purpose between the accused and the other members of JCE.  In

20     short, the JCE design as defined in paragraph 6 of the indictment, which

21     I shall quote again because it is important:

22              "Aimed at forcing the majority of non-Serbs to permanently leave

23     approximately one-third of the territory of the Republic of Croatia, vast

24     areas of the territory of the Republic of Bosnia-Herzegovina, and

25     certain -- some areas of Vojvodina in the Republic of Serbia in order to

Page 16944

 1     make these areas part of a new Serb-dominated state."

 2             We therefore understand that the ultimate objective is this new

 3     state dominated by the Serbs.

 4             Is that indeed the design in which all participants were

 5     involved, or were there not indeed two designs:  The creation of a

 6     Greater Serbia claimed by the Accused Seselj, and a second design which

 7     would be the maintaining of a Rump Yugoslavia within the former borders

 8     of the Federal Yugoslavia, and that would be Milosevic's design?  This

 9     question, of course, calls for greater analysis.

10             Was the way to achieve this ultimate purpose, the departure of

11     non-Serbs from Croatia, parts of the Republic of Bosnia-Herzegovina or

12     Vojvodina, or, this departure, was it prompted by other reasons which had

13     nothing to do with the creation of a state?

14             It is therefore through the prism of these essential issues that

15     the evidence of the Prosecution must be examined.

16             First of all, it is clear that there are two concepts underlying

17     Milosevic's and Seselj's political action.  The obvious conclusion is to

18     say that the design is not identical, and therefore the form of

19     responsibility resulting from the JCE cannot be applied.

20             As regards the second question relating to the permanent

21     departure of the non-Serbs, it is important to admit that even if the

22     Croats in the Krajina area left the areas in question, we must

23     acknowledge that since the 15th of January, 1992, the Republic of Croatia

24     had been internationally recognised within its borders as part of the

25     federal Yugoslavia.

Page 16945

 1             Likewise, as regards the Republic of Bosnia-Herzegovina, a new

 2     state could not be created from April 1992 onwards, all the more so since

 3     the Geneva conference and the Vance-Owen Plan recognised the existence of

 4     predominantly Serb territories in the Republic of Bosnia-Herzegovina,

 5     which form the Republika Srpska of today.

 6             Lastly, as far as Vojvodina is concerned, it is important to

 7     remember that it belongs to Serbia.  There was, therefore, no need to

 8     drive out anyone to include this state into the new Serb state since it

 9     already existed and was part of it.

10             If we look into the speeches of the accused against the Croats,

11     essentially, and to a lesser degree against the Muslims, if viewed

12     together, it seems at first hand that the departure of the Croats could

13     be seen as a measure of repression or reprisal following the expulsion of

14     the Serbs from Croatia.  And the departure of the Muslims seems to be

15     challenged even by the accused who believes that these are Bosnian Serbs.

16             This question was addressed at great length by the Prosecution,

17     by Mr. Nice, when the accused was -- testified in the Milosevic trial.

18     On the concept of Greater Serbia, the Accused Seselj responded to one of

19     Milosevic's question in the following matter -- manner.  Let me quote:

20             "This is an ideological concept which goes way back.  This was

21     mentioned in the public arena in 1993 -- in 1963 at the time the Turks

22     were defeated, before Vienna.  This is a concept that goes back to the

23     19th century."

24             I have read just about all the judgments that were rendered.  A

25     great number of witnesses talked about Greater Serbia.  They have no idea

Page 16946

 1     of what this means, and I must say that this is taken as a fact.

 2             "In my capacity as living nationalists and ideologist, I can

 3     provide with you an original explanation for this concept, and this would

 4     be useful for this particular trial and for other trials as well," he

 5     probably was thinking of his trial, "because as far as all the people

 6     mentioned as part or as members of the JCE, no one, save myself, ever

 7     talked about Greater Serbia, and no one every strived after this.  My

 8     commitment to Greater Serbia is a commitment that has lasted 30 years and

 9     that is now being used to accused other people, and that has got nothing

10     to do with it.  I am prepared to die for this concept."

11             Transcript page 43214, and he will add on page 43216, let me

12     quote:

13             "The concept of Greater Serbia implies a unified Serbian state

14     that would include all Serbian lands where Serbs are a majority

15     population.  However, this runs counter to the endeavours of the Vatican

16     and Austria and other countries who aim at reducing the Serbian people to

17     members of the Orthodox Christian religion, because the Serbian people in

18     its ethnic being include Orthodox, Catholic and Muslim Serbs equally."

19             This does differ from persecutions for religious reasons, since

20     on page 43122 the accused says that:

21             "The concept of Greater Serbia cannot be identified with any of

22     practice or persecution against the Muslim or Catholic population,

23     because in all the documents that relate to the Serb Chetnik Movement and

24     the free -- the free Serb movement and the SRS, we Orthodox, Catholics,

25     Muslims, Protestants, and atheist Serbs, we all agree to get on -- to get

Page 16947

 1     along together and to unite.  There -- the concept between -- the concept

 2     of a Greater Serbia and the concept of ethnic cleansing, there can be no

 3     connection established between these two.  This is what I wish to say,

 4     but you keep on interrupting me, and this is why we stress the

 5     necessity -- the following necessity that our party includes Catholics

 6     and members of different religious communities, and we give them

 7     high-ranking positions."

 8             His action describes Serb rebels fighting against Croats, and

 9     seemingly the action undertaken was not a priori based on ethnic

10     cleansing but merely on the takeover of an autonomous region which seemed

11     to be the objective in mind.

12             I shall look into this now in greater detail.

13             According to the indictment, there had been a cease-fire between

14     the JNA and Croatia.  The JNA withdrew, leaving military equipment

15     behind, and that is how the Republic of Serb Krajina was created, RSK.

16     Arkan's group established his base in a former military camp of the JNA

17     in Erdut in Croatia.  It is important to read the indictment, therefore,

18     because the indictment says as follows, and this stems from the OTP:

19              "He speaks with one voice.  This deteriorated -- the situation

20     deteriorated into an open conflict, and Arkan's Tigers were deployed in

21     various communities in which a great majority of the population was

22     non-Serb.  Bijeljina and Zvornik were among these towns."

23             It is important to note that it is the situation that

24     deteriorated and turned into open conflict, and no reference is made to

25     any specific design on the part of one or other belligerent to launch

Page 16948

 1     some form of ethnic cleansing.

 2             In that same indictment, it is specified for one municipality,

 3     which is not included in our indictment, i.e., Sanski Most, that between

 4     1992 and September 1995 a large part of the Muslim and Croat population

 5     had fled when the population that had remained behind had been subjected

 6     to a Draconian regime.

 7             This reference was provided by the Prosecution and related to the

 8     fleeing Muslim and Croat population and does not make it possible, for

 9     lack of evidence, to know whether the population had fled out of fear of

10     the fighting or for some other reason, which enables me to establish a

11     link with the footnote on page 429 of the Prosecution's pre-trial brief.

12     Footnotes are always important and it is important to review these.  This

13     is what this footnote says -- let me quote:

14              "During this period, a unit of the Special Police of

15     Sremska Mitrovica was seconded to Hrtkovci to prevent the non-Serbs from

16     being driven out, attacked or harassed."

17             This sentence, which describes a particular incident, the fact

18     that the police was sent there amply testifies for the fact that at the

19     time there was no collusion between Vojislav Seselj and members of a JCE

20     since the authority in power, far from collaborating with a view to

21     achieving the common design, was opposing it by sending the police there.

22     This may tend to prove that the discriminatory campaign of the accused,

23     and I shall have an opportunity to revisit this, was only conducted by

24     him.  Assisted in that by some of his volunteers, as some witnesses have

25     indicated, does not mean that the persecution were part of the common

Page 16949

 1     design of the JCE aimed at forcing the non-Serbs to leave this

 2     municipality.  This will be examined in greater detail in the chapter

 3     entitled "Crimes Physically Committed by the Accused:  Persecution,

 4     Deportation, and Forcible Transfer."

 5             Lastly, to fully understand the JCE, the crucial piece of

 6     evidence, in my view, is Exhibit P31, which are the transcripts of the

 7     Accused Seselj's testimony in the case of the

 8     Prosecutor versus Slobodan Milosevic.  If we look at the 1692 pages, a

 9     careful review of the transcript pages show that there was a

10     contradictory debate on the alleged JCE between the Prosecutor, Mr. Nice,

11     the witness under oath, Vojislav Seselj, the Accused, Slobodan Milosevic,

12     and the Judges.

13             This piece of evidence, Exhibit P31, is all the more important

14     that the statement of some of the -- of the witnesses who were either

15     victims or figures very far removed from power or expert witnesses

16     employed by the Prosecution.

17             According to the Prosecution, through the words uttered by

18     Mr. Nice, transcript page 43248, Seselj and Milosevic purportedly shared

19     the common design to create a Greater Serbia and to drive out the

20     majority of non-Serb -- of the non-Serb population.

21             The case of the Prosecution rests on the following predicate:

22     The Greater Serbian movement created during World War II would be what

23     lay behind this movement and which the SRS and Seselj strived after, as

24     well as the SPS and Milosevic.  44240.

25             The Prosecution alleges that this is predicated by the concepts

Page 16950

 1     put forward by both parties and the designs are close in the way they

 2     were fulfilled.  43255, 43260, 43262, 43263.

 3             The accused alleges that the Milosevic regime had provided the

 4     accused with privileged access to the media to enable him to disseminate

 5     his message of hate and, therefore, to instrumentalise him in his own

 6     interest.  Pages 44052 and 44053.

 7             The idea of Greater Serbia is something which goes back in

 8     time -- was created after the successive invasions of the Balkan during

 9     the Ottoman Empire and were innovated by the Austrians and the Russians.

10     It would seem that the word itself "Greater Serbia" first appeared in a

11     memo to the Russian emperor in 1803, after which this term was used again

12     by various intellectuals in Serbia and political organisation and was

13     picked up again by Vasa Cubrilovic and Dragan Vasic before being banned

14     by the Communist regime.

15             The idea of Greater Serbia seems to contradict the federation of

16     Yugoslavia, because it first and foremost relies on the idea of a united

17     Serb state.  Greater Serbia should be a centralised state and unitary

18     state which, whilst admitting that ethnic minorities have their rights

19     protected, would nonetheless do away with the autonomous provinces.

20     43322.

21             The Greater Serbia would encompass all Serbian land, i.e., land

22     where the Serbs are in the majority.  According to the accused, the

23     Serbian people have not defined through its religion but through its

24     language, the language the Serb people speak, Stokavian, 43113.  I'm

25     using the conditional tense.  It seems that three dialects are used in

Page 16951

 1     former -- the former Yugoslavia, Stokavian, Cakavian, and Kajkavian.

 2             As regards this question of the various dialects, there are ten

 3     or so articles that refer to this.  I shall not quote them now because

 4     this would be too time-consuming.

 5             According to the Prosecution, all people that speak Stokavian are

 6     Serb, irrespective of their religion.  Page 43217.  According to the

 7     accused [as interpreted], all the Serbs speak the same language, Serbian,

 8     which is -- stems from Stokavian page 43219.  Therefore, according to the

 9     accused, the Croats and the Bosnians would, in fact, be Catholic and

10     Muslim Serbs and the creation of Greater Serbia would imply convincing

11     the Croats and the Muslims that they belong to the Serbian people.  Page

12     43220.

13             THE INTERPRETER:  Interpreter's correction, very important

14     replace "Prosecution" with "the accused."

15             JUDGE ANTONETTI: [Interpretation] Serb lands do not quite match

16     up with Yugoslavia, 43219.  Stokavian is essentially spoken in Serbia,

17     Bosnia-Herzegovina, Montenegro, and a large part of Croatia.  This

18     territory forms the territorial base of Greater Serbia as imagined by

19     Vojislav Seselj.  Therefore, Greater Serbia is what is called

20     Serbo-Slavia, i.e., Yugoslavia from which Slovenia and the Kajkavian part

21     of Croatia would be taken off.  Page 43837.

22     Karlobag-Virovitica-Ogulin-Karlovac line coincides with the western

23     frontier of Greater Serbia as viewed by the accused.  This line forms the

24     limit of Serb lands to the west where the three provinces of Zagreb,

25     Krizevci, Varazdin line.  These forms the Kajkavian Croatia, cradle of

Page 16952

 1     the Croat ethnicity.  This line is not a border, as such.  This line

 2     seems to coincide with the historic and linguistic view of the region.

 3     Page 43437.

 4             The underlying question in the accused's testimony in the

 5     Milosevic's case consequently rests on the meaning of the common design

 6     in the alleged JCE.  To prove the existence of a common purpose, is it

 7     enough for the Prosecution to prove that the JCE members shared the will

 8     to have a Serb state encompassing all the Serbs?  Or is it the opposite,

 9     namely that the common purpose must be specific, for instance, must mean

10     that there are converging views as to the model of statehood as they

11     advocate and its underlying ideology?  The Prosecution acknowledges that

12     the purpose of having all Serbs living in one and the same state is

13     different from the historic and philosophical concept of Greater Serbia.

14             So this is what the Prosecution said in the Milosevic case.

15             It added that the Accused Milosevic never resorted to the words

16     of Greater Serbia as such and was never even associated with those terms.

17     Allegedly, Milosevic, because of his position, only merely made it

18     possible for people championing the concept, such as Seselj, to speak in

19     favour of it to work towards it.  Transcript pages 43224 to 43226.

20     However, in the Prosecution's view, the fact that the Accused Milosevic

21     aimed at having all the Serbs living in one and the same state makes it

22     possible to say that the accused's objective can, de facto, be

23     characterised as Greater Serbia.  I mean, now we're talk about Accused

24     Milosevic.

25             In this respect, Mr. Nice, as Prosecutor, but it could equally

Page 16953

 1     been Mr. Marcussen, it's one and the same thing, so the Prosecutor added:

 2             "The practical facts, the specific effect of what the accused

 3     sought to achieve are the same as to its geographic scope to the effect

 4     of the implementation of a plan of Greater Serbia of the type advocated

 5     by the witness."  Page 43426.

 6             Because the decisive factor is:

 7             "The affirmation, the wish expressed to have all Serbs living in

 8     one state, that's de facto, and that tallies with the geographical scope

 9     of what would be obtained and reached by those advocating the course of

10     Greater Serbia."  Page 43249.

11             The Prosecution further argues that once it was no longer

12     possible to maintain Yugoslavia as a federal state, it became necessary

13     to have another plan which did indeed -- which indeed was implemented.

14     And in the Prosecution's view, it is then that the idea of a

15     Greater Serbia became a reality in his mind.  Page 43259.  And this view,

16     this way of seeing things, was challenged both by Milosevic and Seselj.

17             In their approach, the Prosecution, as represented by Mr. Nice,

18     identified the fact that all the Serbs lived in one and the same state,

19     Yugoslavia.  It is then made identical to Greater Serbia.  This is a

20     stating a fact that exists ever since Yugoslavia has existed.  This is a

21     fact from comes from where it is, I quote "a concrete tangible material

22     fact."  Page 43240.

23             As Slobodan Milosevic would have it, such a concept of the common

24     purpose is in contradiction with the fact that Yugoslavia encompassed the

25     entire Serb population within one and the same state and that the said

Page 16954

 1     state enjoyed full legal capacity in the international arena.  He

 2     observes in this respect that, quote/unquote:

 3             "All the Serbs in one and the same state is not a slogan.  It has

 4     been a reality for over 70 years, from the very inception of Yugoslavia

 5     until 1991.  If Mr. Nice accused somebody of wanting to save and maintain

 6     a state that has been an internationally recognised sovereign state, one

 7     of the UN founding states after World War II, I suppose there would be an

 8     endless list of individuals to be indicted by this Tribunal."  Page

 9     43264.

10             In support of this, it is worth pointing out that Seselj, as

11     witness, then added this:

12             "The SRS has drawn up a geographical map of Greater Serbia.  This

13     map we -- has been published by us.  I don't know how many times,

14     numberless times, on the front and back covers of our journal

15     Greater Serbia, and it can be seen that the western border is on the

16     Karlobag-Ogulin-Virovitica line.  This map of Greater Serbia encompasses

17     not only the territories where there is a majority of the population that

18     is Serb Orthodox."  Page 43274.

19             He added this:

20             "Nobody ever said anything linked with territorial claims by

21     Serbia.  The Serbs within the Croatian federal unit at the time made it

22     clear to the Croats:  If you want to secede from Yugoslavia, we don't

23     want to, we want to stay within Yugoslavia.  It was very clear before

24     every war began we did not want to leave Yugoslavia.  You did."

25     Transcript page 43275.

Page 16955

 1             "What the Orthodox Serbs wanted was to save, to rescue

 2     Yugoslavia, and they did not want a Greater Serbia.  Most of the Serbs

 3     did not want a Greater Serbia.  Only the SRS wanted it."

 4             Therefore, based on this, the former Yugoslavia, as Milosevic

 5     would see it, was a state encompassing all the Serbs.  And when it

 6     dissolved, when it exploded, it raised the issue of how to reconstruct,

 7     politically speaking, the Serbian people.  Therefore, with regard to the

 8     Prosecution position in the Milosevic case, on account of the positions

 9     by the Accused Milosevic and Seselj, the question whether there is or not

10     a common purpose or a common criminal purpose could be put in the

11     following terms:  Is the criminal purpose to be defined by its final

12     objective, the gathering of all Serbs within a common state, or is it to

13     be defined by a plan to implement a specific model of statehood based on

14     a specific type of political ideology?

15             In the former case, it may be said that there were discrepancies,

16     ideological discrepancies between Seselj and Milosevic, but that at first

17     sight there may have been a common purpose, uniting them with others and

18     the ensuing results would have been the creation of a Serbian state or

19     keeping a model of statehood encompassing all the Serbs.  However, such a

20     concept runs up against major obstacles.

21             I have to end because this is absolutely capital and I only have

22     a few minutes left.

23             However, such a concept runs up against major obstacles, namely

24     that it doesn't take into account the fact that Yugoslavia pre-existed,

25     and therefore it is in contradiction with the fact that all the Serbs

Page 16956

 1     were de facto included in the Yugoslav state, the existence of which

 2     Milosevic was endeavouring to keep.  And another consequence of this

 3     concept would be that you would put in the same JCE individuals who only

 4     had rather sporadic intermittent contacts because they had maybe pursued

 5     a final objective with arising conflicts of interest among them.

 6             In the latter case, it appears that the objectives pursued by

 7     Seselj and Milosevic are different.  Milosevic wanted to keep a form of

 8     statehood that existed before, the federal state, which would have made

 9     it possible for Serbs to remain in one and the same state.  However,

10     Seselj wanted a unitary and centralised state putting together

11     historically Serb lands in which the inhabitants would speak all the same

12     language, Stokavian.

13             Based on all these parameters, a reasonable trier of fact could

14     not conclude beyond any reasonable doubt that the Accused Seselj shared

15     the same objective as the other JCE members, because their final purpose

16     was totally different.  I can, therefore, not find the accused

17     participated in a joint criminal enterprise aimed at forcing, by crimes

18     against non-Serbs, those non-Serbs to leave a third of Croatia, large

19     parts of the Republic of BiH, and some parts of Vojvodina in order to

20     integrate these areas into a new Serb-dominated state.

21             After the break, I shall move on to the issue of persecution.  We

22     shall break for 20 minutes.

23                           --- Recess taken at 3.49 p.m.

24                           --- On resuming at 4.22 p.m.

25             JUDGE ANTONETTI: [Interpretation] The court is back in session.

Page 16957

 1     I shall resume with the chapter on persecution.  I'll say straight away

 2     that there's no diverging view in this respect with the rest of the

 3     Bench, because we are in full agreement on this matter.

 4             Article 5 of the Statute, crimes against humanity, specifies the

 5     jurisdiction of the Tribunal in cases of armed conflict, whether

 6     international or internal in character and directed against any civilian

 7     population:  Murder; extermination; enslavement; deportation;

 8     imprisonment; torture; rape; persecutions on political, racial, and

 9     religious grounds; and lastly, other inhumane acts.

10             In my view, the authors of Article 5 have, in matters of crimes

11     against humanity, established a grading scale in the gravity of crimes,

12     ranging from the more serious, the most serious, murder, down to inhumane

13     acts, and with -- just before the last rung of the ladder, persecution.

14     Why is there such a grading scale?  Undoubtedly, cases (a) and (b) refer

15     to the physical elimination of a civilian population.  The other cases

16     from (c) to (i) refer to acts against a civilian population without them

17     leading to death.

18             In any event, each of these offences can be punished by a maximum

19     penalty.  Therefore, there is within this grading scale no distinction to

20     be made because of a lesser or greater gravity.  Therefore, I am of the

21     view that persecutions on political, racial, and religious grounds are as

22     serious as murder, extermination, or enslavement.

23             Whilst this is a hotly debated issue among the ICTY Judges or in

24     the legal academic community as to whether persecutions are as serious as

25     murder, for indeed a civilian population may be persecuted for acts such

Page 16958

 1     as discrimination in hiring without any individual running any physical

 2     risk.  However, persecutions through speeches, utterances and writings

 3     can be the trigger or even the fuel for murder.

 4             (A) Persecution.  What is the applicable law?  This has already

 5     been developed in the majority decision read out yesterday, but I want to

 6     deal at length with specific issues.

 7             The issue of hate speech, with regard to the crime of persecution

 8     as a crime against humanity, was raised in the ICTY in the Kordic and

 9     Cerkez case and in the ICTR in the Nahimana et al. case.  In the Kordic

10     and Cerkez case, the Trial Chamber found in paragraph 209 that:

11             "The indictment against Dario Kordic is the first in the history

12     of the International Tribunal to allege incitement to hate or encouraging

13     and promoting hatred against a crime against humanity."

14             But the Trial Chamber had found that:

15             "The act, as alleged in the indictment, did not constitute by

16     itself persecution as a crime against humanity, because it was of the

17     view that it is not enumerated as a crime elsewhere in the Statute but

18     most importantly it does not rise to the same level of gravity as the

19     other acts enumerated in Article 5."

20             The Trial Chamber added that:

21             "International customary law does not view this act as a crime,

22     and it would be a violation of the principle of legality to convict the

23     accused for an act under the count of persecution."

24             The legal analysis carried out by the Trial Chamber referred to

25     footnote 272 to the Streicher case and said that the IMT had convicted

Page 16959

 1     two accused for persecution because it had "incited the German people to

 2     active persecution."  The IMT found that the acts of the accused, the

 3     publication of a virulently anti-Semitic journal had amounted to

 4     "incitement to murder and extermination."  Streicher case, IMT judgement,

 5     pages 321 to 324.

 6             Equally, in the Akayesu judgement, paragraphs 672 to 675, the

 7     ICTR found the accused guilty for direct and public incitement to

 8     genocide under Article 23(C) of the ICTR Statute.

 9             In the Nahimana case, the Appeals Chamber noted in paragraph 979

10     of the appeals judgement of November 28, 2007, that the submissions of

11     the parties, notably the submission of the amicus curiae, showed that the

12     interpretation of the Streicher case provided by the Trial Chamber was

13     wrong, because, and I quote:

14              "Streicher was for the found guilty of persecution for

15     anti-Semitic writings that significantly pre-dated the extermination of

16     Jews in the 1940s but for prompting to murder and extermination at the

17     time when Jews in the east were being killed under the most horrible

18     conditions."

19             And it further said, and I quote again:

20             "That this interpretation of the Streicher case is confirmed by

21     the fact that the IMT acquitted Hans Fritzsche on the grounds that his

22     hate speeches did not seek incite the Germans to commit atrocities

23     against the conquered people."

24             The Appeals Chamber, for its part, considered that:

25             "The crime of persecution consists of an act or an omission which

Page 16960

 1     discriminates in fact and which denies or infringes upon the fundamental

 2     right laid down in international customary or treaty law the actus reus

 3     of the crime, and was carried out deliberately with the intention to

 4     discriminate on one of the listed grounds, specifically race, religion,

 5     or politics, the mens rea or -- of the crime."

 6             This is in paragraph 985 of the Nahimana appeals judgement.

 7             It adds:

 8             "However, not every act of discrimination will constitute the

 9     crime of persecution.  The underlying acts of persecution, whether

10     considered in isolation or in conjunction with other acts must be of a

11     gravity equal to the crimes listed under Article 3 of the Statute."

12             Furthermore, it says that:

13             "It is not necessary that these underlying acts of persecution

14     amount to crimes in international law."

15             On paragraph 986 and 987, the Appeals Chamber goes even further

16     in its analysis, setting there in a very clear fashion once and for all

17     the case law, saying that it considers -- and I quote, and I will read

18     slowly, because this is jurisprudence:

19              "A hate speech targeting a population on the basis of ethnicity

20     or any other discriminatory ground violates the right to respect for

21     human dignity," see the Universal Declaration of the Human Rights, "of

22     the members of the targeted groups, harassment, and is thus a de facto

23     discrimination.  In addition, the Appeals Chamber is of the view that

24     speech inciting to violence against the population on the basis of

25     ethnicity or any other discriminatory grounds violates the right to

Page 16961

 1     security of the members of the targeted group and therefore constitutes

 2     actual discrimination," see Article 3 of the Universal Declaration on

 3     Human Rights, "however, the Appeals Chamber is not satisfied that hate

 4     speech alone can amount to a violation of the rights to life, freedom,

 5     and physical integrity.  Thus other peoples need to intervene before such

 6     violations can occur.  A speech cannot in itself directly kill members of

 7     a group, imprison, or physically injure them."

 8             Finally regarding the question -- the following question:

 9             "Whether the violation of fundamental rights, right to respect

10     for human dignity, right to security is as serious as in the case of the

11     other crimes against humanity enumerated in Article 3 of the Statute.

12     The trial -- the Appeals Chamber is of the view that it is not necessary

13     to decide here whether in themselves mere hate speeches not inciting

14     violence against the members of a group are of a level of gravity

15     equivalent to that for other crimes against humanity, according to which

16     it is not necessary that every individual act underlying the crime of

17     persecution to be of a gravity corresponding to other crimes against

18     humanity.  Underlying acts of persecution can be -- can be considered

19     together.  It is the cumulative effect of all the underlying acts of the

20     crime of persecution which must reach a level of gravity equivalent to

21     that for other crimes against humanity.  Furthermore, the context in

22     which these underlying acts take place is particularly important for the

23     purpose of assessing their gravity."

24             What can I conclude?  As far as I'm concerned, I agree with the

25     analysis of the Appeals Chamber, which invites Judges, when they have to

Page 16962

 1     make a ruling on the existence of a persecution to review the case in a

 2     holistic fashion, drawing their attention to the underlying acts.  This

 3     cumulative effect could lead to a certain gravity that would make it

 4     possible for any reasonable Judge to conclude that there was indeed

 5     persecution.  But, as far as I'm concerned, this can only be done during

 6     final deliberations.  Therefore, at this stage of the proceedings, I will

 7     not review each underlying act, nor will I assess the entire act in a

 8     cumulative fashion as indicated by the Appeals Chamber.  At this stage of

 9     the proceedings, I will just keep, as underlined by the Appeals Chamber,

10     that discriminatory -- I will only -- I will only keep discriminatory

11     intent as an unlawful ground.

12             This being said, I will now scrutinise and review all the

13     evidence provided by the Prosecution to determine whether there has been

14     discriminatory intent.  To do so, I will use a year-to-year approach,

15     year-by-year approach.  I will take into account all interviews and

16     statements made by Mr. Seselj in 1990, 1991, 1992, 1993, and I will also

17     mention two of these that are not dated.  Thanks to this technique, I

18     will be able to come up with a very clear picture.

19             A number of these elements have already been mentioned in the

20     majority decision, but what's interesting here is to set them in their --

21     back in their time-frame.  I was able to backtrack to June 25, 1990.

22     During an interview at that -- on that day, during an interview with a

23     journalist from "Vecernji List," Mr. Seselj says that the Croats hate the

24     Serbs and that they have megalomaniac ambitions.  He adds that hatred is

25     only born to newly created nations.  That's Exhibit P1169.

Page 16963

 1             A few months later, during an interview to TV Studio B,

 2     November 1st, 1990, the accused declares that he is genetically and

 3     ethnically Serb.  Exhibit P1172.

 4             One month later during an interview with a journalist called

 5     Miroslav Peranovic, in a Bosnian weekly on December 1st, 1990, the

 6     accused declared that the Ustashi movement, so he's now talking about the

 7     Ustashi, is a typically fascist movement responsible for having committed

 8     a genocide against the Serbian people.  Furthermore, according to him,

 9     Croatia is a totalitarian state.  P1173.  And he also advocates the

10     banning of all universities using Siptar language.

11             A few days later during an interview with TV Belgrade on

12     December 6th, 1990, he says except for a very few, Croats are all

13     criminals and should be punished through the loss of hundreds of their

14     territories.  P32.  Furthermore, he uses the word "Ustashi" several

15     times.

16             Let's now move on to 1991 at the national -- in the parliament on

17     February 23, 1991.  He takes the floor, P1255, and says:  "We're prepared

18     for a bloodbath."

19             During a speech on television on the network TV "Politika" on

20     April 5th, 1991, Mr. Seselj says that Croats are trying to use the

21     Muslims to pitch them against the Serbs.  He says that the creation of a

22     unified Serbian state will make it possible for the Serbian people to

23     have 1.5 million enemies less.  And he also says that the Serbs are

24     making one of their biggest mistakes when thinking that Croats are their

25     equals.

Page 16964

 1             On May 1st, 1991, in an interview with TV Novi Sad, the accused

 2     explains that the revenge of the Serbs against the Croats will result --

 3     revolves the murder of Croatian civilians and that he cannot prevent it.

 4     And similarly, according to him, the Serbs cannot be held responsible for

 5     this, since, according to him, this revenge is fully justified.  P1177.

 6             Then we have a video sequence, P1003.  I would have -- I almost

 7     wanted to show this video, but I think we're running out of time.  It's

 8     dated May 6th, 1991, and this is what he says:

 9             "To our enemies which once again are placing the Ustashi knife

10     under the Serbian throat, we say that we are going to avenge today's

11     victims, but that we are also going to settle old scores."

12             And during a TV interview with TV Novi Sad five days later on

13     May 11th, the accused is ironic in saying that whenever a Chetnik is

14     aiming for a Croat in the head, the Thompson rifles are so effective that

15     their eyes pop out of their orbits.  P1254.

16             And on May 24 1991, this is what he says in the news magazine

17     "ON."  He says:

18             How can you negotiate with Ustasha?  Can't you see that the

19     entire Croatian people is Ustashas except for a very few?"  P34.

20             "You know, retaliation results in blind revenge.  There will be

21     innocent victims.  But what else can be done?  The Croats better think

22     twice before doing anything.  If they become loyal citizens of Serbia,

23     they will benefit all rights and freedom of -- citizens enjoy, but on the

24     contrary, they'll have to pack and leave."

25             Then on June 1st, 1991, TV Novi Sad, this is what he says -- he

Page 16965

 1     seems to boast "for having shed Ustashi blood" in Slavonia.  P1180.

 2             Then during an electoral speech on June 4th, 1991, this was

 3     published in magazine "Horvats Ustasha Phantasmagorias," this is what he

 4     says:

 5             "If the Croats use you again, the revenge of the Serbs will be

 6     terrible, and you will end up way beyond Anatolia."  P35.  "The Croats

 7     are arming themselves.  The new Ustasha leader Tudjman today has 80.000

 8     Ustasha commandos armed to the teeth.  We told the Croats, 'If you ever

 9     engage into a new genocide again, the Serbian people, we will not just

10     avenge each victim, we will use this opportunity to settle old scores in

11     the name of all victims of the two world wars.'"  As we see, he's been

12     talking twice about settling scores.

13             Then during a TV interview with Novi Sad on July 25, 1991, the

14     accused says that by nature, Croats are cowards and sent mercenaries

15     rather their armed forces in order to defend their interests.  He adds

16     that, according to him, Croats are genetically scared and accuses them of

17     being a criminal people.  This is Exhibit P1181.

18             During an interview with a reporter from "Duga," a Serbian

19     bi-monthly on September 13, 1991, the accused suggests that there should

20     be borders, P1182, and he also says, and I quote:  "Genetically, Croats

21     are cowards," as he said earlier in Exhibit P34.

22             I would ask our usher to please place on the ELMO P34 and P1182,

23     or -- well, let me ask the Court Registrar to do this.  It's done.

24             We have P34 and P1182 in English and also in Mr. Seselj's

25     language.  I continue.

Page 16966

 1             Speech made before the parliament of the Republic of Serbia on

 2     September 26, 1991, and there he calls for the setting up of a temporary

 3     Yugoslav government capable, if need be, of setting up a military junta

 4     so as to frighten the entire world with these changes.

 5             Same session on September 27, 1991, he urges the national -- the

 6     parliament to oppose any measure that would result in Serbs living with

 7     Croats and Slovenes.  P1258.

 8             Here I believe that we need to have another document on the ELMO.

 9     Very relevant.  It's an interview with a journalist of "Ratne Novine,"

10     dated November 24, 1991.  Here the accused declares the Slovenes as

11     thieves, always deceived the Serbs when the two people -- when these two

12     people cohabited, but you have it here in English.  You have it in

13     English and in the language spoken by the accused.

14             Now let's move to 1992.  This is an interview with TV "Studio B,"

15     April 8, 1992.  Here the accused states that he's never in his entire

16     life met a good Croat, and he says that Croats are the Serbs worst

17     enemies.  P1195.

18             April 21st, 1992, interview with the "Serbian Daily Unity."  Here

19     the accused is calling on their state radios to dismiss all Macedonian,

20     Bulgarian and Croat workers because allegedly they run against the

21     interest of the Serbian people.  P1197.

22             A few months later on June 12, 1992, interview with TV

23     "Politika," and there he says that there is no good Croat, neither in

24     Imotski nor in the entire western Herzegovina.  P1201.

25             Now let's move to 1993, and here I'm using a press conference

Page 16967

 1     which is mentioned in one of Mr. Seselj's books called "The Chief of the

 2     General Staff on his knees."  Here on -- he says that the SRS has 16

 3     CC-22 rockets, and he threatens to launch them on the Italian civil

 4     population should Italy decide to intervene on Serbian land.  P1219.  I

 5     don't know what Italy had to do here, but this is something he said.

 6             Then during an interview with a reporter of the weekly "NIN" just

 7     one week later, May 21, 1993, the accused says that the worst enemies of

 8     the Muslims are the Croats, and here it sounds like fuelling hatred.  So

 9     after -- I checked all this, but I found two that have no date, but I

10     will still quote them, P1264, P1338, P255, and P256 --

11             THE ACCUSED: [Interpretation] Mr. President, you said -- you

12     quoted a statement of mine, and you said that the Croats are the greatest

13     enemies of Muslims.  This is how it was translated to me in the Serbian,

14     and this could very well correspond to my words.  However, in the

15     translation into English, it says he says that the Muslims are the worst

16     enemies of the Croats.  So it's vice versa.  The Muslims are the worst

17     enemies of the Croats.  But this keeps happening all the time.  I took

18     all of the transcripts to check them in French and in English, and there

19     are about 4.000 mistakes of this nature.

20             JUDGE LATTANZI: [Interpretation] Very well.  I'm very happy,

21     because you seem to understand French and English very well, and on the

22     other hand you never want to read any documents in French and English, so

23     I'm very happy to hear this.

24             JUDGE ANTONETTI: [Interpretation] Thank you from having

25     checked -- having noted this.  I hadn't seen this.  I was just reading my

Page 16968

 1     document and not looking at you sometimes.

 2             THE ACCUSED: [Interpretation] Mrs. Lattanzi, I can find my way

 3     around in Italian as well, because I used to study Latin and this is how

 4     I freshen up my Italian.

 5             JUDGE ANTONETTI: [Interpretation] The transcript has been

 6     corrected.  This has to be accurate.  I know that Mr. Seselj checks

 7     everything, and I must not make a mistake, and I endeavour not to make

 8     one.  This may come from the fact that I read too fast, I don't know.

 9             Purportedly said in those unnumbered documents that no crime will

10     remain unpunished, and a sentence which is noteworthy, let me quote:

11             "Hordes of Ustashas have swept over our villages are pouncing on

12     our women and our children and are trying to put an end to the genocide

13     undertaken against the Serbian people."  P62.

14             In the Oberschall report, everyone remembers that the Prosecution

15     called Mr. Oberschall as a Prosecution witness for him to testify on the

16     nationalist propaganda of the accused in the 1990s from the -- from 1990

17     to 1994.  The expert, on pages 1822 and 1824 of his report, namely

18     mentions the persecutions, and on pages 9 and following, analyses the

19     speeches on the deportation of the population.

20             Now, to be fair, it is important to remember that on a decision

21     handed down on the 30th of November, 2007, the Trial Chamber dismissed

22     the expert capacity of this witness, but nonetheless admitted for

23     practical reasons his report in it's decision of the 24th of January,

24     2008.

25             The Chamber will consider the fact that this expert was rejected

Page 16969

 1     as an expert to assess the probative value of this piece of evidence, P5.

 2             During the testimony of this expert, videos were shown and a

 3     number of these videos proved to be particularly relevant as far as

 4     persecution is concerned.  In video P14, for instance, if we had time we

 5     would show it, but we don't have time.  This is a speech given by the

 6     accused in Jagodnjak in April 1991.  The accused mentioned

 7     General Tudjman and the new Ustasha authorities, who, according to him,

 8     once again held a gun to the head of the Serbian people, and they were

 9     once again trying to provoke another genocide.  He then declares "each

10     Serbian life will be avenged."

11             In a speech delivered on the 13th of May, 1993, as part of a

12     visit by the SRS leaders in Banja Luka, P18, stated:

13             "The next time they strike, they, the Muslims and the Croat, must

14     be killed so that they never stand up again and that they never strike us

15     again."

16             I shall now more specifically look into the speeches delivered at

17     Hrtkovci.  Paragraph 125 of the pre-trial brief considers the statements

18     made by Witnesses VS-26 and VS-1133.  According to the Prosecution, these

19     witnesses were telling the truth.  However, I must remark that VS-26

20     ascertains, and he is in total contradiction with the speech delivered by

21     the accused in which he said that "he would gouge out the eyes of the

22     non-Serbs of the Croats and the Hungarians in Subotica with rusty spoons

23     and forks."  This does not figure in the speech in question.

24             This same witness said that the accused "met leaders of the SRS

25     and the SUP," and that on that occasion he purportedly called for the

Page 16970

 1     deportation and murder of non-Serbs.

 2             Witness VS-26, who did not testify for medical reasons, as

 3     everybody knows, did, however, testify in the Milosevic case but changed

 4     his statement afterwards and wished, despite his poor state of health, to

 5     be a Defence witness and stated this on several occasions.  Accordingly,

 6     as things stand, a reasonable trier of fact cannot accord any credit

 7     whatsoever if the statements of this witness are not corroborated by

 8     another witness who would then not be challenged.

 9             The allegations of Witness VS-1033 [as interpreted], according to

10     which the Accused Seselj purportedly said, let me quote:

11             "Mixed marriages between Serbs and Croats must be purged and the

12     children born of this union must be killed," and he purportedly quoted

13     the personalities of figure-heads that were non-Serbs that should

14     "quitte" Hrtkovci.  This has absolutely not been confirmed by the speech

15     which the Chamber has received.

16             In paragraph 127 of the pre-trial brief, the Prosecution holds

17     that the accused delivered a speech on the 6th of May, 1992, in Hrtkovci.

18     And before the speech was given, music was broadcast, and two hours

19     before his arrival, "volunteers of the SRS and the SCP arrived by bus

20     wearing black uniforms and armed with guns."  During -- when this speech

21     was given, and I have read this speech over and over again ten times

22     perhaps in order in the to make a mistake, one of the speakers quoted the

23     names of non-Serbs who had left Hrtkovci, and contrary to the

24     Prosecution's allegations, it was not the accused who had quoted the

25     names of these people.  All you need to do is look at the documents which

Page 16971

 1     the Prosecution has.

 2             According to the Prosecution, following this speech, some Croats

 3     decided to leave Hrtkovci, relying on VS-1136 [as interpreted] and

 4     according to Witness VS-1134, an overall harassment and intimidation

 5     campaign had been directed against non-Serbs, and, more specifically,

 6     against the Croats in Hrtkovci.  These were constantly subjected to

 7     threats over the telephone or direct threats.  Admittedly the accused did

 8     say that no crime would remain unpunished and that the responsible would

 9     be taken -- people responsible would be taken to task.  These words were

10     uttered in a situation of heightened tension and are mirror words uttered

11     by democratic states nowadays in the event of terrorist attacks, for

12     instance.

13             As the evidence stands and on reviewing the indictment and the

14     trial brief, the exhibits and the witness statements, I can qualify these

15     utterances, interviews, and statements of the accused along the lines of

16     speeches that are likely to be qualified as hate speech and containing a

17     discriminatory ground.

18             Persecution, deportation and forcible transfer.  Applicable law.

19             Deportation and forcible transfer of non-Serb civilians,

20     including Croats and Muslims, form the basis of three of the counts

21     mentioned in the indictment.  On the one hand, the Prosecution include

22     these crimes under Count 1, persecution.  On the other hand, the

23     Prosecution also qualifies deportation as a constituting a crime against

24     humanity, Count 10; an inhumane act constituting a crime against

25     humanity, forcible transfer, Count 11.

Page 16972

 1             The Prosecution alleges in paragraph 31 to 33 of the indictment

 2     that the accused planned, instigated, committed, or otherwise aided and

 3     abetted the planning, preparation, and commission of the crimes of

 4     deportation, forcible transfer of non-civilian Serbs, namely Croats and

 5     Muslims, between the 1st of August 1991 and the months of May 1992 in the

 6     autonomous region of Croatia and the RSK between the 1st of March, 1992,

 7     and the end of September 1993 in Bosnia-Herzegovina and between May and

 8     August 1992 in certain areas of Vojvodina.

 9             The jurisprudence of this Tribunal makes a distinction between

10     deportation punishable under Article 5(D) of the Statute and forcible

11     transfer punishable under Article 5(i) of the Statute under the

12     qualification "other inhumane acts."

13             For those people interested in this question, this distinction

14     was made in the Krstic judgement of the 2nd of August, 2001, in which the

15     Trial Chamber stated in paragraph 521 that:

16             "Both deportation and forcible transfer relate to the involuntary

17     and unlawful evacuation of individuals from the territory in which they

18     reside; yet, the two are not synonymous in customary international law.

19     Deportation presumes transfer beyond state borders, whereas forcible

20     transfer relates to displacements within a state."

21             This distinction, however, does not mean that this should not be

22     unanimously condemned as a practice under international humanitarian law.

23     In addition, jurisprudence has evolved in this respect, and the

24     trans-border nature of transfer has been more closely addressed.  The

25     Trial Chamber in the Stakic case held that deportation required the

Page 16973

 1     crossing of borders, but this could take on different forms.  The

 2     Appeals Chamber in its appeal judgement of the 22nd of March, 2006,

 3     recalled that international customary law implicitly admits that the

 4     victims must be driven out into another country beyond the officially

 5     recognised borders and that displacement outside an occupied territory is

 6     enough to qualify for deportation.  It therefore inferred that "under

 7     certain circumstances, displacements beyond the borders could de facto

 8     constitute deportation."

 9             According to the constant case law of the Tribunal, the material

10     element of deportation is constituted by the facts that people are

11     displaced by force or by some other means of coercion from the area in

12     which they legally reside beyond the official front of a state, or, in

13     certain cases, beyond a de facto frontier in the absence of grounds

14     admitted under international law.  However, as far as the mens rea is

15     concerned, the need to prove the intention of the accused to drive out

16     the victims permanently, the jurisprudence of the Tribunal remains

17     unclear.

18             As regards the forced nature of transfer or deportation, it is

19     important to recall the jurisprudence of the Tribunal that this is not

20     restricted to the use of physical forces; that can also involve threat

21     resorting to force or coercion; that it may be in the form of violence

22     duress, detention, psychological pressure, misuse of power; or that it

23     can merely be the consequence of the climate of coercion.

24             And it is only to determine whether the person transferred really

25     had the choice or not.  It is important to view this in the light of the

Page 16974

 1     circumstances of each case.

 2             As far as the lawfulness of transfer of deportation is concerned,

 3     the Geneva Convention allow for forced displacement in very specific

 4     cases.  Article 19 of the third Geneva Convention relating to the

 5     treatment of prisoners of war authorise the evacuation of prisoners of

 6     war from combat zone in the direction of camps where they will be out of

 7     danger.  Article 49 of the fourth Geneva Convention on the protection of

 8     civilians in wartime authorises a total or partial evacuation of an

 9     occupied area, let me quote, "if the security of the population or

10     compelling military reasons so require."  That said, the population will

11     have to be brought back home as soon as the hostilities seize in the

12     area.  And lastly Article 17 of the second additional protocol admits

13     that the displacement of the civilian population may be ordered for

14     conflict related -- on conflict related grounds.  Furthermore, the

15     consent of the displaced people can justify the displacement and make it

16     legal.  That said, the consent must be given voluntary and the person

17     must give it of his own free will.

18             In paragraph 17(i) of the indictment, the Accused Seselj is

19     charged with persecution, punishable under Article 5(h) of the Statute

20     for the deportation or trance -- or forcible transfer of tens of

21     thousands of non-Serb civilians including Croats and Muslims, more

22     specifically in Zvornik, in the area of Sarajevo, Mostar, Nevesinje, and

23     in certain areas of Vojvodina.

24             On several occasions, the Trial Chamber admitted that forced

25     displacement of the population constituted persecution.  The forced

Page 16975

 1     nature of the displacement incur the responsibility of the person

 2     committing that act and not the destination or place where these people

 3     are sent.  This element can be assessed along the same standards as those

 4     applied to the crimes of forcible transfer and deportation punishable

 5     under Articles 5(d) and 5(i) of the Statute.

 6             For the acts of deportation and forcible transfer to be

 7     considered as underlying acts to the crime of persecution, they must have

 8     been committed separately or accumulatively and have been committed with

 9     a discriminatory intent and constitute the crime of prosecution of the

10     same gravity of the other crimes mentioned in Article 5 of the Statute.

11     At this stage, I shall not rule on the question of whether I should

12     expand on the question of deportation or forcible transfer as an

13     underlying act of persecution under Count 1 since I concluded above in

14     light of the evidence received on the existence of Count 1.

15             The essential question which remains is to know whether a public

16     authority may or not call for the displacement of its population.  The

17     additional protocol 2 of the Geneva Convention of 1949 relating to the

18     protection of victims during armed -- non-international --

19     non-international armed conflicts, on 8th of June, 1977, quotes in

20     Article 17:

21             "The displacement of the civilian population cannot be ordered

22     for reasons relating to a conflict otherwise -- unless the security of

23     the civilians or compelling military reasons so require.  Should such

24     displacements have to be carried out, all possible measures shall be

25     taken so that the civilian population may be received under satisfactory

Page 16976

 1     conditions of shelter, hygiene, health, safety and nutrition.

 2             Civilians shall not be compelled to leave their own territory for

 3     reasons connected with the conflict."

 4             The ICRC commentary in this case says that displacements of the

 5     civilian population shall not be ordered unless the security of the

 6     civilians so demand or imperative military reasons so demand.  Therefore,

 7     two exceptional circumstances.  I believe that these reasons have to be

 8     appraised on a case-by-case basis and that in any event they must be

 9     imperative reasons.  Therefore, by looking into the speeches as we are

10     going to do in a moment, I did not find in the utterances by the accused

11     either of these two circumstances.

12             Let me now review the evidence on record with regard to transfer

13     and deportation.  And as I did before, I'm going to examine the evidence

14     year by year in order to see this inner time-line.

15             1990.  The accused gave an interview to a weekly, the Serb weekly

16     "Pogledi" on the 15th of April, 1990.  He calls further displacement of

17     the entire Albanian population living within a 50 kilometre area from the

18     Albanian border to other places in Yugoslavia and recalls that the

19     Albanian ethnic minority, supported by the west, threatens the majority

20     Serb ethnic population.

21             1991.  On the 11th of May, 1991, he gave an interview to TV

22     Novi Sad and said that all the Albanians had to be deported from Serbia.

23     Exhibit P1254.

24             Several months later, in an interview to a "Ratne Novine"

25     journalist on the 24th of November, 1991, he speaks in favour of a

Page 16977

 1     population in change, suggesting that the Serbs from Zagreb should go to

 2     Zupanja and that the Croats from Zupanja should go to settle in Zagreb,

 3     because, in his view, Croats and Serbs cannot cohabit, live together,

 4     within one and the same state.  I insist, he said, that the Serbs and

 5     Croats could not live together within one and the same state.

 6     Exhibit P1186.

 7             The following year, in 1992, he gave an interview to a Radio

 8     Novi Sad reporter on the 6th of January, 1992, and he called for a

 9     population exchange between Serbs and Croats which should be done as soon

10     as possible in his view.  Exhibit P1190.

11             On the 5th of April, 1992, he gave an interview to a "Politika"

12     journalist and spoke in favour of a population exchange between Serbs and

13     Croats.  Exhibit P1298.

14             In an interview to a journalist of the "Unity" Serb daily, I

15     spoke about it already, but this was on the 21st of April, 1992, he urged

16     the 500.000 Albanian migrants to go back to Albania.  Exhibit P1197.

17             In questions during a press conference held by the SRS on the

18     28th of May, 1992, the accused stated that the disloyal Croats should be

19     ousted from Croatia, deported from Croatia and that the Serb refugees

20     should actually take their place in the dwellings that they should have

21     left.  Exhibit P1199.

22             On the 12th of June, 1992, he stated to TV "Politika" that there

23     was going to be an exchange population between Serbs and Croats.  Exhibit

24     P1201.

25             In an interview to a "Globus" journalist on the 7th of August,

Page 16978

 1     1992, he explained that when the SRS was in power, he -- it would carry

 2     out a population exchange between Serbs and Croats.  Exhibit P1203.

 3             In a debate organised by the "Tanjug" news agency on the 7th of

 4     December, 1992, he called for the deportation of the 360.000 Albanian

 5     migrants and their offsprings who had entered Kosovo-Metohija, or, more

 6     widely, Yugoslavia, since the 6th of April 1941.  Exhibit P1208.

 7             Let's move to 1993.  Sorry for speeding up.  My apologies to the

 8     interpreters, but since they are excellent, they're able to keep pace

 9     with me.

10             In a radio interview to Radio Banja Luka, 20th of March, 1993, he

11     said that the SRS had worked to accommodate Serb refugees in abandoned

12     flats.  He said that there should be a campaign for a population exchange

13     between Serbs, Muslims and Croats who no longer can, according to him,

14     live together in the same territory.  Exhibit P1215.

15             In a radio interview to Radio Belgrade on the 22nd of March,

16     1993, he explained that Dobrica Cosic, president of the FRI, called for a

17     population exchange between Serbs and Croats and that the SRS was fully

18     committed to make it happen.  Exhibit P1216.

19             In an interview, the source of which is not specified but it is

20     mentioned in one of his books, the accused -- this is Exhibit P1218.  So

21     on the 7th of May, 1993, he said that there was a spontaneous population

22     exchange in Zvornik whereby the Serbs took the place of the former Muslim

23     inhabitants.

24             On the 4th of November, 1993, speaking to radio "Ponos," he

25     called for a population exchange.  Exhibit P1231.

Page 16979

 1             On the 6th of December, 1993, speaking to a "Tanjug" journalist,

 2     he admitted that he had held propaganda speeches for the population to

 3     leave Serbia.

 4             Document of P574 of 20th of September from the Republic of Serbia

 5     noted that during the 2002 census, there were 56.546 civilians living in

 6     the autonomous province of Vojvoda; whilst, according to the 1991 census,

 7     there were 74.808 of them.  And, therefore, there were 18.262 less

 8     civilians.  That is a reduction of 24.41 per cent, and this document

 9     shows that this reduction results from the policy of persecution against

10     a civilian population which can amount to a war crime.

11             This document might be such as to support the Prosecution's

12     allegation as to a policy of persecution that led to the transfer and

13     deportation of non-Serbs.

14             In paragraph 11 of their pre-trial brief, the Prosecution said

15     that the speeches by the accused became more and more virulent towards

16     the Serbian Croats.  Exhibits P35, P892, P43.  It said that the accused

17     said that once there would have been thousands of federal officials

18     deported, thousands of dwellings would have become available in Belgrade.

19     This refers explicitly to the departure of officials from the federal

20     structures of the former Yugoslavia.  There's also an allusion to the

21     population exchange speaking about Serbs deported from Zagreb and these

22     are classic retaliation measures in international law.  Basically saying:

23     We're not going to kill you, of course, but we're going to make sure that

24     you get on board trucks and on trains wound bound for Zagreb.  P892.

25             In document P43 admitted that he would depart Croats for several

Page 16980

 1     reasons:  Because they're not faithful to Serbia, they destabilise the

 2     domestic situation, they turned out to be direct Ustasha

 3     collaborationists, and, finally, because they must be the target of

 4     retaliation measures after the deportation of 160.000 Serbs by Tudjman.

 5             As to the issue which is at the very core of the problem.  This

 6     was the question you were criticised because you said that all the Croats

 7     had to be deported from Serbia, and therefore -- it's not in the SRS

 8     tradition to -- to say so.  And so that question is put but he doesn't

 9     really answer it.  He just says that the SRS will tackle the problem at

10     the root of the cause and the person asking the questions realise that

11     they don't get the answer they wish for, and he says:  "Now are you going

12     to withdraw what you said about the Croats?"  And then the accused said"

13     "Never, ever."

14             Is such an answer directly connected to deportation or to the

15     arguments by Croats who deported Serbs?  In this respect, I do not have

16     an absolute certainty.  Do I have a doubt.

17             When Ms. Tabeau testified in support of her report on the

18     immigrations of Croats and other non-Serb population from the Hrtkovci

19     village in 1992, there was a list of Croats who left that place in 1992,

20     P565, the destination being Croatia or unknown destination I mentioned

21     that last time.  The migration of the Hrtkovci population in her view was

22     confirmed by information gathered by the Office for Displaced Persons and

23     Refugees established by the Croatian authorities.  The latter was to

24     count the arrivals and assess their situation to see that they were

25     entitled to the status of displaced persons and possibly to be given a

Page 16981

 1     registration number each.  This is transcript page 10842.

 2             Witness VS-061 said that baptism certificates were given to

 3     Croats leaving Hrtkovci so that they could move and cross over to

 4     Croatia.  Transcript pages 9930, 9931, 9937, 9954.

 5             A reasonable trier of fact could therefore find that among the

 6     722 names listed, there are, in fact, 233 of them with unknown

 7     destination and they have to be taken out of that list.

 8             Finally, a reasonable trier of fact whom I decide to find the

 9     accused guilty for the crime of deportation and forcible transfer in

10     Hrtkovci between 1992 and 1993 can only find him guilty on the basis of

11     the deportation or transfer of 489 individuals in Annex 11 of the

12     indictment.

13             Based on the evidence, a reasonable trier of fact might find that

14     the accused has committed crimes of deportation and forcible transfer as

15     defined in Counts 10 and 11 of the indictment.

16             I'm just about done as far as the D chapter.  Now let's move to

17     aiding and abetting.

18             Regarding the mode of responsibility connected to aiding and

19     abetting, the Prosecution in paragraphs 149, 150, 151, 152 and 153 of its

20     preliminary -- of its preliminary brief uses a large amount of

21     jurisprudence in it's foot notes 507 to 513, Aleksovski, Krnojelac,

22     Kunarac, Blaskic, Furundzija, Tadic, Celebici, and Vasiljevic, to state

23     that aiding and abetting means providing help, encouragement, or moral

24     support to the person committing the crime.  The case law says that the

25     act of an accused must have an important or significant effect on the

Page 16982

 1     perpetration of the crime.  Aiding and abetting can be done before,

 2     during or after the crime.  The presence of the accused may constitute a

 3     form of aiding and abetting if it had the effect of the physical

 4     perpetrator.  The mens rea must have two aspects.  First, the accused

 5     must be aware that the commission of the crime is foreseeable, and the

 6     accused must know that his acts will contribute to the commission of the

 7     crime by the physical perpetrator.  According to the Prosecution in

 8     paragraph 153, the mens rea is proved by his own statements, P644, the

 9     inflammatory nature of his speeches, his repeated visits to the battle

10     field, and the fact that he relentlessly sent volunteers on the front.

11             Witness VS-017 by his orders sent to the volunteers and other

12     Serbian forces, Witnesses VS-007, VS-026, and VS-027, and the omission of

13     taking any sanctions against volunteers whenever crimes were committed.

14     VS-007, VS-026 and VS-034.

15             Therefore, it seems that adding and abetting results from the

16     words uttered by the accused but the fact that he was present before on

17     the battle-field before the combat and sending volunteers.  In the

18     indictment, there are three regions Bosnia-Herzegovina, Croatia and

19     Serbia.  Now you have to relocate the crimes in these regions, put them

20     back in perspective in these two regions with two main dates in mind:

21     The declaration of independence of Croatia and the declaration of

22     independence of Bosnia-Herzegovina.  These two dates are extremely

23     important because their effect was the JNA was withdrawn and was replaced

24     by local forces or armed groups which came from regional entities so the

25     question now is whether Serbia actually controlled the troops on the

Page 16983

 1     ground.  The control by Serbia of -- on Serbian forces, as the case law

 2     of the Tribunal is concerned, must be a global control with the control

 3     of military operations and not just a financial support.

 4             In paragraph 137, of the Tadic appeals judgement this is what

 5     the -- what was said:

 6             "The control required by international law may be deemed to exist

 7     when a state has a role in organising, co-ordinating or planning the

 8     military actions of the military group.  In addition, to financing

 9     training and equipping or providing operational support to that group."

10             We still have ten minutes before the break.

11             JUDGE LATTANZI: [Interpretation] Even more, actually, because we

12     resumed at 4.25.

13             JUDGE ANTONETTI: [Interpretation] Judge Lattanzi says we still

14     have 20 minutes and I thank her for that.

15             Regarding overall control, the International Court of Justice, in

16     the appeals judgement application of the convention for the prevention

17     and repression of crimes of genocide Bosnia-Herzegovina versus Serbia and

18     Montenegro, a world-known appeals judgement dated February 26th, 2007,

19     concluded that Serbia did not have an overall control over the soldiers

20     of the VRS because the VRS was not a de jure organ of the Federal

21     Republic of Yugoslavia in the sense that did not have under its domestic

22     law the status of organ of this one.  In paragraph 392, and following of

23     this appeals judgement, this is what is said by the International Court

24     of Justice.  I will read slowly because this is important:

25             "According to the Court's jurisprudence, persons, groups of

Page 16984

 1     persons or entities may, for purpose of the international responsibility,

 2     be acquainted with state organs even if that status does not follow from

 3     internal law provided that, in fact, the persons, groups or entities act

 4     in complete dependence," I quote, "complete dependence on the state of

 5     which they are ultimately merely the instrument."

 6             Next paragraph, it's also absolutely essential:

 7             "At the relevant time, July 1995, neither the Republika Srpska

 8     nor the VRS could be regarded as mere instruments through which the FRY

 9     was acting and is lacking any real autonomy, while the political,

10     military and logistical relation between the federal authorities of

11     Belgrade and the authorities in Pale between the Yugoslav army and the

12     VRS had been strong and close in the previous years and these ties

13     undoubtedly remained powerful.  They were at least at the relevant time

14     not such that the Bosnian Serbs political and military organisation

15     should be equated with organs of the FRY."

16             The Judges of the ICJ in order to reach this conclusion, this

17     essential conclusion, were provided with the judgements and the documents

18     of this Tribunal.  Therefore, this is the question now.  If Serbia does

19     not have overall control over the soldiers of VRS, how could a political

20     opponent such as Mr. Seselj have such a control?  Therefore, the accused

21     is charged for having aided and abetted all crimes on Counts 1 to 14 by

22     contributing individually and in full awareness.  But this mode of

23     liability is extremely broad and must be examined and reviewed for each

24     count.  It is important to establish at least that between the crimes

25     committed and the accused, there's some kind of nexus out of his

Page 16985

 1     behaviour and his speeches.  Firstly, there is no evidence as far as

 2     Count 4, murder; Counts 8 and 9, torture and cruel treatment; and

 3     Counts 12 to 14, wanton discretion and plunder.  Through his behaviour

 4     and his speech, the Prosecution does not establish beyond any reasonable

 5     doubt that he aided and abetted those who actually committed the murders,

 6     tortures, plunders or looting.  Contrary to this in Exhibit P644, and I

 7     think Mr. Marcussen should read it, it is a key Prosecution evidence.

 8     Well, it shows that all these counts are condemned by the accused himself

 9     in March 1995.  This is what he said:

10             "There were incidents and we were extremely strict on the front

11     line.  We immediately dismissed these people.

12             "These policemen and Arkan's men started to ransack the town.  It

13     was a large -cale plunder.

14             "When half of the operation was over, in Zvornik they started to

15     plunder.  They even looted the Serbs.

16             "It's Commander Arkan who organised this cleansing of Muslims."

17             And he is using the word "cleansing":

18             "These Muslims were killed and the regime does not want to

19     disclose anything about this.  Those who killed them came from Belgrade."

20     Regarding Bijeljina, he says:

21             "Arkan was under the control of Karadzic or under the control of

22     the Serbian Army, and later under the orders of Blagojevic.  He was

23     prevented from playing any role because he had committed the plunder in

24     Bijeljina.  He had 15 men over there.

25             "The situation there was difficult because there were many

Page 16986

 1     crimes."

 2             And then I quote one last sentence which is also essential.  This

 3     is what he says:

 4             "Ethnic cleansing was --

 5             THE ACCUSED: [Interpretation] I have to intervene once again,

 6     even though I don't do it gladly.  Could you please be more precise when

 7     it comes to Arkan.  I think that the interpretation into Serbian and

 8     interpretation into English were the opposite of what I said.  I said

 9     that Arkan could not be under the control, either Karadzic or the

10     Serbian Army or Blagojevic, and it was interpreted as though Arkan was

11     under their control.  I didn't hear the French original very well, but I

12     would like you to repeat that sentence, if possible, and then we should

13     check the original.  Arkan was beyond anyone's control.  This is what I

14     meant.  This is what I said, as far as I can remember.

15             JUDGE ANTONETTI: [Interpretation] Very well.  We will look at

16     document P644 in detail.  Unless there was a mistake in translation, this

17     is what was said.  But in French it's alleged you would have said, "Arkan

18     was -- was under the control of Karadzic or under the control of the

19     Serbian Army and later under the orders of Blagojevic -- Blagovic."

20     There might be a mistaken but this is on the paper I'm reading.  The last

21     sentence which is the most important -- this is what you allegedly would

22     have said, unless there was an error, of course, and giving the reference

23     of the document, it's a video 02.45.59.  This is what you would have

24     said:

25             "Ethnic cleansing was not organised, but of course there's --

Page 16987

 1     there have been, here and there, certain events where some form of ethnic

 2     cleansing occurred."  This is what you said.

 3             However, Counts 1, 10, and 11 can fall under the liability of the

 4     accused regarding aiding and abetting through the inflammatory nature of

 5     his speech.  Consequently, the accused should be acquitted of aiding and

 6     abetting for Counts 4, 8, 9, 12 to 14, and could - I'm now saying could

 7     and not should -- could be found guilty as evidence stands now for

 8     Counts 1, 10, and 11, subject to no evidence to the contrary being

 9     adduced by the accused during the presentation of his case.

10             I have one last chapter on the counts, counts 1, 4, 8, 9, 10, 11,

11     12, 13, and 14, and I intended to detail them.  I wanted to run through

12     them, one after the other.  Count 1, for example, persecution, I would

13     say, non-Serb civilian population from territories of the SAO SBS --

14     SBWS, et cetera, et cetera.  I based myself on the preliminary brief to

15     make a list of all this, but I believe that this is not fundamental.  But

16     what is absolutely fundamental, and I will ask Mr. Usher to help us,

17     could he please place on the ELMO my conclusion to know exactly where I

18     would enter an acquittal and where, if possibly given the evidence

19     adduced, and so on, as a reasonable Judge and beyond any other -- any --

20     beyond any reasonable doubt I could find you guilty according to -- under

21     Rule 98 bis.  This is Appendix 13.  I've given all the elements adduced

22     so far.  You would be acquitted regarding planning on Counts 1, 4, 8, 9,

23     10, 11, 12, 13 and 14.  Regarding instigating, acquitted on Counts 4 8,

24     9, 12, 13 and 14.  Regarding ordering, acquitted on Counts 1, 4, 8, 9,

25     10, 11, 12, 13 and 14.

Page 16988

 1             Regarding committing, I would enter a judgement of acquittal.

 2     Since I did not retain the JCE, I would acquit you for 1, 2, and 3 of the

 3     JCE, and for aiding and abetting, you would be acquitted on Counts 4, 8,

 4     9, 12, 13 and 14.

 5             I shall now show you Annex 14, which is a summary table of what I

 6     admit based on the evidence provided by the Prosecution.  Notwithstanding

 7     what you will say during your defence case, based on all the evidence

 8     adduced, I would like to say as far as instigation is concerned, I could

 9     enter a conviction of guilty for persecution Counts 10 and 11,

10     deportation and forcible transfer.  For the material commission, I could

11     enter a conviction of guilt under Counts 1, 10, and 11.  For deportation

12     and forced -- forcible transfer, and as regards aiding and abetting, I

13     could also admit Counts 1, persecution; 10 and 11, deportation, and

14     forcible transfer.

15             I must -- or I lastly have the duty to say, as you can see on the

16     screen, that, for the time being, I have admitted the following forms:

17     Instigation -- these are forms of responsibility:  Instigating, aiding

18     and abetting, committing.  Based on the evidence adduced but at the time

19     of the judgement, it will be important to admit only one form of

20     responsibility, for either the accused committed, either he instigated,

21     or he aided and abetted.  In my view, it can only be an either/or

22     situation.  You can't be an instigator, accomplice and perpetrator all at

23     once.

24             This concludes my opinion.  All of this is very complicated in

25     technical terms.  I fully agree with the Trial Chamber as regards

Page 16989

 1     persecution through instigation instigating committing and aiding and

 2     abetting.  However, I totally disagree about the fact and I also agree on

 3     the count relating to forcible transfer and deportation.  I fully agree

 4     with the majority of the Chamber as regards Counts 1, 10, and 11, and the

 5     Chamber in its majority held that all the other counts needed to be

 6     addressed.  There is a diverging view on this matter.  Like my

 7     colleagues, I'm in favour of the continuance of the trial and I dismiss

 8     your motion for grounds that differ from the grounds put forward by my

 9     colleagues.

10             We now have a make a break, which is a 60-minute break.  These

11     are for technical reasons.  Thirty minutes, 30 minutes.  I'm sorry.  We

12     shall resume in 30 minutes' time, and in 30 minutes' time, I will tell

13     Mr. Seselj how we proceed further.

14                           --- Recess taken at 5.52 p.m.

15                           --- On resuming at 6.25 p.m.

16             JUDGE ANTONETTI: [Interpretation] The court is back in session.

17             I have three corrections of a technical nature to make since all

18     this was very quick.  I would like on page 43, line 23, a correction to

19     be made.  Instead of a 1033, it was Witness VS-1133.

20             Second correction of a technical nature:  On page 44, line 16,

21     instead of VS-1136, it should read 1036.

22             Third correction:  Judge Harhoff drew my attention on a quotation

23     I made of a footnote, which was 429.  I had said that during that period

24     a unit of the Special of Sremska Mitrovica was seconded to Hrtkovci

25     prevented the Serbs -- or the non-Serb population from being attacked.

Page 16990

 1     This established the fact that there could be no collusion, because the

 2     authorities had sent police forces.  Judge Harhoff remarked that it was

 3     also stated in this paragraph, and I quoted, so that we have it in full,

 4     that this unit did not protect the village and sometimes even helped the

 5     SCP leaders to drive out some of the Croats.  I did not deliberately read

 6     out the second part, because what I was interested in was to establish

 7     that the authorities had sent a unit and that if this unit had formed a

 8     pact with the people living in that locality, I was interested in the

 9     fact that the authorities had sent some men there, and what I had in mind

10     was what is happening in Libya today, or in Syria, for instance, where

11     units are sent there by the authorities, and once they're on the ground

12     they form a pact with the people on the ground.

13             What is important is to know that the authorities did send a unit

14     there.  That is what I wanted to highlight, the fact that they did

15     collude or that they did the contrary of what the assignment was all

16     about.  That is a different issue.

17             That said, Mr. Seselj, the Chamber has decided to proceed with

18     the trial, and pursuant to Rule 65 ter (G), I shall read to you what you

19     need to do.  The ball is now in your camp.

20             After the presentation the Prosecution and the Defence case, the

21     Pre-Trial Judge ordered the Defence to file the following.  Therefore,

22     you need to give us a list of witnesses that you intend to call.  You

23     must specify the name or pseudonym of each witness, a summary of the

24     facts on which each witness will testify, the points in the indictment on

25     which each witness will testify, the total number of witnesses and number

Page 16991

 1     of witnesses who will testify on each count.  If the witness testifies

 2     pursuant to 92 bis or 92 quater, this could also be part of Rule 92 ter.

 3     The statement of -- given by the testimony and the length of -- the

 4     length of the testimony and list of exhibits is important.

 5             The Trial Chamber met on a number of occasions and decided, as of

 6     today onwards, to grant you six weeks, which means that we should have

 7     this list by the 17th of June.

 8             As you know, the Prosecutor will certainly make observations

 9     following that in the event that you do give this list, and the

10     Trial Chamber will hand down a decision, and bear in mind the various

11     deadlines in the event that this happens this way.  It is quite possible

12     that we can start hearing your witnesses after the recess.  The 15th of

13     June decision rendered by the Chamber, we will then be in July already,

14     and that will probably be after the summer recess only at the bare

15     minimum.

16             Mr. Seselj.

17             THE ACCUSED: [Interpretation] Mr. President, I cannot file any of

18     the lists you mentioned within that deadline or any of the requested

19     information unless certain preconditions are met based on my fundamental

20     rights.  First of all, you have to regulate the status of Zoran Krasic as

21     my legal advisor.  From the first day of my stay here, the Trial Chamber

22     denied certain status rights to Zoran Rankic, because you decided that he

23     was not allowed to be present in the courtroom when confidential evidence

24     is being heard.  If my legal advisor Zoran Krasic does not have the equal

25     status with all other legal advisors, I will not be presenting my Defence

Page 16992

 1     case.

 2             Secondly, the Registry has started disciplinary proceedings

 3     against my legal advisor Boris Aleksic.  He sent a request to the

 4     Association of Defence Counsel here in The Hague, even though he's not a

 5     Defence counsel nor a member of that counsel association, but a

 6     commission has been established headed by Edina Residovic, a lawyer, a

 7     well-known lawyer from the proceedings against Izetbegovic who also

 8     appeared in Sarajevo back in 1984 at my initial appearance in a court in

 9     Sarajevo.  She represented the Prosecution at the time, and now she was

10     appointed as president of this disciplinary commission.

11             Unless there harassment of Boris Aleksic, my legal advisor, does

12     not stop immediately, I will not be presenting my Defence case.

13             Next, the financing of my Defence has not been resolved yet.  You

14     made a decision concerning the Registry, decision prior to that.  I will

15     not be appealing it, because in your decision you ruled that my legal

16     advisors are to be remunerated at the rate of 50 -- at the rate of 50 per

17     cent for the accused.  However, you have not ruled anything concerning

18     the retroactive payments for the past eight years.  These people worked

19     hard with me.  They wrote thousands and thousands of pages of

20     submissions, so there is evidence of their hard work and dedication.

21     Unless they're paid for their services, I will not be presenting my

22     Defence case.

23             How can they be remunerated for that?  From the first day when I

24     filed a request that my Defence case be refunded, I wanted to receive

25     information about the costs of the Prosecution case against me.  I never

Page 16993

 1     received that information.  Then I sought information about how much of

 2     the UN funds is provided to finance all the cases of all other accused

 3     here and I was not given that information either.  I was told that that

 4     information can be found on internet; however, I have no access to

 5     internet.  Just like all other detainees at the Detention Unit, we are

 6     not entitled to internet access.

 7             Next, some ten years ago, the Registry drew up categories of the

 8     accused, first, second, and third.  I was always assigned to the third

 9     category, and then once you made the decision that they need to start

10     paying for my Defence case, they decided to review that, and I even sent

11     a letter as to what category I should belong to.  I guess they thought

12     that they wanted -- that they thought that I wanted to be in the easiest

13     category so that I could be relaxed while waiting for your Draconian

14     judgement.  I was been relaxed from day one because I am not interested

15     in your judgement.  I participate in these proceedings because I want to

16     protect not only my own reputation and my honour but also many volunteers

17     of the Serbian Radical Party and also in order to prove that all

18     accusations against me are false, and I'm quite satisfied with the way

19     things are going so far and have been going so far.

20             Not all of the Trial Chambers seem to be alike.  You have some

21     major differences, but essentially all think alike.  For the 18 months of

22     preparation of the Defence case, other accused have received a sum of

23     380.000 euros.  This is what indigent accused received.  Eighteen months

24     could turn into 24 months at the most.  However, my pre-trial stage

25     lasted for four years and eight months.  This is why this amount needs to

Page 16994

 1     be doubled, that is to say 160.000 euros.  For accused in third category,

 2     their defence costs 40.000 euros per month.  Out of those 40.000 euros,

 3     20.000 is allocated to lead counsel, and the rest to the other remaining

 4     members of the team.  You can calculate how many months.

 5             So from the pre-trial phase, I'm entitled to 160.000 euros.  You

 6     can deduct half for the fact that I represent myself, and then 380.000

 7     euros need to be paid to the other members of my team.  For every month

 8     of the trial, in November it will be four years, if you're going pay the

 9     monthly sum, that would come to 960.000 euros.  Am I right?  Yes, I'm

10     right.  I'm always right.

11             So if you deduct half of that amount for the fact that I

12     represent myself in the pre-trial stage and if we calculate only half of

13     the amount for each month of the trial, that means that members of my

14     team need to be paid about 1.300.000 euros.  Unless that amount is paid,

15     I will not be presenting my Defence case.  I will not allow that members

16     of my Defence team be humiliated in any way or as is popularly phrased

17     here, that they be discriminated against.  Since it is said that I like

18     to discriminate against a lot of people, even English doctors, I do not

19     like when my people are being discriminated against.  It is believed that

20     I oppose other forms of discrimination but endorse discrimination against

21     my people.

22             In addition to that, there are two other prerequisites that need

23     to be met, and they are conditio sine qua non.  I have been informed that

24     in 2005, the OTP filed a motion for a contempt of court against me and

25     that the Trial Chamber, and if I remember well, Mr. Antonetti, you were a

Page 16995

 1     member of that Chamber, and they denied that request.  And later on,

 2     Judge Agius, or perhaps one of his legal officers, informed me that such

 3     a request had been filed and that it was denied.  I insisted that this

 4     request or motion be provided to me and that I also receive the decision

 5     or the ruling denying that request.  It is very important that I be

 6     provided this, and unless you provide this to me, I will not be

 7     presenting my Defence case.

 8             Recently, the OTP provided a number of binders with some

 9     documents, and then several days later they sent in their cavalry so that

10     they could take those documents back from me.  I was taken to the

11     warden's office, and then they, escorted by the guards, went into my cell

12     to requisition that material.  There was an official of the Registry

13     present there.  She identified the documents.  The documents were seized

14     from the binders that were in my cell and then taken to the Registry and

15     placed under seal there.

16             I have to be given those documents again, and unless I receive

17     them, I will not be presenting my Defence case.

18             Your Honour, you remember that there have been a number of

19     problems here concerning translation of Defence documents.  I insisted

20     that two of my most important books be translated into French and

21     English, those are "Ideology of Serbian Nationalism" and "Roman Catholic

22     Criminal Enterprise of the Artificial Croatian Nation."  You first

23     provided one deadline for that to be translated.  You asked that that be

24     translated into French, and then you asked me to find translators.  I

25     found a translation agency and then the Registry refused the services of

Page 16996

 1     that translation agency.  Then they extended the deadline, and the last

 2     deadline that you set as the Trial Chamber was until the end of the

 3     Prosecution case.

 4             To this day I have not received the translation of those two

 5     books into English.  I cannot draw up the concept of my defence without

 6     those two books, and was can see, most members of the Trial Chamber

 7     insist right now only on instigation, ignoring the other modes of

 8     perpetration, even though, in my opinion, that represents the violation

 9     of the spirit of Rule 98 bis, because they were supposed to give their

10     opinion on all modes of commission and that if there is consensus, that

11     at least some of the modes of commission be dropped.  It would serve the

12     judicial economy purposes.  Since this has not been done, I have to

13     defend myself against the entire indictment.  The indictment remained

14     intact including JCE commission, perpetration, aiding and abetting,

15     instigation, and everything else.

16             So without these two books, I cannot challenge the essence of the

17     charges against me, which is hate speech, the so-called hate speech that

18     all of you are prepared to accept as a crime even though there are no

19     grounds for that in the international jurisprudence so far.  You are

20     invoking Streicher case, you are ignoring some other cases, but it will

21     not be difficult for me to deal with all of you, especially since you

22     have a tendency to invoke the jurisprudence of the ICTR while ignoring

23     the fact that the crimes that that court is dealing with were committed

24     one year after the indictment period in my case.  All of the charges

25     against me stop in 1993, whereas the genocide and persecutions in Rwanda

Page 16997

 1     were committed in 1994.  Therefore, there's no use for you to invoke the

 2     jurisprudence of that Tribunal.

 3             However, it's your business what you're going to do.  I have now

 4     just enumerated all of the obstacles for the Defence case.  Unless you're

 5     prepared to remove all of these obstacles, then we'll simplify matters.

 6     Why don't you schedule the presentation of my opening arguments?  I am

 7     entitled to four hours for that, and you cannot deny me that, whether

 8     there are witnesses, whether there is funding or anything else, you

 9     cannot deny me that.  After presenting my opening speech, unless you meet

10     all the requirements that I have just mentioned, we will move immediately

11     to closing arguments unless you want this trial never to end, so that the

12     residual mechanism has to deal with my case.  And this is one of the

13     funniest creations of the Security Council, this residual mechanism.  It

14     is even more ridiculous than the ad hoc tribunals.

15             Unless these conditions of mine which are properly grounded in

16     law are met -- they're also grounded on the Statute.  The Statute

17     guarantees that my Defence needs to be funded.  In that case, I will need

18     at least two years to prepare my Defence case.  Why?  Because the

19     Prosecution needed four years and eight months.  All right.  Let us agree

20     in advance that I'm more than twice smarter and capable than the entire

21     Prosecution put together.  Therefore, I don't need four years, but I need

22     two years.

23             In addition to that, I need 120 hours for examination-in-chief,

24     which is what was accorded to the Prosecution without counting all of the

25     abuse concerning additional tonnes of documents admitted into evidence

Page 16998

 1     without the presence of witnesses and without even reading the titles of

 2     those documents.  I also intend to call 100 witnesses.

 3             JUDGE LATTANZI: [Interpretation] Mr. Seselj, I didn't really

 4     understand.  Could you make something clear, please.  If by chance all

 5     these conditions you've mentioned are not met, you are asking us to

 6     directly go to the final judgement, closing arguments from the

 7     Prosecution and yourself?  Is that what you want, or are you asking for

 8     two years to prepare for your -- to prepare your Defence case?  I didn't

 9     understand this.  I believe all of this is a bit contradictory.  So could

10     you make it clear, please.  What exactly are you asking for if these

11     conditions are not met?  Do you want to directly go to the procedure for

12     the final judgement, or do you want us to give you two years?  Please

13     make it clear.

14             THE ACCUSED: [Interpretation] Madam Lattanzi, the interpretation

15     most likely was either incomplete or inaccurate.  I said to you if you

16     meet all of these conditions that are properly grounded in law, then I

17     need the following, this is what I am seeking.  Now, what you will

18     approve out of that, two years, 100 witnesses and 120 hours, that is to

19     be seen.  So I stay within the provisions of the Statute.  I ask these

20     things and then you rule on them, and later on I can appeal if I'm not

21     satisfied with this.  However, these five matters that I mentioned

22     earlier directly endanger my status here and my ability to present my

23     Defence case.  I have to know why six years ago the Prosecution wanted

24     proceedings to be instituted against me.  I am so curious I can't sleep.

25     I have to know what were the documents that the UN cavalry seized from me

Page 16999

 1     six years ago.  I have to know what those documents are.

 2             And also, the status of all of my legal advisors and case

 3     managers needs to be normalised.  Two of them visited me recently,

 4     Nemanja Sarovic and others.  They paid travel expenses for two legal

 5     advisors but not for two case managers.  I have my Case Manager.  My

 6     Case Manager is in charge of my legal advisors.  So what am I to do?  I

 7     will not allow anyone to humiliate me.  And even though I may have

 8     humiliated Registry enough so far, I will not allow them to do the same

 9     to me.

10             So these are my requirements without which I will not be

11     presenting my Defence case.  Unless you meet these requirements of mine

12     which are completely justified, then I want you to set the date for my

13     opening statement.  I will not deny myself the pleasure of those four

14     hours in the courtroom.  You can do that even before the end of May.  I'm

15     prepared, just don't do it next week.  Don't schedule it next week

16     because my wife is coming to visit me and I will be caught in crossfire.

17     So after the following week you can schedule a day for my opening

18     statements and then after that we can proceed immediately to closing

19     arguments.  Unless I present my Defence case, I will not be filing my

20     Defence final brief either, so that will additionally shorten the time.

21     And if that suits you, then very well.  Perhaps whether you will be able

22     to convince the public that this was a fair trial is another matter.

23     That's your problem.  I know that the entire public will consider these

24     requirements of mine to be fully justified and no lawyer can challenge

25     what I have just told you and then it's up to you to see what you're

Page 17000

 1     going to do.

 2             JUDGE ANTONETTI: [Interpretation] Mr. Seselj, you have made a

 3     number of requests.  The Trial Chamber will meet and deliberate on this.

 4     As of now, I cannot give you any answer.  But there are simple things,

 5     however, where you can have clear indication right away.  Obviously, you

 6     challenged this Chamber's decision on legal grounds.  You're, of course,

 7     entitled to this, and you can appeal this decision made by the

 8     Trial Chamber.  This is a right you're entitled to, and maybe the

 9     Appeals Chamber will disallow this Trial Chamber.  Then --

10             THE ACCUSED: [Interpretation] Let me tell you right away.  I will

11     not be filing an appeal, because you know that those Judges from the

12     Appeals Chamber were always much worse than you.  So there's no point in

13     filing an appeal.  I will be appealing the trial judgement, but as for

14     your interlocutory decision, I will not be appealing that.

15             JUDGE ANTONETTI: [Interpretation] Very well.  Then a few years

16     ago I was a Pre-Trial Judge for your case, which is absolutely right.  I

17     remember that the Chamber made a decision because by error the

18     Prosecution had sent documents that you were not supposed to obtain.

19     Now, I don't know how the Prosecution works.  It's quite surprising, and

20     the OTP wanted to get these documents back because you weren't supposed

21     to have them, and the Pre-Trial Chamber had decided to retrieve them.  It

22     went with a representative of the OTP as well as a representative of the

23     Registrar -- Registry to retrieve the documents, and now you're saying,

24     Some documents were taken from me and I want them back.  But I don't know

25     what documents you're talking about.  We'll look into this.

Page 17001

 1             Then you also said that there was a procedure for contempt of

 2     court.  I have no recollection of this.  It -- it seems that you're

 3     saying that there was -- there was no decision or a decision was handed

 4     down and it wasn't disclosed to you.  I don't know.  I'm going to look

 5     into this too, because I don't see why anything should be hidden from

 6     you.

 7             Now, regarding financing --

 8             THE ACCUSED: [Interpretation] [Overlapping speakers] I explain.

 9     The decision was made, but both the motion and the decision were

10     ex parte, and I was informed in only one sentence that there had been a

11     motion and that a decision was made rejecting the motion without ever

12     explaining to me what it was all about.

13             JUDGE ANTONETTI: [Interpretation] Very well.  Now we understand.

14     It was an ex parte request made by the Prosecution and it was dismissed.

15     You weren't told about it.  So you are seizing this Trial Chamber with

16     this issue.  Very well, I will look into this with my fellow Judges.  I

17     really don't see why anything should be hidden from you now.

18             Let's go back to finances.  You know that the Trial Chamber has

19     worked greatly in this direction.  I undertook myself, against the will

20     of my fellow Judges, to do things.  I called upon my administration of

21     your own country to know exactly what was your tax situation.  The

22     Serbian admin -- the administration of your country said it had disclosed

23     all this information to the Registry.  Then the Trial Chamber started a

24     procedure.  We rendered a decision.  The Registrar was very unhappy with

25     this decision and appealed, and then the Appeals Chamber in its majority

Page 17002

 1     with two dissenting Judges decided in our favour, which is why it was

 2     been decided you would be financed at 50 per cent, and now you're asking

 3     us for hundreds of thousands of euros.  You gave us the exact number, the

 4     exact figure, but we'll deliberate among ourselves to see exactly what we

 5     will do.  We'll take a look into this.  But I must say that personally, I

 6     never tried to play hide and seek with you.  I've always been fully

 7     transparent with you.  This is what I believe.  I believe, Mr. Seselj,

 8     that this problem of financing is not a problem, because intellectually

 9     you're far able to defend yourself, and you're the best person to know

10     exactly the ins and outs of this case.  You have a -- you're like an

11     encyclopedia.  You know everything about all this.  On a transcript, you

12     find that there's been a mistake in the translation.  You can pick it

13     right like that.  So of course you can get help, but, you know, trust me,

14     trust my experience, you're fully able to defend yourself, so it's not --

15     this question of financing is not a real problem.  But it's true that

16     legally you are entitled to it through the Statute.

17             To tell you the truth, you know, when I was on Trial Chamber II,

18     you filed a motion and I had started drafting an opinion saying that you

19     were entitled to financing and that your associates could be paid back as

20     long as they gave us the justification for your -- the receipts for

21     your -- for the expenses incurred.  And I still believe -- I still have

22     the same opinion, but right when the opinion was about to be issued, the

23     Trial Chamber changed and I could not voice my opinion.

24             That's how things stand.  This is how things were done.  So I've

25     always been very sensitive to this issue of financing, but I really

Page 17003

 1     believe, you know, that it's not a real problem for you, but we will

 2     render a decision.  Since we've been seized of your request, we will

 3     render a decision.  Because now the case is in your hands.  You know

 4     that.  Just like Judge Lattanzi said, she wanted to know exactly what you

 5     are intending to do.  Are you going to present your case?  Are you going

 6     to prepare your case?  We need to know how long it is going to take, two

 7     years or what.  If you want the trial to be expeditious, you can say, Ok,

 8     I will make a statement for four hours, the OTP does its closing

 9     arguments, I do my closing arguments.  End of Story.  We render the

10     judgement.  This is one possibility, just like also you could ask for

11     extra time to prepare, which is what Mr. Karadzic is doing, for example,

12     and then it's going to drag on for years.  But, you know, you're saying

13     you want a hundred witnesses, 120 hours.  This gives rise to a series of

14     problems.

15             So, please, if I understood you correctly, as long as all the

16     problems solved -- are not -- the problems you raised are not solved, you

17     will not give us your 65 ter list; right?  65 ter (G)list.

18             THE ACCUSED: [Interpretation] Yes, because of those reasons.  Not

19     because that I'm clever.  I'm fully aware of that.  But that is not going

20     to be the reason for me not to present my case.  The reasons for not

21     presenting my case would be those five that I have enumerated regulating

22     the status of legal advisors, funding the Defence case, the document for

23     contempt of court from 2005, the documents that had been seized in 2005,

24     and the translation of those two books, "Ideology of Serbian Nationalism"

25     and "Roman Catholic Project of Artificial Croatian Nation," in English,

Page 17004

 1     because that was the last position of the Registry.  So those are my five

 2     conditions without which I will not be presenting my Defence case.  And

 3     it's all based on law.

 4             My position is supported by the Statutes of the Tribunal, by

 5     general legal principles.  I have to be aware of everything that concerns

 6     me, what documents had been seized from me and why.  I don't care that

 7     the Prosecution made a mistake.  I have to know what it was all about.

 8     Perhaps it could be of use to me.  And I have to know why the Prosecution

 9     filed this motion for contempt of court and you rejected it.  I have to

10     know the reasons for that as well.

11             Therefore, I will not be presenting my Defence case unless these

12     Statutes -- issues of mine are resolved, because it makes my Defence case

13     pointless.

14             And regardless of how smart one is, one needs to have advisors

15     outside.  They need to go look for witnesses.  They have to draw up

16     witness statements.  So there are a number of things that need to be

17     done.  They need to assist with proofing witnesses.  Do you know how long

18     it took the OTP to proof witnesses?  They bring witnesses to The Hague a

19     couple of days before their testimony and they make them learn by heart,

20     like a poem to be recited, what they need to say during their testimony

21     and then they check it.  My witnesses will be reciting by heart

22     everything they learn in advance they need to say.  However, the

23     Prosecution will not catch them lying as I was able to do with almost

24     every Prosecution witness.

25             JUDGE ANTONETTI: [Interpretation] I have a small correction to

Page 17005

 1     make to the transcript.  Yesterday, you said that there was -- that

 2     Milorad Vojnovic was a protected witness.  I have the transcript here.

 3     Well, the day he testified, he testified without any protection measures.

 4     He was never granted any protective measures.  So maybe there's been a

 5     mistake, but he has never been a protected witness.  I have the

 6     transcript page to prove this.

 7             Mr. Marcussen, do you have anything to say?  The interpreters

 8     worked wonderfully.  They could even translate as fast as I was speaking,

 9     right in sync with myself, and I thank them from the very bottom of my

10     heart.  Thanks to them, we were able to finish on time, because they

11     interpret extremely fast.

12             So, Mr. Marcussen, please be extremely fast also.

13             MR. MARCUSSEN:  Well, one minute past time, I guess there isn't

14     time for me to say much.

15             Your Honours, the Prosecution may submit some material to you on

16     some of the issues that the accused has raised, but the accused, it

17     sounds to me, is essentially seeking that you reconsider a number of

18     decision you have rendered; yet, he has not done anything to meet the

19     standard for reconsideration.  I would suggest that if the accused wants

20     to pursue any of the claims he has made just now, he should file a

21     written submission setting out the law that he is relying on so that

22     becomes clear and we can respond to it.

23             And as for the 65 ter (G) ruling that you rendered, he can seek

24     certification to appeal that.  I think he has said it's relevant to -- to

25     challenge your order.  He's basically just threatening that he's not

Page 17006

 1     going to put on a Defence case.  It's up to him whether he wants to do it

 2     or not.

 3             Lastly, I just want to say that Rule 65 ter (G) also require the

 4     accused to disclose to the Prosecution his Defence exhibits.  So we would

 5     also, from the Prosecution side, be expecting to receive the exhibits

 6     that he will be using.

 7             Thank you, Your Honours.

 8             JUDGE ANTONETTI: [Interpretation] Indeed.  Your absolutely right.

 9             Very well.  Mr. Seselj, do you want to speak again and then it

10     will be done?

11             THE ACCUSED: [Interpretation] Yes.  Mr. President, I'm not

12     threatening with anything.  I'm just fighting for my rights and the five

13     requirements that I made concern my fundamental rights.  I'm not coming

14     out with any threats.  However, unless these five requirements of mine

15     are not met, I will be mentioning them in the closing arguments.  I will

16     not be speaking about the merits of case.  I will be addressing all of

17     the violations of my rights since my arrival in The Hague.  And in the

18     Defence opening, I can tell you right away, that I will be mostly

19     addressing this decision of yours and your dissenting -- partially

20     dissenting opinion.  This will be part of my opening.  I will need about

21     four hours, and I will be speaking a bit faster than you.  I admire you

22     for speaking that slowly.  I could never speak slowly myself, just so you

23     know.

24             Once I'm done with four hours of Defence opening, unless you

25     enable me to present my Defence case, you can schedule closing arguments

Page 17007

 1     right away, and I guess that the Prosecution's final brief is ready.  I

 2     guess they've been working all of this time, and we will not need to wait

 3     for a long time for their final brief, or if we do need to wait for a

 4     long time, then this assumption that is being floated in the public very

 5     frequently will be confirmed, namely that The Hague Tribunal was tasked

 6     with keeping me here at any cost for as long as -- for -- until the --

 7     another round of elections in Serbia is over.

 8             JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I can tell you that

 9     nobody told me to hold you here, to detain you here.  I mean, I cannot

10     speak on behalf of my fellow Judges, but nobody would dare to say such a

11     thing to me.  I'm a totally independent Judge, as you know.  I know that

12     there's going to be elections in your country soon.  It's a cause for a

13     major national debate, but I cannot factor that in.  I mean, if you're

14     here, you can -- you heard our decision to dismiss your motion for

15     acquittal.  Nobody told us to hold you here.  You know that perfectly

16     well, at least from me.

17             Yes, Mr. Marcussen.

18             MR. MARCUSSEN:  Just very briefly, Your Honour.  I think the

19     accused should maybe be advised he might be under the misapprehension

20     that he can present an opening statement without presenting evidence.

21     There would only obviously be a need for an opening statement if there is

22     actually a Defence case.  The opening statement is to lay out what the

23     Defence evidence is going to be.  So if the accused does not want to file

24     65 ter materials, then we move straight to closing briefings and closing

25     arguments.  Thank you, Your Honour.

Page 17008

 1             THE ACCUSED: [Interpretation] This is simply not true.  I am

 2     entitled to an opening statement.  Nothing binds me to present any

 3     evidence.  That's not an obligation I have.  Maybe I have no evidence,

 4     but I am entitled to an opening statement.  And look at another thing,

 5     Judges, if you have patience.  I have, in theory, the right to make an

 6     opening statement of a defence and to inform you that I'm my own only

 7     witness and to submit myself to cross-examination.

 8             The Prosecution is making things up.  It's nonsense.  Nobody can

 9     challenge or deny me the right to an opening statement and in my opening

10     statement, I will also be speaking about what kind of evidence I was

11     about to present and why I was unable to, and that's what I will do to

12     please the Prosecutor.

13             JUDGE ANTONETTI: [Interpretation] You've raised points of law

14     and, of course, it is our duty to answer to them, but I want to thank

15     everybody, interpreters first and foremost, but also the security

16     officers, all the legal officers, ushers, and Registrar, and we shall

17     reconvene as soon as possible.  The hearing stands adjourned.

18                           --- Whereupon the Rule 98 bis Judgement adjourned

19                           at 7.08 p.m. sine die