Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20271

1 Monday, 30 June 2003

2 [Open session]

3 [The accused entered court]

4 [Prosecution Closing Statement]

5 --- Upon commencing at 9.17 a.m.

6 JUDGE MUMBA: Good morning: Please call the case.

7 THE REGISTRAR: Good morning. Case number IT-95-9-T, the

8 Prosecutor versus Blagoje Simic, Miroslav Tadic, and Simo Zaric.

9 JUDGE MUMBA: The Trial Chamber can see that all the parties have

10 appeared as before. We shall start with a matter which is in closed

11 session, so can we go in private session, please.

12 [Private session]

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7 [Open session]

8 MR. RE: Your Honour, can I just note for the record the

9 Prosecution has already filed this last Tuesday, a redacted version, a

10 publicly redacted version. It will have to file a revised redacted

11 version with the Todorovic bits back in.

12 JUDGE MUMBA: Yes. The Trial Chamber observed that, and that has

13 to be done again, unfortunately.

14 We are now in open session.

15 There was a motion by the Defence of Mr. Blagoje Simic regarding

16 the page limits. They exceeded their closing brief by 50 pages. It's

17 unfortunate that they decided to make the application for leave to extend

18 the pages on the final date when they were supposed to file their closing

19 brief. In any case, the Trial Chamber would like to hear if there is

20 anything the Prosecution wish to state on this matter.

21 MR. RE: The Prosecution has no objection, Your Honours.

22 JUDGE MUMBA: Any other Defence counsel? I see none.

23 The Trial Chamber will just like an observation that it is

24 important to observe practice directions. They are put in place to foster

25 order in the conduct of our proceedings. In this application, the reasons

Page 20278

1 given are not convincing because they effect everybody else, all the other

2 parties, and they were able to comply with the practice direction. In view

3 of the fact that the motion was filed late and it would have affected the

4 responses by the other parties to whatever was contained in the closing

5 brief for Dr. Blagoje Simic, the Trial Chamber considers it to be in the

6 interests of justice to allow the brief as filed.

7 The next point is that the regarding medical report for Mr.

8 Miroslav Tadic and the character reports from the Detention Unit by all

9 the three accused. The Trial Chamber understands that these were not

10 served on the Prosecution. Apparently there was some misunderstanding in

11 the registry that maybe they were not supposed to be served on the

12 Prosecution. The Trial Chamber would like to find out whether the

13 Prosecution received these.

14 MR. RE: No, Your Honour.

15 JUDGE MUMBA: The Trial Chamber orders that the same will be

16 served on the Prosecution, in the course of this morning. These are the

17 character reports.

18 As for the medical report for Mr. Miroslav Tadic, it should also

19 be served.

20 Can we have the numbers for the reports, please. The medical

21 report will be under seal, for Mr. Miroslav Tadic. The other character

22 reports will be open.

23 [Trial Chamber and registrar confer]

24 THE REGISTRAR: The medical report for Mr. Blagoje Simic will be

25 treated as Exhibit D185/1.

Page 20279

1 JUDGE MUMBA: No. The medical report is for Mr. Miroslav Tadic, I

2 think.

3 THE REGISTRAR: Exactly. I apologise. Miroslav Tadic, D196/3.

4 Thank you.

5 JUDGE MUMBA: What about the other character reports? They are

6 there for all three.

7 THE REGISTRAR: The report on behaviour of Mr. Blagoje Simic

8 D185/1. The report on the behaviour of Mr. Simo Zaric will be D57/4.

9 JUDGE MUMBA: There's also one for Mr. Miroslav Tadic.

10 THE REGISTRAR: It will have Exhibit D197/3.

11 JUDGE MUMBA: Yes. The medical report, as I said, will remain

12 under seal.

13 We can now proceed with closing arguments, and the Prosecution

14 is -- yes, Mr. Pantelic.

15 MR. PANTELIC: I do apologise, Your Honours, to my learned

16 friend. And I respectfully ask Trial Chamber just for the attention of

17 just a few minutes.

18 In fact, Your Honours, I would like to put on the record the fact

19 that our brief, brief of Dr. Simic, was filed on time. I have a

20 confirmation by Ms. Atanasio, Ms. Registrar. It was made on 19th of June,

21 actually, at 4.00 p.m., although my team was well before in the premises

22 of the Tribunal in order to file our brief. We were informed that the

23 oral application made by the Prosecution regarding to the extension of

24 time for filing due to certain facts that computers were off or out of

25 order - I don't know exact reasons - I must say that I gave my personal

Page 20280

1 submission to Ms. Atanasio in our telephone conversation. My position was

2 at that time that the brief for Dr. Simic should be placed, first of all,

3 to be noted that Dr. Simic brief was filed on time, which was done, and

4 Ms. Atanasio was very, very kind and made an official note about that.

5 Secondly, I proposed that two armed officers will be put in front

6 of my brief, because in order to keep the contents in the brief by itself,

7 at the time when the Prosecution will file their brief. Because on the

8 basis of principle of equality of arms, I did not want to be in a

9 situation that my brief was filed and theirs be filed hours later. My

10 initial information that I got was that they asked extension of time of

11 six hours, which brings us to the time which is 10.00 p.m. in the

12 evening. So I was simply very concerned about the technicalities, whether

13 at 10.00 in the evening anyone can receive their brief.

14 But again, I would like to reiterate, and I would like to put --

15 JUDGE MUMBA: Mr. Pantelic, there is nothing indicating that,

16 because the Prosecution brief was filed on the 19th.

17 MR. PANTELIC: At 5.00, Your Honour, one hour after deadline.

18 That's number one, Your Honour.

19 JUDGE MUMBA: You mean the deadline for the registry?


21 JUDGE MUMBA: But the registry can open for certain filings as

22 long as it is done before the end of the day. And there is no substance

23 in this at all, because the Trial Chamber notes on record that all the

24 closing briefs were filed on the date scheduled.

25 MR. PANTELIC: Yes, Your Honour. But why I'm putting that on the

Page 20281

1 record? Because on the cover sheet of the Prosecution brief, there is a

2 time, 5.00 p.m. The normal, regular office time, working time of the

3 registry, is until 4.00 p.m. So what I'm saying -- because I was

4 informed, Your Honour, that they're asking for a six-hour extension, and I

5 was really favourable to that. No problem. It happens. Things happen.

6 But at that time, I was of the opinion that my brief should be guarded

7 with the armed officers because I didn't want to have any possibility that

8 my brief, through any channels, will go into those hands. And

9 Ms. Atanasio was very, very kind, very professional, and she told me that

10 she will keep my brief in her office, and once the Prosecution brief will

11 be filed, I will get their copy and they will get my copy. So just for

12 the record, I again would like to express my gratitude to the professional

13 work of the registry, and also to put on the record the fact, because on

14 the cover sheet which is the part of filing of Dr. Simic brief, there is a

15 time 4.15 p.m., due to the probably technicalities in transferring from

16 Ms. Atanasio's office to the registry main office. Because I want

17 everything to be proper and fully in accordance with the Rules. Thank

18 you, Your Honours.

19 JUDGE MUMBA: Is there anything the Prosecution would like to say

20 to that?

21 MR. RE: Just this: I don't know where the 10.00 p.m. comes

22 from. As Your Honour rightly points out, we filed it at 5.00. UN working

23 hours are 9.00 to 5.30. The registry says 4.00 p.m. The registry, if you

24 arrange in advance, will accept things up to 5.00 or 5.30, if you ask

25 them. And we did so. We were having a formatting problem and filed at

Page 20282

1 5.00, and we certainly didn't see Mr. Pantelic's brief until I think much

2 later that day or the next day.

3 JUDGE MUMBA: The Trial Chamber finds no substance in all these

4 submissions regarding the time of filing, and also there's no reason to

5 doubt the integrity of the registry staff at any time when any documents

6 are being submitted as to how they are going to be handled, the staff are

7 always handling any documents that are filed professionally.

8 So we'll start our closing arguments with the Prosecution.

9 [Prosecution Closing Statement]

10 MR. DI FAZIO: Good morning, Your Honours. The Prosecution is

11 grateful to you for permitting us this opportunity to address you orally

12 today. To assist you, can I provide you with an outline of submissions

13 which will basically set out the manner and the content of what we intend

14 to present to you today.


16 MR. DI FAZIO: You will see on that brief outline of submissions,

17 there are a number of topics that we will cover. We propose to split the

18 submissions between Mr. Re, Mr. Weiner, and myself. Mr. Re will commence

19 the closing submissions and will deal with points 1, 2, and 3 on the --

20 indicated on the outline. I shall deal with point 4, and Mr. Weiner will

21 deal with point 5. That will leave the issue of sentencing, which we will

22 no doubt get to this afternoon, and we will discuss that and make

23 arrangements for someone to -- one of us to address you on that particular

24 issue later this afternoon. But essentially, that's the manner in which

25 we will conduct the closing submissions.

Page 20283

1 So Mr. Re will commence on points 1, 2, and 3.

2 JUDGE MUMBA: Thank you very much, Mr. Di Fazio, for this

3 outline. It makes it easier for us and I'm sure for the other parties, to

4 follow the arguments.

5 Yes, Mr. Re.

6 MR. RE: Your Honours have heard a lot of evidence in the 20.000

7 pages of transcript and the hundreds of exhibits which have been tendered

8 in the length of this long trial against the three, formerly four,

9 accused. I start with the term "ethnic cleansing." It's a term which has

10 been used by many of the witnesses. It's a term which isn't really

11 legally defined, but it is one that everyone has understood for many years

12 in relation to what happened in the former Yugoslavia.

13 The definition, the first and best definition, one which cannot

14 really be improved upon, is that of the Special Rapporteur, who reported,

15 in 1992, defining ethnic cleansing in his report of the 17th of November,

16 1992, which the Defence put into evidence. That's Exhibit D2/2. He

17 defined it as: "the elimination by the ethnic group exercising control

18 over a given territory of members of other ethnic groups."

19 In a nutshell, that's another way of describing persecution, as a

20 crime against humanity, or as legally defined, persecutions as a crime

21 against humanity. It's another way of describing in a nutshell what

22 happened in Bosanski Samac from the 16th and 17th of April, 1992, until

23 the end of the indictment period, the 31st of December, 1993, during which

24 a municipality which had formerly had a non-Serb majority and which people

25 had lived together of the three ethnicities - Serb, Muslim, and Croat -

Page 20284

1 for many years, and the situation was dramatically changed in that period

2 until there were almost no Muslims or Croats left.

3 In fact, Bosanski Samac is an interesting case in the history of

4 this Tribunal, and in the context of the other cases which have been heard

5 here, and the findings in other cases of the persecutions which occurred

6 in Bosnia -- across Bosnia-Herzegovina over the years. It is a case which

7 really encapsulates most of the things. It's a localised version of the

8 larger ethnic cleansing or persecutions which occurred throughout the

9 territory of Bosnia and Herzegovina during the indictment period. It

10 really is, to summarise, a textbook, classic, localised case of ethnic

11 cleansing. It's almost a case in which you can tick the boxes as to what

12 to do if you were to eliminate an ethnic group from a territory, that is,

13 if the ethnic group exercising control was to eliminate another ethnic

14 groups or groups from its territory.

15 So what do you do? Well, first, first you need a takeover, or the

16 imposition of some form of military control, exercised with a

17 discriminatory intent. Because without that, there is no ethnic

18 cleansing. You cannot put your plans into action. You need civilian

19 authorities, new civilian authorities, acting with the military, to take

20 control of the territory. You then need to "encourage," for want of a

21 better word, the members of other ethnic groups to want to leave the

22 territory. There are various ways of doing this. You could do it by

23 force or you could do it in such a way as to make life completely

24 unbearable for the minority -- for the ethnic groups which are under

25 control, and they are basically forced to leave.

Page 20285

1 So you can tick the box of the takeover. You can then declare it

2 a state of emergency, tick that box. Imposing a new form of repressive

3 and discriminatory government and control over a formerly democratically

4 elected municipality.

5 What next? Arrest your political opponents. On what basis?

6 Spurious, discriminatory political grounds, ethnic grounds. You can use

7 them for propaganda purposes. You can interview them almost at gun point

8 and use them on -- in radio and television interviews, for your own

9 propaganda purposes, to denigrate these people who have no choice in the

10 matter. That's another box that could be ticked of what happened at

11 Bosanski Samac.

12 And of course, you can arrest all males of military age, again on

13 discriminatory, persecutory grounds, only because of their ethnicity, and

14 imprison them. And then when you imprison them, without resort to the

15 rule of law, and in a very extrajudicial manner, you imprison them in the

16 most inhumane conditions, in which you allow torture, sexual assault, and

17 murder. And this new system put in place by the new authorities, civil

18 and military, allow this to occur in their own detention centres,

19 municipal and military. That's another box you can tick as to what

20 happened in Bosanski Samac.

21 Having isolated the male members of the other ethnicities from

22 their own -- from their families and their homes, their community, what do

23 you do with the females and the elderly, especially if your detention

24 centres, your makeshift detention centres, are full? Well, you isolate

25 them somewhere else. You use the police to take them to compulsory

Page 20286

1 isolation, away from their communities. What else? What are the other

2 similarities? What are the other boxes you tick? Well, as in other

3 municipalities in Bosnia-Herzegovina, you allow vicious, psychopathic,

4 Serbian paramilitary thugs to terrorise the civilian population. You

5 allow them to run amok. You allow them to institute and continue a reign

6 of terror against people who have committed no crime, other than to belong

7 to a different ethnicity.

8 Another box you can tick as to what happened at Bosanski Samac.

9 All the while this is happening, the new municipal authorities

10 issue discriminatory decrees, orders, and legislation aimed directly at

11 the other ethnicities, orders preventing more than three of the other

12 ethnicity from congregating, orders that non-Serbs should wear white

13 armbands, orders prohibiting non-Serbs from leaving the territory.

14 Another box that can be ticked.

15 And what's another one? Another one is the use you make of your

16 ethnic opponents, for want of a better word, in putting them to work for

17 you. Using non-Serbs as fodder to do your forced labour in the most

18 inhumane conditions, exposing people to the most inhumane forms of working

19 conditions, sending people to the front line to dig trenches while bullets

20 are whizzing over their heads.

21 If that isn't designed to make people want to leave a

22 municipality, the Prosecution doesn't know what could be. And in the most

23 cynical use of these people for forced labour, what else could you do?

24 What other box could you tick? Well, it's the plundering and looting of

25 your ethnic opponents, property and homes, where you use Muslims and

Page 20287

1 Croats to loot, to systematically loot and steal property that could be in

2 no way legitimised by an armed conflict. Going through houses and

3 cleaning them out of people's belongings and shipping them off to Serbia

4 or using them as the Crisis Staff directed.

5 But what was all this -- what was all this directed to? And this

6 is the main box you tick, and that is the ultimate aim of the joint

7 criminal enterprise to persecute in Bosnia, and that is the ethnic

8 cleansing, the deportation, the removal of the non-Serbs from their homes,

9 from the municipality. All of those things for which you can tick the

10 boxes of the ethnic cleansing lead to that one thing, and that is the

11 removal of these people from their territory and to do so, you needed to

12 do the other things I've outlined first. You need to create a cache of

13 people you can trade, because that's what it was, people trading, a cache

14 of people you can imprison and hold there in your holding centres for use

15 in trading of people like cattle with the other side.

16 Those are the people in detention. For those outside of

17 detention, you tick the box of making living conditions so unbearable that

18 they are forced to leave, and people are given a quick way out through an

19 exchange or they are forced to remain and bear the intolerable and

20 inhumane conditions created by the new authorities in control of the

21 municipality.

22 And that, Your Honours, is what we say -- is why we say that

23 Bosanski Samac presents a classic, minuscule example of the horrors of

24 what occurred in Bosnia and Herzegovina in the indictment period.

25 I turn to the joint criminal enterprise, which is charged in the

Page 20288

1 indictment. Your Honours will of course be aware, from reading the

2 indictment and reading our submissions and of those of the Defence,

3 especially Dr. Simic, that the words "joint criminal enterprise" are not

4 actually used in the indictment. However, the indictment describes what

5 occurred in paragraph 11 as the three accused "acting in concert together,

6 and with other Serb civilian and military officials, planned, instigated,

7 ordered, committed, or otherwise aided and abetting...persecutions in --

8 of Bosnian Croat, Muslims, and other non-Serb civilians on political,

9 racial, or religious grounds, throughout the municipalities of Bosanski

10 Samac, Odzak, and elsewhere in the territory of Bosnia and Herzegovina."

11 The Prosecution, of course, acknowledges that the indictment is

12 slightly unusual in the way it has charged the persecutions or the joint

13 criminal enterprise against each of the three accused in that it has

14 charged all three, in paragraph 11, with complicity in the same common

15 purpose or joint criminal enterprise, whereas in paragraphs 12 -- sorry -

16 paragraphs 13, 14, and 15, it has named each of the accused separately.

17 And the way it's charged is the underlying acts which the Prosecution

18 relies upon in paragraph 12 to prove the method of implementing the

19 persecutions are almost the same in relation to paragraphs 13, 14, and 15,

20 with the addition of an additional underlying act for Dr. Simic in

21 paragraph 13, that is, B, the issuance of discriminatory decrees, and

22 Mr. Zaric, in paragraph 15 of paragraph D, the interrogation of Croats,

23 Muslims, and other non-Serb civilians and forcing them to sign false or

24 coerced statements.

25 The Prosecution's submission is the Trial Chamber should consider

Page 20289

1 each of the four separate methods there of charging the accused as being

2 basically the same and one in relation to the same common purpose or joint

3 criminal enterprise to persecute.

4 Now, Dr. Simic, in his submissions, raised an issue at -- I take

5 Your Honours to paragraph 658 to 659, that is page 226 to 7 of Dr. Simic's

6 submissions, in which he directly refers to the failure of the Prosecution

7 to "plead a joint criminal enterprise in this case, denying Dr. Simic

8 notice and a fair trial." The Prosecution simply deals with this in this

9 manner. Unfortunately, during the editing of the Prosecution's final

10 trial brief, a footnote dropped out. It was a footnote which was supposed

11 to refer to the case of the Prosecutor versus Milutinovic, Sainovic, and

12 Ojdanic, a decision on Dragoljub's Ojdanic's motion challenging

13 jurisdiction, joint criminal enterprise of the 21st of May, 2003. The

14 Prosecution assumes that Dr. Simic's counsel was unaware of this decision,

15 which was -- which only came down a few weeks ago when he wrote his

16 submissions. That case, the Appeals Chamber basically has dealt with the

17 issue of the meaning of joint criminal enterprise as opposed to common

18 purpose, and at paragraph 36 of that decision, the Appeals Chamber held:

19 "First concerning the terminological matter raised by the Defence, the

20 phrases 'common purpose' doctrine on the one hand, and 'joint criminal

21 enterprise' on the other, have been used interchangeably and they refer to

22 the same thing. The latter term - joint criminal enterprise - is

23 preferred, but it refers to the same form of liability as that known as

24 joint criminal enterprise."

25 And that's the decision of the five Judges of the Court of

Page 20290

1 Appeal. His Honour Judge Hunt appended a separate opinion in which His

2 Honour actually gathered all the different terms which have been used in

3 the Tribunal's history and in its jurisprudence to describe the same

4 thing, including common design, acting in concert, common purpose, and, of

5 course, joint criminal enterprise.

6 The Prosecution's submission is it is simply a terminological

7 shift over the years, arising from its first use in the Tadic appeals

8 judgement in which the Tadic Appeals Chamber itself used several different

9 terms, seemingly interchangeably, common design, common purpose,

10 complicity, and joint criminal enterprise. In the Prosecution's

11 submission, nothing at all turns upon the use of the words, and this

12 indictment confirmed many years ago of the words "acting in concert

13 together." It simply means complicity in a joint criminal enterprise, the

14 joint criminal enterprise being to persecute. The Defence have been well

15 and truly on notice of the joint criminal enterprise, the common purpose,

16 or the common design the Prosecution has alleged against them in the

17 pre-trial brief, in the Prosecution's opening, in the evidence as it has

18 unfolded, and of course in the Prosecution's response to the 98 bis

19 motions of the Defence for acquittal, in which the Prosecution used the

20 term "joint criminal enterprise" interchangeably with "common purpose,"

21 thus reflecting the terminological shift in Tribunal jurisprudence.

22 While on the --

23 JUDGE LINDHOLM: If you excuse me, Mr. Re. I understand that your

24 submission is that there is no difference in substance between what is

25 said in the chapeau in paragraph 11 in the indictment, where the words

Page 20291

1 "acting in concert together" are used, and in the expression or, well,

2 "joint criminal enterprise." You mean that they are covering exactly the

3 same things; it's only a different use of words? This is what you mean?

4 MR. RE: That's exactly what I mean, Your Honour.

5 JUDGE LINDHOLM: Why did you find it necessary to change the

6 expression and not go on using the same words as in the indictment?

7 MR. RE: In my submissions now?

8 JUDGE LINDHOLM: No. In your reply on the 27th of September, and

9 even in your final brief.

10 MR. RE: Because by that stage there had been a terminological

11 shift which was occurring in Tribunal jurisprudence, culminating in the

12 Appeals Chamber decision of the 21st of May this year, in which the

13 Appeals Chamber finally expressed its preference for the use of that

14 term. The Prosecution could see it coming because it had been used in a

15 number of different cases and a number of different indictments. We just

16 wished to make it completely clear that it meant acting in concert. So it

17 could fit in, whatever we said here would fit in with the evolving

18 Tribunal jurisprudence of the meaning of complicity in a criminal -- under

19 Article 7(1) of the Statute.

20 JUDGE LINDHOLM: If I may continue. One could get the impression

21 that the words used in the chapeau paragraph 11 indictment so to say

22 limited in time what was made by the three accused, what they planned and

23 what they, so to say, decided, shared the intent and so on, starting from

24 a certain point of time and then going forward, whereas the joint criminal

25 enterprise seems to be stretching its effects and having its roots further

Page 20292

1 back in time. Do you see any difference there?

2 MR. RE: The way the Prosecution approaches it is that there was

3 at the time, at the commencement of the indictment, a joint criminal

4 enterprise in operation in Bosnia-Herzegovina to persecute non-Serbs.

5 It's an enterprise which the accused may join at different points and in a

6 different manner, and the words in the indictment, in paragraph 11, refer

7 to acting in concert together with other Serb - that is, unnamed - Serb

8 civilian and military officials aiding and abetting. It's referring to

9 their participation, acting in concert with these other people between

10 those dates. That, in my submission, doesn't limit the Prosecution to a

11 joint criminal enterprise which may have had its origins before but which

12 the accused have joined at a later point. It's a matter of when the Trial

13 Chamber finds they joined or had the requisite intention to participate in

14 the joint criminal enterprise. Your Honours may not find it was as of

15 September 1991. Your Honours are quite entitled to find the accused

16 joined at different points, at a later point, which is the same point, in

17 my respectful submission.

18 JUDGE LINDHOLM: Thank you for that.

19 MR. RE: The Defence of Dr. Simic, while I'm on this issue of

20 responding briefly to several points in his submission, at paragraphs 650

21 and 651, that's at pages 222 to 223, refers or appears to make an issue of

22 the removal of Bosanski Samac municipality from the Plavsic/Krajisnik

23 indictment. The Prosecution, of course, acknowledges that it no longer

24 forms part of that particular indictment, but notes that Dr. Simic's

25 submissions do not go on to say that the Bosanski Samac municipality is

Page 20293

1 pleaded in three other indictments: Milosevic, the Seselj indictment, and

2 the most recent one in the Tribunal, the Simatovic/Stanisic indictment. I

3 make that submission or that point only in response to the Defence

4 submission in relation to Plavsic.

5 The Prosecution, in its final trial brief, had outlined, at

6 paragraphs 10 and 11 and 12, how the three accused may be guilty of

7 participation in a joint criminal enterprise or acting in concert together

8 in a common design or common purpose to persecute in Bosnia. The

9 Prosecution has said in its brief how the objective requirement is the

10 same for each of the three specific situations which the Tadic Appeals

11 Chamber identified, in which a joint criminal enterprise or common design

12 exists, namely, two or more individuals acting together in the commission

13 of a crime; secondly, a common plan or design or purpose, amounting to or

14 including the commission of one or more crimes in the Statute; and three,

15 the accused's participation in the execution of the common plan, which was

16 related and linked to the commission of one of the crimes provided for in

17 the Statute.

18 The Prosecution says in its oral submissions that in relation to

19 the first one, the evidence discloses that there were numerous

20 participants in this plan or design or enterprise, in both Bosanski Samac

21 municipality and throughout Bosnia, and there had to have been, and the

22 Trial Chamber should have no difficulty in finding, in the Prosecution's

23 submission, that particular aspect is satisfied that there were more than

24 two individuals involved in the commission of the crimes pleaded in the

25 indictment.

Page 20294

1 The Prosecution says in relation to the second one that the Trial

2 Chamber II should have no difficulty in finding beyond a reasonable doubt

3 the existence of the common design, plan, or purpose, amounting to or

4 including the commission of one or more crimes. The Prosecution says the

5 case of that is so overwhelming that the Trial Chamber really only has to

6 turn to whether or not the accused were involved in it, and if so, the

7 degree of their participation. Your Honours, of course, heard from

8 Mr. Zaric, the accused himself, in effect conceding in cross-examination

9 that ethnic cleansing had occurred, that persecution was occurring in

10 Bosnia, was occurring on both sides.

11 The Prosecution also says further, if you look at paragraph 11 of

12 our submissions, in our relation to the mental and its differing

13 requirements according to the three different categories, that is the

14 categories we've outlined in footnote 9, the first category being where

15 all co-defendants acting together pursuant to a common plan possess the

16 same intention. The second one being the so-called camp cases, where the

17 offences charged or alleged have been committed by people acting pursuant

18 to a common plan. And the third being a common design to pursue one

19 course of conduct where one of the perpetrators commits an act where

20 outside of the common design was nevertheless a natural and foreseeable

21 consequence of effecting of the common purpose.

22 The Prosecution says, its submission is, that it can establish or

23 has established in relation -- its evidence in relation to each of those

24 three categories, the accused's requisite intention to participate in

25 either of the three. The accused said the -- the Prosecution says that

Page 20295

1 the joint criminal enterprise or the common plan or design in

2 Bosanski Samac is one which fits into each of the three categories, and

3 the accused's participation can be linked to each of those three

4 particular categories.

5 The Prosecution says that it can establish or has established

6 that, in relation to the first type, the intention being shared by all

7 individuals involved in the commission of the crime, the evidence against

8 Dr. Simic, Mr. Tadic, and Mr. Zaric is such that at the end of the case,

9 the Trial Chamber should be satisfied that each possessed the requisite

10 intention and knowledge of the system of persecutions in Bosanski Samac,

11 shown by their participation in various forms as to render them liable or

12 showing they have the requisite intention under the first category.

13 The second type, the Prosecution says, also fits what happened in

14 Bosanski Samac, that is the accused having knowledge of a system to

15 ill-treat prisoners in relation to the underlying acts of inhumane

16 treatment. The Prosecution says each of the three accused -- the evidence

17 establishes that each of the three accused had the requisite intention or

18 the knowledge of that system and their participation in it in relation to

19 the ill-treatment shows that they shared that participation or shared that

20 intention.

21 The third in the Prosecution's submission is yet another one in

22 which the Prosecution shows the course of the nature of the system, its

23 pervasive extent in Bosanski Samac and the roles, formal and informal of

24 the accused, that they both knew of and intended by their participation,

25 which is shown by their participation to further the common criminal

Page 20296

1 purpose, which was to persecute in Bosnia, specifically in Bosanski Samac.

2 The Prosecution turns to the underlying acts and how they are

3 pleaded in this case. The -- as Your Honours, of course, appreciate, none

4 of the underlying acts of themselves need to be crimes, and of themselves,

5 some of these -- or some of the acts pleaded are not necessarily crimes.

6 However, if committed with the requisite discriminatory intent and when

7 put together, they amount to underlying acts which the Prosecution uses to

8 show discriminatory intention and participation in a system of

9 discrimination or persecutions in Bosanski Samac and elsewhere in Bosnia.

10 The Prosecution's submission is that it does not need to prove the

11 participation of the accused in each and every one of the underlying acts.

12 All it needs to prove is that the -- one of the accused, any one of the

13 accused, -- I'm sorry -- that each of the accused participated in at least

14 one of the underlying acts, and the Prosecution -- and the Trial Chamber

15 is satisfied of that beyond a reasonable doubt. And that particular

16 underlying act is committed with the requisite discriminatory intent to

17 show persecutory -- it's a persecutory crime, and the other elements in

18 relation to a crime against humanity are satisfied, for that accused to be

19 liable for his participation in the criminal enterprise to persecute.

20 The Trial Chamber is entitled to find, if the accused shared the

21 intention or took acts in furtherance, knowingly, of the enterprise, that

22 he is liable for crimes committed by that enterprise as long as they were

23 the natural and foreseeable acts. The Prosecution says that each of the

24 underlying acts pleaded are acts which were committed pursuant to the

25 joint criminal enterprise to persecute, and the participation of any of

Page 20297

1 the accused in any of them show their participation in the joint criminal

2 enterprise of itself.

3 The Prosecution says the difference between the deportation

4 pleaded as an underlying act of the crime against humanity or

5 persecutions -- I withdraw that. I'll rephrase it. The Prosecution says

6 the only difference between participation in deportation as an underlying

7 act of persecutions as a crime against humanity between counts 1 and

8 counts 2 is the intention, the discriminatory intention of the accused.

9 And of course the Prosecution has led the same evidence in relation to the

10 deportation aspect of count 1, count 2 itself, and count 3. The only

11 difference with count 3, of course, being an unlawful transfer -- there's

12 no legal controversy over whether or not the transfer can occur within

13 state or across state borders. But the Prosecution relies upon the

14 evidence in relation to all three.

15 JUDGE WILLIAMS: Excuse me, Mr. Re.

16 MR. RE: Your Honour.

17 JUDGE WILLIAMS: On the point of one of the underlying means in

18 count 1, persecutions being (d), deportation, and counts 2 and 3,

19 deportation and transfer, the question that I have is: Why joint criminal

20 enterprise is pleaded only in relation to count 1 and not in relation to

21 counts 2 and 3, where, as we do clearly have the overlap of deportation,

22 expulsion, forcible transfer occurring in essentially all of the counts,

23 albeit there being differences between 2 and 3?

24 MR. RE: Would Your Honours just excuse me for one moment?

25 I can't speak for those who drafted that aspect of the indictment

Page 20298

1 many years ago. All I can say is that the evidence is the same. And in

2 the Prosecution's submission, it doesn't really matter, because whether or

3 not Your Honours are satisfied the deportations occurred pursuant to a

4 joint criminal enterprise to persecute in Bosnia or occurred, as you like,

5 spontaneously or of the volition of the accused in Bosanski Samac doesn't

6 really matter, because Your Honours can isolate the deportation evidence

7 from other parts, if Your Honours were so inclined to find. That is, Your

8 Honours could find that the accused participated individually in

9 deportation, in deporting non-Serbs from Bosanski Samac, without

10 necessarily needing to find they did so as part of a joint criminal

11 enterprise. I'm sorry, Your Honour Judge williams. I just can't answer

12 your question as to why it's pleaded that way.

13 JUDGE WILLIAMS: Thank you very much.

14 MR. RE: It appears to be 10.30, Your Honours. Is that the time

15 for the break?

16 JUDGE MUMBA: Yes. We shall take our break, as usual, at this

17 time.

18 --- Recess taken at 10.30 a.m.

19 --- On resuming at 11.01 a.m.

20 JUDGE MUMBA: Yes. We continue with the Prosecution.

21 MR. RE: As I mentioned before the break, the joint criminal

22 enterprise which the Prosecution has pleaded and of which it has led an

23 abundance of evidence had an ultimate aim to forcibly expel non-Serbs from

24 municipalities in Bosnia-Herzegovina, and specifically, in relation to

25 these three accused, in Bosanski Samac. That is, as I outlined at the

Page 20299

1 outset to ethnically cleanse the non-Serbs from the municipality.

2 Your Honours have heard a great deal of evidence about who the

3 participants were in this particular enterprise. The Prosecution's case

4 has been that the enterprise was established at the highest levels of the

5 Bosnian Serb leadership, and that was set out in Dr. Donia's report, which

6 was the first evidence the Prosecution led in this case, setting out the

7 ambit of the criminal enterprise.

8 The plan to ethnically cleanse or to persecute or to forcibly

9 expel non-Serbs came into operation, the Prosecution says, sometime at

10 least in 1991, and the accused can be shown to have joined by the

11 indictment, sometime during the indictment period, starting from at least

12 the -- starting from, the Prosecution says, about September 1991.

13 The plan involved the highest level coordination between the

14 participants, the participants being the Bosnian Serb leadership; some of

15 the Serb leadership in Belgrade; the Serbian MUP, from where the

16 paramilitaries came; the Yugoslav People's Army, that's the JNA, and its

17 successor, the VRS; the Serbian Democratic Party; and a myriad of

18 individuals who joined and had their own roles within it. Obviously, some

19 people had a much larger and more integral role or an organisational role

20 in the enterprise, whereas others had a smaller role. And this is where

21 Bosanski Samac fits in, because the plan was to ethnically cleanse

22 municipalities in Bosnia, and for it to be implemented, it had to be

23 implemented by willing participants on the ground in each of the

24 municipalities the subject of the plan. Bosanski Samac, as Your Honours

25 have heard, occupying a strategic position between Belgrade and Posavina

Page 20300

1 and the Krajina, the Serbian Krajina, was one of the municipalities in

2 which this particular plan was implemented.

3 The plan, of course, was not done in isolation. It was

4 coordinated. And when I opened and spoke about Bosanski Samac being a

5 textbook example, or a mini-Bosnian example of ethnic cleansing, it shows

6 how all the pieces came -- everything came -- all the pieces came together

7 in this particular municipality. As Your Honours have heard in the

8 evidence, the SDS Main Board issued its instructions or its checklist,

9 that is, the variant A and B instructions in Exhibit P3, containing a

10 checklist or a blueprint for the takeover of municipalities. Variant A,

11 of course, where there was a Serb majority, and Variant B, into which

12 Bosanski Samac fitted, in which there was a non-Serb majority.

13 Your Honours have heard the evidence of how the SDS Main Board

14 issued these instructions, and they were found in various -- or

15 implemented in various other municipalities throughout Bosnia. The

16 Prosecution, of course, acknowledges that it does not have the copy that

17 was sent to Bosanski Samac; however, what happened in Bosanski Samac was

18 so obviously done in accordance with the plan that the only inference, the

19 Prosecution says, available from what happened in Bosanski Samac, in

20 comparison to Variant B of the instructions, is that it was done pursuant

21 to those instructions.

22 The instructions, of course, don't mention Serbian paramilitaries.

23 However, the evidence has been quite clear that the Serbian paramilitaries

24 were brought to Bosanski Samac in advance of the takeover by Todorovic,

25 the Serbian municipality appointed police chief and former co-accused in

Page 20301

1 this case, Milos Bogdanovic, another SDS local apparatchik; and Dr. Simic,

2 as the local SDS president.

3 The evidence quite clearly establishes the three of them colluded

4 in bringing to Bosanski Samac or sending local men to the Serbian Krajina

5 for training and the bringing of them back several days before the

6 takeover of Serbian paramilitaries in camouflage uniforms in anticipation

7 of the takeover. We've put this in our final trial brief and Your Honours

8 have heard the evidence, but they were met, and this is very important.

9 They were brought to Bosanski Samac in JNA helicopters and met by what we

10 call an SDS welcoming committee of prominent SDS members when they

11 arrived. They were housed, they were looked after. And everything the

12 Prosecution says thereafter was in coordination with the local JNA, headed

13 by Colonel Nikolic.

14 In the series of meetings that followed, Dr. Simic made quite

15 clear his position that the Serbian -- that if the non-Serb minorities did

16 not accede to the Serb demands, they would pay for it, and they certainly

17 did. And the evidence quite clearly establishes, in my submission, in the

18 Prosecution's submission, that the Crisis Staff was formed in accordance

19 with and pursuant to the Variant B instructions before the takeover. It

20 was formed on the 15th of April, 1992, two days or the night before, on

21 the eve of the takeover, just as Variant B says a Crisis Staff should be

22 formed.

23 Your Honours have also heard the significant evidence of the

24 arming of the Serb -- sorry - the Serb Territorial Defence and the -- in

25 1991 and 1992, while at the same time, the JNA was being transformed from

Page 20302

1 a truly national army into a Serb-only army. That too, the Prosecution

2 says the evidence establishes, was in accordance with the greater plan in

3 anticipation of the takeovers which occurred in Bosnia-Herzegovina,

4 starting from the end of March 1992.

5 The Prosecution says that the formation of the Serbian

6 municipality too, which is set out in Exhibit P124, was also in accordance

7 with the Variant B instructions, that is, to form a Serbian municipality

8 and to elect the various officials, and the evidence quite clearly

9 establishes that Dr. Simic was elected to a position, Mr. Todorovic was

10 appointed to a position of the police chief, and all the various officials

11 were appointed and elected well before the takeover on the 17th of April,

12 1992, meaning that everything was put in place beforehand, in anticipation

13 of the takeover, for when the paramilitaries arrived, to spearhead it as

14 the Crisis Staff's shock troops on the ground on the 16th and 17th of

15 April, 1992.

16 Dr. Simic, in his defence, had to try and find a way around the

17 fact that the evidence of the Samac municipal or Official Gazette, P124,

18 clearly says that the Crisis Staff was established before the takeover.

19 Now, Dr. Simic was aware that he had a difficulty with that, that if it

20 was established and could be shown to have been established before the

21 takeover, the only inference available is that it was done pursuant to

22 Variant B and in anticipation of the takeover, and that the Crisis Staff

23 was involved and pre-informed and knew and went along with the takeover.

24 Dr. Simic's answer to that was to give evidence that - and we say

25 falsely - that it had been actually established after the takeover but

Page 20303

1 just backdated for some sort of administrative convenience. The

2 Prosecution says that explanation is palpably untrue and makes no sense in

3 terms of the evidence, the overwhelming evidence of his knowledge and

4 participation, including, of course, his coincidental presence at Crkvina

5 on the very night of the takeover, in the early hours of the morning, when

6 the paramilitaries were assembling on their way to seize what had been

7 called the vital facilities in the town of Bosanski Samac.

8 Now, against that, of course, is the evidence of the Crisis Staff

9 secretary, Mitar Mitrovic, who the Trial Chamber called proprio motu, him

10 being an important witness to fill in some details missing from the case.

11 One of the most important details that Mitar Mitrovic filled in was who

12 drafted P124, who was responsible for the words saying when the Crisis

13 Staff was established, before the Crisis Staff. And Mitrovic's evidence

14 was that it was Dr. Simic who was responsible for it, who proofread it and

15 corrected it, and Mitar Mitrovic signed it.

16 The evidence, in the Prosecution's submission, is inconvertible.

17 The Crisis Staff was established before the takeover, pursuant to variant

18 B and in anticipation of the forcible takeover on the 16th and 17th of

19 April, 1992.

20 The Prosecution also takes Your Honours to the chronology which is

21 annexure A -- annex A to the final trial brief we filed on the 19th of

22 June. And if Your Honours look at the chronology, you can see the

23 convergence of events in both Bosnia-Herzegovina and Bosanski Samac at the

24 same time. Your Honours can see the way we've set it out, is on one side

25 of the page we've got the event in the former Yugoslavia; in the middle we

Page 20304

1 have the date; and on the right-hand side we have the -- what we say is

2 not a coincidental event in Bosanski Samac.

3 The important dates for the implementation in Bosanski Samac and

4 the -- I withdraw that. Your Honours have heard a lot of evidence about

5 the so-called walkout from the Bosnian Serb assembly on the 24th of

6 October, 1991, in relation to the Bosnian parliament or Bosnian assembly's

7 declaration or voting for sovereignty. Your Honours have heard evidence

8 from a constitutional expert, Professor Nikolic, and Dr. Simic especially,

9 his counsel asked many questions of many witnesses in relation to the

10 "vital interests" of the Serbian people and how they were somehow

11 offended by this declaration of sovereignty.

12 In the Prosecution's submission, those details are unnecessary for

13 the determination or the resolution of this case, but for to show how the

14 Bosnian Serb leadership reacted and how it put into place its plan to

15 persecute and ethnically cleanse Bosnian non-Serbs. Your Honours can see

16 from paragraph 36, on the 12th of December, 1991, there was the

17 proclamation of the assembly of the Serbian people, as a federal unit of

18 the federal state of Yugoslavia, which directly followed a resolution

19 passed the day before by the Bosnian Serb parliament -- sorry - the

20 Bosnian parliament, the socialist republic parliament, demanding the JNA

21 defend territories of Bosnia. Your Honours can see that when the EC,

22 that's at paragraph 37, issued guidelines on the recognition of new states

23 in Eastern Europe and the Soviet Union, three days later, the Bosnian

24 Serb -- the SDS leadership responded by issuing or publishing its secret

25 blueprint for the takeovers. That is Variant A and Variant B.

Page 20305

1 Your Honours can see that at paragraph 40, we set out how as soon

2 as Bosnia and Herzegovina - that's on the 20th of December - sought

3 recognition as an independent nation to the Badinter commission,

4 immediately afterwards, Your Honours can see how crisis staffs were

5 established, 43, Bosanska Krupa on the 24th of December, 1991; the 27th of

6 December, Trnovo SDS board meeting.

7 Your Honours can see from the recognition or the Badinter opinions

8 which were published on the 11th of January, 1992, and the recognition of

9 Croatia and Slovenia on the 15th of January. Your Honour can see how the

10 25th of January the Bosnian Serbs reacted - that's at paragraph 52 - by

11 voting to withdraw from all federal state bodies and organisations.

12 Your Honours can see that when the Bosnian government organised an

13 internationally supervised referendum, that's at paragraph 55, on the 29th

14 of February, 1992, that the Bosnian Serbs reacted by announcing, paragraph

15 56, a separate Serbian municipality of Bosanski Samac. Your Honours can

16 see at that point the Bosnian Serb leadership in Bosanski Samac, headed by

17 Dr. Simic, reacted to the internationally supervised referendum and they

18 reacted according to Variant B by putting it into place, as other

19 municipalities had done so.

20 Your Honours can see that following the referendum - it's in a

21 short history of Bosnia at paragraph 57, the barricades went up in

22 Sarajevo by the Serb paramilitary forces. And Your Honours can see that

23 on the same -- the next day, when the Bosnian government sought

24 international recognition, the Serb -- Bosnian Serbs then proclaimed their

25 own constitution. Your Honours can see that on the 27th of March, 1992,

Page 20306

1 the first takeovers, according to Variant B and Variant A occurred in

2 Bosnia, the first ones in Bosanski Brod and Derventa by paramilitaries in

3 the JNA. It was a pattern which was to emerge or to be followed over the

4 coming months in Bosnia.

5 The very next day, after the first takeover on the 27th of March,

6 the Serbian -- or the Samac Serbian municipality met and elected its

7 officials and appointed Stevan Todorovic as the police chief.

8 Your Honours can see over the page at paragraph 65 and 66,

9 forcible takeovers continued in Bijeljina and Kupres, and that was in the

10 same week that the EC recognised Bosnia as an independent nation and the

11 United States recognised Bosnia.

12 Your Honours can see at paragraph 73 on the 8th of April, there

13 was another takeover, in Foca and Zvornik. It was three days later -- it

14 was at that time - I withdraw that - that very time that Simic,

15 Bogdanovic, and Todorovic sent the local Serb men for training, and it was

16 on the 11th, two weeks later, they returned, in the midst of these early

17 takeovers. Your Honours can see how we've set out -- how one thing

18 followed the other in Bosanski Samac, and that all these things were

19 happening at the same time in Bosnia-Herzegovina. The Prosecution says

20 pursuant to the same plan to persecute and using the same modus operandi.

21 The Prosecution says there is absolutely no coincidence here. They were

22 all planned, they were coordinated, as they had to be.

23 And these, of course, took place within the backdrop of the

24 Bosnian Serb leadership's publication of its own six strategic objectives

25 in the Bosnian Serb parliament in May 1992, and in which objective number

Page 20307

1 1 was: "To establish state borders separating the Serbian people from the

2 other two ethnic communities." And that, the Prosecution says, is exactly

3 what happened in Bosnia and exactly what happened at the local level in

4 Bosanski Samac.

5 What occurred in Bosanski Samac was part of a widespread and

6 systematic attack or systematic attack on a civilian population. It's

7 widespread because of its scale. It was not just in Bosanski Samac, not

8 just across the municipality, which would of course satisfy the elements

9 or the requirements of that Article 5 charge, but it was also across those

10 municipalities in Bosnia-Herzegovina where other discriminatory and

11 persecutory attacks were occurring against the non-Serb population. It

12 was also systematic, that is the only conclusion that can be drawn.

13 Systematic, legally, just means that it's organised -- it's systematic

14 because of the organised and improbable nature of its random occurrence.

15 The paramilitaries coming to Bosanski Samac was not random. The SDS

16 bringing them there was not random. The JNA's role in collecting weapons

17 and disarming the population and seizing power or consolidating power

18 before and after the 17th of April was not random. It was organised. It

19 had to have been organised. That's the only inference available from the

20 bulk of evidence as to what occurred in Bosanski Samac which is available.

21 The system which was put in place in Bosanski Samac after the

22 persecutory system, was not a random one. It was not -- it was not

23 spontaneous. It was organised. Upon the takeover, upon the seizure of

24 the main organs of government, of the vital facilities, everything that

25 happened, happened according to a plan. The non-Serbs were rounded up.

Page 20308

1 They were arrested. They were put in facilities. Who controlled the

2 facilities? The facilities were controlled by the Crisis Staff, which was

3 the acting in place of the municipality which had taken over the

4 municipality from the democratically elected government.

5 The TO was the Crisis Staff. The SUPs, the MUPs. The schools

6 were the crisis staffs. The police were acting in coordination with the

7 Crisis Staff and the JNA, and then the VRS. All of the participants were

8 acting together. They had to have been. There is no other way that

9 persecution on this scale could have been organised and carried out over

10 that period.

11 The looting and plunder was organised. It was organised through

12 the Crisis Staff, through its civil protection. The use of labourers, as

13 Mr. Weiner, Mr. Di Fazio, will address you in greater detail later, was

14 organised. It had to have been organised.

15 The Prosecution submits that, as we've set out at paragraph 92 of

16 our final trial brief, in referring to the Kvocka trial judgement,

17 summarising persecutions, that many of the things referred to in the

18 Kvocka judgement, where it has summarised findings of persecution in the

19 Tribunal, are present in Bosanski Samac. The Kvocka trial chamber found

20 thus far the Trial Chambers of the ICTY have found the following acts may

21 constitute persecution when committed with the requisite discriminatory

22 intent. I'll read you the relevant ones: Imprisonment; unlawful

23 detention of civilians or infringement upon individual freedom; murder;

24 deportation or forcible transfer; seizure, collection, segregation and

25 forced transfer of civilians to camps; plunder of property; attacks upon

Page 20309

1 towns - sorry - cities, towns, and villages; trench-digging; and denying

2 of bank account, educational, or employment opportunities on the basis of

3 religion.

4 The Prosecution submits that the Trial Chamber in Kvocka's

5 statement, set out just before paragraph 93, that "the Trial Chamber reads

6 this statement as meaning that jointly or severally, the acts alleged in

7 the amended indictment must amount to persecution, not that each

8 discriminatory act alleged must be individually regarded as a violation of

9 international law." The Prosecution submits that is a correct statement

10 of the law, and this Trial Chamber should follow the Kvocka trial

11 chamber's finding in that regard.

12 In relation to the forcible takeover, which is about the fifth

13 bullet point in the outline - I've gone into some of it - I wish to take

14 Your Honours to the differing defences which the three accused appear to

15 have run during this trial. Dr. Simic's defence on the whole appears to

16 be that it was the paramilitaries who took over the town, the

17 municipality, and that the formation of the Crisis Staff was a spontaneous

18 reaction of concerned Serb citizens to fill the vacuum of power.

19 Mr. Tadic appears to be saying that it was the paramilitaries and not the

20 JNA, and Mr. Simic - I'm sorry - Mr. Zaric appears to be saying that it

21 was the paramilitaries and the Crisis Staff acting together.

22 The Prosecution says that all three are true. It was the Crisis

23 Staff, it was the JNA, it was the paramilitaries, and that they were all

24 acting together, in concert, pursuant to the plan. In fact, the document

25 P127, which is the 13 signatory reports, is really in the category that

Page 20310

1 the Prosecution says of a public confession of a forcible persecutory

2 takeover, and it too appears to mirror all the requirements or

3 instructions under Variant B and Variant A as to how to go about taking

4 over a municipality. The first part refers to -- the first paragraph, the

5 organised arming of the Serbian people in particular. The second part

6 refers to the arrival of the paramilitaries and the way that the local JNA

7 commander referred to them as a "legal elite of Serbian commandos" and

8 explained that he was putting them under his control before the takeover.

9 It then goes on to talk about -- this is a document which of

10 course Mr. Zaric was one of the authors of, in fact, was the author of

11 author of, the person who drafted it for the signature of the other 12, by

12 talking about this group played an indisputably positive role in the

13 "liberation" of Samac as part of the special battalion and in fighting in

14 other places. It then referred to its negative role, that is, they went a

15 little bit too far in looting, banditry, all times of crimes. And their

16 official role, as printed, as war criminals in the area.

17 It also refers to the role of the Crisis Staff and the removal of

18 the -- in the removal of the leader of the 4th Detachment-- 2nd Posavina

19 Brigade and then fourth, saying when the war broke out, that's on page 2,

20 first the Crisis Staff and then the War Presidency of Samac came under the

21 influence of a handful of individuals, led by Crni, that's the

22 paramilitary psychopath about whom the Trial Chamber has heard an

23 abundance of evidence, and privatising their positions in the civilian

24 government. And fifth, with the blessing of those who had brought them

25 in, that's the Crisis Staff, and those who had sent them, they engaged in

Page 20311

1 unheard of looting of privately and socially owned property transferred to

2 Serbia.

3 The document, the public confession of the discriminatory nature

4 of this takeover continues: "The massive arrests and isolation of Croat

5 and Muslims followed without any criteria, and some of the prisoners were

6 subjected to measures such as abuse, torture, or even killing,

7 characteristic only of war criminals of Ustasha origin." And then refers

8 to the Crkvina massacre committed by Lugar and the paramilitaries. I mean,

9 that document contemporaneously, and more eloquently sets out more than

10 the Prosecution can hope exactly what occurred in Bosanski Samac in 1992

11 and exactly what people knew about what was happening in Bosanski Samac in

12 1992.

13 In relation to the discriminatory nature of the takeover, the

14 Trial Chamber, of course, heard even Defence witnesses agreed with the

15 Prosecution case. A notable one was Mr. Radovan Antic's successor as head

16 of the 4th Detachment, that's the local JNA, Mr. Jovo Savic, who agreed

17 that a takeover by one ethnicity at the expense of others, as described in

18 the 13 signatories, that's at page 17.167, would cause interethnic

19 conflict. But more importantly, he agreed that the paramilitary

20 formations, that's the paramilitaries, the Serbian paramilitaries, led by

21 Crni, Lugar, and Debeli, and brought to Bosanski Samac from -- under the

22 control of Frenki Simatovic in Belgrade, had in fact "entered the

23 municipality in order to carry out an organised campaign of terror against

24 the innocent population." That's non-Serbs. He agreed with that

25 proposition, at page 1713. He also agreed -- this is -- and I stress

Page 20312

1 this: The leader of the 4th Detachment, several days after the

2 takeover -- after he replaced Antic, agreed with this proposition. What

3 that means is that the takeover which you saw by Serb forces over

4 territory in which the Serbs were not a majority was a forcible takeover

5 on discriminatory or ethnic grounds, wasn't it? And Mr. Savic's answer

6 was yes. He also agreed that the effect of the JNA non-action was to

7 allow the -- that's on the 17th of April, 1992, in not restoring the

8 elected -- democratically elected government to power, was to allow the

9 paramilitaries and the civilian authorities to seize control on an ethnic

10 basis. That's at page 17191. An ethnic basis, that is, a discriminatory

11 basis. And it allowed the paramilitaries and the Serb police to install a

12 Serb government, a Serb-only government, over a municipality with a

13 non-Serb majority. He agreed with that. But importantly, for the

14 intention and proof of the intention and knowledge of the accused, in

15 particular for Mr. Tadic and Mr. Zaric, Mr. Savic, their commanding

16 officer, said, agreed: Everyone in the 4th Detachment command, that's

17 them, was aware that the effect of the JNA's inaction was that an

18 ethnic-based takeover was allowed to occur in Bosanski Samac, page 17191.

19 Yes, he said. Repeated, everyone in the command, and you've said that

20 people disagreed with what happened, that is you, Antic, Tadic, Zaric,

21 everyone else in the command was aware at the time, that's April 1992,

22 that the effect of the JNA's inaction was to allow the installation of a

23 new regime on discriminatory ethnic grounds.

24 That was the question. Mr. Jovo Savic, the commander of the JNA

25 4th Detachment in Bosanski Samac answer was: We knew that.

Page 20313

1 It goes on. Question: The capture of territory in the Bosanski

2 Samac municipality by the paramilitaries and others could not have been a

3 positive liberation for the non-Serb majority that was living there, was

4 it? His answer, quite candidly, we say: "I will say no." It's page

5 17193.

6 And when asked about the 13 signatories, P127, and the use of the

7 word "liberation," the question was: From what you've just said and the

8 questions and answers in the last few minutes, what you really mean, what

9 that really means, doesn't it, is that this group, that's the

10 paramilitaries, played an indisputably positive role in the military

11 takeover on ethnic grounds in Bosanski Samac and the installation of a

12 Serb-only government. That's really what it means, isn't it?" To which

13 Mr. Jovo Savic at 17.195 of the transcript replied: "Yes."

14 Of course, the Defence called its own constitutional expert,

15 Professor Nikolic, who in cross-examination of the -- in relation to the

16 wonderful set of human rights guarantees which are part of Republika

17 Srpska constitution, agreed that those very actions, that is, the takeover

18 of a municipality by one ethnicity, forcing out the others, would have

19 been contrary to the Republika Srpska constitution. And he said: "Any

20 discrimination on national grounds is absolutely unacceptable." That's at

21 pages 12.168 to 170 of the transcript.

22 I also want to refer Your Honours to an aspect of the proceedings

23 explored in a little bit of detail and that's the Crkvina massacre. In

24 the Prosecution's submission, that does have some importance in relation

25 to the role of the JNA and the coordination between the paramilitaries,

Page 20314

1 JNA, Crisis Staff, and other participants in the enterprise or the

2 takeover of Bosanski Samac. And the significance is this: Your Honours

3 have heard evidence, the Prosecution says cogent evidence, of the date,

4 being the 7th of May, 1992. Mr. Zaric in his own book, which is P180, at

5 page 185, himself says -- and Your Honours have heard a lot of evidence

6 from Mr. Zaric that he took a lot of contemporaneous notes including, one

7 must assume, of this particular event and took them at the time. In his

8 book he said: "A monstrous event happened on the afternoon of 7th of May,

9 1992." Prosecution says that's the best evidence from Mr. Zaric as to the

10 date of that. Now, it's important because Zaric in his record of

11 interview or his statement to the Prosecutor says that Nikolic and P127

12 says that Nikolic took the paramilitaries under his control before the

13 takeover.

14 P174 and 175 are the orders signed by Nikolic on the 7th of May

15 subordinating those same psychopathic paramilitary thugs to his command to

16 clear two particular roads in two particular operations. The Prosecution

17 says the only interference available from Nikolic's prevarication as to

18 the date and his contention that once he found out about the massacre, he

19 withdrew the subordination orders, and of course no evidence is before the

20 Trial Chamber of that, whereas the Prosecution has produced evidence of

21 the subordination. Prosecution says the only inference available is that

22 Nikolic has given his evidence of that in return for Zaric shifting his

23 story as to the date, and when he informed Nikolic. Because if Nikolic

24 was informed on the day and those paramilitaries were under his command

25 after he was informed, he had a responsibility to punish them for this

Page 20315

1 atrocity, and that is why, in my submission, the Prosecution's submission,

2 Nikolic backed away and prevaricated as to when he found out and came up

3 with this story we say, as to his withdrawal of subordination. The

4 Prosecution says this is important in the whole scheme because it shows

5 how the two groups, paramilitaries and JNA, were acting together before

6 and after the takeover.

7 The Prosecution, turning to the final aspect of point 2, which is

8 the joint criminal enterprise and the role of the three accused. The

9 Prosecution submits that the Trial Chamber should have no difficulty at

10 all in finding that Mr. -- sorry -- Dr. Simic knew, participated, and

11 committed acts in furtherance of the enterprise to persecute in Bosanski

12 Samac. The Prosecution said his role was integral. He was at the apex of

13 the system. And we emphasise the word "system," because that's what it

14 was, of persecutions implemented and directed against the non-Serbs in

15 Bosanski Samac.

16 Apart from the things I've already outlined, I take Your Honours

17 to the meeting held in response to the 2nd Posavina Brigade's publication

18 of P127, the 13 signatories report. The meeting held in early December

19 1992, which Crisis Staff members attended. Your Honours heard evidence

20 from various participants, Mr. Zaric, Mr. Tubakovic, Mr. Erletic. I ask

21 Your Honours to accept the candid evidence of Mr. Tubakovic and

22 Mr. Erletic as to what happened at that meeting, which goes directly to

23 Dr. Simic's contemporaneous knowledge. If he denies it, and he's denied

24 it loudly, his knowledge of anything that was happening, of exactly what

25 the allegations were, and many of the allegations in that document are

Page 20316

1 similar to those in the indictment the three accused face. Simic -- what

2 was Simic's response? His response, according to the witnesses, was to

3 attack -- was not to deny the truth of the allegations but to express his

4 annoyance that they had been made. That goes to both his participation

5 and to his knowledge. Right bang in the middle of the indictment period,

6 Your Honours.

7 In relation to Mr. Tadic, the Prosecution too says you should have

8 no difficulty in finding his participation in the enterprise from at least

9 before the takeover right through to the end of the indictment period,

10 because of his role on the crisis -- in the takeover, on the Crisis Staff,

11 and as the Crisis Staff's chief negotiator in the exchanges. Tadic

12 participated fully in Crisis Staff decision-making, in those vital early

13 days when they seized power and put their persecutory system into place,

14 in those vital early days when they implemented it, when the plan

15 was -- in those -- I withdraw that. The only inference available from his

16 participation and his continued participation right throughout the

17 indictment period is of not just his knowledge but of his intention to

18 further it. One cannot participate in a system of deportations, taking

19 people, tortured people, from imprisonment, putting them on buses and

20 deporting them to another country without knowledge of what was going on

21 and sharing that knowledge. You could not do it and you could not do not

22 do it for that length of time without sharing the intention.

23 The Prosecution says you can find from Mr. Savic's evidence in

24 particular that everyone on the command, including Tadic, knew of the

25 discriminatory nature of the takeover when it occurred.

Page 20317

1 Turning to Zaric. Now, Mr. Zaric, and he tried to back away from

2 this, was appointed from the Crisis Staff in those vital early days, we

3 say, as the chief of national security. It was while he was the chief of

4 national security that he was entering the Crisis Staff and MUP-controlled

5 prisons where prisoners were being treated in the most abominable and was

6 able to interrogate the most important political prisoners. It was Zaric

7 who was entrusted with that most sensitive and delicate of tasks. It was

8 Zaric they entrusted with the job of interviewing - I'm sorry - of going

9 on TV with political prisoners and using them as tools of the Serb

10 authorities.

11 It was Zaric who was able to remove the severely mistreated

12 prisoners from one form of detention, that's allegedly "civilian" to

13 military. None of these people were, of course, POWs. It was Zaric who

14 managed to remove them from one form of custody, where they were

15 inhumanely treated, to another, where they were also inhumanely treated,

16 although not as badly as before. It was Mr. Zaric who told some of these

17 prisoners that they were political prisoners, and it was Zaric who, in his

18 own words in his own book, said he moved them from one place to another to

19 continue the interrogations.

20 It was also Zaric, as Your Honours saw on the tape of the

21 propaganda exercise, P16A, the transcript shows Zaric saying: "However, I

22 must say that the special units of the Territorial Defence and the Serbian

23 police did a good job. Time will show this was for the good of the

24 people," in reference to the takeover.

25 The Prosecution says that Mr. Zaric's own words and those of his

Page 20318

1 own witnesses prove his knowledge, his mens rea, his intention. His

2 own -- Mr. Zaric was considered important enough in the scheme of

3 persecutions in Bosanski Samac, conducted by the military and the

4 civilians, the SDS, to be provided with his own driver, Mr. Tutnjevic.

5 Mr. Tutnjevic provided interesting evidence, from the Prosecution's

6 viewpoint, because he agreed with the Prosecution that both he and

7 Mr. Zaric at the time knew of the isolation of the non-Serbs, their

8 unlawful arrest, the actions of the volunteers and the mistreatment of

9 non-Serb prisoners by the police. That's at page 17503. But it goes

10 further. Mr. Zaric's long-term friend, retired senior police investigator

11 Vladimir Sarkanovic - who was working in the police station interrogating

12 up to a hundred of these people, these non-Serbs who had been imprisoned

13 on persecutory grounds - talked about the system. He was asked -- we

14 asked him in cross-examination, at page 16592: This system which allowed

15 the establishment of these centres which housed hundreds of non-Serbs also

16 allowed Muslim women, children, and Croat women to be rounded up and

17 detained at various times. His answer: Yes, he was aware of it.

18 Then, and this is very important in relation to Mr. Zaric's

19 knowledge of what was happening in the police station, the condition of

20 the prisoners, and the system of persecutions. Question: "Everyone

21 working in the police station, that's the SUP in Bosanski Samac, in April

22 and May and June 1992, was aware of this system of arrest, detention, and

23 mistreatment of non-Serb prisoners, weren't they?" Answer: "More or

24 less, everyone. Some of them had even been involved in that."

25 It goes on, at 16599. I'm asking you about the system in place.

Page 20319

1 You've agreed that there was a system in place in Bosanski Samac. He said

2 I've already said that. He agrees twice with the proposition there was

3 this persecutory system in place at the police station.

4 Now, when the Prosecution asked Mr. Zaric about Mr. Sarkanovic's

5 evidence along these lines at page 20046. Yes. "Now, your friend

6 Mr. Sarkanovic has said in this court that there was a system of

7 persecution being developed against the non-Serbs and that everyone

8 working from the police station was aware of it. You too were aware of

9 the system of persecution, weren't you?" Answer: "I was not working for

10 the police station, but I was aware of that fact."

11 Yet knowing that, knowing that he was aware of the fact that the

12 system of persecution in place against the people in detention, Zaric

13 willingly participated in their further humiliation, including forcing

14 them to sign coerced statements.

15 Mr. Savic also agreed with the proposition from the Prosecution

16 about the system of arrests. Again, that's the commanding officer of the

17 4th Detachment. At page 17166, question: "From what you had seen, those

18 people were pursuing, that is, the non-Serb authorities, were pursuing

19 policies against the non-Serbs that could only be described as

20 discriminatory, that is, arresting them, detaining them, torturing them,

21 because they were non-Serbs?" Answer: "Yes." And it goes on. "And that

22 discrimination which you saw and heard about in Bosanski Samac after the

23 17th of April, by the people you criticised in P127, the 13 signatories,

24 could really only be described as persecutions against those non-Serbs in

25 that period, couldn't it?" To which the then commander of the JNA

Page 20320

1 replied: "Yes, you could see -- you could say that."

2 Mr. Zaric's own words in cross-examination also showed his

3 knowledge of the system of persecutions before he removed the prisoners

4 from the TO to Brcko on the 26th of April. And that's at page 19988 of

5 the transcript, in cross-examination. Now -- question: "Now, of course

6 you were aware of that, but by the very fact of your intervention by

7 taking prisoners to Brcko on the 26th of April, you were aware of the

8 emergence of the consequences of discriminatory behaviour as of the 26th

9 of April, weren't you? That was the question." Answer: "The 26th of

10 April? You mean when those people went to Brcko."

11 Q. That's correct.

12 A. Yes, absolutely. I was convinced that the non-Serb

13 population of the municipality was being treated improperly.

14 Over the page, 19990.

15 Q. You're aware of this discrimination on ethnic

16 grounds that's the prisoners in custody as of the 26th of April, weren't

17 you, based on a number of things, the singing of Chetnik songs, the

18 ethnicity of the people in custody, the cursing of their balija mothers

19 and so on, and the insults directed towards them by their captors. All of

20 those things convinced you, as of the 26th of April, 1992, that these

21 prisoners were being discriminated against on ethnic grounds, didn't

22 they?"

23 And this is very important for the Trial Chamber's deliberation in

24 terms of Mr. Zaric's contemporaneous knowledge. His answer was: "Not

25 only the 26th. I saw such scenes from the outset. I think that such

Page 20321

1 things happened even before, and I agree. In my view, the measures that

2 were taken were improper, they were discriminatory, and they deserve

3 condemnation."

4 That, in the Prosecution's submission, makes complete Mr. Zaric's

5 knowledge of the system of persecutions before the 26th of April, when he

6 says he moved people from custody because of what was happening there.

7 The Prosecution says -- submits that when you put all those things

8 together, the only rationale conclusion that the Trial Chamber can draw is

9 that Mr. Zaric participated knowingly and willingly and in furtherance of

10 the persecution from at least, at least, the date of the takeover,

11 although the Prosecution says you can infer his knowledge of the fact that

12 there was to be a persecutory takeover from events before, such as his

13 role, his crucial role in military intelligence, his network of informers,

14 the system he had in place, and what he says in his book, P180, at page

15 141, when he refers to a conversation with Mr. Nikolic before the

16 takeover, in relation to Mr. Izet Izetbegovic, where he says: "I dared

17 not ask him too directly what we could expect here or even more directly

18 how the Serb question would be resolved in Posavina, but approached the

19 subject in a roundabout way. I said, Haven't Zvornik, Bijeljina, and

20 Vlasenica been a lesson to Izetbegovic not to oppose the Serbs and which

21 municipality is next?" That's page 141 of his own book, written after he

22 was indicted, showing that he knew well in advance that the Serbs were

23 forcibly taking over towns and municipalities in Bosanski Samac, and this

24 is at the time when the paramilitaries had arrived in Bosanski Samac, just

25 as they had in those other municipalities referred to.

Page 20322

1 I turn to -- and I'll do this fairly briefly - point number 3.

2 The heading is: "Response to Legal Issues Raised in Simic's Final Trial

3 Brief." There's two issues. One, international armed conflict, and the

4 second is the status of Bosnia-Herzegovina and self-determination.

5 The Defence of Dr. Simic has made some submissions in relation to

6 findings of an international armed conflict. Your Honours have ruled part

7 way through the trial that you would make this decision based upon the

8 evidence before you. The Trial Chamber of course has heard an abundance

9 of evidence as to the fact that there was an armed conflict, an

10 international one, between Croatia and the Republic of -- the former -

11 sorry - the Federal Republic of Yugoslavia, on the border, at the time.

12 Your Honours have also heard an enormous amount of evidence of shelling

13 from Croatia and attacks by the HVO and the HV, that's the Croatian army,

14 in tandem. The only inference or -- the Prosecution goes further. It

15 says that it is so overwhelming that there is no other inference available

16 but that there was an international armed conflict occurring at the time.

17 That of course is relevant to the third count, the Article 2, grave

18 breaches count.

19 In addition to our submissions in the final trial brief, the

20 Prosecution refers you to two other cases, that is, the Tadic Appeals

21 Chamber judgement of the 15th of July, 1999, at paragraph 147. That's in

22 relation to the overall control test of the VRS and the JNA. And the

23 Appeals Chamber held: "It now falls to the Appeals Chamber to establish

24 whether, in the circumstances of the case, the Yugoslav army exercised, in

25 1992, the requisite measure of control over the Bosnian Serb army. The

Page 20323

1 answer must be in the affirmative."

2 The Appeals Chamber developed this - between paragraphs 146 and

3 162 - and decided that the conflict between the Bosnian Serbs and the

4 central authorities, that's the Bosnian government, was international even

5 after the 9th of May, 1992, which was the date of formal withdrawal of the

6 JNA from the territory of Bosnia-Herzegovina.

7 I also refer you to the Celebici Appeals Chamber judgement of the

8 20th of February, 2001, where the Appeals Chamber there confirmed the

9 Trial Chamber's decision that the armed conflict taking place in Bosnia

10 after the 19th of May, 1992, could be regarded as international. That's

11 at paragraph 50.

12 Two further cases in relation to the HVO being under the effective

13 control of the HV. That's the Prosecution and Blaskic, trial judgement of

14 3rd of March, 2000, and Prosecution versus Kordic and Cerkez of the 26th

15 of February, 2001. The Prosecution simply says that in the light of the

16 overwhelming amount of evidence already heard by this Trial Chamber, we

17 invite you, if necessary, to take judicial notice of the findings of these

18 other cases as to the -- especially the Appeals Chambers as to the nature

19 of the armed conflict in Bosnia-Herzegovina at the relevant time. The

20 Prosecutor says these are not matters which require any further

21 litigating. They have been well established.

22 The final submission is in relation to the status of

23 Bosnia-Herzegovina and self-determination. Dr. Simic has made a number of

24 arguments about the constitutional status of Bosnia at the time the

25 walkout from the Serb -- sorry - the Bosnian legislature and the fact that

Page 20324

1 they say that Bosnia could not have been regarded as a state during the

2 indictment period until Dayton. The Prosecution's response to this is

3 that the logical outcome of what they're saying -- I withdraw that. I'm

4 sorry. Is that Your Honours need only consider the date of admission to

5 the United Nations of Bosnia-Herzegovina, Croatia, and Slovenia on the

6 22nd of May, 1992, and the declaration or the secession of Serbia and

7 Montenegro on the 27th of April, 1992. The logical outcome of their

8 argument is that none of the Yugoslav republics were nations at the

9 relevant time. The Prosecution asks -- says that the Trial Chamber should

10 disregard these arguments in their entirety. They are to use the English

11 vernacular, a complete red herring. They are irrelevant to the Trial

12 Chamber's determination as to whether or not serious violations of

13 international humanitarian law occurred on the territory of the former

14 Yugoslavia in 1992 and 1993.

15 They also raised the issue of the status -- of self-determination

16 in the context of the Bosnian Serb people and their establishment of the

17 Republika Srpska. The Prosecution repeats its submission that these

18 arguments are irrelevant. They should have no bearing on the Trial

19 Chamber's determination of whether violations of international

20 humanitarian law were committed. But we refer you, if Your Honours need

21 further elucidation on this point, to the articles of James Crawford and

22 Lawrence Eastwood, particularly Eastwood, his summary at page 301 of the

23 article we filed, and of Professor Crawford's at page 113 of the article

24 we filed.

25 Those are my submissions. I'll leave the next part to

Page 20325

1 Mr. Di Fazio.

2 JUDGE MUMBA: Yes. Thank you, Mr. Re.

3 Mr. Di Fazio.

4 MR. DI FAZIO: If Your Honours please, Mr. Re has outlined to you

5 the position of the Prosecution in respect of the joint criminal

6 enterprise and the role played by the defendants in that. I wish to

7 address you on the system of exchanges which was in effect in the

8 Prosecution case nothing more than forcible transfer or deportation and is

9 pleaded as an underlying act in the first count of persecutions.

10 Referring to the plan to ethnically cleanse, the Prosecution said

11 in its final trial brief that the plan was designed -- "designed to make

12 life so unbearable that the non-Serbs left, thinking they had no choice or

13 involuntarily applied to leave the new Serb territories, or alternatively,

14 the Serb authorities simply deported the non-Serbs to another territory."

15 Prosecution brief, paragraph 19.

16 The mechanism by which this was achieved was the system of

17 exchanges. The system of exchanges, if Your Honours please, was a complex

18 series of arrangements requiring many actors and people coming in at

19 different times, different pieces of equipment were required to facilitate

20 it and bring it about. You required negotiators, you required guards, you

21 required radio sets in the communications room to communicate with, in the

22 main, the Croatian side. You required cooperation with the military to

23 ensure that prisoners who were being held in JNA prisons were included in

24 the numbers of people being expelled from the territory of Bosanski

25 Samac. You required the Red Cross to prepare the lists, by going into the

Page 20326

1 prisons and asking the beaten and tortured men who were being held there

2 the hollow question: Do you want to leave via an exchange? It required

3 all of these actors and all of these facilities and all of these

4 arrangements. It required administrative bodies to be set up, the

5 Exchange Commissions, to oversee the processes. And each of these three

6 defendants played a crucial and important role in some aspect of those

7 deportations, through this system of exchanges.

8 The Prosecution case is that in fact the word "exchange" is really

9 nothing more than a sinister euphemism for the deportation and forcible

10 transfer of the people, the non-Serbs of Bosanski Samac. The Prosecution

11 case is that when people were exchanged through this system that I've

12 described, they were being in fact deported or transferred involuntarily.

13 The Defence case, on the other hand, is that, at least insofar as

14 Blagoje Simic and Miroslav Tadic are concerned, is that persons who were

15 exchanged left voluntarily. Their position is that the system, far from

16 being a cruel system of deportation and forcible transfer, was in fact a

17 humanitarian exercise. This was the work of humanists. And you heard

18 that expression often throughout the evidence given by the Defence

19 witnesses.

20 Mr. Tadic said in his brief that the decision on whether someone

21 wished to leave the municipality was "exclusively taken by the individual

22 who freely disposed of that right, without use of any force, threatening,

23 and coercion, by Miroslav Tadic or third parties." You'll find that at

24 paragraph 353 of his brief.

25 Mr. Simic makes clear in his final trial brief that the exchanges

Page 20327

1 were voluntarily in nature and asserts that "many of the non-Serbs

2 voluntarily returned from the exchange line to Samac, which is a unique

3 phenomenon in the entire Bosnia and Herzegovina." Paragraph 205 of his

4 brief.

5 At paragraph 348 and 349 of his brief, Dr. Simic had this to say:

6 "It was the decision of each individual whether to remain or stay. If

7 they decided to stay, the refusal was passed on to the ICRC, who would

8 inform the requesting person of the refusal. If the requested person or

9 persons decided to leave, they were allowed to pack and to go, and the

10 exchange line located -- to go, and the exchange line -- to the exchange

11 line located on the border between Republika Srpska and the state of

12 Croatia.

13 "Many people chose to remain. In fact, so many chose to remain

14 that eventually the ICRC insisted that the family member or members being

15 sought had to be brought to the exchange line in order to ensure that the

16 decisions to remain in Bosanski Samac were voluntarily. The fact that so

17 many chose to stay confirms and corroborates the fact that the decision to

18 leave was voluntary. The fact that many others returned back from the

19 exchange line is further confirmation that their decision to either leave

20 or stay was voluntary and that no one felt coerced into leaving."

21 Just pausing there, there is not one jot of evidence in the case

22 to support the proposition that the ICRC insisted that the family member

23 or members had to be brought to the exchange line in order to ensure that

24 the decision to remain in Bosanski Samac was voluntary. If anything,

25 there is the evidence of Mr. Tadic's witnesses, in particular, Mr. Velimir

Page 20328

1 Maslic, that it was the Croats who insisted that such persons be taken to

2 the exchange point, and it was the Croats who needed reassuring that in

3 fact the person did not wish to cross.

4 Two major planks of the Defence case, if Your Honours please, to

5 show and illustrate the voluntariness of the -- the supposed voluntariness

6 of the exchange, of the exchange system, was the system of so-called

7 family reunification; and secondly, this matter I've already alluded to,

8 the voluntary nature of the exchange being -- exchanges being illustrated

9 by the numbers of people who returned, and the endorsements on the

10 exchange lists that you see from time to time, such as returned or did not

11 cross. Those two issues form a large part of the Defence submission.

12 So the battle lines are clearly drawn in this case. Voluntariness

13 lies at the heart of the issue concerning exchanges and deportation. That

14 is the point at which the Defence and the Prosecution case collide

15 directly. No party to these proceedings denies the existence of the

16 system of exchanges. No party to these proceedings denies that it was --

17 the number of people leaving via the exchanges from Bosanski Samac were

18 overwhelmingly non-Serb, and no party denies that the numbers of people

19 entering Bosanski Samac were overwhelmingly Serb, numbers of people

20 entering through the system of exchanges.

21 Before I turn to the issue of voluntariness in more detail, I wish

22 to briefly address you on the issue of the law. Mr. Re has already gone

23 into this in some -- touched upon it. If Your Honours please, the charges

24 of persecution, deportation, and unlawful deportation in the three counts

25 all involve notions of deportation and forcible transfer. There is a

Page 20329

1 controversy, and we point this out at paragraph 99 -- would Your Honours

2 just bear with me for one moment?


4 [Prosecution counsel confer]

5 MR. DI FAZIO: If Your Honours please, there is some controversy

6 as to the nature of forcible transfer and deportation, and we have alerted

7 you to that in paragraph 99 of our closing brief, namely, the issue of

8 whether or not deportation requires a transfer across a national boundary

9 or whether it can include forcible transfer within a country. That more

10 restrictive definition of deportation has been adopted in Krstic and

11 Krnojelac; in Krstic at paragraph 521, the Krstic Trial Chamber decision;

12 and in Krnojelac at paragraph 474. And in this particular case, of

13 course, most of the forcible movement of people involves deportation to

14 Croatia across national boundaries. You will also see from annex A that

15 there is also evidence of forcible transfer within Bosnia and that a

16 number of witnesses spoke of their forcible transfer within Bosnia,

17 namely, to Sarajevo, two witnesses in particular who spring to mind are

18 Witness L and Mr. Izet Izetbegovic.

19 But deportation across national boundaries is by far the main

20 method that was used to expel people from their homes and the territory of

21 Bosanski Samac in this particular case, and that's sufficient for all

22 three charges.

23 I want to briefly quote to you from Krnojelac on the notion of

24 voluntariness, because that's the issue that I'm particularly interested

25 in. In Krnojelac, the Trial Chamber had this to say on the issue of

Page 20330

1 voluntariness, at paragraph 47(v) page 199 of the decision:

2 "Deportation is illegal only where it is forced. Forced is not to

3 be interpreted in a restrictive manner, such as being limited to physical

4 force. It may include the threat of force or coercion, such as that

5 caused by fear of violence, duress, detention, psychological oppression,

6 or abuse of power against such person or persons or another person or by

7 taking advantage of a coercive environment. The essential element is that

8 the displacement be involuntary in nature, where the relevant persons had

9 no real choice. Forced displacement is only illegal where it occurs

10 without grounds permitted by international law."

11 That, in the Prosecution submission, makes clear that there is to

12 be a realistic and sensible approach to the nature of choice and

13 voluntariness of movement of peoples, and the Prosecution adopts that and

14 submits that it provides useful guidance to you when you come to assess

15 the notion of voluntariness as applied to the people who left via the

16 system of exchanges.

17 There were a number of categories of persons who left via the

18 system of exchanges, categories of persons revealed by the evidence.

19 Firstly, there were the prisoners who were being held in the detention

20 centres or torture chambers as they should be more aptly described as.

21 Those who were approached in those places and asked if they wished to be

22 exchanged. One such witness was Mr. Dragan Lukac. He testified to you of

23 the beatings and torture that he had endured at the hands of his captors

24 and he testified to you of the various movements that he was subjected to,

25 being taken from prison to prison in and out of Bosnia. And you will find

Page 20331

1 that testimony at 1791 of the transcript. He said that he was in his cell

2 in the SUP building on the night of the 3rd of September, when

3 Mr. Svetozar Vasovic, a man who had a high role -- a prominent role in the

4 exchanges, approached him and his cellmate, Franjo Barukcic, another man

5 who had endured almost unimaginable torture and beatings, and asked them

6 if they wanted to be exchanged. And he said: "Of course, we said we

7 did."

8 The Prosecution invites you to place yourself in the position of

9 Mr. Dragan Lukac, not only in relation to him but because his position was

10 so similar to many other prisoners who found themselves in those places,

11 and ask yourselves if he had the slightest choice in relation to his

12 answer. If there was anything he could say but "yes, I want to be

13 exchanged." The Prosecution's submission is that a moment's reflection on

14 the evidence that's been presented before you will compel you, must compel

15 you, to conclude that he had absolutely no choice whatsoever. The choice

16 was between continued and further beatings and torture, watching his

17 comrades being beaten and tortured. The choice was between the

18 possibility of some psychopath like Lugar or one of the other

19 paramilitaries suddenly wandering in one day and shooting them and killing

20 them, as had happened so often in those prisons and detention centres in

21 Bosanski Samac. That was his choice. The Prosecution's submission is

22 that, clearly, the question that was asked of him - Do you want to be

23 exchanged? - was nothing but a hollow, cruel sham, and a question that had

24 no real meaning or significance at all in any sense of the word.

25 So from that point of view, there was absolutely no voluntariness

Page 20332

1 involved in his particular exchange. The only choice he had was survival

2 and possible freedom from the extended torture and beating that he was

3 suffering.

4 Sometimes that fraudulent and sham question was not asked at all.

5 Sometimes the niceties weren't even observed at all. That might be

6 another category of person that we could create. There were a number of

7 them. I've chosen to mention just one of them, one of the witnesses who

8 was simply taken out of his torture cell and taken to the exchange point,

9 and that is the witness Mr. Dragan Delic. He testified to you of

10 undergoing a truly shocking period of torture and beatings. He testified

11 to you of witnessing unrestrained orgies of violence in the primary

12 school, he testified to you of having his teeth pulled out with pliers, he

13 testified to you of seeing all sorts of unbelievable acts of sexual

14 violence in his holding cell. And he was exchanged on the morning of the

15 4th of September. He didn't even know until he was taken to be exchanged

16 that he was going to be exchanged. This is what he had to say on this

17 particular issue:

18 Q. On the morning of the 4th of September, did you know

19 you were going to be exchanged?

20 A. On the morning of the 4th of September, a policeman

21 came and called out my name. He told me to follow him. We walked to the

22 SUP building. In the hallway of that building, he told me to stop and

23 wait for him there. I waited for half an hour while he went off

24 somewhere. And then he came back and he told me to follow him again. We

25 got into a car and when we were inside the car he told me: You're going

Page 20333

1 to be exchanged now.

2 Q. Up until that point, had you had any idea that that

3 was going to happen to you?

4 A. I was afraid they were taking me again for

5 interrogation at the SUP.

6 Q. Yes, but had you had any idea up until that time

7 that that was going to happen to you?

8 A. No, I didn't.

9 Q. Had anyone consulted with you as to whether or not

10 you wished to be exchanged?

11 A. No.

12 No one spoke to him, no one consulted with him. He was just taken

13 to the exchange point and kicked out of the town in which he had lived all

14 his life.

15 And there were a number of other witnesses who are in exactly the

16 same position. No questions asked, someone would come and take them out

17 of their prison, put them on a bus, the bus which had been organised by

18 Mr. Tadic, and they would be taken to the deportation point and kicked out

19 of their municipality and their town.

20 If Your Honours please, it's -- do you wish me -- I've reached a

21 natural break in my submission. Do you want to take the break now or

22 shall I continue?

23 JUDGE MUMBA: Unless you're starting a new section, Mr. Di Fazio.

24 MR. DI FAZIO: I'm going to deal with this, but I'd prefer if I

25 could deal with the next session in one portion.

Page 20334

1 JUDGE MUMBA: All right. We shall take our break now and continue

2 at 12.50.

3 --- Recess taken at 12.27 p.m.

4 --- On resuming at 12.51 p.m.

5 JUDGE MUMBA: Yes, Mr. Di Fazio. Proceed.

6 MR. DI FAZIO: Thank you. If Your Honours please, if you want a

7 Defence perspective on this issue of voluntariness of the exchange system,

8 you don't have to do any better than to go to the evidence of

9 Mr. Tubakovic. He was asked this question, and provided this answer:.

10 Q. You are aware that a lot of people didn't leave

11 voluntarily. The document you signed, referring to the 13 signatories

12 document, Exhibit P127, talks about the arrests of people, the isolation

13 of people, and people who were locked up and exchanged, and that process

14 meant they weren't leaving voluntarily.

15 A. Yes, I agree. I agree that these measures were

16 taken and that these people were mistreated, isolated, arrested, detained,

17 and locked up, and so on. And this increased their wish to leave, and of

18 course under pressure and wishing to escape from these misfortunes, they

19 left. That is logical.

20 I can't provide -- sorry - you'll find that evidence at pages

21 19355. Now, that's an insight for a man who was there on the ground at

22 the time, a man who would be prepared to see things from a Serb

23 perspective and yet that is still his evidence. That is a powerful and

24 compelling piece of testimony to illustrate to you just how involuntary

25 these movements of people through the exchange system was.

Page 20335

1 But in the Prosecution's submission, you should, with respect, you

2 shouldn't really be troubled too much by the plight of the prisoners who

3 were held in detention. The conditions they suffered were so horrific, so

4 relentlessly horrific, that it really cannot possibly be a question of

5 choice as to their departure via the system of exchanges.

6 You may, however, be a little more exercised of this inquiry when

7 you come to consider the civilians who were living in Bosanski Samac. You

8 heard a lot of testimony from the Prosecution witnesses of the conditions

9 that they lived under from April of 1992 up until their time of

10 departure. The Prosecution wants to ask you, request, that you consider

11 the situation of the civilians by stepping into the shoes of one of those

12 people, one of the witnesses who came along and testified to you of their

13 life in the months following April 17, 1992.

14 Snjezana Delic was one such person, and she provides, in the

15 Prosecution submission, a good example to look at, precisely because of

16 the normality of her existence prior to the 16th and 17th of April, 1992,

17 and because of the abnormality of her existence following that date. Up

18 until April of 1992, she had lived a normal existence in Bosanski Samac.

19 She went to school in Bosanski Samac. She met and married her husband in

20 Bosanski Samac. And after studying in Sarajevo, she took up a position at

21 the high school as the economics teacher. Her two children were born in

22 Bosanski Samac in 1981 and 1984. Her husband, Dragan Delic, was born in

23 Doboj, a nearby town, and he also went to school in Bosanski Samac, and he

24 worked as the president of the managing board of the Mebos company. So

25 that was a family whose entire existence and life was centred around the

Page 20336

1 municipality of Bosanski Samac.

2 Consider, then, how she saw events unfold before her eyes after

3 the 17th of April, 1992. The first thing that she would have witnessed,

4 become aware of, was the destruction of the municipality of Bosanski

5 Samac. The municipality of Bosanski Samac had hitherto, up until that

6 point, represented the three ethnic groups. In one night it was gone and

7 a new municipality had replaced it, the Serbian municipality of Bosanski

8 Samac. The body that had represented her ethnic group had ceased to

9 exist. She was a Croat, of course. That's the first thing that she would

10 have seen.

11 Five days later, on the 22nd -- sorry, not five days later. A

12 month later, on the 22nd of May, her husband was arrested. By that stage,

13 she would have seen the wave of arrests of non-Serbs that was already

14 occurring in Bosanski Samac. She said, page 6397: "He went to the police

15 station, and after about an hour or two, he called on the telephone, and

16 only said: I have this opportunity. I have been permitted to call you.

17 And I'll be staying here for a while. After that, he did not come home."

18 That was another event that was unfolding in front of Mrs. Delic.

19 She would have seen the signs being posted around the towns on the

20 chestnut trees, nailed to the chestnut trees, prohibiting the gathering of

21 three or more non-Serbs. She thinks this occurred in June, but the

22 preponderance of the evidence in the case says it occurred much earlier

23 than that. You can imagine how she as a Croat would have felt, being

24 unable to associate and gather in large groups with members of her own

25 ethnic group.

Page 20337

1 On the 7th of May, or very soon thereafter, she would have become

2 aware of the Crkvina massacre, in which a large number of Croatian

3 prisoners who had been held were summarily slaughtered in a small factory

4 by Lugar and the other madmen whom he associated with. Can you imagine

5 how she would have felt, knowing that that had happened, and sometime

6 later her husband being summarily arrested by Mr. Todorovic and placed in

7 a prison? She would have known that absolutely nothing was done by the

8 new authorities in town about that particular matter. It's another event

9 that would have unfolded before her eyes.

10 In May, the police came around to her house looking for her

11 Ustasha brother. Can you imagine how Mrs. Delic would have felt being

12 visited by the police, knowing what was going on in the town?

13 In mid-May of 1992, Mrs. Delic was warned by a kindly neighbour of

14 the round-up of Croats that was going on, being put on trucks and taken to

15 Zasavica. She had to flee with her children to another apartment to avoid

16 being caught in the round-up. That's the first round-up that she avoided

17 successfully. Can you imagine how Mrs. Delic would have felt by that

18 stage?

19 She had been left without a job. She didn't have a job. Her

20 husband was in jail. When she tried to get money out of the bank, she

21 couldn't do that. She was cut off from money. She had no source of

22 funds. You'll find that evidence at 6399. Now she didn't have money.

23 What was she to do?

24 On the 27th of June, Stojan Blagojevic came around and took her

25 car, the family car, gave her a scrap of paper, that's P49, authorising

Page 20338

1 its seizure, its confiscation, in the name of the Crisis Staff. She

2 didn't have a car any more. What property was going to go next, she might

3 have wondered. You'll find that evidence at page 6465.

4 And to round matters off, in late August or early September, being

5 a sensible woman, she had packed her bags, ready to be taken off to

6 Zasavica, in case that should happen, and she described to you an occasion

7 when she saw a truck pull up outside her house, a truck covered with a

8 tarpaulin, and she could hear the voices of people inside, and she

9 describes a policeman going up to her apartment and wandering around

10 outside her apartment, looking for her. She describes to you how she hid

11 behind a garage. The next day, she went and saw Mr. Tadic, who informed

12 her that she and her husband would be exchanged the following day, and

13 you'll find that evidence at page 6479.

14 The Prosecution asks you, invites you, to ask yourselves: Did she

15 have any choice in whether or not she could leave via the system of

16 exchanges, given those series of horrible events that she had been -- that

17 she had witnessed? She didn't leave, if Your Honours please, for family

18 reunification. She left to save her family, her children and herself from

19 a campaign of persecution that was being waged against people such as

20 herself, non-Serbs. Her choice was simply to wait around, be arrested,

21 perhaps wait for the news of her husband's death in custody, to continue

22 leading a life with no future, no safety, none of the normal, decent

23 conditions of life that she had experienced. That was her choice. It was

24 no choice at all. And her plight, in the Prosecution's submission, is

25 exemplary of non-Serbs who were living in Bosanski Samac. In fact, she

Page 20339

1 was one of the lucky ones. She wasn't taken to Zasavica.

2 Consider her account of her life in Bosanski Samac against the

3 words of Mr. Tadic: Not a single one. No one was expelled by force from

4 Samac. All those who left applied to leave of their own free will, and

5 eventually left of their own free will, or returned. No one was kept back

6 in Samac either by force.

7 The Prosecution, if Your Honours please, is not alone in its

8 assessment that the exchanges were involuntary. One of the best possible

9 commentators on the situation that applied in that municipality was one of

10 the defendants, Mr. Simo Zaric. He was interviewed, as you know, in April

11 of 1998, Exhibit P141 ter, and he spoke of the -- one of the exchange

12 occasions that he visited, which was the exchange at a place called Sid,

13 which I think is near Lipovac. He claims that he went there to watch his

14 daughter's family -- his daughter's husband's family leave via the system

15 of exchanges. His commentary makes it absolutely clear that these people

16 had no choice whatsoever. He commented, page 88: "Their departure was in

17 itself something inhumane, but there was absolutely nothing I could do

18 about it." He was asked, page 89: "Sir, would it be fair to say they

19 felt they had no choice but to leave Samac?" Answer: "I think they had

20 no choice. That is my opinion. It is the terrible truth, but it's the

21 truth."

22 And in describing the reasons for his presence there, he said that

23 he was there to be a difficult witness to a great human tragedy, page 89

24 of his interview.

25 And there you have it from one of the people best qualified to

Page 20340

1 tell you of what was occurring in connection with these exchanges,

2 Mr. Simo Zaric. No choice, terrible tragedy, inhumane. That was the way

3 he saw the humanitarian and humanist work of Mr. Tadic.

4 The -- I mentioned to you earlier that one of the basic planks of

5 the Defence is this notion of family reunification, the notions of family

6 reunification and voluntary return. I want to very briefly deal with

7 family reunification.

8 Put quite simply, the Defence simply say that the humanitarian

9 aspect of the exchanges is illustrated by permitting family reunification.

10 The evidence proves precisely the opposite. The obvious point is that men

11 who were kept in detention for no good reason and then kicked out via the

12 system of exchanges were hardly being reunified with their families.

13 Safet Dagovic testified to you that he watched his family be exchanged

14 until he was the last one left alone in his house. You'll find that

15 testimony at page 7528. He wasn't reunified with his family. He had to

16 spend another year or so fighting with the VRS, forced to fight with the

17 VRS.

18 Ediba Bobic was exchanged in December 1992. Her husband was

19 exchanged in October of 1994. That is hardly an example of family

20 reunification.

21 Witness K was exchanged in November 1992, and her husband, Witness

22 L, was exchanged almost two years later, in October 1994. You'll find

23 that testimony at pages 4361 and 4723. And they are hardly examples of

24 family reunification.

25 The Defence of Mr. Zaric called Andrija Petric. You may recall

Page 20341

1 him. He was the blind Croat. He was taken to the exchange point after

2 having told, he says, the ICRC in prison in Bosanski Samac that he did not

3 wish to go. And the fact that his wife and children were still in

4 Bosanski Samac as he was being bussed off to this exchange point, with no

5 one calling for him from Croatia is hardly an example of family

6 reunification. It's a simple lie, if Your Honours please, and the

7 Prosecution invites you to reject the whole notion that family

8 reunification underpinned the system of exchanges. On the contrary; the

9 evidence is that the system of exchanges was the tearing apart of family

10 life.

11 The other matter that the Defence points you to, to indicate the

12 voluntary nature of the exchange system, was the endorsements on the

13 exchange lists saying people did not have to cross or that they returned,

14 and they ask you to conclude that that indicates that people had freedom,

15 a choice as to whether or not they wished to cross, and that therefore the

16 exchanges were voluntary.

17 The first point that the Prosecution makes to you is the rather

18 obvious point, and that is this: It was at that point that people were

19 truly and honestly and genuinely asked if they wished to cross or not by

20 the fact of the presence of the ICRC at that point. That's the point when

21 they were able to say: No, I don't want to cross. And able to do so in

22 the presence of the ICRC. And that very fact in itself indicates -- goes

23 some way to indicating why it was that some people, notwithstanding the

24 horrors that they had witnessed in Bosanski Samac, felt able to say: No,

25 I don't want to go across.

Page 20342

1 But the fact of those endorsements presented the Defence with an

2 evidentiary problem, because it didn't explain why it was that people who

3 did not want to cross, did not want to go, did not want to leave via the

4 exchange system, would put themselves in a crowded bus and allow

5 themselves to be taken through dangerous, war-torn country to these

6 UN-controlled areas where the exchanges occurred. And so to account for

7 this, the Defence invented the idea that the people who returned were

8 taken there to reassure the Croats that they did not wish to cross. And

9 this makes absolutely no sense at all, in the Prosecution's submission.

10 Places on the buses were, of course, at a premium, and taking

11 people to the exchange points who did not wish to cross over in any event

12 would have taken up valuable space. And secondly, it's at once apparent

13 that the ICRC was in an excellent position to fulfil that role of

14 reassuring the Croats that someone did not wish to cross, if that was

15 truly what the Croats were concerned about.

16 Some of the Defence witnesses, however, failed to establish their

17 essential point, that they, on the contrary, they made no mention of

18 satisfying either the Croats or the ICRC that they did not wish to cross

19 over. I'm referring here to people who returned, who did not cross at the

20 exchange point. Witness DW8/3 was called by Mr. Tadic, and he made

21 absolutely clear that he was taken to the exchange point, where Mr. Tadic

22 supposedly told him he could go or stay, and then he simply remained on

23 the bus. He spoke to no official of his decision to return, other than

24 Mr. Tadic. It fails, then, to provide any evidence of this witness

25 reassuring the Croats or the ICRC, or any other official, that he truly,

Page 20343

1 freely, voluntarily, did not wish to cross. He didn't reassure the Croats

2 at all. You'll find that evidence at 17828 and 17847.

3 The same witness, Andrija Petric, also testified of being taken to

4 the exchange point and being permitted to return. He was a witness called

5 by Mr. Zaric. He told the ICRC that he did not wish to cross, as I've

6 already mentioned to you, back in Bosanski Samac, before he was bussed to

7 the exchange point, back when he was still in his prison, this dangerous,

8 blind Croat who had been imprisoned. He was taken -- in fact, he wasn't

9 bussed, if Your Honours please. He was trucked. This particular witness

10 was taken in a truck to the exchange point. And he again told the ICRC

11 that he did not wish to cross and was permitted to remain at that point.

12 The significance of Mr. Petric's evidence is this: His family,

13 his entire family, was in Bosanski Samac. His wife and kids were in

14 Bosanski Samac. His father-in-law lived in a nearby village. He

15 testified to you that no one had sought him from Croatia, no one asked for

16 him from Croatia, no one -- there was no compelling reason to take him to

17 the exchange point and reassure the Croats that he truly did not wish to

18 leave. On the contrary; he was simply, like so many of the others, just

19 taken in the bus, taken, as I said, in a truck, and, for whatever reason,

20 allowed to return on that occasion.

21 Mladen Borbeli also testified, a Defence witness, also testified

22 of being taken to the exchange, to an exchange point. He described

23 talking to an ICRC official and then being allowed to return. He

24 mentioned nothing in his evidence about reassuring the Croats that he did

25 not wish to cross over.

Page 20344

1 So the evidence of these Defence witnesses negates this assertion,

2 that people who did not wish to cross had to be taken there anyway to

3 satisfy and reassure the Croats that they truly did not wish to cross.

4 And when you look at the evidence in that light, in the Prosecution's

5 submission, it undermines the whole notion that that was the reason why

6 people who did not wish to cross in the first place were taken to the

7 exchange point.

8 If Your Honours please, that's all I want to say to you on the

9 issue of voluntariness of the exchange system.

10 I now want to turn to the involvement of the defendants in the

11 deportation and the forcible transfer process. I'll deal with

12 Dr. Blagoje Simic first.

13 Essentially, his defence is that the exchanges were conducted

14 voluntarily and that people left because of wartime conditions. He claims

15 that the exchanges were conducted under the auspices of the ICRC, and

16 you'll see that at paragraph 349 of his submission, and you can also find

17 that at page 12314 of his -- of the evidence.

18 In addition, however, he argues that the Crisis Staff was not in

19 control of the process of the exchanges involving detainees or civilians,

20 and that it was the army and the police that had control of this process.

21 And you'll find that in his final brief at page 118. As I said, the issue

22 of voluntariness has already been addressed, so this second issue, this

23 second plank of his defence comes to the fore, the involvement of the

24 Crisis Staff.

25 The first and obvious point that needs to be made is that the War

Page 20345

1 Presidency, of which he was the president, itself appointed the Exchange

2 Commission, later in the year. It was their invention, it was their

3 creation. And although it occurred later in the year -- I'll give you the

4 date shortly. Although it was formally created later in the year, the

5 Defence of Dr. Simic explains that this was merely a formalisation of a

6 process of work that had been going on earlier. And Dr. Blagoje Simic

7 says that in his final brief at page 153, when he discusses P83, Exhibit

8 P83, which I'll get to shortly.

9 So yes, the Exchange Commission was created by the War Presidency

10 later in the year, but that just formalised work that had been going on in

11 any event prior to its creation. So that's his position, and the

12 Prosecution doesn't disagree with that. Yes, it was -- there was an

13 Exchange Commission at work, busily exchanging people right from the

14 start.

15 I want to have a look at one particular document briefly, and that

16 is Exhibit P83. And the Exchange Commission was created on the 2nd of

17 October, 1992, so it's October that it came into being, this creature of

18 the Crisis Staff -- of the War Presidency. It's a devastating document

19 for Dr. Blagoje Simic's -- the second limb of his defence, where the

20 Crisis Staff had nothing to do with the exchange system. From that point

21 of view, it destroys his argument.

22 In plain, unambiguous words, it says that the War Presidency took

23 a decision to appoint an Exchange Commission for prisoners and other

24 persons, at its session on the 2nd of October. It makes clear that the

25 composition of the Exchange Commission is dictated by the War Presidency.

Page 20346

1 It shall consist of Velimir Maslic, Simo Nikolic, and Miroslav Tadic. It

2 provides instructions for the work of the Exchange Commission. It

3 requires monthly reports on the exchanges of prisoners to be provided to

4 the War Presidency. And so in that clear, unambiguous language, if you

5 look at P83, taken together with Dr. Blagoje Simic's defence that this

6 body was merely formalising the work that had gone on before, the

7 conclusion is inescapable that the War Presidency, and before that, the

8 Crisis Staff, controlled the exchange process right from the start.

9 The control of the War Presidency over the composition of this

10 body is crucial administrative organ that oversaw the exchanges,

11 facilitated them, is also illustrated by P84, which shows that in November

12 of 1992, again Dr. Blagoje Simic signed a decision appointing Simeon Simic

13 to that Exchange Commission. You can see just how desperate Dr. Blagoje

14 Simic is to distance himself from that document by reading his submission

15 on it. I don't have the reference at the moment. I'll find it briefly.

16 It's in his final trial brief. It's the point at which a whole series of

17 Prosecution exhibits are discussed in detail. And the submission

18 illustrates how desperate he is to avoid the simple and clear implication

19 of the document.

20 The submission is: The mere reporting by one branch of government

21 to another is not sufficient by itself to establish that the latter branch

22 held a superior position or that it in any way governed the actions of the

23 lower branch.

24 P83, if Your Honours please, does not call for mere reporting.

25 P83 indicates that the War Presidency created the Exchange Commission and

Page 20347

1 staffed the Exchange Commission. You can see why Dr. Blagoje Simic is to

2 desperate to avoid the clear, simple, straightforward implications that

3 can be drawn from P83, because it quite simply destroys the argument that

4 the Crisis Staff had nothing to do with the exchanges, in overseeing the

5 exchange work.

6 Of course, the expert on carrying out exchanges, Mr. Tadic, was

7 not shy of admitting Crisis Staff involvement in the exchanges. In his

8 interview on the 27th of March - that's P139 ter - he spoke of how the

9 detention of Serbs in Odzak led to the first exchanges and negotiations,

10 and he commented, at page 57 of that exhibit, talking about exchanges:

11 "At the session of the Crisis Staff, it was decided that I should join

12 the operation because I was from Novi Grad. Simo Zaric, because he was in

13 Trnjak; and Bozo Ninkovic because he was from Dubica." And he made clear

14 that he was talking about events in early May of 1992 leading to the

15 exchanges.

16 Another document that clearly establishes Crisis Staff involvement

17 in the exchanges is Exhibit P99. P99 is a letter written by the Crisis

18 Staff of the Serbian municipality of Bosanski Samac to the federal

19 Executive Council in Belgrade, and it's dated the 17th of May, 1992.

20 Midway through the -- it's a letter. Midway through the text of the

21 letter, this is said: "The Crisis Staff of our municipality has

22 constantly been trying to reach an agreement on the resolution of the

23 issue of the detained Serbs, and in that respect we have proposed that

24 they be exchanged."

25 It goes on to say that their efforts are falling on deaf ears.

Page 20348

1 And this document again makes clear that the Crisis Staff involved itself

2 in negotiations relating to exchanges.

3 If you're in any doubt at all about Crisis Staff involvement in

4 the system of exchanges, then you can look to the view of the

5 Croats -- I'm sorry. Let me withdraw that submission. Exhibit P163 is

6 another document that makes -- that illustrates perfectly clearly just how

7 deeply involved the Crisis Staff was in the exchanges, and not just the

8 Crisis Staff but the Red Cross as well. Mr. Tadic discussed Exhibit P163,

9 at pages 15762 to 66. I'll just pause and diverge there from my main

10 topic for a moment. That passage of evidence from Mr. Tadic, I invite you

11 to revisit. He was asked by Your Honour Judge Williams whether at the

12 time that he created that document he was a member of the Crisis Staff.

13 The question had to come three times from the Bench before you could get a

14 straight answer. And in the Prosecution's submission, is interesting

15 reading from the point of view of the credibility that you attach to the

16 evidence of Mr. Tadic.

17 But in any event, returning to the document P163, it makes

18 abundantly clear that negotiations conducted between the Croatian Red

19 Cross -- negotiations were conducted between the Croatian Red Cross and

20 the Croatian Crisis Staff with their Serb counterparts in Bosanski Samac.

21 In accordance with the agreement reached between the Odzak municipality

22 Red Cross and the Red Cross of the Serbian municipality of Bosanski Samac,

23 as well as the Crisis Staffs of the mentioned municipalities represented

24 by Mijo Matanovic from Odzak, and Miroslav Tadic, from Bosanski Samac, it

25 was agreed to carry an exchange of 100 for 100 prisoners in the area of

Page 20349

1 Lipovac in July. Signed by Mr. Miroslav Tadic for the Crisis Staff.

2 So P163 is cogent and compelling evidence, if Your Honours please,

3 of the deep Crisis Staff involvement in the whole system of exchanges, and

4 hence the involvement of Dr. Blagoje Simic in the system of exchanges.

5 Would Your Honours just bear with me for a moment, please.


7 [Prosecution counsel confer]

8 MR. DI FAZIO: Exhibit D125/3 also illustrates that the Croatian

9 side were under no illusions when it came to the body that they thought

10 they were dealing with when it came to dealing with exchanges. Mr. Tadic

11 produced D125/3, dated the 2nd of May, and that document, which is from

12 the Odzak Crisis Staff, referring to the exchange of one man for another,

13 says that the Odzak municipality may exchange the following persons with

14 the Bosanski Samac Crisis Staff. And that's an important document,

15 showing the perspective of the Croatians, who you might think might know

16 something about who they were dealing with when it came to exchanges. If

17 you then add to all of this documentary evidence the evidence of the live

18 witnesses, in particular that of Mr. Todorovic, on Crisis Staff

19 involvement in the exchanges, then you're left with a compelling case

20 against Dr. Blagoje Simic. He was asked in examination-in-chief, page

21 9165.

22 Q. Nancy Paterson asked you this and you gave this

23 answer. Question by Nancy Paterson: You said that Blagoje had some say

24 on who got put on the list and who wasn't put on the list. Now, I know

25 that exchanges were going on for a period of time, were going on fairly

Page 20350

1 regularly, once a week, once every two weeks, there was an exchange

2 happening. Now, let's talk through how this would work. Would

3 Miroslav Tadic draw up a list and say: This person can go, and that

4 person needs to stay, and you answered: He looked at some lists and I

5 know that he consulted with Tadic. I don't know if he looked at every

6 single list every time.

7 Is that a fair representation of the role of Mr. Blagoje Simic in

8 this exchange process?

9 A. Yes.

10 Blagoje Simic had, of course, signaled his intentions to get rid

11 of the non-Serb population even before the 16th and 17th of April, even

12 before the system of exchanges was put in place, even before Mr. Tadic

13 began his industrious work in that regard. Sulejman Tihic testified of a

14 public meeting just before the takeover, attended by Blagoje Simic, who

15 announced that the municipalities had to be divided along ethnic lines.

16 Orasje and Odzak were to be Croatian; Gradacac was to be Muslim; and Samac

17 was to be Serb. And this announcement was apparently delivered in a

18 "take-it-or-leave-it tone." You'll find that evidence at 1346.

19 Mr. Izet Izetbegovic also spoke about this meeting. He said it

20 was initiated by the SDS and attended by military types. He said it was

21 chaired by Blagoje Simic and that he made the point that Muslims would

22 have to go to Gradacac. He was shown an earlier statement,

23 Mr. Izetbegovic, that is, was shown an earlier statement that he had made

24 on the topic, in which he reported that Blagoje Simic had said that force

25 would be used to bring this about. And he agreed that he hadn't said that

Page 20351

1 in an earlier statement. You'll find that evidence at page 2222 through

2 to 45. And other witnesses also confirm -- give evidence that essentially

3 support that account of events. Dragan Lukac also confirmed that he heard

4 from others who had actually attended the meeting of Dr. Blagoje Simic's

5 pronouncements on how the Croats would have to leave.

6 I want to turn to Simo Zaric. Mr. Zaric's defence seems to be

7 that he was not actually involved in any exchange process, and in

8 particular, that he wasn't involved in negotiations over exchanges, and

9 that he had no authority to negotiate over exchanges. His position is

10 that the all-for-all exchange that came up so clearly in the evidence of

11 Witness Q was in fact actually raised by Witness Q, and another gentleman

12 named Ivo Simic, when they were on the radio. You'll find that he adopts

13 that position at paragraphs 414 to 419 of his closing brief.

14 The Prosecution's submission is that that simply cannot be so. It

15 cannot be so that Witness Q was the man who raised the notion, the idea of

16 an all-for-all exchange. Witness Q, by the time he came to be taken to

17 the communications centre to speak on the radio, had been subjected to a

18 breath-taking round of torture by the paramilitaries. He had been singled

19 out by Lugar in particular and viciously attacked by that man, and was in

20 a bashed and beaten state when he was taken to the communications centre.

21 It is unthinkable, in the Prosecution's submission, that he would be the

22 one who initiated an all-for-all -- the concept of an all-for-all

23 exchange, that he would have had even the slightest liberty to speak about

24 such a topic.

25 Witness Q, on the other hand, places Simo Zaric right in the

Page 20352

1 frame, right in the picture, as the major player, along with Mr. Tadic, in

2 these negotiations. He described essentially four visits to that

3 communications centre, where there was radio communication with the Odzak

4 side. And in the Prosecution's submission, you should have little trouble

5 accepting his evidence as both honest and reliable. It was coherent

6 evidence, it made sense, and it was utterly unshaken in cross-examination

7 on this central issue of the involvement of Mr. Simo Zaric. He made the

8 following points in his evidence in chief:

9 Mr. Simo Zaric was the man who took him from the SUP building to

10 the communications centre, and it was Mr. Simo Zaric who initiated contact

11 with the Croatians. That's at page 11735. It was Mr. Simo Zaric who

12 recommended an all-for-all exchange on both occasions that he was present

13 with Mr. Zaric, and Mr. Zaric replied -- sorry - and on those occasions,

14 it was clear that prisoners were being spoken of. You'll find that

15 evidence at 11737, 11741, and 11749.

16 He said -- Witness Q said, that at one stage, the Odzak side,

17 represented by a gentleman named Ivo Simic, asked if Witness Q could be

18 exchanged, and Simo Zaric replied that Q could not be exchanged until an

19 all-for-all exchange had been negotiated.

20 Now, if you accept this evidence, and the Prosecution plainly

21 submits that you should, then it plainly implicates Mr. Simo Zaric. He's

22 right in up to his neck in negotiations involving the exchange of

23 prisoners and persons, non-Serbs, from Bosanski Samac to a Croatian-held

24 area. It's crucial evidence, in the Prosecution's submission, and it has

25 not been undermined or attacked in any meaningful way by Mr. Zaric. The

Page 20353

1 crucial propositions of Mr. Zaric were put to Witness Q by Mr. Pisarevic,

2 repeatedly. He denied them all. He was asked if Mr. Zaric told him on

3 that first occasion of the first visit to the communications centre --

4 sorry. Would Your Honours just bear with me.


6 MR. DI FAZIO: Sorry. He denied propositions from Mr. Pisarevic

7 that Mr. Zaric ever said anything to the effect that he was not on the

8 Crisis Staff, had no authority to negotiate, and was unable to do anything

9 about the issue of exchanges. And you'll find that at 11805 and 11807.

10 The Croatians weren't under any illusion as to the role of

11 Mr. Tadic in the exchanges. (Redacted)

12 (Redacted)

13 (Redacted)

14 (Redacted)

15 (Redacted)

16 (Redacted)


18 MR. LUKIC: [Interpretation] Your Honour, I would kindly ask that

19 we move into private session, because otherwise I believe the witness

20 identity could be revealed. I think that identity could be revealed in

21 this way, and we know why it was requested to have this witness testify in

22 closed session. So if there is going to be reference to this witness, I

23 would kindly ask that we move at least briefly into private session.

24 Thank you.

25 MR. DI FAZIO: I agree. I agree, and if Your Honours please,

Page 20354

1 perhaps it would be wise as well to redact the last four lines of my

2 commentary before -- from lines 16 down to 21, as well.

3 Are we in private session?

4 JUDGE MUMBA: No. We are in open session. So you're asking for

5 redaction from line 16 to 21?

6 MR. DI FAZIO: 21, I think that would be safe.

7 JUDGE MUMBA: Protect the witness.

8 MR. DI FAZIO: Yes.

9 JUDGE MUMBA: Very well.

10 We shall adjourn now and continue our proceedings at 1415 hours.

11 --- Recess taken at 1.46 p.m.

12 --- On resuming at 2.17 p.m.

13 [Private session]

14 (Redacted)

15 (Redacted)

16 (Redacted)

17 (Redacted)

18 (Redacted)

19 (Redacted)

20 (Redacted)

21 (Redacted)

22 (Redacted)

23 (Redacted)

24 (Redacted)

25 (Redacted)

Page 20355

1 (Redacted)

2 (Redacted)

3 (Redacted)

4 (Redacted)

5 (Redacted)

6 (Redacted)

7 (Redacted)

8 (Redacted)

9 (Redacted)

10 (Redacted)

11 (Redacted)

12 (Redacted)

13 (Redacted)

14 (Redacted)

15 (Redacted)

16 [Open session]

17 MR. LAZAREVIC: Excuse me. Maybe Mr. Di Fazio would like to take

18 a look at the transcript. On page 84, line 7.

19 MR. DI FAZIO: Yes. I meant Mr. Zaric, not the tzar. I didn't go

20 far enough, yes. I can't remember that. It doesn't make sense and in any

21 event, I don't think it matters much. My essential submission is

22 contained in the previous sentence. So I think that takes care of that.

23 Perhaps we can leave it as an inexplicable mistake. One of the -- yes.

24 Now --

25 JUDGE MUMBA: I think it can be corrected through the audiovisual

Page 20356

1 tape. Yes.

2 MR. DI FAZIO: Right, Your Honour.

3 I also invite you to look -- I won't discuss this in detail but I

4 invite you to look at other evidence that talks of the involvement of

5 Mr. Zaric in the exchanges, and that is the evidence of -- the evidence of

6 Ivan -- I think it's Cukic. That's from the Rule 71 depositions, page 15

7 to 18, where he makes it clear that Mr. Zaric was involved in the

8 negotiations over the exchanges.

9 I did plan to address you at some length on the evidence

10 concerning an individual exchange that Mr. Zaric involved himself in, but

11 I think I can get through that a little more swiftly. That was the

12 evidence concerning of exchange of Mr. Izet Izetbegovic. You recall that

13 he testified being taken in his bloodied condition to a room in the SUP

14 building and in the presence of Mr. Zaric and Mr. Tadic [sic], there were

15 some negotiations concerning exchanges.

16 Mr. Zaric essentially denies that encounter, and you'll see

17 that -- you'll see that at paragraphs 328 to 332 of his closing brief, and

18 he also denied that any such encounter in his evidence, at pages 19 --

19 pages 19424. The -- all I want to say about this is that if it's a

20 fabrication, then it's a peculiar fabrication on the part of

21 Mr. Izetbegovic. He did not ascribe a particularly major role to

22 Mr. Zaric on this occasion dealing with the exchange. In fact, he said

23 that Todorovic, who was also present, did most of the talking. You'll

24 find that at 2292. So if it's a false implication or false accusation on

25 the part of Mr. Izetbegovic, then it's puzzling as to why he really didn't

Page 20357

1 do the job properly and fully implicate Mr. Zaric in that supposedly false

2 round of negotiation -- exchange negotiations. And it's also puzzling as

3 to why it is that Mr. Todorovic should also speak of the same episode and

4 describe essentially Mr. Izetbegovic being taken to his office to discuss

5 the release of Serbs held in Odzak. You'll find that in his evidence at

6 page 9148.

7 And finally, on Mr. Zaric --

8 MR. LUKIC: Excuse me.

9 JUDGE MUMBA: Yes, Mr. Lukic.

10 MR. LUKIC: [Interpretation] Your Honours, I did not mean to

11 interrupt my colleague. I would just like to make the following

12 intervention: I think there's been an oversight by my learned friend and

13 colleague, although that may be his position. He talked about the

14 exchange and about Izetbegovic, and in line 12, page 85 he mentioned Zaric

15 and Tadic. I believe he wanted to make a reference to Todorovic, because

16 the whole submission is about Todorovic and Zaric. I'm not sure if it's

17 the position of the Prosecution that Tadic was actually present at the

18 negotiations when Izetbegovic talked. So I would like to have this point

19 clarified, please.

20 MR. DI FAZIO: Yes, I know. Mr. Lukic is completely correct.

21 There's no evidence of Mr. Tadic being there. The encounter is strictly

22 between those three men that I've mentioned, Zaric, Mr. Izetbegovic, and

23 Mr. Todorovic. And there's no -- it's not the Prosecution position.

24 JUDGE MUMBA: Thank you, Mr. Lukic.

25 MR. DI FAZIO: And I also remind you of the evidence of Witness A,

Page 20358

1 who told you of evidence that he heard from his spouse of hearing -- of

2 her hearing Mr. Zaric over the radio discussing his exchange in exchange

3 for some pilots. And you'll find that evidence at 10898.

4 So I turn now to the evidence of Mr. -- to the situation of

5 Mr. Tadic relating to exchanges. Now, I don't need to labour all of the

6 evidence here, because it's beyond doubt that he was deeply involved in

7 the exchanges. He was a facilitator, an organising, architect of this

8 final process of persecution. So I don't need to go through all the

9 evidence there. And it's admitted by Mr. Tadic of his -- his deep

10 involvement in the exchanges. So I really only want to address you on two

11 topics relating to him.

12 First is the taking of bribes, and the second is the alleged

13 humanitarian aspect of his work. Firstly, the issue of bribes. You know

14 from evidence in the case and it's uncontested that in 1992 inflation was

15 rampant in Bosnia, and the local currency had become worthless and was

16 becoming even more worthless with the passage of time. Hard currency was

17 at a premium. Deutschmarks in particular were a valued currency, as well

18 as goods, jewellery, and so on. Combine that with large numbers of

19 desperate people who were in the prisons and large numbers of desperate

20 non-Serbs who were in the municipality of Bosanski Samac and the system

21 and situation was ripe for exploitation. Desperate and terrified people

22 will do anything to get out of that sort of situation, and Mr. Tadic was

23 in the perfect position to extract bribes from persons who were, as I

24 said, desperate to exit.

25 Numerous witnesses testified of the connection between Mr. Tadic

Page 20359

1 and the taking of monies. This evidence, of course, is relevant to

2 illustrating his power and control over the system. It demonstrates that

3 that was the perception of people who wanted to pay money to get out,

4 because he was the person they went to offering the money to exit.

5 Firstly, there's evidence of the rumours -- of rumours of payment

6 to -- of bribes to exit Serb-controlled Bosanski Samac. Muharem Kucakic

7 [phoen] talked of it. You'll find that at page 170 of the Rule 71

8 depositions. Witness DW2/3 -- would Your Honour just bear with me for a

9 moment, please.


11 [Prosecution counsel confer]

12 MR. DI FAZIO: Witness DW2/3 gave -- provided you with evidence of

13 how a relatives of his decided to offer money to Mr. Tadic, and offered a

14 certain sum of Deutschmarks to Mr. Tadic to be permitted to board a bus.

15 You'll find that at 14502. The significant fact, of course, is that they

16 actually went to Tadic. He was a Defence witness, and the evidence was

17 that Mr. Tadic rejected the offer. The Prosecution submission is that

18 it's significant that that witness testified that he even considered going

19 to Mr. Tadic, and bear that evidence in mind when you consider all the

20 other evidence in relation to bribes.

21 Harija Drljacic testified of the notorious fact that Mr. Tadic

22 took bribes to arrange for people to leave. It was an open secret, as she

23 put it. Page 8094. There's the evidence of the witnesses relating to a

24 payment to Mr. Tadic by a person named Sabah Seric. I won't go through

25 that in detail, but I'll just tell you of the witnesses and where you can

Page 20360

1 find that evidence. Witness M testified about that, of how Seric reported

2 that to him, page 5250. Kemal Mehinovic testified how he saw Seric give

3 money to Mr. Tadic in Batkovic, that's page 7472 to 75. A remarkable

4 coincidence you might think, both Witness M and Kemal Mehinovic lived in

5 different countries. Witness C described how Seric told him on the bus

6 when they were leaving Batkovic of having paid money to him, although he

7 did mention that the man who told him that was a Hasan Seric. So perhaps

8 he was mistaken or perhaps he was talking about another man.

9 Jelena Kapetanovic testified of pathetic attempts of her friends

10 to assist her to exit by the payment of bribes not to Mr. Tadic but to

11 Mr. Vasovic, also held a high position within the system of exchanges.

12 I want to simply --

13 JUDGE MUMBA: Mr. Di Fazio, can you go back a bit. There is no

14 record of the page number which you mentioned in line -- page 88, line

15 25. When you talked of Kemal Mehinovic.

16 MR. DI FAZIO: I'm sorry. That's at page 7472 to 75.

17 And lastly on the evidence relating to payments to Vasovic you'll

18 find the discussion of Ms. Kapetanovic at pages 10339 to 40. Witness L

19 described an encounter, and I want to quote to you from this particular

20 witness to remind you of what he said. He was talking about a visit to

21 Batkovic, where he was kept for a long time. You may recall Witness L.

22 He was in the Prosecution's submission an outstanding witness, clearly a

23 man of honesty, took his duty to testify here extremely seriously. And

24 the Prosecution submits that you should have no trouble accepting his

25 evidence. He was not, in the Prosecution's submission, a malicious man

Page 20361

1 who would fabricate lies and perjure himself in front of you.

2 He said this, talking about Mr. Tadic at Batkovic: "The two of us

3 exchanged a few words and I said to him: Professor, I'm ready to give

4 some money for helping the Serb army. Please put me on that list. He

5 asked me exactly as he was looking into the ground: Where have you got

6 this money? And I said to him that I haven't got any money on me because

7 the exchange goes through my town every time. This was the ongoing

8 practice. When I go to town, I would borrow money from someone. He

9 said: All right. We'll see. And he continued walking towards the exit

10 of this fenced-off yard. My task was to go back to the hangar. I was

11 awaiting the result."

12 Well, he wasn't exchanged for another two years. So it's -- if

13 you accept this evidence, it shows a -- it's good evidence of powerful

14 control by Mr. Tadic over the exchange process, powerful control by

15 Mr. Tadic over who got to leave via the system of exchanges.

16 In the Prosecution's submission, one of the -- the biggest

17 untruths that you've been told in this case is that the work of the

18 Exchange Commission was humanitarian in nature and that it was the work of

19 humanists. A lot of the Defence witnesses commented in that tone.

20 Velimir Maslic, also called as a witness by Mr. Tadic and a man who played

21 a central role in the exchanges, constantly described his work in the

22 exchanges as humanitarian. Mr. Tadic himself adopted the mantle of

23 humanitarian.

24 Page 15796 he was asked by his counsel in re-examination:

25 Question: "The exchanges in which you took part, was the work

Page 20362

1 related to ethnic separation or was this about bringing families back

2 together?

3 "Very little has been said about the humanitarian aspect of the

4 whole thing here. One of the crucial principles was to bring families

5 back together and this applied to Croats, Muslims, and Serbs equally.

6 Little has been said about that, about how the sick and the wounded were

7 transferred to the other side. All those people who were transferred from

8 one area to another, there was a possibility for them always at a certain

9 point to return to their own place or town. Not everyone was in a

10 position to take advantage of this right, especially Serbs. They did. We

11 had witnesses, my witnesses, who went of his own free will to Gradacac and

12 then he returned and today he has the same job, the same position as he

13 used to have."

14 The Prosecution, with respect, has trouble seeing the humanitarian

15 aspect of the exchange system. You might think that the spectacle of

16 bashed and tortured prisoners being loaded onto buses and trucks and taken

17 to the exchange point somehow does not merit the description

18 humanitarian. You had an opportunity to see the exhausted women and

19 children carrying their few pathetic possessions in that video of the

20 exchange that was shown to you early on in the Prosecution case. You may

21 not think that that spectacle merited the description humanitarian. You

22 may think that the spectacle of a blind Andrija Petric being taken to the

23 exchange point away from his children and his wife was not exactly

24 described -- could not exactly be described as humanitarian.

25 The Prosecution's submission is that it is an appalling

Page 20363

1 misdescription to describe these persecutions as humanitarian and invites

2 you to reject that assertion.

3 That essentially completes my submissions, if Your Honours please,

4 but for one matter, and that is the discriminatory intent required for

5 deportation. I haven't addressed you at length -- as far as -- insofar as

6 the persecutions charge is concerned. I haven't addressed you at length

7 on that. The reason for that is the evidence is overwhelming of a

8 discriminatory intent. Mr. Zaric has already told you how he was aware

9 that the prisoners who were imprisoned were there because -- on ethnic

10 grounds and they were the ones who were going to be exchanged.

11 As far as Mr. Tadic is concerned, it was clear from his deep,

12 profound involvement in the system, that it was non-Serbs who were being

13 ejected by the system of exchanges. And as far as Mr. Blagoje Simic is

14 concerned, it is clear that he knew, must have known, that it was an

15 exchange of us for them; the "us" being the non-Serbs who were held in

16 Bosanski Samac and the "them" being the Serbs who were held in other parts

17 of Bosnia.

18 If Your Honours please, that completes my submissions to you on

19 deportation.

20 JUDGE MUMBA: Thank you.

21 Yes, Mr. Weiner.

22 MR. WEINER: Your Honour, the three defendants have been charged

23 with the persecution of the non-Serb population of Samac by various means,

24 including the cruel and inhumane treatment of Muslims and Croats through

25 the use of the forced labour system, the wanton and extensive plundering

Page 20364

1 of Muslim and Croat property, and third, the unlawful arrest and

2 confinement of large numbers of non-Serbs on political, racial, and

3 religious grounds. Over the next hour I'll address all three of these

4 issues, beginning with forced labour.

5 Non-Serbs in Samac were forced to work long hours, with no day of

6 rest, without any pay, with little or no food, while they were sick and

7 injured. In the words of Witness K, we were only slaves. And that's at

8 4635.

9 Non-Serbs were forced to work in dangerous and unhealthy

10 situations at areas on the battlefront, in military or combat areas, in

11 places unsafe for women. Working at the front or at the battle lines was

12 dangerous for non-Serb workers. We have testimony that two men were

13 killed while digging trenches, four were wounded. Nusret Hadzijusufovic

14 at 6879 describes how he felt working during the gunfire. "At any moment,

15 any one of us could have been killed." Another dangerous area for working

16 was Odzak. Odzak was not safe for the women that were working there.

17 Non-Serb women were kidnapped, sexually assaulted, and raped. The record

18 also supports that non-Serbs were humiliated by this work. They were not

19 given assignments that were similar to their occupations, they were

20 embarrassed by certain types of jobs, such as looting. Esad Dagovic said

21 on page 3962 how he felt about looting homes. He said he felt terrible,

22 he felt like a criminal.

23 The evidence further proves that non-Serbs from Samac were forced

24 to work in military capacities. They dug trenches. They built bunkers

25 along the front lines and behind the police station. They mowed grass

Page 20365

1 along the front lines so the snipers would have a good vantage point to

2 shoot. That's at 4286. They built concrete slabs for constructing

3 bunkers. They piled sandbags along buildings and windows to protect

4 soldiers. And they cleaned weapons outside the garages behind the police

5 station. That's at transcript site 3960. Such activities violate the

6 third and fourth Geneva Convention on allowable labour. Articles 50

7 through 57 on the third convention and article 51 on the fourth

8 convention.

9 The defendant Simic in his brief at page 104, paragraph 338, even

10 concedes that some of the work assignments did not comply with the law.

11 It should further be noted that Muslims and Croats were forced to

12 work -- that some of these people that were forced to work were prisoners.

13 Whether they were prisoners or whether they were undetained civilians.

14 The use of either persons was discriminatory and persecutory. I plan to

15 focus on three areas of labour that were illegal. Military operations,

16 looting and plundering, and the various assignments given to women in

17 Odzak.

18 First, the military assignments. They were dangerous. They

19 violated the Geneva Conventions. They were discriminatory, as only the

20 non-Serbs were digging trenches. Only the non-Serbs were building

21 bunkers. And you get that at page 6880. Defence witness Ljubomir Vukovic

22 agrees with that at page 14683 he says: "The Croats and Muslims dug

23 trenches in the front line which was under the command of the Serb army.

24 And the Serbs dug trenches where the territories of the Muslim and Croat

25 armies were. That's how it was in war."

Page 20366

1 Looting. Non-Serbs were forced to loot homes, shops, businesses,

2 owned and operated by Muslims and Croats. Serb property was not touched.

3 Muslim and Croat property practically disappeared from Samac. We'll

4 discuss this topic a little bit more thoroughly in the next argument when

5 we talk about looting, but looting was an aspect of forced labour.

6 Finally, in Odzak actions such as sweeping of the streets,

7 cleaning, agriculture, generally do not constitute illegal forced labour

8 unless the surrounding facts raise it to that level. Here there were the

9 removal of or kidnapping of young women from the trucks, they were

10 transporting them to and from Odzak, there were rapes, there were sexual

11 assaults, including one woman who was bitten, and that's from the

12 testimony of M at page 5142. There was a lack of protection for the

13 non-Serb women who were forced to work there.

14 Witness K explains at page 4670: "Every day when we went, one,

15 three, or four were victims. Question: Victims of what? Answer: Victims

16 of being taken away and forced sexual intercourse."

17 Based on the conditions, the facts establish illegal forced

18 labour. In fact, you can compare the recent Martinovic and Naletilic

19 judgement at paragraph 269 where they also talk about labour which usually

20 does not constitute forced labour becoming forced labour based on the

21 unhealthy conditions that that work was done in.

22 The forced labour programme discriminated against the non-Serb

23 population in Samac, even the defendant Zaric admits this. The Prosecutor

24 contends that these defendants are responsible for this programme. Let us

25 begin with the defendant Tadic.

Page 20367

1 Tadic oversaw much of the looting process in the municipality of

2 Samac. His civilian protection agency utilised labour to loot homes,

3 shops, and factories. He also assisted in the construction of bunkers.

4 We'll discuss Mr. Tadic's role much more thoroughly in the next section

5 when we talk about looting that went on in Samac.

6 The defendant Simic, the defendant Simic was a member of the

7 Crisis Staff. He was the president. Miroslav Tadic was also a member of

8 the Crisis Staff. The two secretaries of the municipal defence, municipal

9 Ministry of Defence of Samac were Crisis Staff members. The Crisis Staff

10 was responsible for the economy, for the agriculture, public safety, local

11 defence, food, housing, in the words of P128, "all areas of life and

12 work."

13 The forced labour projects performed by the non-Serbs involved

14 these same areas. Further, the municipal Ministry of Defence, which

15 oversaw the forced labour programme, let's look at that. Bozo Ninkovic,

16 its chief was appointed or nominated by the Crisis Staff. His predecessor

17 was appointed or removed by the Crisis Staff. Both of those men served on

18 the Crisis Staff. The Ministry of Defence worked closely with the

19 municipality. In his brief, at page 58, paragraph 233, the defendant

20 Tadic notes that the Ministry of Defence worked with the executive

21 committee.

22 Bozo Ninkovic testified that the Ministry of Defence worked with

23 the municipal government to mobilise workers. That's at page 13373. This

24 is consistent with the testimony of Witness M, that the call-up papers had

25 Crisis Staff written on the bottom; that's at page 5060. The ministry

Page 20368

1 received requests for personnel from the secretary of -- from the

2 secretariat of the economy, page 13372. As you know, the secretary of the

3 ministry of economy is a Crisis Staff appointment.

4 At harvest time, the executive committee of Samac established a

5 plan of action. The secretariat of economy and local commissioners

6 implemented and further developed that plan and the Ministry of Defence

7 provided labour. Even the chief of police participated in the illegal

8 forced labour assignments. If you look at the sentencing judgement of

9 Stevan Todorovic at paragraph 42 and page 9029 in his transcript. This

10 was all one municipal system coordinated by Blagoje Simic and the Crisis

11 Staff, that persecuted the non-Serb population.

12 And finally, with regard to Mr. Simic, we've had testimony from --

13 or we have a statement from Simo Zaric indicated that Simic participated

14 and profited in the looting.

15 Zaric's liability -- Zaric's liability is different from the

16 others. Zaric was part of the persecutory system. He was part of the

17 military civilian council in Odzak. He was part of that and he was -- and

18 he participated in that to make Odzak inhabitable. And in order to do

19 that, they had to use the forced labourers. They had to use those

20 non-Serb labourers from Samac. The civilian military council requested

21 them and orchestrated their work. He was aware of the allegations of

22 rape. He states that in P141 ter at 9596. And he was aware of the

23 looting. In that same document he states that at page 92 through 94. And

24 what does he do? He continues to work in the system. He remains a member

25 of the civilian military council.

Page 20369

1 He participated in a system where non-Serb women were being used

2 in a discriminatory manner to do labour.

3 Now, the defendants raise a number of defences or responses that

4 can be dismissed quickly. Tadic, paragraph 248 and 249. He states,

5 "Although people had no choice to work, no one was forced to go." If we

6 look at the transcript, we see Witness K, who was forced to go to Odzak

7 and Korenica. They forced her out of her house barefoot and into a truck.

8 That's at pages 4724 to 25. Also, who would dare to refuse the labour

9 knowing that there were prison camps where beatings and tortures were

10 occurring on a daily basis? You can see Nusret Hadzijusufovic make a

11 similar statement at page 6923.

12 Tadic at paragraph 254 says, "The work force was comprised of

13 Muslim and Croat males since all the Serb males were in the military."

14 There's no proof of this allegation. And also ask yourself: What about

15 the five to ten thousand Serb refugees that came into Samac? They

16 couldn't work. What about Serb women? They couldn't sweep the streets.

17 They couldn't clean. They couldn't help out in Odzak.

18 Tadic further states at paragraphs 265 to 268: "The fact that

19 some people were paid means that the Prosecutor cannot prove that the

20 workers were not paid." Witness after witness, members of the court,

21 testified that they were not paid. The fact that a select or privileged

22 few, or a select or privileged group of Muslims and Croats were paid does

23 not prove that the majority were paid. And if you want to compare

24 something to that, we can look at the Martinovic and Naletilic judgement

25 at paragraph 267, page 94, which also rejected this same argument, where

Page 20370

1 the fact that a few people received some benefits doesn't mean that

2 everyone received benefits.

3 Tadic argues at paragraphs 293 to 303 not to believe Nusret

4 Hadzijusufovic. He must be lying. Common sense, however, tells you that

5 he isn't lying. There's no allegation of any bias, prejudice, dislike,

6 hostility, hatred towards Mr. Tadic. There's no showing of any incentive

7 that he had to lie. Further, he got most of his information from one of

8 the labour force coordinators. Tadic finds that odd, but that isn't odd,

9 because the coordinator and Nusret Hadzijusufovic had a long-standing

10 relationship. Prior the war, Dzevad Celic was Nusret's manager at that

11 same factory, and that's at page 6897. He was the person who Nusret could

12 talk to. He called Nusret to his office for a meeting at page 6929.

13 Furthermore, the fact -- Tadic indicates well, Nusret didn't know

14 everyone's official position. Nusret was basically working as a slave.

15 He was given a job each day and told to do it regardless of whether he had

16 the proper clothes, regardless of how he felt, regardless of if he was

17 sick, regardless of if he was injured. He didn't see any piece of paper

18 with any hierarchy or list of positions of who held what positions in

19 Samac. Tadic finally argues that Nusret has to be wrong where he said he

20 was sent by Tadic to build those slabs that were used to make the concrete

21 barriers to be used at the front lines, those concrete bunkers. He said

22 that only the military commanders were involved in constructing these

23 bunkers.

24 And this argument here rests on the testimony of Bozo Ninkovic and

25 Djordje Tubakovic. So let's review their testimony. Bozo Ninkovic, the

Page 20371

1 man who worked for informational services but did not know about the

2 Crkvina massacre. He only heard rumours about it two to three months

3 later. That's at page 13531 to 33. Bozo Ninkovic claims that he did not

4 know what his labourers were doing for the military, at pages 13390

5 through 391. He claims that he didn't know that certain labourers were

6 killed or injured until sometime later, again at pages 13390 through 391.

7 He even claims that he never learnt of the names of those killed until

8 months later. What we have here is the assistant to the chief of

9 information who is completely uninformed of what is happening in Samac --

10 THE INTERPRETER: Could the speaker please slow down.

11 MR. WEINER: Bozo Ninkovic's testimony --

12 JUDGE MUMBA: Slow down, Mr. Weiner, for the interpreters.

13 MR. WEINER: Bozo Ninkovic's testimony is not worthy of belief.

14 The other witness who testifies about this is Djordje Tubakovic. He was

15 the witness who gave the testimony about Tadic right here on the witness

16 stand, which was in direct conflict with his recently sworn and signed

17 statement. We argue that his testimony is unreliable on any matters

18 relating to Tadic, based on his prior conduct. But even if the Court

19 wants to believe their testimony, Tadic, we submit, is still involved.

20 Common sense tells you that when you need -- when you have to choose who

21 to assign to work, you have to call someone. You have to call someone you

22 trust. There was only one telephone in that building where the work

23 assignments were given out, and that was in civilian protection. The

24 military commanders had the option of calling the non-Serb coordinators or

25 speak with Miroslav Tadic, who regularly used the labourers. Miroslav

Page 20372

1 Tadic, a former assistant to the commander of the 4th Detachment.

2 Miroslav Tadic, a member of the Crisis Staff. Miroslav Tadic could be

3 trusted to select this personnel.

4 Nusret Hadzijusufovic's evidence is consistent with the

5 circumstances in Samac.

6 Finally, Tadic claims at paragraph 256 that there was no

7 discrimination in the assignments. Proof of the discrimination comes from

8 three Defence witnesses. Defendant Zaric admitted that the labour system

9 was discriminatory, at 141 ter, at page 95. Muharem Kucakic [phoen], a

10 fireman, who testified under Rule 71, at pages 95 and 104, 105, tells you

11 that non-Serb firemen were sent to the front lines to dig trenches. He

12 doesn't tell you that Serb firemen had to do it. Non-Serb firemen were

13 sent to the front lines to dig trenches.

14 Ljubomir Vukovic, who we have previously mentioned. Who does he

15 say had to dig the trenches in the Serb-controlled areas? The Muslims and

16 Croats. Consequently, the defence case does not support Miroslav Tadic's

17 claims.

18 The defendant Simic claims that he had no influence over the civil

19 protection or the defence ministry, at pages 20 through 21 of his brief.

20 He argues that he and the Crisis Staff were not involved with the local

21 Ministry of Defence or the work labour programme. The defendant Simic

22 wants us to believe that he was the Crisis Staff president that reigned

23 but did not rule. Rather, the evidence supports that the defendant Simic

24 and the Crisis Staff oversaw the system of persecution in Samac.

25 The forced labour programme furthered the system. It made life

Page 20373

1 unbearable for the Muslims and Croats. Forced labour was used to

2 dismantle the homes and businesses of the Muslims and Croats and seize

3 their property. It left them with no reason to stay or return to Samac or

4 Odzak. Forced labour was also used to ensure the liveability and the

5 survival of the Serbian municipalities of Samac and Odzak. In fact, the

6 best example that we can use is Odzak, to show this one system. The

7 Crisis Staff sends Savo Popovic and Simo Zaric to Odzak to help out and

8 rebuild the city. The municipality - I'm sorry - the municipal Ministry

9 of Defence of Samac immediately transfers their work assignments to Odzak.

10 A civilian military council is established in Odzak, and Savo Popovic

11 becomes its president. He remains a member of the Crisis Staff and the

12 War Presidency. When Popovic needs help, who does he go to? From his own

13 testimony, he goes to the Executive Board and the municipal Ministry of

14 Defence, pages 16285 and 286.

15 Every enterprise in Samac had to help, page 16286. When workers

16 were needed in Odzak, the Ministry of Defence from Samac supplied them on

17 a daily basis. And the labourers were utilised in the same manner as they

18 were in Samac. During this time, Savo Popovic continued to report on the

19 situation in Odzak to the Crisis Staff. That's at P142 ter at 127. It

20 was all one system. And the defendant Blagoje Simic was in charge of it.

21 Therefore, the Prosecutor contends that this system persecuted the

22 non-Serbs of Samac and used forced labour as a tool to do so.

23 I'd like to continue on with the mass looting and plundering of

24 Muslim and Croat property. It was committed with a discriminatory intent

25 to persecute the non-Serbs. The mass looting was used to destroy the

Page 20374

1 homes of Muslims and Croats, to take away any means of income, to rob and

2 steal their property; consequently, the non-Serbs had no property worth

3 staying for in Samac and nothing to return to. Esad Dagovic saw his

4 economic prosperity collapse with the looting of the pizzeria where he

5 worked. At page 3957 he says: "The pizzeria was a place where I earned my

6 daily bread and I could see that this tower of my source of income was

7 being toppled in all this looting."

8 Looting and plunder were committed on a mass scale, victimising

9 the non-Serb property. The people doing it were the soldiers,

10 paramilitaries, civilians, police officers, and local officials. They

11 were the ones that were involved in this programme of theft. Now, during

12 war, certain property may be requisitioned. Certain property may be legal

13 to seize, based on the situation with the army. In Samac, however, it was

14 nothing more than plain theft and robbery that occurred. It's obviously

15 from what was taken. Electronic equipment, rugs, furniture, currency,

16 jewellery, gold and silver, pianos, tobacco curing equipment and household

17 items. All these thefts were used to dismantle houses. They took the

18 plumbing fixtures, the heating systems, wiring, windows, doors, window and

19 door frames, roofs, floors, and all available construction material. All

20 that was left of the Muslim and Croat houses was a shell. Muhamed Bicic

21 described the condition of his house at page 3039: "There is nothing in

22 the house, no doors, no windows, no water pipes or cables, electricity

23 cables, or anything like that, or parquet floors, let alone the furniture

24 and all other things that were in it. That has all disappeared, and the

25 house was devastated, completely destroyed."

Page 20375

1 It was the Muslim and Croat property that was targeted. Several

2 witnesses describe going from house to house in Croat villages, in a town

3 or in a -- the section of a town where the Muslims and Croats live, going

4 to the Muslim and Croat houses in the town of Samac or Odzak to steal

5 property. We have that from Nusret Hadzijusufovic, 6907 to 15;

6 Esad Dagovic, 3950 to 55; Witness M, 5052 to 5056; and Witness K, 4634 to

7 35. The homes and businesses of the Serbs were not looted. We had

8 several witnesses, Esad Dagovic, Witness M, and Nusret Hadzijusufovic tell

9 us that. Witness M notes that there were signs indicating that a certain

10 house was owned by Serbs and they would not loot it. He says that at 5098

11 to 5101.

12 Now, Defence witness Dusan Gavric corroborates this, saying that

13 he even put a sign on his house saying it was a Serb house at 17350.

14 The result of this extensive looting of Muslim and Croat property

15 was the -- pretty much the destruction of the property of the Muslim and

16 Croat community in the municipality of Bosanski Samac and parts of Odzak.

17 In Exhibit P127, the military command of the 2nd Posavina Brigade

18 of the army of the Republika Srpska describes the looting by the

19 paramilitaries and locals, at page 2. With the blessing of those who

20 brought them in -- with the blessing of those who brought them in and

21 those who had sent them, they engaged in unheard of looting of private and

22 socially owned property, which was systematically transferred to Serbia

23 and perhaps other parts of Yugoslavia. They were soon joined by local

24 criminals, which made the overall moral picture of this war even more

25 complete and clear.

Page 20376

1 Who was responsible for this massive looting and plundering?

2 Simic and the Crisis Staff. Marko Tubakovic testified at the Rule 71

3 hearing that the brigade command, the 2nd Posavina Brigade command, was

4 concerned that the looting of the non-Serb property was ordered by the

5 Crisis Staff and the War Presidency, at page 231. This testimony is

6 consistent with the 13 signatories document, P127, with the military

7 command states at page 8: "Organised centres of power on both municipal

8 and broader Republika Srpska level are behind the organised looting."

9 Now, Stevan Todorovic testified that the Crisis Staff tacitly

10 approved of the looting, at 9188. He later adds that the paramilitaries

11 looted as part of their war booty, page 9461. Now, this is significant

12 where he mentions for the first time war booty. And it's significant

13 because two Prosecution witnesses provide similar evidence. Witness N

14 claims that he learned from the guards and relatives that Blagoje Simic

15 and Stevan Todorovic made a deal with the paramilitaries concerning the

16 looting in the town. That's at 6361 through 67. Esad Dagovic provides

17 similar testimony. While speaking with some paramilitaries outside doing

18 forced labour, they tell him everything that they looted and plundered

19 were theirs, at page 3926 through 27. This evidence becomes even more

20 interesting when one considers the circumstances of the paramilitaries'

21 return to Samac later in 1992. If you recall, one of the first issues to

22 be resolved was the amount of booty that the paramilitaries could take for

23 helping in the Orasje operation. They demanded 50.000 dinar per person in

24 cash and booty. Now, Colonel Beronja in the statement to the military

25 prosecutor, P115, states that the president of the municipality, the

Page 20377

1 president of the Executive Board, and the chief of police of Samac urged

2 him to bring the paramilitaries back. Beronja later says he was against

3 paying this exorbitant pay of 50,000 D-marks [Realtime transcript read in

4 error "dinars"] per person but he says at page 1 the Samac officials kept

5 telling him to do it. Exhibit P115, page 1.

6 This situation here demonstrates that the Serbian paramilitaries

7 were little more than mercenaries or gunmen for hire. There was not a lot

8 of cash available in Samac or in Bosnia-Herzegovina. There were -- they

9 were allowed however, because there wasn't a lot of cash to take, they

10 were allowed to take whatever they wanted. They did this in Samac. They

11 planned to do it in Orasje. The only inference from this is that they had

12 standing orders to loot wherever they went.

13 On page 105, line 6, it says dinars. It should be D-marks.

14 Deutschmarks. Same on page 2, line 2 of 105. Sorry about that. The

15 Crisis Staff and Blagoje Simic are also responsible, since they assisted

16 the civilian protection agency and the municipal Ministry of Defence with

17 the lootings. All goods were stored at public warehouses in the

18 municipality. We know that from Nusret Hadzijusufovic, pages 6906 to

19 6908. They were storing goods at Samac Trans, at Agropromet, and other

20 warehouses had. All municipal agencies worked together in the system of

21 persecution. Police chief Stevan Todorovic even admits his involvement in

22 the looting, at page 9029 and paragraph 47 of his sentencing judgement.

23 In fact, if you recall, when we talk about looting and looting of

24 buildings, in Exhibit P169 are the notes of a military commander who

25 attended a meeting in Odzak. And discussed at that meeting by Savo

Page 20378

1 Popovic, with Blagoje Simic present, was the looting of building materials

2 of non-Serb housing. And I suggest when you look at that, you see that it

3 was a regular plan by these people to loot building materials from

4 non-Serb housing, because at that meeting, Savo Popovic says, at page 2 in

5 P169: In the Croatian villages, some houses remained intact and building

6 material should be taken from them, while the rest should be levelled to

7 the ground.

8 The Crisis Staff, however, was required to prevent looting.

9 Exhibit P128, paragraphs 3 and 13, describe the role of the Crisis Staff

10 in protecting property, both private and public. When Serb property,

11 however, was looted, actions were taken. The defendant Simic sent a

12 letter to the Republic president, to the Defence minister, to

13 General Mladic and the 1st Krajina Corps commander, complaining

14 that -- complaining of soldiers stealing from "a Serbian house owned by a

15 Serbian soldier." And that's at D62/1, on page 1. D62/1, page 1.

16 When non-Serb property was looted, no letters were sent, no

17 decisions were issued. And if you ask why the defendant Zaric tells us,

18 in P141 ter, paragraphs -- pages 92 to 94. Why were no letters sent when

19 non-Serb property was being looted? Let's see what Zaric says. It was

20 the Crisis Staff that organised the looting and allowed it to occur. As a

21 result, they had no incentive to stop it. They had no incentive to

22 prevent it.

23 The defendant Tadic, he was also a member of that Crisis Staff.

24 In this manner, he joined them with overseeing the system of persecution.

25 He held a powerful position in Samac being on that Crisis Staff. If you

Page 20379

1 recall, while he testified, he talked about one day a paramilitary named

2 Zvjezdan and a few other paramilitaries came with Zvjezdan and went to

3 Tadic's home to take a statement from him. And at page 15415, how does

4 Tadic respond to them? With this phrase: Do you know who I am? And in

5 this manner he let the paramilitaries know that he was not one to fool

6 with, that he was a powerful person in Samac.

7 But more important, Tadic participated in the looting.

8 Nusret Hadzijusufovic explains that he was sent to loot property on

9 Tadic's orders. He went out with civilians. They selected parts of

10 houses of buildings that they wanted. Nusret removed them, transported

11 them back to Samac, and installed them. Doors, windows, plumbing

12 fixtures. He testified that he seized all sorts of construction building

13 materials, from shops, stores, and houses. He also looted stores and

14 houses in the surrounding Croat villages of Samac, and he tells us no

15 receipts were ever left, no inventory was ever made. They didn't even

16 know who owned the property.

17 Two of Tadic's witnesses from the civilian protection staff

18 corroborate much of Nusret Hadzijusufovic's testimony. Zeljko Volasevic

19 admits that the civil protection agency used Muslim and Croat workers

20 waiting in line downstairs. He says first they got permission from the

21 Ministry of Defence, and then they contacted Beg Kapetanovic and Dzevad

22 Celic to assign the workers. That's at page 17770 to 771.

23 And what did they use these workers for? One, housing and

24 building repairs; two, to obtain housing and construction materials, such

25 as doors, bricks, boards, and window frames. At 17771 to 72. This is

Page 20380

1 just what Nusret Hadzijusufovic tells us. He says he was sent to loot

2 Muslim and Croat homes, yards, shops and businesses for construction

3 materials and brought them back to Samac. That's 6905 to 6908. He

4 testified that he was assigned to go out with local Serbs. They told

5 Nusret that they made their request to Miroslav Tadic and he approved

6 their requests. They went out and searched for those specific housing

7 materials they needed they were removed and installed in Serb homes.

8 Ljubomir Vukovic testifies for the defendant Tadic. He also

9 admits that the civilian protection agency used Muslim and Croat workers.

10 They, Vukovic and Tadic, would ask Beg Kapetanovic and Dzevad Celic for

11 some of the labourers. They would be sent to perform building,

12 housing -- building and housing repairs. And that's at pages 14667 to 71.

13 Where did they get these materials, such as the windows and

14 frames, the doors, the roofing materials, the bricks or tiles for repairs?

15 Nusret Hadzijusufovic, his testimony corroborated by Zeljko Volasevic, and

16 our common sense tells you that these were the looted materials.

17 Even Tadic in his brief at paragraph 316 admits that they were

18 using these labourers. He states that his agency, like all other

19 institutions, were beneficiaries of the work obligation programme, and he

20 cites the testimony of Vukovic and Volasevic. Therefore, even the

21 defendant Tadic's evidence supports his participation in the looting and

22 plundering of Muslim and Croat property.

23 The defendant Zaric, his involvement is different from the others.

24 He describes the Crisis Staff's role in the looting, but claims not to be

25 involved. Zaric, however, was part of this system of persecution. He had

Page 20381

1 positions with the 4th Detachment, served as chief of national security

2 for approximately a month, was assistant to the president of the civilian

3 military board of Odzak. In these roles, he saw what was occurring. He

4 knew all about this. He knew that the system persecuted and discriminated

5 against the non-Serbs, but he continued to work in that system and he

6 assisted in its work.

7 Finally, I'd like to move on to the last issue, which are the

8 arrests and confinement of the non-Serbs. Witness Petar Karlovic, a

9 Defence witness, testified that the madness started on the 16th and 17th

10 of April. That's at page 18447. Including in his description of the

11 madness were the arrests of the Muslim and Croats. This Chamber has heard

12 testimony that hundreds of Muslim and Croat civilians were arrested,

13 detained, and confined in the Serbian municipality of Samac. A few Serbs

14 were arrested but were released shortly thereafter. But the Muslim and

15 Croat civilians were arrested and held at various locations, including the

16 police station, the Territorial Defence building, the primary school, the

17 high school, the Crkvina warehouse, and in Zasavica. They held or

18 detained men, women, children, the elderly, a blind man, and a priest.

19 While these people were detained, they were subjected to beatings,

20 torture, sexual assault, extortion, murder, and the extraction of their

21 teeth. We need not discuss what happened to these people, since the

22 defendants do not contest the cruel and inhumane acts that were

23 perpetrated on these prisoners.

24 The Prosecution submits that the charges used to arrest and detain

25 these people were false. The real reason for the arrest of the Muslims

Page 20382

1 and Croats were their ethnicity. The command of the 2nd Posavina Brigade

2 of the army of the Republika Srpska criticised the arrests in Samac in

3 P127 at page 2, stating: "The massive arrests and isolation of Croats and

4 Muslims followed, without any criteria." On page 4 of that same exhibit,

5 they criticise numerous arrests on trumped-up charges. Police inspector

6 Vladimir Sarkanovic testified at page 16560, that there were certain

7 arrests which were made for no reason at all. But I suggest there was a

8 reason for these arrests. It was the removal of the Muslim and Croat

9 political and business leaders, it was removal of the possibility of

10 opposition from the non-Serbs, it was the removal of Muslim and Croat

11 people to establish a bank of persons who could be used for the trade, who

12 could be traded for non-Serbs. And how do we know this? Several Defence

13 witnesses testified that the Muslims and Croats of Samac were being

14 arrested and detained on the basis of their ethnicity.

15 Let's begin with the defendant Zaric, at page 19811.

16 Q. You don't deny, do you, having heard their moving

17 and harrowing tales what happened to them, what many non-Serbs -- that

18 many non-Serbs were persecuted in Bosanski Samac in 1992 and 1993. You

19 don't deny that, do you?

20 A. No, I'm not denying that. It's true.

21 Q. You don't deny, do you, that hundreds of Muslims and

22 Croats were arrested in Bosanski Samac only based upon their ethnicity?

23 You don't deny that, do you?

24 A. No. No. I'm not denying that. I agree with you.

25 Marko Tubakovic, who was a signatory of P127, one of those

Page 20383

1 military commanders who signed that document, also criticised the

2 discriminatory nature of the arrest, and he explained why they drafted

3 that document at page 230 of the Rule 71 hearings.

4 Q. That's because the Posavina 2nd Brigade command was

5 concerned that the civilian authorities, that's the Crisis Staff and War

6 Presidency, were ordering the detention of Muslims and Croats for ethnic

7 reasons only?

8 A. Well, yes. We could not justify anyone being

9 detained without reason, without grounds, being detained or mistreated,

10 and we criticised such practices as something which shouldn't happen. The

11 command of the brigade did, that is. That is why we wrote this report."

12 Witnesses Teodor Tutnjevic and Petar Karlovic testified that

13 Muslim and Croat civilians were being sent to Zasavica because of their

14 ethnicity. Tutnjevic was at pages 17495 to 497. Karlovic at 18440.

15 Finally, Defence witness Jovo Savic describes the discriminatory

16 policies that were being implemented in Samac against the non-Serb

17 population, and he does this at pages 17165 to 17166.

18 Q. You and the other members of the command had grave

19 concerns about the arrests, the rounding up of non-Serbs, the torturing of

20 non-Serbs in the detention facilities, the isolation of non-Serbs, and the

21 actions of the Crisis Staff. That's a fair summary, isn't it?

22 A. Yes.

23 Q. From what you had seen, these people were pursuing

24 policies against the non-Serbs that could only be described as

25 discriminatory, that is, arresting them, detaining them, torturing them,

Page 20384

1 because they were non-Serbs?

2 A. Yes.

3 As a result of these persecutory and discriminatory policies,

4 hundreds of non-Serb civilians of Samac were arrested, detained, and

5 confined based on their ethnicity. Let's consider who is responsible for

6 this.

7 Blagoje Simic, we submit, was involved in the arrests and

8 detentions. The basis of this is as follows: One, he ordered the local

9 SDA party -- Sulejman Tihic -- I'm sorry, he ordered him to surrender.

10 And that's at pages 1369 and 1372. Simic ordered his surrender by

11 telephone.

12 Two: Police chief Dragan Lukac testified that he was told that he

13 was being arrested on orders of the Serb Crisis Staff and he asked who was

14 in charge of this Serb Crisis Staff, and they said Blagoje Simic. And

15 that's at page 1662.

16 Now, Simic denies this order. There is no reason, however, for

17 Dragan Lukac to lie about this. If Dragan Lukac wanted to lie about the

18 situation, he could have manufactured all sorts of incriminating

19 admissions coming from Simic, but he didn't do that. I suggest that his

20 limited comment concerning the arrest must then be true, as it is not

21 consistent with manufactured evidence. In addition, the Crisis Staff

22 issued and Blagoje Simic signed Exhibit P71, which orders the isolation of

23 the Croat population. Todorovic testified that Blagoje Simic admitted

24 that he issued that document. The defendant Zaric saw the document in

25 three offices at the police station in Samac and noted that the signature

Page 20385

1 looked just like Simic's. That's at pages 19755 to 56 and 19799.

2 Zaric also noted that the decision was made by the Crisis Staff in

3 response to the imprisonment of the Serbs of Odzak, and that's at P141 ter

4 at 72.

5 Now, the defendant Simic tries to state that he did not issue this

6 document and that it didn't come from the Crisis Staff. First he claims,

7 in paragraphs 308, that his fellow Crisis Staff members denied the

8 legitimacy of the document. Common sense tells us that they deny it

9 because they would be incriminating themselves in war crimes if they

10 admitted that they passed and issued that document. These people weren't

11 going to come forward here and say: Yes, I did it and I'm guilty. It

12 just doesn't happen.

13 He also tries to state that it can't be their document because

14 it's typed in Latin script, while the Crisis Staff decisions were in

15 Cyrillic script. However, if you look at the documents relating to the

16 decisions of the Crisis Staff, you'll notice that some of them are typed

17 in Cyrillic script and some, which Simic does not contest the legitimacy

18 of, such as P85 and P86, are typed in Latin script. In addition to that,

19 Mitar Mitrovic testified here, who is the secretary to the Crisis Staff,

20 that he believed the Crisis Staff had a Latin script typewriter, and

21 that's at page 18751.

22 The Defence further claims that Professor Aleksic confirms that

23 it's not Blagoje Simic's signature. However, if you look at Professor

24 Aleksic's report, he indicates that he was not able to analyse the

25 signature, since the document that he had to analyse or examine was not

Page 20386

1 legible enough. So he could not make any determination with regard to

2 that signature.

3 Against these weak arguments, we have the independent testimony of

4 Zaric and Todorovic, which includes an admission from the defendant Simic.

5 Other testimony was introduced concerning the Crisis Staff as

6 presiding over -- as presided over by Blagoje Simic and its involvement in

7 arrests and detentions. Todorovic testified that the Crisis Staff

8 approved the arrests from day one, at page 9114. That the Crisis Staff

9 was involved in the release or exchange of large groups of important

10 persons, at page 9118 to 19. He testified that the Crisis Staff was aware

11 of the establishment of the prison camps, at pages 9137 to 39.

12 Now, this testimony is supported by the record. We know from

13 Zaric, when there was a discussion of an all-for-all exchange, he had to

14 get Crisis Staff approval. He says that in P141 ter, at pages 79 and 80.

15 We also know that in a letter from Blagoje Simic, that -- I'm sorry - we

16 also know that Blagoje Simic wrote a letter concerning the plight of the

17 Serbs in Odzak, and he mentions that the Crisis Staff was trying to work

18 out an exchange. That's at page 98.

19 Finally, we know that the municipal buildings -- that municipal

20 buildings were being used to house these prisoners. These weren't defence

21 buildings. These were the schools, municipal buildings within the town of

22 Samac. Therefore, it's our contention that Blagoje Simic participated

23 personally and with the Crisis Staff in the unlawful and discriminatory

24 arrests of Muslims and Croats.

25 Tadic. The defendant Tadic was also involved in the arrests and

Page 20387

1 detention. He was involved as a member of the Crisis Staff, a member who

2 attended meetings, a member who voted, from his own testimony. Tadic used

3 these prisoners. He used them to trade for the Serbs of Odzak. These

4 prisoners were his pawns in the exchange or human trading process. He

5 took bribes from various people to get an earlier exchange. Those people

6 who couldn't pay the bribes, like Hasan Subasic remained in prison. Zaric

7 was also involved in this discriminatory system. He was interrogating

8 these prisoners. He was obtaining information from the police about their

9 investigations. He was using these prisoners for propaganda purposes.

10 The Court will have the chance to review again that video, P16, and the

11 transcript, and to see the flagrant use of propaganda, how that so-called

12 documentary was used.

13 Todorovic indicates that Zaric was involved in the arrests by

14 providing intelligence information to him, and that's at pages 9994 and

15 10113 tells us this statement is true. Who else other than Zaric the

16 local chief of intelligence would have the information at the beginning of

17 the takeover as to who was involved in the arming. Zaric knew that

18 because that was Zaric's business.

19 Now, how does the Defence respond to this? Blagoje Simic claims

20 he was not aware of the mass arrests of the Muslims and Croats. He was

21 not aware of the isolation of the Croats. He was not aware of the

22 beatings, the tortures, the murders. He was not aware that Zasavica was

23 being used as a prison camp. How could anyone not know what was happening

24 in this very small town of Samac? How could the person who coordinates

25 all functions of life not know what was happening in this very small town

Page 20388

1 of Samac? This defence of see no evil, hear no evil, speak no evil, is

2 not worthy of belief. Rather, there was a persecutory system and everyone

3 participated. Todorovic and the paramilitaries arrested, Zaric admitted

4 that the Crisis Staff gave Lugar authority to arrest and detain persons,

5 at P142 ter, at 75. The Crisis Staff gave Lugar authority to arrest and

6 detain.

7 The Crisis Staff ordered the isolation of Croats. Police and

8 military implemented this. Municipal schools were used to detain these

9 prisoners. Tadic used the prisoners to exchange for Serbs. Zaric

10 interrogated the prisoners for the army. And we have testimony that

11 Blagoje Simic, on a few occasions, visited the high school and TO. It was

12 all one large persecutory system, and everyone had a part or a stake in

13 it.

14 The defendants try to argue that many of these people were

15 lawfully arrested on firearms and insurrections charges. The problem with

16 that was that it was all a sham. A priest, a blind man, elderly women,

17 children, elderly men were not possessing arms. They were not revolting

18 against the state. The process was a sham. The arrests were made without

19 warrants, on little or no proof, and the prisoners were beaten immediately

20 upon arrival. The arrests were made on a selective basis. Even though

21 all three ethnic groups illegally possessed weapons, it was only the

22 Muslims and Croats that were arrested. It was only the Muslims and Croats

23 that were interrogated. It was only the Muslims and Croats that were

24 beaten and tortured. It was only the Muslims and Croats that were

25 murdered. It was only the Muslims and Croats in those facilities that

Page 20389

1 were raped. It was only the Muslims and Croats that were told they were

2 not guilty but were still held in confinement. Even the Defence witness

3 Naser Sejdic who was involved in arresting Muslims and Croats admits that

4 the arrests and interrogations were discriminatory, at pages 17561 and

5 17562. On page 17561, the question is.

6 Q. Sir, my question is simply this: The fact that the

7 Serbs were not being arrested for doing what the Croats and Muslims were

8 doing, that is, arming themselves, from what you saw, meant that those

9 arrests of non-Serbs were discriminatory. The arrests were made on

10 discriminatory grounds, weren't they?

11 A. Yes. Yes. Serbs were not being arrested. Only

12 Croats and Muslims who had weapons.

13 More on page 17562:

14 Q. The fact that non-Serbs were interrogated after

15 their arrest, which you have agreed to was on discriminatory grounds,

16 because they were non-Serbs, the fact of their interrogation itself was

17 discriminatory too, wasn't it?

18 A. Yes. They interrogated only Muslims and Croats.

19 Now, with regard to the insurrection charges, arrests on this

20 basis were also a sham. Vladimir Sarkanovic testified that he was a

21 lawyer, that he was a criminal investigator, that he was investigating the

22 charges at the police station in Samac. He testified he was investigating

23 those charges on behalf of the Republika Srpska government concerning

24 armed revolt against the state of Bosnia-Herzegovina. And that's at

25 16662 -- I'm sorry 16622 to 23.

Page 20390

1 Your Honour, would you like me to stop here and just finish up in

2 five or ten minutes tomorrow morning or would you like to go on for

3 another five or ten minutes and finish today?

4 JUDGE MUMBA: Yes. I hope the interpreters can bear with us for

5 five or ten minutes so that we can complete that part.

6 MR. WEINER: Thank you. And that's important. He was

7 investigating on behalf of the Republika Srpska government armed revolt

8 against the state of Bosnia-Herzegovina. Therefore, he's investigating

9 Muslims and Croats for revolting against their own new nation, according

10 to his testimony. This demonstrates the absurdity of the situation, since

11 it was the Serbs who were revolting, but no Serb was ever arrested or

12 questioned on this issue. Further proof that the arrests and the

13 interrogations were a sham concern the actual statute relating to armed

14 revolt or insurrection.

15 The armed revolt or insurrection charge was removed from the BiH

16 Criminal Code in early April, and if you look at Exhibits P186 and 187,

17 you'll see that the armed revolt charge, paragraph 124, was removed.

18 Consequently, investigator Sarkanovic was investigating a crime that

19 didn't even exist, based on his own testimony. Therefore, we maintain

20 that the majority of Muslims and Croats were arrested only on the basis of

21 their ethnicity, that the weapons and insurrection charges were a pretext

22 for illegal arrests based on their ethnicity. And for those few people

23 that there were grounds to arrest, the process itself was so corrupt that

24 those arrests were also illegal.

25 I thank the Court, as well as the interpreters, for their

Page 20391

1 patience. Thank you.


3 MR. WEINER: I believe we have approximately 30 minutes or --


5 MR. WEINER: 35 minutes left for tomorrow to cover sentencing.

6 JUDGE MUMBA: Yes, because we did take that time in the morning

7 when we started.

8 We shall adjourn now. The Trial Chamber thanks the interpreters

9 and the supporting staff for bearing with us.

10 --- Whereupon the hearing adjourned at 3.47 p.m.,

11 to be reconvened on Tuesday, the 1st day of

12 July 2003, at 9.00 a.m.