Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Monday, 6 July 2015

 2                           [Open session]

 3                           [Appeals Hearing]

 4                           [Respondents not present]

 5                           --- Upon commencing at 10.03 a.m.

 6             JUDGE POCAR:  Good morning, everyone.

 7             Madam Registrar, could you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Case number

 9     IT-03-69-A, the Prosecutor versus Jovica Stanisic and Franko Simatovic.

10             JUDGE POCAR:  Thank you.

11             Now may I have the appearances of the parties, beginning with the

12     Prosecution.

13             MS. JARVIS:  Good morning, Mr. President and Your Honours.

14     Michelle Jarvis, appearing for the Prosecution today, together with

15     Mr. Mathias Marcussen, Ms. Barbara Goy, Ms. Grace Harbour, and our Case

16     Manager, Mr. Colin Nawrot.  Thank you.

17             JUDGE POCAR:  Thank you.

18             Now before asking for appearances for the Defence, I note for the

19     record that pursuant to the terms of the Scheduling Order for the appeal

20     hearing issued by the Appeals Chamber on 12th June 2015, Mr. Simatovic

21     has filed a notification on 19 June 2015 indicating that he will not

22     exercise his right to be present during this hearing.

23             Mr. Stanisic has also informally informed the Chamber, through

24     e-mail correspondence on 1st July 2015, that he will not attend this

25     hearing.

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 1             Now, may I have the appearances for the counsel for Mr. Stanisic.

 2             MR. JORDASH:  Your Honours, good morning.  Myself, Wayne Jordash,

 3     Scott Martin, Ms. Bracq, Ms. Marchand, Mr. Parker, Mr. Crowe.

 4             Thank you.

 5             JUDGE POCAR:  And now for counsel for Mr. Simatovic.

 6             MR. PETROVIC: [Interpretation] Good morning, Your Honours.  I am

 7     Vladimir Petrovic, attorney-at-law, and I represent the Defence of

 8     Franko Simatovic today.

 9             JUDGE POCAR:  Thank you.

10             This case concerns the events that took place between April 1991

11     and 31st December 1995 in Serbian Autonomous Area of Krajina, the

12     SAO Krajina, the Serbian Autonomous Area of Slavonia, Baranja, and

13     Western Srem in Croatia, as well as in the municipalities of Bijeljina,

14     Bosanski Samac, Doboj, Sanski Most, Trnovo, and Zvornik in Bosnia and

15     Herzegovina.

16             Mr. Stanisic and Mr. Simatovic were charged with committing

17     murder as a violation of the laws or customs of war, and murder,

18     deportation, other inhumane acts (forcible transfer), and persecution as

19     crimes against humanity in the context of these events.

20             The Prosecution charged the accused with committing these crimes

21     pursuant to Article 7(1) of the Tribunal's Statute, through participation

22     in the joint criminal enterprise, the alleged common criminal purpose of

23     which was the forcible and permanent removal of the majority of the

24     non-Serbs from large areas of Croatia and Bosnia and Herzegovina.

25             In addition, Mr. Stanisic and Mr. Simatovic were charged pursuant

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 1     to Article 7(1) of the Tribunal's Statute with having planned, ordered,

 2     and/or otherwise aided and abetted in the planning, preparation and/or

 3     execution of the crimes alleged in the indictment.

 4             On 30 May 2013, Trial Chamber I of the Tribunal rendered its

 5     judgement.  The Trial Chamber found that many of the crimes alleged in

 6     the indictment were perpetrated by various Serb forces in the mentioned

 7     locality in Croatia and Bosnia and Herzegovina.  However, the Trial

 8     Chamber, Judge Picard dissenting, found that neither Stanisic nor

 9     Simatovic were responsible for committing these crimes pursuant to JCE

10     liability, as it was not established beyond a reasonable doubt that they

11     possessed the requisite mens rea for JCE liability.

12             The Trial Chamber also found that it was not proven beyond a

13     reasonable doubt that either Mr. Stanisic or Mr. Simatovic planned or

14     ordered these crimes.  Further, the Trial Chamber, Judge Picard

15     dissenting, found that neither Mr. Stanisic nor Mr. Simatovic were

16     responsible for aiding and abetting these crimes as the actus reus

17     elements of aiding and abetting liability were not established beyond a

18     reasonable doubt.

19             Consequently, the Trial Chamber, Judge Picard dissenting, found

20     that Mr. Stanisic and Mr. Simatovic were not guilty of any count in the

21     indictment.

22             The Prosecution challenges the trial Judgement on three grounds.

23             Under its first ground of appeal, the Prosecution argues that the

24     Trial Chamber erred in law and in fact in finding that the mens rea of

25     Mr. Stanisic and Mr. Simatovic for JCE liability was not established.

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 1     The Prosecution requests that the Appeals Chamber:  (a) overturn the

 2     acquittals of Mr. Stanisic and Mr. Simatovic; (b) apply the correct legal

 3     standards to the evidence and find that all elements of JCE liability are

 4     established, taking into account their acts and omissions as found by the

 5     Trial Chamber and as set out in its ground of appeal; (c) convict

 6     Mr. Stanisic and Mr. Simatovic pursuant to Article 7(1) of the Statute

 7     based on their participation in the JCE alleged in the indictment for the

 8     crimes listed under Counts 1 through 5; and (d) sentence them

 9     accordingly.

10             Under its second ground of appeal, the Prosecution argues that

11     the Trial Chamber erred in law and in fact in finding that the actus reus

12     of aiding and abetting liability was not established with respect to the

13     conduct of either Mr. Stanisic or Mr. Simatovic in relation to the crimes

14     committed in the municipalities of Bosanski Samac, in Doboj, as well as

15     in the SAO Krajina.

16             The Prosecutor requests that the Appeals Chamber:  (1) overturn

17     the acquittals of Mr. Stanisic and Mr. Simatovic; (2) apply the correct

18     standard to the evidence and find that all elements of aiding and

19     abetting liability are established, taking into account their acts and

20     omissions as found by the Trial Chamber and as set out in its third

21     ground of appeal; (3) convict Mr. Stanisic and Mr. Simatovic pursuant to

22     Article 7(1) of the Statute for aiding and abetting the crimes listed

23     under grounds 1 through 5; and, (4), sentence them accordingly.

24             Alternatively, with respect to both its first and second grounds

25     of appeal, the Prosecution requests that the Appeals Chamber find the

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 1     alleged errors established and, I quote, "remand the case to a Bench of

 2     the Tribunal" to apply the correct legal standards to the trial record

 3     and to determine the liability of Mr. Stanisic and Mr. Simatovic as

 4     alleged in the indictment.

 5             Under its third ground of appeal in part, the Prosecution argues

 6     that the Trial Chamber erred in fact in failing to find that Mr. Stanisic

 7     significantly contributed to the implementation of the common criminal

 8     purpose of the JCE in the SAO SBWS and in the municipalities of Bijeljina

 9     and Zvornik, and that both Mr. Stanisic and Mr. Simatovic significantly

10     contributed to the implementation of the common criminal purpose of the

11     JCE in the municipality of Sanski Most.

12             The Prosecution requests that the Appeals Chamber:  (1) apply the

13     correct legal standard to the evidence and find that Mr. Stanisic and

14     Mr. Simatovic made their respective significant contributions as alleged;

15     (2) take these findings into account in convicting Mr. Stanisic and

16     Mr. Simatovic for their participation in the JCE under its first ground

17     of appeal; and, (3), sentence them accordingly.

18             Further, under the remaining part of its third ground of appeal,

19     the Prosecution argues, in the alternative, that the Trial Chamber erred

20     in fact in failing to find that Mr. Stanisic substantially contributed to

21     one or more of the crimes committed in the SAO SBWS and in the

22     municipalities of Bijeljina and Zvornik; that both Mr. Stanisic and

23     Mr. Simatovic substantially contributed to one or more of the crimes

24     committed in the municipality of Sanski Most, and that they therefore

25     aided and abetted these crimes.  The Prosecution requests that the

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 1     Appeals Chamber:  (1) apply the correct legal standard to the evidence

 2     and find that Mr. Stanisic and Mr. Simatovic made their respective

 3     substantial contributions as alleged; (2) takes these findings into

 4     account in convicting Mr. Stanisic and Mr. Simatovic as aiders and

 5     abettors under its second ground of appeal; and, (3), sentence them

 6     accordingly.

 7             Mr. Stanisic and Mr. Simatovic respond that the Prosecution's

 8     appeal should be dismissed in its entirety and that any conviction in

 9     appeal would violate their fair trial right to have their conviction

10     reviewed.

11             Additionally, Mr. Simatovic submits that in the event that the

12     Appeals Chamber grants the Prosecution appeal, it should return the case

13     to a Bench of the Tribunal.

14             Now, let me turn to the manner in which we will conduct this

15     hearing today.

16             I would like to recall that an appeal is not a trial de novo and

17     the parties must refrain from repeating their case as presented at trial.

18     Arguments must be limited to alleged errors of law which invalidate the

19     trial judgement or alleged errors of fact which occasion a miscarriage of

20     justice.

21             Throughout the hearing, counsel may argue the ground of appeal in

22     any order they consider suitable for their presentations; however, I

23     would urge counsel to not repeat verbatim or summarise extensively the

24     arguments presented in their briefs.  The Appeals Chamber is familiar

25     with the briefs.

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 1             Furthermore, the parties are requested to provide precise

 2     references to materials supporting their oral arguments.  The Judges, of

 3     course, will interrupt the parties at any time to ask questions or they

 4     may ask questions following each party's submissions or at the end of the

 5     hearing.

 6             I would like to remind the parties to be particularly careful not

 7     to reveal any information that could identify a protected witness or

 8     other protected information.

 9             Finally, I bring to your attention the timetable outlined in the

10     order amending the Scheduling Order for the appeal hearing issued on

11     30 June 2015.

12             The hearing will proceed as follows:  First, we will hear

13     submissions from the Prosecution for one hour and 30 minutes.  Following

14     a pause for lunch of an hour and 20 minutes, counsel for Mr. Stanisic,

15     and then counsel for Mr. Simatovic will present their response.  And, at

16     the end, the Prosecution will have 30 minutes to reply.

17             Now, I would like to invite the Prosecution to present its

18     submissions.  You have one hour and 30 minutes for that.

19             Please.

20             MS. JARVIS:  Thank you, Mr. President, and Your Honours.

21             The Prosecution has taken the serious step of appealing the

22     acquittals of the accused because the trial judgement contains serious

23     errors.  These errors have blocked justice and accountability in this

24     case, and if followed in the future, have the potential to derail

25     international criminal law in some alarming ways.

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 1             At the heart of the problem is a fundamental failure by the

 2     majority Judges to adjudicate the essential issues before them.  The

 3     accused were alleged to be members of a joint criminal enterprise where

 4     the common purpose was to remove the majority of the non-Serb population

 5     from large parts of Croatia and Bosnia-Herzegovina between 1991 and 1995.

 6     In other words, an ethnic cleansing joint criminal enterprise.  But the

 7     evidence of this common criminal purpose which was adduced by the

 8     Prosecution at trial is missing from the majority's analysis; and, in

 9     particular, from its assessment of the accused's shared intent.  In this

10     joint criminal enterprise case, the judgement contains no findings on

11     whether there was a common criminal purpose, and, if so, its nature and

12     duration, who the JCE members were, or the units or structures they used

13     to implement their purpose.

14             Without looking at the accused's intent through the lens of this

15     common criminal purpose, and most importantly through the lens of what

16     the accused knew about that common criminal purpose, the majority has

17     deprived itself of the essential compass it needed to guide the

18     conclusions that it reached.

19             I'll begin our submissions today, Your Honours, by explaining in

20     a nutshell the serious problem with the Trial Chamber's methodology in

21     this case and the outcome reached and why it is so important for Your

22     Honours to correct it.

23             Mr. Marcussen will then address you in more detail on ground 1 of

24     our appeal concerning the joint criminal enterprise.  He'll explain how,

25     notwithstanding some passing references to the common criminal purpose in

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 1     abstract, the majority's failure to apply the common criminal purpose

 2     lens throughout its analysis of shared intent led the majority into

 3     error.  He'll show that if they had not erred, they would have considered

 4     the evidence of the pattern of crimes, the intent of the other JCE

 5     members and, most importantly, what the accused knew about the common

 6     purpose.

 7             He'll show that had the majority assessed the accused's

 8     continuing contributions in light of their knowledge of the common

 9     criminal purpose, the inference of shared intent is inescapable.

10             Regarding ground 2, our alternative argument on aiding and

11     abetting, we'll primarily rely on the arguments that we set out in our

12     appeal brief.  I would just add that we now, of course, know that the

13     aiding and abetting acquittals in this case have been tainted by the

14     rejected specific direction requirement.

15             As the Appeals Chamber has subsequently confirmed in Sainovic,

16     appeal judgement, paragraph 1649, and confirmed in the Popovic appeal

17     judgement more recently at appeal judgement paragraph 1758, specific

18     direction does not form part of the elements of aiding and abetting under

19     customary international law.

20             Regarding ground 3 of our appeal, we will primarily rely on the

21     arguments in our brief and won't make further submissions on that today.

22             After Mr. Marcussen's submissions in relation to ground 1, I'll

23     conclude by addressing Your Honours on the question of remedy.

24             If Your Honours agree with us that the problems in this judgement

25     must be fixed, what can most fairly and appropriately be done?  But to

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 1     begin, Your Honours, what is so wrong with the majority judgement in this

 2     case that we have taken this serious step of appealing the acquittals?

 3             Your Honours, this case goes to the very heart of the ethnic

 4     cleansing campaign unleashed against the non-Serb populations of Croatia

 5     and Bosnia-Herzegovina between 1991 and 1995.  It raised for adjudication

 6     fundamental issues about how the ethnic cleansing was carried out, who

 7     was behind it and, most importantly, of course, the role that the two

 8     accused in this case played in it.  Satisfactory answers to these

 9     questions are entirely missing from the judgement.

10             The evidence showed that these two influential and well-informed

11     individuals - Stanisic, as chief of the Serbian security service, and

12     Simatovic as his trusted right-hand man - were deeply involved in the

13     machinery through which this massive ethnic cleansing campaign was

14     carried out.  They were everywhere.  They created, trained, funded,

15     armed, supported, assisted, or were otherwise linked to many of the

16     formations that were integral to the ethnic cleansing process, including

17     some of the most notorious groups like Arkan's Tigers, otherwise known as

18     the SDG, and indeed their own unit, the Red Berets.

19             The evidence showed that the accused were involved with the

20     formations committing the crimes, first in Croatia - in the Serb

21     Autonomous Region of Krajina and the Serb Autonomous Region in eastern

22     Croatia called SAO SBWS - and then in Bosnia-Herzegovina.  This

23     involvement closely tracked the hotspots of the ethnic cleansing activity

24     as the campaign unfolded over more than four years.

25             In Krajina, they trained personnel who then engaged in ethnic

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 1     cleansing.  Knowing of these crimes, they then exported the same training

 2     model to the SAO SBWS and Bosnia-Herzegovina where a similar pattern of

 3     ethnic cleansing unfolded.  They knew of the ethnic cleansing agenda of

 4     the people they acted with:  Martic, Babic, Hadzic, Karadzic, Mladic,

 5     Milosevic, Arkan.  They knew of the crimes systemically committed across

 6     all three regions in pursuit of this goal and continued to assist anyway

 7     again and again and again.

 8             Why then did the majority consider that the accused were not

 9     responsible as JCE members?

10             THE INTERPRETER:  Interpreter's note:  Could counsel please slow

11     down.  Thank you.

12             MS. JARVIS:  In our appeal brief, we have identified multiple

13     legal and factual errors.  These include the Trial Chamber's obviously

14     compartmentalised assessment which has obscured the coherence of the

15     circumstantial evidence adduced by the Prosecution.  We maintain our

16     arguments on all the errors set out in our brief.

17             But today, Your Honours, I want to focus on the majority Judges'

18     failure to apply the common criminal purpose lens in assessing the shared

19     intent of the accused.

20             The entire verdict in this JCE case hinges on the majority

21     Judges' inference that the accused might simply have intended lawful

22     military activity; that it was reasonably possible they only sought to

23     assist in establishing lawful Serb territorial control.  We see that,

24     Your Honours, for example, in the trial judgement at paragraphs 2326,

25     2330, 2332, and 2334.  But that is a conclusion they could not have

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 1     reached if they had analysed the contributions and the statements of the

 2     accused through the lens of the common criminal purpose.

 3             By looking at the events in abstract, the Chamber constructed a

 4     situation where the goal of territorial control could be separated from

 5     the crimes committed.  But the objective of the Serb forces, their common

 6     purpose, was never limited to taking control of territory by lawful

 7     means.  It was about taking and maintaining control of Serb-claimed

 8     territory by ethnically cleansing the non-Serb populations living there.

 9             The Serb leadership intended to take and maintain control of the

10     land they coveted for their Serb state inhabited, as it was, by large

11     numbers of non-Serbs by permanently changing the demographics.  The JCE

12     members intended fundamental ethnic recomposition of the population to

13     ensure the overwhelming Serbian majorities they needed to guarantee

14     continued control.  And to do that, everyone involved must have known the

15     crimes of forcible transfer, deportation, and other violent crimes would

16     be needed to terrify or otherwise force the non-Serb population out.  No

17     one involved over and over again in the territorial control operations,

18     which entailed massive expulsions and other violent crimes, could

19     possibly have intended only lawful military activity.  That is simply

20     divorced from reality, Your Honours.

21             Certainly, if it really were the case that these accused only

22     intended lawful military activity and did not intend the ethnic cleansing

23     component of the equation of territorial control, we would expect to see

24     the accused repudiating the crimes and the displacement of the non-Serb

25     population.  Instead, we see their continued support for the

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 1     implementation of the common criminal purpose over a period of years

 2     through their contributions to the Serb forces committing crimes.

 3             The failure to apply the common criminal purpose lens is starkly

 4     revealed in the majority's finding that the accused were only aware of a

 5     risk of crimes happening in the course of territorial control or that

 6     crimes were only reasonably foreseeable to the accused.  We see that, for

 7     example, in the trial judgement at paragraphs 2323, 2332, and 2333.  But,

 8     Your Honours, the very nature of the common criminal purpose made crimes

 9     a certainty, not a risk.

10             To illustrate the impact of the majority's missing common purpose

11     lens, let me give you a simplified hypothetical example.  The accused

12     drives two armed men to a bank and drops them off.  The accused's conduct

13     in driving the car, of course, is not inherently unlawful.  But if you

14     apply the majority's approach, you would conclude that the accused might

15     know of a risk of crimes, a risk that these armed men would rob the bank,

16     but the majority would allow for the reasonable possibility that the

17     accused might only have intended the lawful purpose of transporting them

18     to a bank and therefore didn't share the intent to commit the armed

19     robbery.

20             But if we add in evidence that the accused knew the common -- the

21     purpose of the trip to the bank was an armed robbery, the inferences

22     about the accused's intent are entirely different.  And certainly, Your

23     Honours, if the accused drove the men, the armed men, to multiple banks

24     over the course of the next year knowing that they had committed armed

25     robbery on previous occasions, the conclusion would be inescapable that

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 1     the accused was acting jointly and intended the crimes.

 2             It's only by failing to look at the situation through the lens of

 3     the common purpose that you could ever reach the conclusion the accused

 4     might only have intended lawful purposes.

 5             Which brings me to the key problem with the majority's intent

 6     analysis.  Not only did the majority fail to adjudicate the existence of

 7     the common criminal purpose, it then failed to consider in its shared

 8     intent analysis whether the accused knew about that common criminal

 9     purpose, whether the accused knew that taking over and maintaining

10     control of Serb territory in Croatia and Bosnia-Herzegovina inherently

11     involved the commission of the crimes required to expel the population.

12             That was a fundamental issue that had to be adjudicated in

13     determining the charged crimes.  The accused's awareness that territorial

14     control inherently entailed the commission of crimes coupled with their

15     repeated contributions to the common purpose provides a compelling

16     foundation for inferring shared intent and one that was ignored

17     completely in the majority's analysis.

18             In sum, Your Honours, essential questions, essential issues in

19     this case about the common criminal purpose, the accused's knowledge of

20     that purpose, and the resulting impact on the assessment of their shared

21     intent have not been considered or resolved.  That is why we say there is

22     a legal error of failure to adjudicate or failure to provide a reasoned

23     opinion.

24             I refer Your Honours, for example, to the Kvocka appeal

25     judgement, paragraph 23, emphasizing that a Trial Chamber is required to

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 1     make "findings of those facts which are essential to the determination of

 2     guilt on a particular count," and that failure to do so is a legal error.

 3     Also the Gotovina appeal judgement, at paragraph 12, confirming that a

 4     lack of a reasoned opinion can arise from a failure to address "relevant

 5     issues, factual findings or arguments."

 6             The majority's failure to ask itself these essential questions

 7     led it to miss crucial pieces of evidence compounding its legal error in

 8     failing to provide a reasoned opinion, and I refer you to Perisic appeal

 9     judgement, paragraph 96, in that regard.  For example, as Mr. Marcussen

10     will further explain, the majority makes no reference to the pattern of

11     crimes across Croatia and Bosnia-Herzegovina in its analysis of shared

12     intent or to how actions of the accused and the formations they directed

13     or assisted fit within that pattern of crimes and supported it.  It

14     failed to address essential evidence about the intention of the JCE

15     members that show their purpose was to maintain control of seized

16     territories through ethnic cleansing.

17             Your Honours, there are two main reasons why it is so important

18     that the errors in the majority's judgement be corrected.  First, to

19     safe-guard the future direction of international criminal law.  This case

20     sets many problematic precedents but let me highlight two of the most

21     glaring.

22             If the majority's approach were followed in the future, it would

23     undermine the framework for JCE liability.  One of the essential features

24     of JCE is that conduct, which may look lawful when viewed in isolation,

25     is exposed as criminally culpable when viewed in context and its true

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 1     purpose in propelling a criminal scheme is revealed.  In my bank robbery

 2     hypothetical, it's about looking at the seemingly lawful act of driving

 3     to the bank in its proper context as a contribution towards a plan to

 4     commit a bank robbery.

 5             The JCE doctrine is important due to the very nature of crimes

 6     committed most commonly in wartime situations, which of course very often

 7     involve these sorts of vast criminal schemes with multiple actors, many

 8     of whom contribute in ways that, viewed in isolation, do not appear

 9     criminal.  I refer you to the Tadic appeal judgement at paragraph 191 in

10     this regard.  But the majority's approach in this case undercuts the very

11     rationale of JCE liability.

12             Instead of looking to see how the contributions of the accused

13     had facilitated the implementation of the common criminal purpose as a

14     whole, the majority focused narrowly on whether there was a direct link

15     between the acts of the accused and specific crimes or criminals.

16     Instead of assessing the role the accused's unit played in furthering the

17     common criminal purpose, the majority focused narrowly on the occasions

18     when the unit members directly committed crimes.

19             In taking this sort of approach, the majority has extended a

20     really significant protective buffer to senior officials.  The more

21     senior the position, the more removed their conduct is likely to be from

22     the direct commission of crimes.  It's only by stepping back to look at

23     these seemingly neutral acts in context that their role in furthering a

24     criminal purpose is revealed.

25             As Judge Picard said in her dissenting opinion in this case,

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 1     quoting Judge Jackson:  The majority's approach leads to a place where

 2     "law has terror only for little men and takes note of only little

 3     wrongs."

 4             The majority's approach is also problematic for international

 5     criminal law because of the implications it has for crimes involving

 6     military or combat activity.  Again, a scenario frequently arising in

 7     international criminal law cases.

 8             We accept, of course, Your Honours, that truly lawful military

 9     activity in accordance with IHL cannot be rendered unlawful under the

10     framework of international criminal law.  But, Your Honours, of course

11     not all military activity is lawful under IHL.  In this case, when

12     analysed in the context of all of the evidence about the common criminal

13     purpose, it's clear that the operations to take territorial control were

14     carried out in furtherance of the overarching ethnic cleansing agenda.

15     These operations were directed at non-Serb civilians.

16             The majority has automatically credited anything that looked like

17     it was connected to military matters or combat action as potentially

18     lawful.  But in the context of the repeated and systemic pattern of

19     crimes in connection with those military operations, this conclusion is

20     unreasonable.  If left uncorrected, this sort of approach would have

21     potentially devastating consequences for international criminal law.

22     But, Your Honours, the most important reason for taking action to correct

23     the errors is to ensure a proper justice process for the victims.  Here

24     I'm talking about the serious failure to adjudicate essential issues

25     going to the heart of this case.  This has deprived the victims of a

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 1     meaningful determination of the role that these two accused played in the

 2     crimes inflicted on them.

 3             The tragedy unleashed by the JCE members in the SAO Krajina,

 4     SAO SBWS, and Bosnia-Herzegovina between 1991 and 1995 was immense.  As

 5     documented just in this case, well over a hundred thousand people were

 6     terrorised, uprooted from their homes and communities, and violently

 7     expelled.  The events devastated dozens of towns and villages all across

 8     the self-declared self-Serb republics in the three regions during a

 9     period of over four years.  The Trial Chamber documented over 270 murders

10     by Serb forces related to the incidents charged.

11             Your Honours, this is not a case where the existing trial

12     judgement can be endorsed.  At the very least, the majority's aiding and

13     abetting analysis, tainted by the now rejected specific direction

14     requirement, must be corrected.

15             And while aiding and abetting convictions would provide a measure

16     of justice, they would not most accurately capture the integral role that

17     the two accused played in furthering the vast criminal ethnic cleansing

18     enterprise documented at trial.

19             Your Honours, I now give the floor to Mr. Marcussen to address

20     you further in relation to ground 1 of our appeal.

21             Thank you.

22             JUDGE POCAR:  Judge Afande would like to ask a question that goes

23     to Ms. Jarvis, I guess.

24             MS. JARVIS:  Yes, Your Honour.

25             JUDGE AFANDE: [Interpretation] Good morning, Prosecutor.

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 1             I would like to have some clarifications about the parallel that

 2     you made between the conduct of armed people robbing a bank and the acts

 3     in this case.

 4             I'm asking this because I would like to know whether driving

 5     people to a bank presupposes that the armed people are criminals on the

 6     verge of committing a criminal act, or whether you can drive armed people

 7     to a bank without them committing a crime.  I don't see the link with

 8     this case.

 9             Could you be more specific, please?  Thank you.

10             MS. JARVIS:  Thank you, Your Honour.

11             Indeed, Your Honour, it would be possible in theory for lawfully

12     armed people to be transported to a bank and leave it at that and not

13     commit a bank robbery.  Of course, the fact that the two men in the

14     hypothetical example are armed is enough to give rise to knowledge of a

15     risk of the possibility that, you know, in the circumstances, it's not

16     out of the question that they might be going to the bank to commit a

17     robbery, but it's not a certainty.  And I think the example illustrates

18     that if you just look at it in that context, you couldn't understand for

19     certain that a crime would be committed by the two men; although, there

20     are indications in the circumstances that suggest it's a possibility,

21     it's a risk, it's perhaps reasonably foreseeable, and that's exactly the

22     analytical framework that we see in the judgement.

23             We see the majority looking at whether there is anything in the

24     record that might suggest a risk of crimes, and they look at the fact

25     that, well, in some of the operations - Doboj is a good example - the

Page 20

 1     accused knew that the unit had committed crimes very soon prior to that,

 2     and so perhaps there was a risk of crimes being committed again in Doboj.

 3             That's where we see the impact of the missing common criminal

 4     purpose analysis.  Because if the Trial Chamber had been really crediting

 5     the existence of the common criminal purpose, if they were starting from

 6     the proposition that these operations to take territorial control and

 7     maintain territorial control were about ethnic cleansing, there is not a

 8     risk of crimes happening.  There is a certainty of crimes happening.

 9     That's the very purpose behind sending the units in, conducting the

10     territorial control operations in order to change the ethnic composition.

11             But, Your Honour, perhaps we can further develop the bank robbery

12     example in a way that might be helpful to you.  Suppose that instead of

13     driving the accused to the bank -- sorry, instead of the accused driving

14     the two armed men to the bank, the accused has trained the two armed men

15     in how to use the fire-arms, or the accused has provided the bags to be

16     used to take the cash from the bank.  Again, those things, training

17     somebody in the use of a fire-arm, not inherently unlawful.  And so if

18     you just look at it in abstract, in isolation, you might not reach the

19     conclusion that the accused intended the bank robbery.  But if you add in

20     evidence about the common criminal purpose, about the plan to commit the

21     bank robbery, then obviously the conduct in training the two men in the

22     use of the fire-arms is a contribution towards the armed robbery.  And

23     certainly if it happens again and again and again and the accused know

24     that, then the conclusion is inescapable, that there is a common purpose,

25     that they are acting jointly, and the accused indeed intends the

Page 21

 1     commission of the bank robbery.

 2             And that's what we say is the situation here, Your Honours.  This

 3     is a situation where the accused must have known about this common

 4     criminal purpose.  As Mr. Marcussen will further explain, they were among

 5     the most well-informed of people in the three locations as the ethnic

 6     cleansing campaign unfolded.  They continued to contribute, they

 7     continued to equip and build capacity for these territorial control

 8     operations, knowing that the crimes were being committed, knowing that

 9     that was the purpose behind the territorial control operations, and

10     certainly, when viewed in that context, the conclusion is inescapable,

11     that they indeed intended the crimes.

12             I hope I've assisted, Your Honour.

13             JUDGE AFANDE: [Interpretation] Yes, thank you very much.

14             MR. MARCUSSEN:  Your Honours, as Ms. Jarvis has explained, the

15     Trial Chamber erred in law by failing to adjudicate a central aspect of

16     the Prosecution's case:  The existence and nature of the common criminal

17     purpose, and critically the Chamber failed to adjudicate the accused's

18     knowledge of the common criminal purpose.

19             Your Honours, why was it necessary for the Trial Chamber in this

20     case to determine whether a common criminal purpose existed and whether

21     the accused knew that their actions contributed to it when drawing

22     conclusions about their intent?  It was necessary because if the accused

23     knew of the existence of the common criminal purpose and repeatedly

24     contributed to its execution, the only reasonable inferences that the

25     accused shared the intent that the crimes of the criminal purpose be

Page 22

 1     committed.  But instead of looking at the accused's acts through the lens

 2     of a common criminal purpose, the Trial Chamber looked at different

 3     segments of the evidence and looked at it in isolation.  It looked at the

 4     accused's statements without considering the context in which they were

 5     made.  It looked at the accused's training of Serb forces separately.  It

 6     looked at their support to Milan Martic and the SAO Krajina police

 7     separately.  It looked at the crimes of the accused's unit separately.

 8     But the majority never looked at the accused's statements and acts

 9     together, and it never put them in the context of the pattern of crimes

10     and the common criminal purpose.

11             The Trial Chamber also failed to consider significant evidence

12     that would have required analysis of findings if one were to understand

13     the accused's statements and acts.  For example, the Trial Chamber did

14     not consider evidence in the record proving that the strategic objectives

15     of the Bosnian Serbian leadership includes ethnic cleansing of

16     Serb-claimed territory.  Nowhere in the judgement is this evidence

17     discussed.

18             The Trial Chamber, therefore, clearly failed to make findings on

19     issues that were central to the determination of the guilt of the accused

20     and its analysis of the evidence was manifestly inadequate.

21             In its shared intent analysis, the majority make reference to the

22     "alleged joint criminal enterprise."  Did this mean that the majority,

23     for the purposes of its intent analysis, assumed arguendo the existence

24     of the common criminal purpose?

25             If it did, it would mean that the majority accepted as proven the

Page 23

 1     plan of the Serb leadership was to take and maintain control over

 2     Serb-claimed territory in Croatia and Bosnia-Herzegovina and ethnically

 3     cleanse that territory of the non-Serb population; thus, all the

 4     take-over operations in the indictment area was -- inherently involved

 5     ethnic cleansing of the non-Serb population.  Yet the Chamber concluded

 6     that the accused only knew of a risk of crimes, not a certainty of crimes

 7     happening, and that the accused might only have intended lawful military

 8     activity.

 9             There are only two ways that the majority Judges could have

10     reached these conclusions.  One possibility is that the majority did not

11     actually fully credit the common criminal purpose because, if it had done

12     that, it would have had to assume that the crimes were an inherent part

13     of the take-overs and therefore it was certain that crimes would be

14     committed.  They were not only a risk.

15             The only other way they could have reached these conclusions is

16     finding that the accused did not know of the ethnic cleansing and that it

17     was an inherent part of the take-over operations; in other words, the

18     Trial Chamber would have found that the accused did not know of the

19     common criminal purpose.

20             Either way, it was an error.  The majority failed to adjudicate

21     essential issues in the case.  If the majority did not actually assume

22     the existence of the common criminal purpose, it would have to make

23     findings on its existence.  Yet there are no findings on the common

24     criminal purpose in the judgement.

25             If the majority concluded that the accused did not know of the

Page 24

 1     common criminal purpose, it had to make findings to that effect.

 2     However, there are no findings about the accused's knowledge of the

 3     common criminal purpose in the judgement.  The Trial Chamber, therefore,

 4     failed to provide a reasoned opinion.

 5             Had the Trial Chamber not erred, it would have found that

 6     Stanisic and Simatovic intended the crimes of the JCE based on: (1) the

 7     consistent pattern of crimes committed against non-Serbs in each targeted

 8     area; (2) the accused's knowledge of both the pattern of crimes and the

 9     intent of other JCE members; and, (3), their continued contribution over

10     several years to establishing Serb-dominated ethnically cleansed

11     territories.

12             The only reasonable inference from that is that the accused

13     shared the intent to use crimes to achieve territorial control.  First,

14     let's look at the pattern of crimes.

15             The Chamber found that there was a single widespread

16     discriminatory attack on the civilian population across the entire

17     indictment area; at paragraphs 971 and 1251.  The findings in volume 1

18     reveal the attack followed a pattern where it was repeated over and over

19     again in each targeted area.  In the SAO Krajina, the non-Serb population

20     fled because of attacks on villages and towns with substantial or

21     complete Croat population.  The killings, use of human shields,

22     detention, beating, forced labour, sexual abuse, and other forms of

23     harassment, and the looting and the destruction of property, these crimes

24     were committed by the JNA, the SAO Krajina TO, the SAO Krajina police,

25     including Milan Martic, and Serb parliamentary units, as well as various

Page 25

 1     local Serb authorities; paragraphs 401 and 404.

 2             The crimes followed the same pattern in the SAO SBWS.  Thousands

 3     of non-Serbs fled the area because of the forcible transfer of others,

 4     detention, looting, restriction of freedoms, forced labour, beatings,

 5     killings, threats, and harassment perpetrated by the same kind of forces,

 6     the JNA, Serb volunteers, local authorities, paramilitaries, the SNB, the

 7     police, the TO, and Arkan's SDG.  You will find this at paragraph 578.

 8             And this same pattern was followed in the indictment

 9     municipalities in Bosnia-Herzegovina, starting with Bijeljina.  So we see

10     this in Bosanski Samac.  Numerous people fled the town as a result of the

11     attack by various Serb forces, including, again, the JNA, the unit, Serb

12     police, Serb TO.  The attack and take-over included people being driven

13     out of their homes.  Non-Serbs were arbitrarily arrested, detained,

14     beaten, sexually assaulted, threatened, included by the accused's unit,

15     and local Serb authorities.  And I refer to an adjudicated fact, and I

16     refer to it as AF Roman IV, fact 255, which is noted in the judgement at

17     paragraph 584 in footnote 1207 and in judgement paragraphs 654, 684, 685,

18     and 1081.

19             The Trial Chamber admitted also as an adjudicated fact that:

20             "The clearly recognisable pattern of criminal activity allows for

21     only one reasonable conclusion; namely, that these crimes were committed

22     with the aim of implementing the strategic plan of the Bosnian Serb

23     leadership to take control over the territory claimed for the Serbian

24     state within BiH and to permanently remove the non-Serb population from

25     this territory," AF I, fact 236.

Page 26

 1             The inescapable conclusion from this pattern repeated throughout

 2     the indictment area is that the crimes were an integral part of the

 3     establishment and maintenance of Serb control, and the accused knew that

 4     this pattern of crimes formed an integral part of achieving and

 5     maintaining territorial control.  The sheer scale and pattern of the

 6     crimes in Croatia and Bosnia-Herzegovina makes it inconceivable that the

 7     accused would not have known of them.

 8             Their functions, by the definition, require Stanisic and

 9     Simatovic to be very well informed of issues related to security, and the

10     Trial Chamber's own findings recognises this.  The accused knew from

11     April 1991 of the intent of Milan Martic to deport non-Serbs from

12     Krajina.  They knew that the SAO Krajina police committed numerous

13     murders and persecution, as well as expelling 80- to 100.000 Croats and

14     other non-Serb civilians.  This is at paragraphs 2331 and 2332.

15             The accused also knew their unit committed crimes in

16     Bosanski Samac in April 1992, then sent the same unit to Doboj in early

17     May 1992 where it also committed crimes.  This is the judgement,

18     paragraph 2323.  And the accused knew of the crimes committed by Arkan

19     and the SDG in the SBWS between September and April -- September 1991 and

20     April 1992 and in Bijeljina and Zvornik from April to September 1992.

21     That is in the judgement, paragraph 2333.

22             And Simatovic and DB operatives were present all over the

23     indictment area, as illustrated in Annex A to the Prosecution's appeal

24     brief.  Surely the accused would have been among the best informed about

25     events on the ground at the time.

Page 27

 1             Sorry, I'm having trouble with the technology.

 2             Your Honours, the accused were in "direct and frequent contact"

 3     with JCE members such as Hadzic, Karadzic, Martic, and Babic, who were

 4     the Serb leaders in Croatia and Bosnia-Herzegovina; paragraph 2302.  And

 5     recall, Your Honours, that the Chamber accepted as an adjudicated fact

 6     that the goal of the Bosnian Serbian leadership was to "establish a state

 7     in which there would be no place for non-Serbs," AF I, fact 142.

 8             In light of their persistence and contacts, the accused would

 9     have known of Karadzic's implematic speech in the RS Assembly in 14

10     October 1991 where he threatened the Bosnian Muslims with extermination

11     if they opted for independence; Exhibit P940.

12             And two months later, Stanisic watched as Karadzic again

13     predicted the death of several hundred thousand people, complete

14     destruction of several hundred towns, and massive population

15     displacements.  Stanisic approved Karadzic's statement.  And for this, I

16     will have to refer Your Honours to the Prosecution appeal brief at

17     paragraph 26 and Exhibit number 1483.

18             And Stanisic echoed the same intent when he, a few weeks later,

19     told Karadzic that they could "exterminate them completely" in a

20     conversation about Croats; Exhibit P690.

21             There also can be no doubt that the accused knew of the Bosnian

22     Serb leadership's six strategic goals, which included ethnic cleansing.

23     Stanisic attended a meeting in Belgrade on 13 and 14 December 1993 with,

24     among others, Milosevic, Mrksic, Karadzic, Krajisnik, and Mladic, where

25     they discussed the implementation of these six strategic goals;

Page 28

 1     Exhibit P2532 at pages 1 and 2, and judgement paragraph 2310.

 2             In conclusion, there can be no doubt that the accused knew that

 3     the establishment and maintenance of Serb-dominated regions included the

 4     ethnic cleansing of the non-Serb population from those regions.

 5             Knowing that the ethnic cleansing of non-Serbs formed an integral

 6     part of the establishment of the Serb regions in Croatia and

 7     Bosnia-Herzegovina, the accused continued to contribute to that goal.

 8     For example, though they already, in April 1991, knew of Martic's intent

 9     to deport non-Serbs, the accused continued to support Martic and the

10     SAO Krajina police and the Krajina TO over the next year.  They played an

11     important role in helping Martic setting up the Krajina police, Simatovic

12     participated in the Lovinac operation in June 1991, knowing the criminal

13     aim of the attack.  The accused organised the unit's involvement in the

14     Glina and Struga and operations during which the non-Serb population was

15     expelled.

16             The accused continued to organise training to the SAO Krajina

17     police and TO, and the accused continued arming and supplying the Krajina

18     TO until April 1992.  And knowing that the units they had trained in

19     Krajina were committing crimes, the accused continued to train units in

20     the SBWS and along the border of the SBWS in Serbia from September 1991.

21     And knowing of the crimes in Krajina from April 1991, they deployed the

22     unit into operations in the SBWS in September 1991.

23             The accused also financed Arkan and his SDG in 1994 and 1995,

24     including while they were mass murdering non-Serbs in Sanski Most.  They

25     also knew of the crimes that Arkan and the SDG had committed in the SBWS

Page 29

 1     in 1991 and in Bijeljina and Zvornik in 1992.

 2             They deployed their unit to Bosanski Samac in April 1992 and

 3     again to Doboj a few weeks later.  In both places, unit members were

 4     amongst the notorious abusers of the civilian population.  They also

 5     deployed the unit to Bratunac and Skelani, which was part of

 6     Operation Udar in April 1993, "likely" knowing that Mladic and Mrksic

 7     intended ethnic cleansing and knowing of the unit's history of crimes in

 8     Bosanski Samac and Doboj.

 9             It is thus clear from the Trial Chamber's findings that the

10     accused repeatedly contributed to establishing and maintaining Serb

11     control over large parts of Croatia and Bosnia-Herzegovina knowing that

12     they contributed to ethnic cleansing of those areas.  The only reasonable

13     inference from such knowing and protracted contribution is that the

14     accused shared the intent of the common criminal purpose.

15             Your Honours, I should have clarified before I went through all

16     these contributions that while we've been going through this, we have

17     been showing a slide which have the numerous references to the judgement

18     where you find the support for all of these things.  I'm sorry I didn't

19     make that clear in the beginning.  I hope we may provide Your Honours

20     with copies of the presentation afterwards, and of course we'll give them

21     to the Defence as well, so you will have those references.  And so

22     Ms. Jarvis does not have to explain this later, she will later on be

23     using a slide.  We'll use the same methodology.

24             Your Honours, so I said, on the facts as found by the

25     Trial Chamber, the accused knowingly and in a protracted way contributed

Page 30

 1     to the implementation of the common criminal purpose.  And if Your

 2     Honours grant ground 3 of our appeal, other significant contributions

 3     are, of course, added; namely, critical support that the accused provided

 4     to the establishing and arming of Serb forces in the SBWS, their arming

 5     of the Zvornik TO, their deployment of Arkan's SDG in the SBWS,

 6     Bijeljina, Zvornik, and Sanski Most where they committed numerous crimes.

 7             Your Honours, had the Trial Chamber given consideration to the

 8     accused's knowledge of the common criminal purpose, it would have found

 9     that the accused shared or had JCE intent.  If you do not agree that this

10     is a legal error, then certainly it is a factual error.  No reasonable

11     trier of fact could have concluded that the accused did not share the

12     intent of the common criminal purpose given the evidence on record in

13     this case.

14             A clear example of an error of fact is the majority's finding

15     that the accused only knew of a risk of crimes being committed in Krajina

16     by Martic and the SAO Krajina police.  We see this error in

17     paragraph 2332.  The Trial Chamber found that:

18             "In continuing to support the SAO Krajina police and co-operate

19     with Milan Martic from April 1991, the accused took the risk that the SAO

20     Krajina police would commit crimes when establishing and maintaining Serb

21     control over large areas of Croatia."

22             The majority found that this would be insufficient to meet the

23     intense standard under JCE I.  It then concluded that there was another

24     reasonable inference; namely, that the accused intended only to assist

25     the SAO Krajina authorities to establish and maintain territorial

Page 31

 1     control.  But the error is that on the Trial Chamber's own findings, the

 2     accused knew of Milan Martic's intent to deport and they knew that

 3     Milan Martic and the SAO Krajina police were, in fact, expelling and

 4     mistreating and killing non-Serbs and participating in operations to

 5     expel the non-Serb population.  Thus, the accused did not take the risk

 6     that crimes would be committed.  They knew for certain that the crimes

 7     would be committed.

 8             The majority's conclusion that there was only a risk of crimes

 9     was patently unreasonable.  Considering the accused's repeated and

10     extensive support to Milan Martic and the SAO Krajina police, the only

11     conclusion available was that the accused intended the crimes.

12             Your Honours, to sum up, the Trial Chamber's do inferences on the

13     accused's intent without considering the relevant question:  Whether the

14     accused knew of the common purpose, knew that crimes were an integral

15     part of achievement of territorial control in Bosnia-Herzegovina, which

16     is at the heart of this case.  Not addressing this question led to its

17     failure to consider evidence clearly relevant to the existence of the

18     common criminal purpose and thus, in turn, to intent.

19             By failing to make findings on those facts which are essential to

20     the determination of the guilt and by making an insufficient analysis of

21     evidence, the Trial Chamber failed to provide a reasoned opinion.  The

22     Trial Chamber thereby erred in law.

23             As I've mentioned, Your Honours, if you do not agree that this is

24     an error of law, the Prosecution has certainly demonstrated that the

25     Trial Chamber committed an error of fact.  Either way, the intent

Page 32

 1     analysis in this case is so obviously erroneous that it must be

 2     corrected.

 3             Ms. Jarvis will now address Your Honours on how to apply an

 4     appropriate remedy.

 5             MS. JARVIS:  Mr. President, Your Honours, as we've demonstrated

 6     throughout our argument so far, the judgement contains numerous fatal

 7     errors that must be corrected.  This then raises the question what should

 8     be done.

 9             If the outcome of correcting the legal or factual errors that we

10     have argued is that the acquittals are invalidated, the Appeals Chamber

11     has the power to substitute convictions in their place.  This power has

12     been repeatedly confirmed and exercised by the Appeals Chamber, most

13     recently in the Popovic et al. case, concerning crimes committed by

14     Mr. Pandurevic.

15             We acknowledge that in the present case, the Appeals Chamber

16     would be substituting convictions for outright acquittals.  However, the

17     principle involved is no different from when substituting convictions for

18     partial acquittals, as the Appeals Chamber has done on many occasions

19     before.

20             The Appeals Chamber has found it does not violate the accused's

21     rights to enter convictions on appeal with no further right to appeal.

22     The accused raises no new arguments in this regard.

23             So there is no doubt that the Appeals Chamber has the authority

24     to correct the errors in this case and to make the necessary findings to

25     enter convictions.

Page 33

 1             We say there are two main reasons why Your Honours should

 2     exercise that power here.

 3             First, as I've mentioned, the Appeals Chamber has been willing to

 4     engage in fact-finding to correct errors in other cases.  In particular,

 5     in Bizumungu, the ICTR Appeals Chamber found a failure to provide a

 6     reasoned opinion because the Trial Chamber had failed to enter any legal

 7     findings on some parts of the crime base.  As a result, it had failed to

 8     address "the most fundamental of issues."

 9             That's Bizimungu appeal judgement at paragraph 19.

10             Notwithstanding the fundamental nature of the errors, the

11     Appeals Chamber proceeded to review the record and to determine whether

12     the Trial Chamber's convictions could be sustained on appeal.

13             Second, we should not necessarily assume that the extent of the

14     fact-finding or the nature of the fact-finding required in this case

15     would be unacceptably extensive or complicated.  In Bizimungu, the

16     Appeals Chamber was able to make the missing mens rea findings, including

17     on crimes like genocide, primarily by situating the underlying criminal

18     acts in the context of the systemic destructive campaign going on across

19     Rwanda at the time, assessed in light of the accused's knowledge of that

20     prevailing context.

21             Essentially the same process is required here.  This is a case

22     about looking at the acts and statements of the accused in the proper

23     context of the prevailing campaign of ethnic cleansing across the three

24     regions in the indictment.

25             Your Honours, look at the patterns of crimes across the three

Page 34

 1     regions.  Look at what the accused knew.  Look at who they worked

 2     together closely with over a period of four years.  Look at what they did

 3     and did not do.

 4             The watching world clearly understood what was going on in

 5     Croatia and Bosnia-Herzegovina during the indictment period to the point

 6     where the very term "ethnic cleansing" became part of our contemporary

 7     vocabulary.  The victims in the villages systematically attacked,

 8     cleansed, and razed, they certainly understood what was going on.  It's

 9     inconceivable that the two accused in this case did not also clearly

10     understand what was going on.

11             Further, as Mr. Marcussen and I have explained throughout our

12     submissions today, the problems in the majority's analysis of shared

13     intent stem from two key omissions:  First, the majority's failure to

14     make findings on the existence of the common criminal purpose to

15     ethnically cleanse; and, second, the majority's failure to consider the

16     repeated contributions of the accused in light of their knowledge of that

17     common criminal purpose.

18             Correcting these two omissions need not necessarily be heavily

19     fact-intensive.  Although the Trial Chamber failed to consider these two

20     crucial factors in its intent analysis, the Trial Chamber made extensive

21     underlying findings elsewhere in the judgement that are highly relevant

22     to these issues, if only it had addressed them in its analysis of intent.

23             To give you an idea of what I mean -- and we have a slide which

24     contains the references for the propositions that I will explain.  The

25     Trial Chamber accepted that there was a massive expulsion campaign in

Page 35

 1     Krajina between April 1991 and April 1992.  It accepted that Martic, the

 2     Croatian Serb political leader in Krajina, had the intent to deport

 3     non-Serbs and used tools under his control, the Krajina police and TO, to

 4     commit the crimes in furtherance of this purpose.  It accepted that

 5     Stanisic and Simatovic supported and assisted these tools consistently

 6     over a year with knowledge of Martic's intent and of the crimes

 7     committed.

 8             The Chamber expressly accepted that attacks on specific towns in

 9     SAO Krajina and SAO SBWS were "aimed at forcing the local population to

10     leave in order to establish a purely Serb territory."  The Trial Chamber

11     further found that there was a single widespread and discriminatory

12     attack across the three regions directed against the non-Serb civilian

13     population.

14             The accused and their unit then continued to contribute towards

15     the operations to take territorial control in SAO SBWS and

16     Bosnia-Herzegovina.

17             Your Honours, given the accused's knowledge that the crimes were

18     integral to the process of taking and maintaining territorial control and

19     their knowledge that massive crimes were in fact being committed in

20     furtherance of that common criminal purpose, the only reasonable

21     inference to draw from their continued assistance again and again over a

22     period of years is that they shared the intent.

23             Similarly, the amount of fact-finding required to provide a

24     remedy for the Prosecution's alternative ground concerning aiding and

25     abetting need not be extensive, particularly with the erroneous specific

Page 36

 1     direction standard removed from the equation, the Trial Chamber's

 2     existing findings provide an important foundation for entering aiding and

 3     abetting convictions.

 4             We accept, of course, Your Honours, the importance of providing a

 5     process that is fair to the accused.  In Bizimungu, the ICTR Appeals

 6     Chamber, following the oral argument, ordered additional written

 7     briefings by the parties in order to provide them with a full and focused

 8     opportunity to address the sufficiency of the Trial Chamber's findings

 9     and the evidence on the record to support the convictions erroneously

10     entered by the Trial Chamber.  That's Bizimungu appeal judgement at

11     paragraph 24.  Your Honours could, of course, consider extending a

12     similar opportunity to the parties here.

13             Ultimately though, Your Honours, the appropriate remedy lies

14     within your discretion.  Should you determine that this is not an

15     appropriate case for the Appeals Chamber to correct the errors, you

16     should remit the matter to another Chamber.  This wouldn't be a retrial

17     but a process of remitting for re-adjudication based on the evidence

18     already adduced at trial.

19             Again, it would be for Your Honours to determine the remit

20     parameters, but it would be important to ensure that instructions to the

21     remand Bench contain precise information about the nature of the Trial

22     Chamber's errors and the correct procedure for them to follow.  In

23     particular, these instructions should include directions to consider,

24     among other things:  The missing pieces of the Trial Chamber's JCE

25     analysis - namely, whether the alleged common criminal purpose existed,

Page 37

 1     and, if so, its nature and scope; the key JCE members; the tools used by

 2     the JCE to commit the crimes; and, most importantly, what the accused

 3     knew about the common criminal purpose, the crimes involved, the tools

 4     used, and the crimes committed in furtherance of it.

 5             Should Your Honours decline to order any of the remedies so far

 6     suggested, then you should order a retrial.  However, in our submission,

 7     a retrial is not the most appropriate remedy in this case.  Here the

 8     problem is not with the existing evidentiary record.  The problem is one

 9     of failure to properly adjudicated the evidence already on that record.

10     The interests of justice militate away from a time and resource-intensive

11     retrial and towards a remedy that will correct the problem at issue.

12             In conclusion, the fatal errors in the majority's analysis must

13     be corrected.  Doing nothing is not an option in a case where there has

14     been a fundamental failure to adjudicate the relevant issues before the

15     Chamber, leaving the promise of justice for the victim community, and

16     indeed the international community, completely unfulfilled.  This is a

17     JCE case, and to accurately reflect the culpability of the accused, they

18     should be convicted under the JCE framework.

19             THE INTERPRETER:  Would counsel kindly slow down.  Thank you.

20             MS. JARVIS:  The outcome of this appeal has implications for

21     international criminal law but most of all for the victims.  The Appeals

22     Chamber's intervention is crucial to safe-guard the legacy of this

23     Tribunal and the interests of justice in this case.  The Appeals Chamber

24     must find a way to ensure that justice is finally done.

25             Thank you, Your Honours.

Page 38

 1             JUDGE POCAR:  I thank you.

 2             Judge Agius.

 3                           [Appeals Chamber confers]

 4             JUDGE POCAR:  Judge Agius would like to ask you a question,

 5     Ms. Jarvis, please.

 6             JUDGE AGIUS:  Yes, Ms. Jarvis.  Good morning to you.

 7             Having followed carefully this last group of submissions

 8     regarding the remedy that you are seeking, and particularly the last

 9     submission, you seem to be a little bit skeptical about ordering a

10     retrial for reasons that you just mentioned.  You also mentioned other

11     remedies.  As regards the retrial, you said that you do not, perhaps,

12     consider it in the circumstances the best solution that there is.

13             What is the best solution, in your opinion?

14             MS. JARVIS:  Your Honours, in our submission, the best solution

15     in this case is for the Appeals Chamber to correct the errors itself and

16     to enter the appropriate convictions.

17             JUDGE AGIUS:  Thank you.

18             JUDGE POCAR:  Any other questions by my colleagues?

19             If that's not the case, then we can now break and we will

20     reconvene at 1.00 for the -- first the response of counsel for

21     Mr. Stanisic and later for Mr. Simatovic.

22             So we break now for one hour and a half.

23                           --- Recess taken at 11.30 a.m.

24                           --- On resuming at 1.00 p.m.

25             JUDGE POCAR:  So we resume the hearing, and I will invite counsel

Page 39

 1     for Mr. Stanisic to respond for one hour.

 2             MR. JORDASH:  I'm grateful, Your Honours.

 3             JUDGE POCAR:  Mr. Jordash, you have the floor.

 4             MR. JORDASH:  Good afternoon.

 5             On the 30th of May 2013, more than ten years after his arrest,

 6     Mr. Stanisic was acquitted of all charges against him.  Whilst he always

 7     denied involvement in the crimes, he understood and continues to

 8     understand that occupying a senior role in the Serbian government at that

 9     time in the face of such terrible crimes meant that questions had to be

10     asked and answered, justice had to be done, and it had to be seen to be

11     done.

12             However, justice is often a slow and cumbersome process, and it

13     comes with significant costs.  It is especially slow and costly when

14     Prosecutors overload indictments with allegations that advance flamboyant

15     claims that one individual is in command of every single political and

16     military structure and therefore responsible for every crime across

17     thousands of square kilometres, along with associated undiscerning claims

18     that every member of the Serb forces is a criminal acting in furtherance

19     of a campaign of violence against civilians.

20             For over ten years, Mr. Stanisic has faced these allegations and

21     the threat of a life sentence, and these proceedings have cost him

22     dearly, including undermining his right to liberty, his family life, and

23     his health.  He spent nearly five years in prison on these charges during

24     which time his mental health and physical health deteriorated.  He was

25     found unfit to stand trial for more than one year.  The trial had to be

Page 40

 1     modified to compensate for his ill health, limited to only two to three

 2     days per week and breaks every 75 minutes.  Some might say, well, that's

 3     the price of accountability.  And, let's face it, he was in a senior

 4     position, the Trial Chamber did make some findings that suggest he might

 5     have been involved in crime.  So perhaps he was lucky.  Why should he

 6     complain?

 7             However, the Trial Chamber considered allegations that spanned

 8     across Croatia and Bosnia-Herzegovina for more than five years, and the

 9     majority found, time and time and time again that there was reasonable

10     doubt as to his guilt.  If that is to mean anything, then it must mean

11     that we recognise that Mr. Stanisic has paid a considerable price as a

12     result of proceedings that led to his acquittal.

13             It's the administration of justice as well as these costs that

14     ought to way heavily upon any prosecutor when deciding the parameters of

15     an appeal.  The appellate jurisdiction is a narrow one, and intentionally

16     so.  It's not designed to provide a disgruntled party with another bite

17     at the cherry.  It's not an opportunity to relitigate or regurgitate

18     trial arguments in the hope that another set of Judges will come to a

19     different conclusion.

20             As we have argued in our response and continue to argue in the

21     next hour, this appellant has taken another approach.  Instead of a

22     cautious appeal that accords with appellate review standards, the

23     appellant's arguments circumvent basic axioms of appellate litigation,

24     pay insufficient heed to due process considerations, and ultimately fail

25     to enhance the administration of justice.

Page 41

 1             Even if the appellant's arguments had merit and even if they had

 2     not taken this unfortunate approach, this appeal is doubtful and

 3     controversial.

 4             Consider in the first place that a person convicted of a criminal

 5     offence is entitled, as is his fundamental human right, to a review of

 6     that conviction, and indeed any sentence imposed, in a higher tribunal

 7     established by law.  That principle is enshrined, inter alia, in

 8     Article 14(5) of the ICCPR.  Yet the Prosecution invites the Court to

 9     enter a conviction in this appeal for the first time, despite the

10     unavailability of any review by a higher tribunal.  The respondent's

11     conviction in this court which the appellant urges upon you will be both

12     the first and also the final pronouncement of their guilt.

13             THE INTERPRETER:  Interpreter's note:  Could you please slow

14     down?  Thank you.

15             MR. JORDASH:  Given that it would follow that the Prosecution

16     getting two bites at the cherry, the irony in that is supreme.

17             We submit that the Appeals Chamber is bound to apply the power

18     accorded it under Article 25(2) in a manner that complies with

19     fundamental human rights, including the right to have any conviction

20     reviewed by a superior tribunal.

21             As the UN Human rights Committee has said explicitly in its

22     general comment on the subject, and I am quoting here:

23             "Article 14, paragraph 5, is violated not only if the decision by

24     the court of first instance is final but also where a conviction imposed

25     by an appeal court or a court of final instance following acquittal by a

Page 42

 1     lower court, according to domestic law cannot be reviewed by a higher

 2     court," that's general comment 32; Terron versus Spain.

 3             Nothing in Article 25 of this Statute even remotely suggests that

 4     this fundamental right has been abrogated, even assuming for a moment

 5     that the Security Council could have been competent to abrogate such a

 6     fundamental protection.  Indeed, quite the contrary.

 7             Article 25 makes clear that the Prosecutor on appeal must

 8     demonstrate you one of two things in order to obtain appellate relief.

 9     Under Article 25(1)(a), the Prosecutor must show that the Trial Chamber

10     not only has erred in law but has done so in a way which invalidates the

11     judgement.  And even higher threshold exists under 25(1)(b).  There it

12     must be shown by the Prosecutor that there has been an error of fact by

13     the Trial Chamber and that it is of such a serious and total magnitude as

14     to have occasioned a miscarriage of justice.

15             A very, very high threshold indeed.  And yet as with every point

16     in this case, the Prosecution takes the position, which we say is

17     impossibly ambitious, that the appellate relief it should have in this

18     case is the substitution of an acquittal for a conviction without the

19     prospect of any review and the imposition of a life sentence again beyond

20     review.

21             No explanation is given as to how Article 25(2) read together

22     with Article 25(1) and in the context of the Statute as a whole could be

23     permitted to produce a result which the Human Rights Committee has stated

24     is unlawful.  168 states around the world are obliged to adhere to this

25     minimum standard.  The appellant fails to proffer any reason why the ICTY

Page 43

 1     should be any different and why it should be set on a collision course

 2     with the Human Rights Committee of the same United Nations.

 3             The argument is one of jurisdiction, not discretion.  If

 4     Article 25 is capable of being read in a way that preserves a fundamental

 5     right, and it plainly can be here, then it should be.

 6             Now, the Appeals Chamber may well feel in this case that the

 7     substantive grounds of appeal can simply be dismissed out of hand.  There

 8     is no merit in them.  But we do not shy away from this fundamental point:

 9     If the Chamber finds some apparent prima facie merit lurking through the

10     Prosecution's scatter-gun appeal grounds, the Chamber could not,

11     concomitant with its position as a judicial institution, go on to impose

12     conviction and sentence.  Especially not without detailed submissions

13     from the Prosecution explaining why it has the jurisdiction to do that.

14             Moreover, the respondents have been provided with an hour only to

15     address the Chamber.  If there is anything attractive in the

16     Prosecution's regurgitation, we submit on behalf of Mr. Stanisic, that we

17     have insufficient time and notice to be able to confront the real points

18     of this appeal - the real points that might now be in the Chamber's mind

19     as potentially leading to conviction and sentence.

20             Moreover, what a curious position the respondent finds himself

21     in, defending an attempt to send him to prison for life with the

22     Prosecution having the last word later on today.

23             Putting these jurisdictional issues aside, I will now move to a

24     discussion about the correct approach to appellate standards in the

25     context of this appeal.  This will be followed by a discussion as to how

Page 44

 1     the appellant seeks to circumvent them.

 2             The proper approach.  In large part, this appeal, according to

 3     the appellant's arguments in ground 1 and ground 2, involve alleged

 4     errors of law.  We will not address you further on ground 3 and the

 5     alleged errors of fact unless you wish.  It is so utterly devoid of merit

 6     we will not dedicate any time to these issues.

 7             However, ground 1 and ground 2 risk obscuring the real issues,

 8     and we hope to be able to assist the Appeals Chamber in uncovering the

 9     strategy that lies beneath.

10             As the appellant is undoubtedly aware, when the Appeals Chamber

11     finds an error of law, it applies it to the factual findings.  Only if

12     there are no relevant factual findings does the Appeals Chamber look at

13     the evidence in the trial record.  In other words, it's not sufficient

14     for the appellant to demonstrate an error of law.  It must demonstrate to

15     you that any relevant factual findings that it then wishes to avoid are

16     conclusions that no reasonable trier of fact could have made and that

17     such findings occasioned a miscarriage of justice.

18             This is critical in this appeal.  In subground (1)(A), the

19     appellant urges that the majority's -- argues that the majority's

20     manifest legal error in failing to adjudicate or provide a reasoned

21     opinion on the objective existence of a common criminal purpose and the

22     contribution of the accused to that criminal purpose led to an error that

23     invalidates the judgement.  It also contends that the Trial Chamber's

24     failure to address the common criminal purpose properly is illustrated by

25     its assessment of the accused's actions as contributions to certain

Page 45

 1     crimes but not as contributions to the common criminal purpose.

 2             As must be plain to the Appeals Chamber and to the appellant,

 3     even if there is merit to this argument, this legal error could not

 4     conceivably render every factual finding favourable to the accused in

 5     error.  At best, it could only have impacted upon specific findings, such

 6     as the final assessments concerning shared intent, but it could not

 7     conceivably render underlying factual findings that address the conduct

 8     of JCE members or their tools or those acting lawfully, including

 9     Mr. Stanisic, and their interaction in error.

10             For example, the appellant accepts at paragraph 23 of the appeal

11     that the Trial Chamber did make findings concerning the accused's

12     contributions to certain crimes.  The appellant doesn't want to the admit

13     that the Chamber, in making these assessments, was talking about the

14     criminal means of the JCE alleged and not only specific criminal events.

15     But putting that aside, they accept these findings were made.  This is a

16     critical admission.  It means that the Trial Chamber had the raw building

17     blocks for a reasoned assessment of JCE liability that may not now be

18     brushed aside by the appellant in their relitigation attempt.

19             It means, in short, that even if the Trial Chamber erred in

20     failing to adjudicate or provide sufficient reasoning on the common

21     criminal purpose, there are scores and scores of findings that remain

22     untouched.

23             As the Appeals Chamber has made clear in Krajisnik, it's the

24     common objective that begins to transform a plurality of persons into a

25     group or enterprise, as this plurality has in common the particular

Page 46

 1     objective.  The persons in a criminal enterprise must be shown to act

 2     together in concert with each other in the implementation of a common

 3     objective if they are to share responsibility for the crimes committed

 4     through the JCE.

 5             As Your Honours will appreciate, the assessment of the

 6     significance of an accused's contribution is critical.  First, the

 7     significant contribution an accused makes to the various crimes within

 8     the common purpose amounts to the individual actus reus.  An accurate

 9     measurement of contribution is indispensable.  Second, a trier of fact

10     may rely upon it to establish by inference that the accused possessed the

11     requisite mens rea for the crimes adjudged.

12             Of course, this argument is not to be confused with the claim

13     that the accused must have made a criminal contribution to the common

14     purpose.  We accept an individual may contribute to a criminal purpose

15     through noncriminal behaviour.  However, that contribution must be to

16     further the criminal means.

17             In this case, the Trial Chamber followed precisely these

18     requirements.  It assessed Stanisic's contribution to each of the

19     criminal means and not, as the appellant suggests, only specific crimes,

20     and used those findings of fact to infer that he harboured no shared

21     criminal intent to further the common criminal purpose.

22             In short, and this is what the appellant seeks to get around, and

23     must get around:  Having found that a reasonable inference existed that

24     he was over the five-year indictment period, consistently acting in

25     furtherance of lawful military objectives, not the criminal means, the

Page 47

 1     majority was duty-bound to acquit him.

 2             In these circumstances, we need to look at the judgement.  The

 3     factual findings that the appellant accepts were made concerning the

 4     respondent's contributions to crimes must still stand, as must many of

 5     the related findings that address such things that the contributions of

 6     state security men, who the appellant alleges were tools of the joint

 7     criminal enterprise, the contributions of perpetrators to crimes, the

 8     occurrence and pattern of crimes, the interactions of many of the

 9     protagonists, including the perpetrators, the interactions - and I

10     emphasize this - the interactions of those involved in lawful activity,

11     and so on and so forth.

12             If the appellant wishes to take issue with these facts, then they

13     may, but only through on demonstration of a lack of reasonableness and a

14     resulting miscarriage of justice.

15             If the appellant is able to identify errors of fact in these

16     calculations, then they must argue them.  Not disregard them.

17             Of course, as the appellant appreciates, given the systemic and

18     wholly reasonable way the majority reasoned their way through these

19     predicate JCE findings and the paucity of factual findings suggesting

20     that Stanisic was in any way interacting with alleged perpetrators in

21     pursuance of the criminal means, their argument never gets off the

22     ground.

23             Similarly in ground 1(B), the appellant seeks to argue that the

24     Trial Chamber erred by misapplying the burden of proof.  They allege the

25     evidence was considered piecemeal and that the reasonable doubt standard

Page 48

 1     was applied to individual pieces of evidence.

 2             Let's assume that's correct for a moment.  That still leaves all

 3     factual findings in place; that is, sections 3, 4, and 6 of the Trial

 4     Chamber judgement, that outlines in details the crimes of murder,

 5     persecution, deportation, and forcible transfer.  The perpetrators who

 6     they were, their interaction in furtherance of crime, their individual

 7     interaction in furtherance of military activity, not crimes, and

 8     Stanisic's role and interaction with those events and the findings that

 9     he was interacting in furtherance of lawful activity.

10             If ground (B) has merit, then all that is left for the Appeals

11     Chamber to do, we submit, is remit the case to the Trial Chamber for them

12     to consider all these factual findings in light of the correct legal

13     standard and apply the standard and burden of proof to the factual

14     findings already made.

15             Similarly, with regard to ground 2, the appellant asserts an

16     alleged error of law in relation to the requirement of specific

17     direction.  On the face of it, there is nothing to suppose that error, if

18     indeed it was, impacts upon the factual findings made.  The findings

19     relating to remoteness, proximity and so on remain untouched, unless the

20     appellant demonstrates otherwise.

21             Having appreciated the detailed nature of the judgement and these

22     legal cul de sacs, the appellant then changes course.  The appellant

23     attempts to sidestep these facts and relitigate the points.  How do they

24     do that?  Well, they engage in a legal and factual four-step process, a

25     forensic dance that aims to relitigate hundreds of factual findings

Page 49

 1     without the required demonstration of error.

 2             THE INTERPRETER:  Kindly slow down.  Thank you.

 3             MR. JORDASH:  I think there should be a slide at this point,

 4     slide 1, which shows in summary the approach the appellant takes to this

 5     appeal.  We're going to deal with two or three examples of this four-step

 6     shuffle, but it's an approach that taints the whole appeal and each and

 7     every argument on scores and scores of facts and factual findings made

 8     that the appellant seeks to circumvent and get around.

 9             Step 1, the appellant takes a selection of factual findings they

10     like, those that serve the purpose of beginning the litigation afresh.

11     As we shall see shortly, their immediate focus is to establish the

12     presence of Stanisic or his associates in the war zones.

13             Step 2, the appellant disregards certain inconvenient factual

14     findings without attempting to demonstrate that the Trial Chamber erred

15     in fact or law.  This enables its favourite facts from step 1 to be

16     stripped of context ready to be reassembled in step 3.

17             Step 3, in place of the inconvenient factual findings, the

18     appellant uses the step 1 findings, reassembles them to produce the

19     factual findings that it wishes the Trial Chamber had made, and it does

20     this through calling upon tangential findings from the judgement and

21     apparently incriminatory evidence from the trial record.  Of course,

22     there is no attempt at balance or explanation.  The material is chosen

23     because it might make the respondent look guilty and cast doubt upon the

24     reasoned decisions by the majority.

25             At the very least, whether we're right about this or not, the

Page 50

 1     appellant has a lot to explain to be able to parachute 260 pieces of

 2     evidence from the trial record into this appeal, not counting the

 3     reintroduction of a plethora of adjudicated facts as this appellant seeks

 4     to do.

 5             The requirement to prioritise findings over evidence is, of

 6     course, in accord with the notion of a Trial Chamber's core function as a

 7     finder of fact.  Of course, the Appeals Chamber is aware of this and will

 8     not likely disturb findings of fact by the Trial Chamber.

 9             Such an approach also avoids having the Appeals Chamber engage

10     excessively in fact-finding and the weighing of evidence that, as noted

11     in the Gotovina case, substantially comprises fair trial rights.

12             And, finally, the appellant in step 4 tops off this relitigation

13     with a nice presumption of guilt.  Having reconstructed the factual

14     findings and evidence, the final step in the appellant's methodology is

15     to encourage the Appeals Chamber to attribute guilt by association using

16     an all-encompassing presumption of guilt.  That starts from an absurdity

17     that was advanced at trial, roundly rejected by the majority that every

18     action by any member of the Serbian political and military organisations

19     must have been in furtherance of crime and every action was part of the

20     campaign of violence against civilians.

21             We heard it this morning on a number of occasions when we heard

22     from the appellant that we should start from the proposition that these

23     operations to take territorial control were about ethnic cleansing.  We

24     heard it from the appellant this morning when they said the Chamber had

25     to assume that crimes were an inherent part of the take-over operation.

Page 51

 1     That's the only way the appellant gets home, a presumption of guilt.

 2     Findings that crimes were an inherent component of the whole operations,

 3     findings not made by the Trial Chamber; in fact, the contrary found by

 4     the Trial Chamber throughout the judgement.

 5             The bank robbery example is entirely inapposite but it does

 6     demonstrate one thing:  The Prosecution's presumption of guilt.  Their

 7     driver drives a car to the bank to rob it, while actually in this case

 8     the majority found that the driver drove the men to the bank to withdraw

 9     money lawfully and that others robbed the bank subsequently.  There is a

10     distinction here.  The distinction reflected in the factual findings and

11     a distinction which doesn't rely upon a presumption of guilt that the

12     only thing going on was the robbing of a bank.

13             This allegation was rightly rejected by the majority after

14     detailed evidence was submitted, after Stanisic Defence ran a whole

15     defence on the basis that Stanisic was participating in lawful war

16     activity, they heard the evidence and concluded the Prosecution's

17     presumption of only one thing going on was wrong.

18             Let's now turn to some specifics about their de novo review.

19     This de novo review places this Chamber or attempts to place this Chamber

20     in the invidious position of having to rule on core issues of culpability

21     if, indeed, their approach is accepted, without the benefit of a balanced

22     view of 4.843 exhibits and effectively several years of trial testimony.

23     That the majority found consistently was at odds with this prevailing

24     notion that the only thing going on was a campaign of violence against

25     civilians.  The judgement is full of it.  Defensive operations,

Page 52

 1     operations to seize territory without crimes and crimes.

 2             An examination of the appellant's four-step strategy is

 3     instructive.  It has nothing to do with errors of law being corrected and

 4     this correct standard being applied to the findings made.

 5             At paragraphs 51 and 52 of the appeal, and we'll just throw that

 6     up onto the screen, slide 2, we can see what this de novo review is

 7     designed to achieve.  They want to reargue their case.  But given the

 8     accused's authority over the SDB, the State Security Service, no

 9     reasonable Chamber could conclude that the consistent deployment of SDB

10     assets to implement the common criminal purpose occurred without the

11     accused's knowledge and volition.

12             Of course, as I have just noted, that's not what the majority

13     found.  They didn't find consistent deployment to implement a common

14     criminal purpose.  They found a consistent deployment in pursuit of

15     lawful activity.

16             But putting that aside for a moment.  Step 1, looking at Golubic.

17     Golubic was the first training camp which the Prosecution suggested was

18     effectively the beginning or part of the beginning of the joint criminal

19     enterprise.

20             What does the Prosecution's four-step shuffle involve?  In

21     paragraphs 51 and 52 of their appeal, the Appeals Chamber is urged to

22     begin looking at Annex A of the Prosecution's appeal, which contains

23     findings, we are told, that the appellant has been shown to have DB

24     assets throughout the war zones.  Doesn't "assets" have a nice sinister

25     ring to it?  Sounds much better than DB employees or associates.  Sounds

Page 53

 1     even better than DB employers or -- employees or associates found

 2     consistently to have been acting lawfully.  However, these are the

 3     findings the appellant likes because they represent a chance to begin

 4     again, as if a three-year fiercely contested trial never took place.

 5             These are the foundations of the new house the appellant wants to

 6     build.  For example, Annex A contains factual findings, as I've said,

 7     relating to Golubic.  Annex A lists a number of paragraphs of the

 8     judgement that address the Chamber's findings that State Security

 9     employees or associates created, financed, and managed Golubic.

10             Of course, the findings that the appellant relies upon -

11     paragraphs 1366 and 1367 and 1421 of the judgement - shows only the bear

12     facts of the accused's interactions with perpetrators of crimes, such as

13     Martic and Captain Dragan, as well as the establishment of the unit.

14             According to the appellant's case at trial, the training camp was

15     created in furtherance of the criminal purpose.  This case was rejected

16     at trial.  However, as we shall see, the appellant makes no attempt to

17     address these findings.  On the contrary, as we move to step 2 of the

18     appellant's relitigation strategy, Annex A merely reiterates the factual

19     findings that establish the presence of DB assets and nothing more.

20             Step 2, disregarding the Trial Chamber's factual findings.  Of

21     course, the collective pursuit of a common purpose with identical

22     criminal intent is what defines membership in a JCE plurality --

23             THE INTERPRETER:  The speaker is kindly requested to speak

24     slowly.

25             MR. JORDASH:  Sorry.

Page 54

 1             Having established that DB operatives were physically present in

 2     and around Golubic, the appellant seeks to disregard the Trial Chamber's

 3     findings that provide cogent evidence relevant to the question of action

 4     in furtherance of criminal purposes.  They fail to bring to the

 5     Appeals Chamber's attention a series of findings in paragraph 2197 of the

 6     judgement that shows the training at Golubic was of a military nature and

 7     included weapons and ambush training, as well as the treatment of

 8     prisoners of war and the treatment of civilians in armed conflict.

 9             Of course these findings weighed heavily on the majority's

10     deliberations, weighed heavily on the finding that this camp, Stanisic's

11     interactions, did not allow it to infer he was acting in furtherance of

12     common criminal purpose.  Obviously if a training camp is set up and the

13     recruits are being trained to obey the laws of war, this is a finding

14     which is extremely relevant.  Not according to the appellant's

15     relitigation strategy.

16             Step 3 then reassembles these narrowed findings.  They begin to

17     reconstruct so that these factual findings and cherry-picked evidence

18     from the trial record looks like Stanisic's participation might have been

19     a contribution to a criminal purpose.  At paragraph 61 of the appeal, the

20     appellant suggests that Stanisic and Martic had agreed on the creation of

21     a training camp at Martic's headquarters in the Golubic and that the

22     accused also brokered the deployment of "JCE sympathiser Captain Dragan."

23             At paragraph 62, the apparently reiterates the establishment of

24     the unit at Golubic and its alleged "support to the parallel security

25     structures and other Serb forces that were allegedly part of the criminal

Page 55

 1     purpose."  We are then reminded that the unit members trained at Golubic

 2     went on to establish and train further units that participated in attacks

 3     against non-Serbs in Krajina, suggesting that Stanisic was responsible

 4     for these crimes, and so it goes on.

 5             So the appellant wants to build a new house only using the

 6     structures they fancy and disregarding the rest, without showing why some

 7     of those structures without -- why the windows, why the doors and so on,

 8     cannot be used again, because they are not convenient for the

 9     Prosecution.  And so we move to the appellant's step 4, coupe de grace.

10             Having reconstructed the factual findings and evidence from the

11     trial record so the appellant now appears to have been acting in

12     furtherance of the criminal purpose, the appellant then parachutes into

13     the mix their presumption of guilt.  As we laid out with particularity

14     and in our response and in our closing brief at trial, not a single

15     Prosecution or Defence witness provided evidence that allowed a

16     reasonable trier of fact to conclude that Golubic was created in

17     furtherance of a common criminal purpose.  And it's worth repeating:  Not

18     a single Prosecution witness gave evidence to that effect.  And here we

19     have relitigation, ignoring their own witnesses at trial.

20             And then at section III of the appeal, we leap from Golubic, as

21     the Trial Chamber found it, to JCE members, including the accused,

22     created and used armed groups in Croatia to further the common criminal

23     purpose, to parallel structures controlling the events to Serb forces in

24     3(b) of their appeal unleashing and escalating a systemic campaign of

25     ethnic cleansing across Croatia.  And so the circle is squared.

Page 56

 1             I respectfully invite the Chamber to also look at slide 4 as

 2     another illustration of this step 4 process in relation this time to

 3     Operation Udar in Skelani.  I'm not going to take time to go through it,

 4     but it's exactly the same, and if we had the time, we could go through

 5     almost every single assertion made by the appellant and show this

 6     four-step process.

 7             Why did they take this approach?  Why so much struggling with the

 8     factual findings?  Because the majority got it right.  It is a careful

 9     and nuanced judgement that, unlike the appellant's over-generalised

10     indictment and case at trial, ascends to make legal and factual

11     distinctions, the legal and factual distinctions that were required.

12     They may not like them but they're made, and they're nuanced, and they're

13     careful, and they're detailed.

14             Section 3 to 4 of the judgement goes well beyond what was

15     required in setting out the crimes and the criminal means, the

16     perpetrators and the nature of their interaction in furtherance of war

17     and crime and lawful activity.  This enabled the Chamber to view whether

18     there existed a common criminal plan that amounted to or involved the

19     commission of the crimes alleged and to view with utmost clarity whether

20     a plurality of persons acted in concert and pursuit of a common criminal

21     purpose.

22             Section 6 of the judgement takes the same painstaking approach to

23     the third objective aspect of the alleged JCE, the participation by the

24     accused in the form of a contribution to the common criminal plan or

25     otherwise in pursuit of lawful activity.  These factual findings allowed

Page 57

 1     the Chamber to assess whether the intention of the accused was identical

 2     to those pursuing crime and whether any shared intent to commit crime

 3     encompassed the entire scope of the common purpose alleged.

 4             In light of these carefully laid-out details in the sections I've

 5     just mentioned, the appellant's proposition that the majority did not

 6     have the precise material necessary to make the careful assessments about

 7     the accused's intent is utterly devoid of merit, and their attempt to

 8     avoid the factual findings is a manifest demonstration of that fact.

 9             The majority's factual findings summed up in paragraph 2335 of

10     the judgement reflected those detailed assessments of the crimes, the

11     interactions in pursuit of the crimes, the pattern of the crimes, and so

12     on.

13             Paragraph 2335 sums up:

14             "Stanisic's lack of participation in the criminal means; two, his

15     consistent contribution to military activity against Croat forces, not

16     civilians; Bosnian forces or Bosnian Muslim forces, not civilians; and

17     the consistent activity over the five-year indictment period of acting in

18     furtherance of seizing control over territory, not forcibly displacing or

19     deporting civilians."

20             We submit not only was there ample reasonable doubt as to shared

21     intent, but no reasonable trier of fact could have found differently.

22     Having made these detailed findings which, of course, start with

23     contribution to criminal means, the Chamber did not have to go back to

24     its factual assessments that are described in minute details and write up

25     the criminal purpose that the appellant wants, we suspect, for the

Page 58

 1     historical record, not because it's required in this case.

 2             As slide 5 of our submissions show, the correct position about

 3     what the majority did is as follows.  The OTP alleged that Stanisic's

 4     shared intent should be approached in the following way.  You'll see this

 5     from their closing brief.  They said to the Trial Chamber:  You can infer

 6     Stanisic's shared intent from (a) his massive and complex arming and

 7     training screams and their repeated deployment to special units; and (b)

 8     in addition to these overarching schemes, three discrete examples of

 9     actions or words that irrefutably demonstrate he shared the intent.

10             As our slide 6 shows, taken from the trial judgement 2306 and

11     2317 and sections 3 to 4 and 6.9 of the judgement, rather than taking a

12     piecemeal approach to the evidence, the Trial Chamber did precisely what

13     was urged upon them by the Prosecution at trial.  To now allege errors of

14     law and fact when they urged that approach on the Trial Chamber is more

15     than a little curious.  To do so following a four-step strategy that

16     sidesteps the Trial Chamber's factual findings should only lead to one

17     result:  The summary dismissal of ground 1 of the appeal or dismissal on

18     its merits.

19             Moving to ground 2.  Under ground 2, the aiding and abetting

20     ground, we would like to take -- we would like to start by taking a step

21     back and assuming for a moment that the Sainovic and Popovic findings

22     that specific direction is not an essential element of the actus reus of

23     aiding and abetting is the prevailing law.  The question, of course, is

24     how, if at all, does the Trial Chamber's error of law impact upon

25     Stanisic's acquittals.

Page 59

 1             As an examination of the precise legal and factual findings in

 2     this case show, not much actually turns on this error of law.  It

 3     certainly does not invalidate the acquittals, and it certainly does not

 4     permit the appellant to engage once more with the four-step process of

 5     reconstruction and relitigation.  This is evidence in the plain words of

 6     the judgement.

 7             The appellant accepts that the Trial Chamber took the following

 8     approach which is summed up in paragraph 1264 of the trial judgement:

 9     (1) it outlined the law as it understood it from Perisic, and then it

10     took the following step.  The Trial Chamber sought specific direction as

11     a step towards assessing whether the respondent's acts had substantially

12     contributed to the crimes; and, (2), it drew the following conclusions in

13     express terms in section 6 entitled "The accused's responsibility,"

14     namely, that on the facts such substantial effect had not been

15     established.

16             To even get home or even get in the door of this ground of

17     appeal, the Prosecution must show that the Trial Chamber could, in view

18     of its factual findings, have reasonably come to only one conclusion;

19     namely, that the accused's acts, done knowingly, had a substantial effect

20     on the crimes.  On any fair reading of the trial judgement, we submit,

21     that is an insurmountable burden for the appellant to discharge.

22             Paragraphs 2359 to 2361 of the trial judgement makes clear that

23     the analysis conducted under the rubric of specific direction was

24     precisely that required for a proper understanding of substantial effect

25     and the mens rea of aiding and abetting.  For example, at paragraph 2360,

Page 60

 1     the Chamber lays out the factors it considered in reaching the conclusion

 2     that Stanisic's acts were not specifically directed to crimes.

 3             The Chamber's analysis encompassed all factors that could have

 4     been examined as specific direction, but without a shadow of doubt,

 5     according to the jurisprudence of this Tribunal, had to be considered by

 6     any reasonable Trial Chamber in deciding substantial effect, whether or

 7     not it was correct to require that specific direction be considered as an

 8     analytically distinct element.

 9             The appellant continues to neglect this critical factor in its

10     appeal.

11             Specifically in relation to the crimes in Bosanski Samac, Doboj,

12     and the SAO Krajina, these included issues that went to establishing the

13     accused's links to the crimes, including wide-ranging issue that went to

14     proximity and remoteness and propinquity.  The type and scale of the

15     assistance, the fact that the accused acted consistently lawfully,

16     command and control of the unit, the training of the unit in laws of war,

17     the lack of presence at the scene of the crimes during their commission,

18     the giving of lawful commands to the unit, and so on and so forth.

19             Having taken that holistic analytical approach unimpeachably, we

20     say, the Trial Chamber reached two findings in paragraph 2361 which are

21     fatal to much of the appellant's ground 2 appeal:  "The majority recalls

22     its findings on the accused's mens rea, see chapters 6.9 and 6.10, i.e.,

23     that they lacked mens rea, and," and this is the crucial point the

24     Prosecution cannot overcome:  "Its finding that the kind of assistance

25     rendered to the unit, the group most closely linked to the accused, is

Page 61

 1     insufficient to incur criminal responsibility as an aider and abetter."

 2             We emphasize on the phrase "the kind of assistance."  The

 3     Trial Chamber was not here saying anything about specific direction.  It

 4     found in the clearest possible terms that the acts done by the accused

 5     were simply too insubstantial, too remote in time, space, and causative

 6     effect to have had the required effect on the perpetration of the crimes;

 7     that is to say, not only were the acts not specifically directed at the

 8     offending, they were not, but the connection between those acts and the

 9     criminality was far from sufficiently strong to amount to a substantial

10     effect on that criminality.

11             The majority's analysis is eminently reasonable.  It certainly

12     falls well within the discretion accorded to any Trial Chamber.

13     Unfortunately, the appellant, instead of confronting the relevant factual

14     findings, attempts once again to sidestep the issues through their

15     four-step forensic shuffle.

16             Given that time is short, I will focus on the appellant's

17     submissions concerning Bosanski Samac and Doboj.

18             Step one, taking the findings they like.  In ground 2(B), at

19     paragraph 158, the appellant lists the factors that they say ought to

20     have been decisive in establishing substantial effect in Bosanski Samac

21     and Doboj.  According to the appellant, having lawfully trained the unit,

22     loaned it to others, and financed it during the commission of the crimes,

23     no reasonable trier of fact could have found that these contributions did

24     not have a substantial effect on the commission of the crimes.  No need

25     to look at anything else, according to the appellant.

Page 62

 1             And as note in our response, at paragraphs 124 to 128, the

 2     prevailing jurisprudence of this Tribunal, all of it decided before

 3     Perisic, from the appellant's favourite case, Furundzija, to Aleksovski,

 4     to Blagojevic, to Simic, and so on, all of it suggests that in order to

 5     properly assess the actus reus and mens rea of aiding and abetting,

 6     various factors that go to proximity and remoteness must be taken into

 7     account.  Obviously the jurisprudence does not permit the appellant to

 8     ignore every single factor but the bear fact that the respondent created

 9     and loaned and financed a unit, clearly.

10             But that's where we are with their step 1 relitigation.

11             Step 2.  What were the factors ignored?  The lack of command and

12     control over the unit during the commission of crimes, see paragraph 2335

13     of the judgement; the training on the laws of war of the unit at

14     paragraph 1369, 2917, 2329; lack of knowledge of the crimes,

15     paragraphs 2323 of the judgement; lack of presence at the scene of the

16     crimes, paragraphs 2360.  And what we pointed out in the response that

17     the appellant was ignoring all of these relevant findings, we have a

18     curious reply:

19             "The Chamber's findings demonstrate that Stanisic and Simic

20     provided the unit with structure, preparedness, resources, and equipment

21     to participate in the take-overs of Bosanski Samac and Doboj; therefore,

22     aiding and abetting is established."

23             Really?  Established from those bear facts, ignoring everything

24     else?  To compound this unfortunate approach, the appellant then claims

25     at paragraph 163 of the appeal that the majority made no mens rea

Page 63

 1     findings.  In doing so, they close their eyes once more to that which is

 2     inconvenient.

 3             As set out in paragraph 2323, the Trial Chamber found that:

 4             "Given their role vis-à-vis the unit set out above and the scope

 5     of the crimes, the Trial Chamber is satisfied that the accused must have

 6     known that the unit members committed crimes in Bosanski Samac.

 7     Subsequently, in the awareness that the unit members had committed crimes

 8     in Bosanski Samac, the accused organised the unit's involvement in the

 9     Doboj operations.  Although the unit's composition differed between the

10     Bosanski Samac and Doboj operations, the Trial Chamber considers that,

11     after the Bosanski Samac crimes it may have been reasonably foreseeable

12     to the accused that unit members would commit crimes in Doboj."

13             In other words, the majority found that Stanisic did not know of

14     the crimes in Bosanski Samac until after their commission and that they

15     were not even reasonably foreseeable to him.

16             As for Doboj, it may have been reasonably foreseeable in Doboj

17     that the unit might commit crimes.  In other words, Stanisic did not know

18     that his actions in loaning the unit would assist the commission of

19     crimes, nor was he aware he of the essential element of those crimes,

20     including the intent of the unit members.  Applying the burden and the

21     standard of proof, the majority could not be satisfied beyond a

22     reasonable doubt.

23             And, of course, when you actually look at these findings in

24     context, these findings are more than reasonable.  Over five years, the

25     findings make clear that the unit acted lawfully except in two

Page 64

 1     operations:  Bosanski Samac and Doboj.  After the commission of crimes by

 2     a handful of men from the unit in Bosanski Samac, different members of

 3     the unit were sent to Doboj; i.e., those that had not committed crimes in

 4     Bosanski Samac.

 5             We would say the majority was actually too generous towards the

 6     Prosecution case.  If different men from the unit were sent to Doboj, why

 7     was it reasonably foreseeable or why may it have been reasonably

 8     foreseeable to Mr. Stanisic that those different men, who had no criminal

 9     past, would commit crimes in Bosanski Samac?

10             The Chamber failed to see a reasonable inference arose, that the

11     men who committed crimes in Doboj -- sorry, in Bosanski Samac, were not

12     sent to Doboj because they had been taken out of action because of crimes

13     in Bosanski Samac.  We shall never know, the Prosecution failed to

14     explore that point at trial, but it's a reasonable inference.

15             Which brings me to the third strategy, the third step in their

16     resembling relitigation process.  In relation to Bosanski Samac and the

17     finding in paragraph 2326, that Stanisic only knew of the unit's crimes

18     afterwards, the appellant attempts to reconstruct a new mens rea finding.

19             In paragraphs 16 and 65 of the appeal, the appellant contends

20     that Stanisic knew the unit would commit crimes in Bosanski Samac, not

21     because the unit had acted criminally before, not because it showed any

22     propensity to commit crimes, not because it had received orders to commit

23     crimes, and not because Stanisic was acting criminally in general, but

24     "due to the unit's involvement in prior operations in Croatia wherein

25     similar crimes were committed" and because operations in Croatia were

Page 65

 1     similar to operations in Bosnia.

 2             Concerning Doboj, because the Chamber found that the accused must

 3     have known that the unit members had committed crimes earlier in

 4     Bosanski Samac, and in that awareness he organised the unit's involvement

 5     in the Doboj operations and that Stanisic was in contact with Karadzic,

 6     he must have known that setting up a unit, financing it, and loaning it

 7     to the operations in Doboj would result in them committing crimes and

 8     that his organising of the unit's involvement in those crimes --

 9     organising the unit's involvement would assist those crimes.  The

10     appellant's resembling is truly extraordinary.  The logic in relation to

11     Bosanski Samac and Doboj really stretches the principle of culpability to

12     breaking point.

13             They are seeking to establish a culpable link to crimes in

14     Bosanski Samac.  Not through links to the crimes in Bosanski Samac but by

15     links to crimes thousands of kilometres away, not by members of the unit

16     but by other people.  It is the most tenuous link and not one, of course,

17     that a reasonable Trial Chamber would have relied upon.

18             In relation to the Doboj, anyone, according to the appellant's

19     logic, anyone who sets up a unit during the war, and some members of that

20     unit commit crimes, not enough to send other members of that unit to the

21     next operation rather than those who'd been acting criminally, you must

22     disband the unit.  Because if the unit goes on to commit crimes somewhere

23     else, you're guilty of aiding and abetting, and then the appellant wants

24     to talk about the reputation of the Tribunal and the reputation of this

25     jurisprudence.  Really?  A few members of a unit commit crimes, the unit

Page 66

 1     can no longer operate without an automatic inference of substantial

 2     effect.

 3             Now, finally, step 4 of the appellant's methodology.  Having

 4     taken the findings they like, disregarded the remainder, and reassembled

 5     them anew, the appellant concludes their argument by seeking to avoid

 6     much of the evidence in Defence arguments.  At paragraph 107, they fall

 7     back on their prevailing presumption of guilt.  Stanisic and Simatovic

 8     "created, deployed, trained, financed, supplied," so on and so forth,

 9     "men and groups, knowing that they participated in one massive systemic

10     campaign of violence against non-Serbs."  It is this presumption of guilt

11     that everything was one massive systemic campaign against non-Serbs,

12     which leads them, at paragraph 83 and 84 of the reply, to say:

13             "Had the Chamber considered Stanisic's and Simatovic's

14     interaction with the perpetrator groups, it would have found that they

15     were proximate to the crimes."

16             Despite the fact that interactions were always in pursuant of

17     lawful means, apparently consistent interaction in pursuit of lawful

18     means makes it more likely that you'll commit crime in the future.

19             So, to conclude, no reasonable trier of fact could have reached

20     the conclusions that the appellant now urges upon this Chamber.  The

21     appellant fails to address the numerous findings by the Trial Chamber and

22     the numerous findings by the majority, that there was more than a

23     systemic campaign of criminal conduct.  As found by the Chamber and

24     consistently disregarded by the appellants, many of the operations were

25     entirely legitimate.  Many of the operations, unfortunately, were

Page 67

 1     criminal.  Many of the operations were a mixture of the two.  But we

 2     cannot whitewash these detailed, consistent findings simply because the

 3     appellant wants to link the accused to a JCE.

 4             If I could have one more minute, Your Honour.

 5             In other words, the majority's findings that crime was not an

 6     inherent component of the operations must be confronted by the appellant.

 7     The fact that the unit behaved in furtherance of military objectives must

 8     be confronted by the appellant.  The unit's propensity to act lawfully

 9     over five years despite others behaving criminally has to be confronted

10     by the appellants.  Where do we end up?

11             Well, we heard before the lunch break the Prosecution say, you,

12     the Appeals Chamber, can engage in the fact-findings to overturn these

13     acquittals, and this is what they said:

14             "Essentially the same process is here.  This is a case about

15     looking at the acts and the statements of the accused and the proper

16     context of the prevailing ethnic campaign.  Your Honours look at the

17     pattern of crimes across the three regions, look at what the accused

18     knew, look at with who they worked closely over a period of four years,

19     look at what they did and what they did not do."

20             How is that different to what this Trial Chamber did?  It's

21     exactly the same as what the Trial Chamber did.  The Prosecution's appeal

22     only gets home if you start with this approach:  (1) there was only a

23     criminal purpose.  Nothing else was going on; (2) the accused knew of

24     that JCE and that common purpose and nothing else; (3) that he

25     contributed consistently to that criminal purpose and nothing else.  And

Page 68

 1     in order to get there, you have to remove hundreds of factual findings,

 2     ignore two years of trial advocacy, and hundreds of decisions by the

 3     majority.

 4             In our submission, the appeals should be dismissed.

 5             Thank you.

 6             JUDGE POCAR:  Thank you, counsel.

 7             We will now break for 20 minutes and resume for the response of

 8     counsel for Mr. Simatovic.

 9                           --- Recess taken at 2.03 p.m.

10                           --- On resuming at 2.24 p.m.

11             JUDGE POCAR:  We resume the hearing.

12             Before giving the floor to counsel for Mr. Simatovic, may I

13     inquire with the Prosecution if they need the break before their reply or

14     if we can proceed after the response of counsel for Mr. Simatovic,

15     directly to the reply?

16             MS. JARVIS:  Your Honours, it would be our preference to take the

17     break after the response from Mr. Simatovic, if that pleases you.  Thank

18     you.

19             JUDGE POCAR:  Okay.  Thank you.

20             Now we defer to counsel for Mr. Simatovic.  You have the floor

21     for one hour.

22             MR. PETROVIC: [Interpretation] Thank you, Your Honour.

23             Your Honours, first, at the very outset, I wish to say the

24     Defence for Franko Simatovic finds the Prosecution appeal brief to be

25     unfounded in its entirety.  The Defence believes that the conclusion of

Page 69

 1     the Trial Chamber to acquit Simatovic on all counts of the indictment was

 2     well-founded and lawful.  Any other position on the role, position, and

 3     responsibility of Franko Simatovic for the events he was charged with

 4     would be unfounded and unlawful.

 5             Defence would particularly like to point out that it stands fully

 6     by its response to the Prosecution appeal brief submitted on the 5th of

 7     November, 2013, as well as by all the factual and legal position provided

 8     during the proceedings.  Detailed explanations in terms of why the

 9     judgement should be upheld were provided in our response to the

10     Prosecution appeal brief, and we will do our utmost not to repeat those.

11             However, first of all, Defence would like to make some

12     introductory remarks.  Although Simatovic was acquitted on all counts of

13     the indictment, there is a number of findings made by the Trial Chamber

14     on certain individual elements of criminal responsibility of the accused

15     the Defence disagrees with and that it would have contested those had

16     Franko Simatovic been convicted.

17             Since the Trial Chamber in its final conclusion reached a correct

18     and fair judgement, Defence is not in a position to contest the legal and

19     factual findings it disagrees with.  Out of an abundance of caution,

20     Defence would like to point out that should the Appeals Chamber choose to

21     accept any part of the Prosecution appeal, Simatovic may find himself in

22     a position where his right to a fair trial and to a just trial, as well

23     as to a two-instance procedure, would be substantially limited and in

24     some aspects completely denied.

25             Should the Appeals Chamber find the Prosecution's appeal to be

Page 70

 1     grounded, partially or in entirety, and we believe the Appeals Chamber

 2     will not find it to be founded on any ground, the only decision the

 3     Appeals Chamber could render would be to return the case to a special

 4     Bench of the Tribunal for reconsideration with the application of the

 5     appropriate legal standard.  This would be the only way to protect the

 6     accused Simatovic's right to a fair trial and his right to a two-instance

 7     procedure, because only then, in case the new judgement were a convicting

 8     one, would Simatovic have the possibility of filing an appeal against the

 9     findings he believes to be unfounded.

10             The Prosecution, in its first ground of appeal, calls for an

11     intervention by the Appeals Chamber to change or correct the applied

12     legal standard in terms of participation in the JCE.

13             In the second ground of appeal, although it is not explicitly

14     stated in the appeal brief, the Prosecution ask that the Appeals Chamber

15     apply a completely different law, to substitute the law or jurisprudence

16     of specific direction under which Simatovic was tried with a law or

17     jurisprudence established after the Simatovic judgement and after his

18     acquittal.

19             The Prosecution based its request on the legal basis established

20     in some parts of the first-instance judgement.  The situation on hand is

21     particularly sensitive in that regard and significantly different from

22     all other situations where the Appeals Chamber discussed whether there

23     are any limitations imposed on its right to substitute a judgement of

24     acquittal with a finding of guilt.

25             At least two circumstances of particular importance.  There isn't

Page 71

 1     a single case where the accused was acquitted by the Trial Chamber on all

 2     counts and then convicted by the Appeals Chamber on some or all grounds

 3     of appeal by the Prosecution.

 4             Secondly, there isn't a single case where the accused who was

 5     acquitted by the Trial Chamber on all counts of the indictment was

 6     subsequently sentenced only because the law or jurisprudence relied upon

 7     here were changed.

 8             If the Appeals Chamber were to apply the jurisprudence from the

 9     Sainovic et al. appeal decision regarding specific direction, it would be

10     a unique case where someone who was acquitted on the basis of the Appeals

11     Chamber position was sentenced on the basis of the position by the same

12     Appeals Chamber in a different composition.

13             This case does not involve a discussion if the Appeals Chamber in

14     the case of someone who had previously been convicted would rely on the

15     same facts or whether the Appeals Chamber, on the basis of the same

16     facts, could reach an acquittal on another count of the indictment that

17     would have no or only a small impact on the overall sentence.  It would

18     entail a precedent where the accused would, if I may say so, be the

19     victims of a legal theoretical discussion.  That discussion is important

20     in the sense of legal theory.  It is important for the future of

21     international law.  But Franko Simatovic must not be the victim of that

22     discussion.

23             In this particular situation, which is significantly different

24     from all other situations where this dilemma was placed before the

25     Appeals Chamber in earlier proceedings, the position of the Defence is

Page 72

 1     that should the Appeals Chamber choose not to uphold the Trial Chamber

 2     decision in its entirety, and it certainly should do so, or if as a last

 3     resort it decides not to return the case to the Trial Chamber for a

 4     reconsideration, it is evident that a serious violation of the

 5     fundamental principle of a fair trial would occur as recognised by

 6     international law as well as by many national legal systems.

 7             The international convention on civil and political rights as the

 8     fundamental legal authority in Article 14(5) states that anyone convicted

 9     of a crime has the right to have his or her conviction reconsidered by a

10     court of higher instance in keeping with the law.  In the UN

11     Secretary-General report when, establishing the international Tribunal in

12     paragraph 116, it is stated that the right to appeal is a fundamental

13     element of individual, civil and political rights as established by the

14     international convention on civil and political rights.

15             If the Appeals Chamber were to adopt any grounds of appeal by the

16     Prosecution, for which Defence is deeply convinced there is no reason to

17     do, the only path to choose is that a new Trial Chamber is appointed, and

18     if there is a conviction, any potential appeal should be considered by

19     the Appeals Chamber.  If the Appeals Chamber is to adopt any Prosecution

20     grounds of appeal and if there is a dilemma in terms of how to proceed,

21     this dilemma must be resolved to the benefit of the accused.  If the

22     Appeals Chamber has a dilemma in the context of different legitimate

23     legal interests that may exist in this matter, the dilemma must be

24     resolved to the benefit of the accused, Stanisic and Simatovic.

25             As already mentioned, even the Prosecution alternatively requests

Page 73

 1     for grounds 1 and 2 that the Appeals Chamber appoint a special Bench of

 2     the Tribunal which would apply the legal standard.  This Defence believes

 3     that the understanding of specific direction as provided for in the trial

 4     judgement considered here and the Perisic appeal judgement is fully

 5     correct and based on best practice of international courts, which is

 6     something that is discussed in detail in our brief; hence, I will not

 7     return to it today.

 8             As regards ground 1 of the Prosecution appeal brief, the

 9     Prosecutor contends that the Trial Chamber committed an error in failing

10     to find that Simatovic shared the intent to further the common criminal

11     purpose of the JCE.  The aforesaid error occurred by failing to provide a

12     reasoned opinion on elements of JCE liability by applying an erroneous

13     legal standard and erring in fact by sharing that Simatovic did not share

14     the common criminal purpose of the JCE.

15             The Prosecutor in its appeal states that the Trial Chamber

16     acquitted Simatovic as a member of a JCE because he did not share the

17     intent to achieve the common purpose without establishing whether the JCE

18     existed or not.  The Prosecutor is of the view that, first, it should be

19     ascertained whether there are physical elements of the JCE in existence,

20     and only then to establish if the accused possessed the mental element

21     required.

22             Defence points out that there is no rule in terms of which

23     sequence is to be followed to establish the elements of the JCE.  Defence

24     states that the Trial Chamber, by thorough analysis, established that

25     Simatovic did not possess the mental element for JCE.  If the Trial

Page 74

 1     Chamber concluded that intent necessary for JCE does not exist, there is

 2     no single legal reason for the Trial Chamber to continue establishing

 3     whether all or only some physical elements of the JCE existed or not.

 4             It is clear that in a situation where no mental element exists an

 5     acquittal is the only possible outcome.

 6             Defence also states that the Trial Chamber considered all

 7     elements necessary to establish the existence of the JCE alleged in the

 8     indictment.  The Trial Chamber considered the entire crime base, all

 9     armed formations, and the relationship of the accused with those

10     formations.  The analysis conducted by the Trial Chamber did not result

11     in a conclusion that there was a JCE in which Simatovic participated.

12             Whether a JCE existed with regard to the same or similar factual

13     situation and with the participation of some other persons is beyond the

14     scope of the Trial Chamber, and it was under no obligation to express its

15     position on that matter.  It is worth noting that the position of the

16     Prosecution is that the Trial Chamber erred for not analysing an

17     important aspect of the JCE; the issue of creation of Greater Serbia.  To

18     discuss the issue of Greater Serbia as regards Simatovic, who at the time

19     relevant to the indictment, was an employee of the Serbian DB of a lower

20     rank without any possibility to influence the political or historical

21     goals of the political or military leadership is pointless and without

22     meaning.

23             The Prosecution particularly objects the Trial Chamber not taking

24     into account all evidence it deemed significant, although there is no

25     dispute about the position that the Trial Chamber need not refer to each

Page 75

 1     and every exhibit in the case file.  The Prosecution particularly objects

 2     to the fact that the 45 exhibits provided for in Annex B were not cited

 3     by the Trial Chamber, although in their understanding they were obviously

 4     significant and relevant.  This approach is clearly unfounded because of

 5     the very fact that of the 45 particularly relevant exhibits, not even the

 6     Prosecution themselves mentioned 13 of those in their final brief.

 7             The Defence concluded that the Trial Chamber acted correctly and

 8     concluded correctly by establishing that Simatovic did not possess the

 9     mental element necessary to participate in the JCE and that it analysed

10     all other elements of importance for the existence of the JCE.  It

11     explains it appropriately, making the subground 1(A) of the Prosecution

12     unfounded, and the Appeals Chamber should reject it in entirety.

13             As regards subground 1(B), the Prosecutor states that the

14     Trial Chamber applied an erroneous standard in assessing the evidence,

15     especially in the discussion on the mens rea of the accused, and that

16     they based their conclusions on fragments rather than the entirety of all

17     exhibits.

18             As already stated, the Trial Chamber does not have to take a

19     position individually on each and every one of the 3.226 exhibits

20     involved.  That would be impossible, legally and technically.

21             As regards mens rea for Simatovic, every question related to

22     Simatovic's mens rea was looked at, and the brief refers to that.

23             The Prosecutor, in their brief, try to prove Simatovic's intent

24     through allegations concerning what happened in Lovinac, participation in

25     the Vukovar operation, and the Udar operation.  Each and every one of

Page 76

 1     these assertions proffered by the Prosecutors themselves were looked

 2     into, as were others that the Prosecutor does not indicate in the final

 3     brief.  And irrespective of all of that, the final conclusion of the

 4     Trial Chamber in relation to Simatovic is that there is no mens rea for

 5     JCE.

 6             The Trial Chamber analyses and uses the same logical and

 7     methodological approach in relation to all of Simatovic's activities and

 8     establishes that not a single one of these activities, individually or

 9     all together, meets the required standard for a conviction.

10             The Defence wishes to say that although subground 1(B) pertains

11     to both accused persons, not a single argument presented by the

12     Prosecution pertains to Simatovic, and therefore it should be dismissed.

13     Everything that is stated by the Prosecutor in this subground is an

14     effort to impose a different interpretation of the evidence with no

15     reference to where there is an error on the part of the Trial Chamber.

16             The Prosecution is just trying to substitute one interpretation

17     with another one, so this is not an erroneous application of standards

18     but, rather, their disagreement with conclusions, and the Prosecutor

19     wishes to present this as an erroneous and fragmentary approach in

20     assessing the evidence.

21             In section (D) of the first ground of appeal, the Prosecution

22     states that they wish to help the Appeals Chamber by recapitulating the

23     evidence that was presented before the Trial Chamber.  Section (D) goes

24     beyond the Notice of Appeal provided by the Prosecutor.  The Prosecutor

25     within the first ground complains about the conclusion of the

Page 77

 1     Trial Chamber in relation to omissions on the part of the Chamber in

 2     terms of establishing intent regarding JCE as well as the mental element

 3     of the responsibility of the accused.  (D) is a mix of conclusions of the

 4     Trial Chamber, quotations of certain exhibits from the case, and

 5     conclusions of the Prosecution themselves, and they wish in this way to

 6     assist the Trial Chamber in correcting the legal error that was made by

 7     the Trial Chamber.

 8             In this section there are - section (D) - there is a number of

 9     important conclusions of the Trial Chamber that would be seriously

10     challenged by the Defence if a conviction was the initial trial

11     judgement.  In addition to that, these allegations are nothing else but a

12     re-presentation of the Prosecution case.

13             First of all, the Defence believes that the Prosecutor, in

14     referring to section (D), has blatantly overstepped their Notice of

15     Appeal.  Nowhere in the Notice of Appeal is there any basis for

16     presenting what is contained in section (D).  The Prosecution's first

17     ground of appeal is that the Trial Chamber committed an error of law

18     and/or an error of fact in failing to find shared intent to further

19     common criminal purpose of JCE.  So this is a question of a mental

20     element of responsibility.

21             In section (D), however, the Prosecutor presents his own view of

22     the conclusions of the Trial Chamber and their subsequent interpretation

23     of the evidence in the case.

24             All of this should be dismissed, all of section D, because the

25     Prosecution wishes to re-establish their case without indicating where

Page 78

 1     the Trial Chamber erred.  The Defence wishes to point out that in this

 2     situation where the Prosecutor wishes to substitute their own assessments

 3     with those made by the Trial Chamber, that should be dismissed

 4     altogether, in accordance with relevant jurisprudence.

 5             There cannot be relitigation and also they cannot present their

 6     own case once again because they disagree with the findings of the

 7     Trial Chamber because that is simply not done.  In relation to

 8     section (D), the Defence already provided certain positions in their

 9     reply, and we will not be repeating them here and now.

10             As for 1(C), the Defence believes that the Trial Chamber did not

11     err, factually, when establishing that Simatovic did not share intent

12     regarding JCE.

13             The OTP suggests that the Trial Chamber erred in fact in finding

14     that Stanisic and Simatovic did not share the intent to further the

15     common criminal purpose of forcibly and permanently removing the majority

16     of non-Serbs from large areas of the territory of Bosnia and Croatia.

17     The Prosecution contends that Stanisic and Simatovic created, deployed,

18     trained, financed, supplied, and supported multiple armed groups and

19     continued supporting them knowing that they participated in one massive

20     systemic campaign of violence against the non-Serb population.

21             Obviously, this kind of general position taken by the Prosecution

22     is not based on the evidence adduced at all.  The Prosecution is asking

23     the Appeals Chamber to do that, believing that the Trial Chamber omitted

24     to do so.  However, the entire appeal of the Prosecution looked at as a

25     whole, and especially as regarding the accused Simatovic, links this

Page 79

 1     accused person with certain things that happened allegedly in 1991 in

 2     Lovinac, then 1992 in Bosanski Samac and Doboj, and 1995 in Sanski Most.

 3     In addition to that, the Prosecution points out that Simatovic had

 4     contact only with one alleged member of the JCE, Milan Martic, namely,

 5     and in 1991 at that.

 6             So it is clear that the Prosecution is also aware of the fact

 7     that there is no evidence of Simatovic's alleged criminal activity and,

 8     nevertheless, they say that the Trial Chamber erred in viewing the

 9     evidence in its entirety.  Even if one looks at the evidence in this way,

10     it is obvious that even if viewed this way, this does not support the

11     Prosecution's position about Simatovic's responsibility.

12             Further on, the Prosecution states in blanket fashion the alleged

13     things done by Simatovic, that he allegedly participated in a massive

14     systemic campaign against non-Serbs.  The Prosecution says that Simatovic

15     created many armed groups, and they're not saying specifically which

16     groups these were and how that was done, and there is no evidence that

17     Simatovic created any such groups.  The Prosecution also says that

18     Simatovic deployed many armed groups, again without any specific

19     statement as to which groups these are and where it was that Simatovic

20     deployed them.

21             Also, the Prosecution says, without basing this on any kind of

22     evidence, that Simatovic trained armed groups, and they neglect the fact

23     that the Trial Chamber, on the basis of material evidence, undeniable

24     material evidence, establishes that Simatovic throughout this time that

25     is relevant to the indictment was an intelligence man in the 2nd

Page 80

 1     Intelligence Administration and not a military or police instructor.

 2             Further on, the Prosecution states without any grounds that

 3     Simatovic financed many armed groups.  It is not clear that Simatovic had

 4     any capacity to finance anyone.  It is particularly unclear whether the

 5     Prosecution is suggesting that Simatovic finance these groups from his

 6     own resources or the resources of the SDB of Serbia.  It is quite clear

 7     that for -- either Simatovic did not have the capacity or position to do

 8     that, and therefore this is nonsense as regards the position of the

 9     Prosecution.

10             Simatovic, in terms of his position and in terms of the office he

11     held in the hierarchy of the SDB of Serbia, did not have the capacity to

12     finance anyone.  What the Defence said with regard to financing also goes

13     for supplies and support to various armed groups.

14             As for the relationship between the accused Simatovic and the

15     alleged participant in the JCE, Milan Martic, the Defence does not wish

16     to go into a discussion now regarding Martic's criminal intent but is

17     convinced that the Prosecution did not give any evidence whatsoever that

18     would indicate beyond a reasonable doubt that Simatovic shared this

19     intent with Martic.

20             Simatovic was in Knin briefly in 1991 at the time when crimes

21     referred to in the indictment were not even committed and at the time

22     when there was sporadic military operations undertaken with a view to

23     maintaining control in the area and defending the areas from the Croatian

24     armed forces.  Therefore, it is absolutely unclear what kind of evidence

25     was adduced during the proceedings that shows that Simatovic shared

Page 81

 1     Martic's alleged intent to deport non-Serbs from the area of the

 2     SAO Krajina, especially when bearing in mind that the population, due to

 3     the military operations that were carried out by the JNA, were moving to

 4     areas where there were no such military operations.  In a situation where

 5     there is a fluctuation of the population from an area of combat activity

 6     to other peaceful areas, one clearly has to delineate the two and

 7     establish what the evidence is that would lead to a finding that

 8     Simatovic knew of any kind of intent to expel the non-Serb population and

 9     that he shared this intent with Martic.  There is simply no such evidence

10     in this case.

11             The reasons that the Prosecution tried to provide in their appeal

12     in this regard are unfounded, illogical, and not based on the evidence

13     adduced in this case.

14             The Prosecution claims that Simatovic closely co-operated with

15     Martic, and they refer to the trial judgement.  The Defence, however,

16     wishes to note that the Prosecution ignores the fact that the

17     Trial Chamber clearly indicated that there is no evidence that Martic

18     discussed his intention to deport non-Serbs with the accused.  Also,

19     there -- in the paragraph that is mentioned by the Prosecution, there is

20     no mention of the accused Simatovic.  Therefore, the Trial Chamber does

21     not establish any close co-operation between Martic and Simatovic.  It is

22     only Stanisic's co-operation that is referred to.  Obviously, there is no

23     evidence to claim that there was close co-operation between Simatovic and

24     Martic.

25             JUDGE POCAR:  We don't have the translation.  There is a problem.

Page 82

 1             THE INTERPRETER:  The counsel needs to slow down.  Thank you.

 2             JUDGE POCAR:  Okay, please slow down a bit and -- slow down a

 3     bit, and we check if we have translation.

 4             MR. PETROVIC: [Interpretation] Certainly, Your Honour.  May I

 5     continue?

 6             JUDGE POCAR:  Yes, okay.

 7             MR. PETROVIC: [Interpretation] Thank you.

 8             The Prosecution suggests that Simatovic was present when Babic

 9     and Martic planned the attack on Lovinac.  And Babic, in his testimony,

10     mentions that in a restaurant in Knin he heard that Simatovic bragged

11     about his role in the attack on Lovinac.  This is a clear discrepancy

12     between such a statement and the Prosecution conclusion with regard to

13     Martic's close co-operation with Simatovic.  The assertion by the

14     Prosecution that is particularly unfounded --

15             JUDGE POCAR:  We are now informed there is no French translation,

16     so there must be a problem.  A technical problem.  Can it be fixed?

17             Please, counsel, proceed.

18             MR. PETROVIC: [Interpretation] Thank you, Your Honour.

19             The assertion by the Prosecution about the existence of a

20     continuous relationship between the accused and Arkan and his SDG,

21     starting with 1991 until 1995, is particularly unfounded.  There is no

22     proof of that and it seems that the Prosecution themselves are not

23     certain about the existence of any kind of relationship between Simatovic

24     and Arkan before 1995.

25             We've already said that we disagree with some findings of the

Page 83

 1     Trial Chamber, and one of the most conspicuous findings is the alleged

 2     participation of Simatovic in the deployment of Arkan and the SDG in 1995

 3     in Treskavica.  In our response to the appeal, we have elaborated this

 4     question in detail, pointing out the exhibit which undoubtedly shows that

 5     during the time of the operation, Simatovic was not in the area of the

 6     former Yugoslavia at all but in Greece.

 7             There is also no evidence which would prove beyond reasonable

 8     doubt that Simatovic participated or had a role in the deployment of

 9     Arkan and the SDG in Sanski Most in 1995.

10             As regards the ground of appeal number 2, it is basically an

11     assertion that the Trial Chamber erred in law by finding that it is

12     necessary to establish that the acts of a person aiding and abetting be

13     specifically directed so as to assist in the commission of crimes; in

14     this specific case, the crimes in Bosanski Samac, Doboj, and the

15     SAO Krajina.

16             As regards subground 2(A), Defence explained its position in

17     detail in its response.  We stated why we believe that the condition of

18     specific direction, as provided in the judgement, is based on the

19     jurisprudence of this Tribunal and other international courts.  Defence

20     believes that there is no reason why this Appeals Chamber should confirm

21     the position that -- it should not confirm the position taken by the

22     Appeals Chamber in the same matter in the Perisic case.  The Defence

23     wishes to express its position further in case the Appeals Chamber finds

24     that the Perisic finding was inadequate.

25             Defence has an important remark to make as a matter of principle

Page 84

 1     when it comes to the issue of specific direction.  In the decision of the

 2     Appeals Chamber on the appeal in sentencing in the case of

 3     Dragan Nikolic, it was stated that the principle of applying the less

 4     stringent law, lex mitior, can be applied with regard to potential

 5     changes of the Statute of the international Tribunal which, in that

 6     specific case of Dragan Nikolic, referred to the type and duration of

 7     sentence that can be pronounced.

 8             The relevant criminal law relied on by this international

 9     Tribunal is the Statute of the international Tribunal.  Since the Statute

10     provides for only some basic characteristics of crimes in only four

11     articles, and in one article it defines the type of responsibility, the

12     jurisprudence of this international Tribunal defining the acts and types

13     of responsibility basically present the relevant criminal code as it is

14     understood in the countries of continental legal systems.

15             If the jurisprudence changed, if I may say if the criminal law

16     changed in the course of the proceedings, then according to the

17     lex mitior principle, in the case of Simatovic, the most favourable legal

18     regulation must be applied.  If in the course of proceedings against

19     Simatovic there are two interpretations of specific direction, if the two

20     interpretations are of the same legal bearing, which is the case because

21     they were both reached by the same Appeals Chamber, then in the case of

22     Simatovic, the more favourable interpretation must be applied as provided

23     for in the trial judgement.

24             Defence would only briefly like to refer to the position of the

25     Grand Chamber of the European Court of Human Rights in the case Scoppola

Page 85

 1     versus Italy where, in paragraph 109, the court confirms the principle

 2     that in cases where there are differences in criminal codes at the time

 3     when the crime was committed and in subsequent criminal laws enforced

 4     before the final judgement, courts must apply the law whose provisions

 5     are the most favourable for the accused.

 6             Finally, in the Rome Statute of the ICC, in Article 24(2) states

 7     that should the law be changed before the final judgement, the more

 8     favourable law shall be applied.

 9             As regards the second ground of appeal under (B) and the third

10     ground of appeal of the Prosecution, Defence would wish to point out the

11     following.  The Prosecution assert that the Trial Chamber, additionally

12     or alternatively, erred in fact with regard to the reasons from appeal

13     subground 2(A) given the fact that in the view of the Prosecution no

14     reasonable Trial Chamber would not find that Stanisic and Simatovic were

15     not aiders and abettors of the crimes committed in the municipalities of

16     Bosanski Samac and Doboj, as well as in the area of SAO Krajina, even in

17     a situation where it would be accepted that the element of specific

18     direction is a constituent element of actus reus for aiding and abetting.

19             In addition, the Prosecution presents a position that no

20     reasonable Trial Chamber would not find that the contribution of the

21     accused to the crimes in Bosanski Samac and Doboj, as well as in the area

22     of the SAO Krajina, are not specifically or directly directed at the

23     commission of crimes.  The Defence asserts that such position is

24     unacceptable and unfounded and that the Trial Chamber correctly found

25     that Simatovic is not responsible for aiding and abetting these crimes.

Page 86

 1             Defence reiterates that if indirect evidence is used to establish

 2     a fact that a conviction would be based on, that conclusion must be the

 3     only reasonable conclusion that could be reached on the basis of such

 4     indirect evidence.  If the evidence can be used to reach more than one

 5     reasonable conclusion, the accused may not be pronounced guilty and the

 6     Trial Chamber correctly applied it.

 7             As regards the events in Bosanski Samac municipality, the Defence

 8     presented much evidence which undoubtedly shows that the municipality of

 9     Bosanski Samac was organised as a new municipality with the aim of

10     organising the Serbian people in the area for defence under the

11     leadership of the Bosanski Samac SDS.  In the area, the dominant defence

12     role was played by the 17th Tactical Group of the JNA, which was well

13     armed with heavy and light weaponry.

14             The leadership of Bosanski Samac established direct contacts with

15     the command of the Yugoslav airforce in Belgrade; specifically, with

16     General Bajic.  It is obvious, therefore, that under such circumstances

17     prevailing in the new municipality of Bosanski Samac, a simple operative

18     of the intelligence administration of the SDB sitting in his office in

19     Belgrade cannot have any influence over the events in Bosanski Samac, let

20     alone to direct or channel those events in any way.

21             The only reasonable conclusion is that Franko Simatovic lacked

22     the capacity and authority, nor was he factually present, and that it

23     could not be concluded that he aided or abetted the events in

24     Bosanski Samac in the time relevant for the proceedings.

25             As regards Doboj, it is the Prosecution's obvious intent to

Page 87

 1     establish a link between the events in Doboj and the unit of the DB of

 2     Republika Srbija via Radojica Bozovic.  Ample evidence was led during the

 3     proceedings that undoubtedly shows that Radojica Bozovic was a member of

 4     the MUP of the Serbian Republic of Bosnia-Herzegovina at the time

 5     relevant for the indictment.  In documents of the Serbian Republic of BiH

 6     MUP for April and May 1992, Bozovic was designated as a member of the

 7     ministry and received his salary from the ministry.  Other evidence

 8     confirms that as well.

 9             The training of special units at Ozren was commanded by a certain

10     Slobodan Katanic, a member of the BiH MUP.  The crime in Doboj, as

11     charged in the indictment, happened on the 12th of July, 1992, and it is

12     obvious from the evidence that was led that Bozovic could not have

13     participated; namely, between the 26th of June and the 23rd of July, he

14     was hospitalised in the general hospital in Doboj after being wounded.

15     Following his release and recovery, he was assigned to other tasks and

16     duties.

17             Since Radojica Bozovic is the only link with the accused, and

18     bearing in mind that the Prosecution draws that connection to find any

19     involvement in the crimes of Doboj, bearing all of this in mind, the only

20     reasonable conclusion is the one reached by the Trial Chamber, which is

21     that Franko Simatovic has nothing to do with the events and crimes in

22     Doboj.

23             Furthermore, the Prosecution instructs the Appeals Chamber that

24     the Trial Chamber found that the TO and the police of the SAO Krajina

25     committed murders, deportations, and persecution of non-Serb civilians in

Page 88

 1     the SAO Krajina between April 1991 and 1994.  Although the Trial Chamber

 2     established that indeed there were certain links between the accused and

 3     groups, such as the SAO Krajina police and TO, the Trial Chamber

 4     nevertheless correctly found that these links and evidence indicating the

 5     existence of those links are insufficient to conclude that the accused,

 6     including Franko Simatovic, aided and abetted the crimes committed by the

 7     SAO Krajina police and TO.

 8             The Trial Chamber explicitly established that certain links

 9     between Franko Simatovic and certain groups in the Krajina are not

10     sufficient in themselves to impose as the only reasonable conclusion that

11     Simatovic aided and abetted the crimes committed by these groups, if any.

12     If all the findings of the Trial Chamber that the Defence does not fully

13     agree with were absolutely correct, again there would be an alternative

14     explanation of what Simatovic did, and that is what the Trial Chamber

15     found; namely, that there were connections that were established and

16     directed towards supporting the war effort of the Serbs in SAO Krajina,

17     rather, the effort to control territory.  Not to help in the commission

18     of any kind of crime.

19             So let us simplify matters.  Although we do not agree with

20     certain factual findings of the Trial Chamber in this section either,

21     again, even if that were absolutely correct, it would be unreasonable to

22     establish that these connections happened in order for crimes to be

23     committed rather than having another objective involved.

24             The Prosecution, during the proceedings, had to proffer evidence

25     that Simatovic's activity in Krajina, in a very limited period of time,

Page 89

 1     from April 1991 until August 1991, was exclusively geared towards aiding

 2     and abetting the commission of crimes charged in the indictment.  Since

 3     there is no such evidence, what suits the Prosecution the most is to have

 4     the broadest possible test of responsibility for aiding and abetting.

 5             Simatovic was indeed in Knin in the period of two and a half

 6     months between May 1991 and August 1991, but we have not said that his

 7     activity was not geared towards aiding and abetting the commission of any

 8     crimes and that it is equally important to mention that in that period,

 9     when Simatovic was in Knin, crimes were not committed, and he could not

10     have known of any crimes.

11             The evidence clearly shows that Milan Martic, already in 1990,

12     organised the police of - milicija - the SAO Krajina and reached a

13     decision on its financing and training.  There is evidence that until

14     December 1990, this police was financed from Zagreb and later companies

15     from the area of SAO Krajina.  Martic decided on the allocation of funds,

16     and there were donations from Germany as well.  There is a great deal of

17     evidence about this.  Also, to the effect that the Ministry of Defence of

18     Republic of Serbia financed the TO of the SAO Krajina through the public

19     accounting service in Knin and commercial banks.  All agreements on

20     financing were agreed at top level between the government of the

21     SAO Krajina and Slobodan Milosevic or the minister of the interior,

22     Zoran Sokolovic, and there is also material evidence to that effect.

23     Simatovic had no contact whatsoever with top state officials.  He is

24     considerably below these persons in the state hierarchy.

25             Simatovic does not belong to the circle of persons who discuss

Page 90

 1     matters and reached decisions regarding state policy in any aspect,

 2     financing included.  Simply, he did not have that kind of authority

 3     within his service, the DB of Serbia, let alone at some higher level.

 4             The position that Simatovic held rules out any kind of allocation

 5     of financial resources that could finance the forces of the Serbs in the

 6     SAO Krajina.

 7             The Prosecution points out that Simatovic personally participated

 8     in certain operations where Martic acted with the intention of committing

 9     crimes.  There is a reference to Lovinac there.  The Defence wishes to

10     state on this occasion as well that Simatovic had nothing whatsoever to

11     do with the attack against Lovinac, which was in the immediate vicinity

12     of the largest arms depot of the JNA in the area of Lika.  This depot was

13     blocked by the Croatian forces, so it was only the JNA that made the

14     decision to break through this blockade.  The forces of the Knin Corps

15     did carry out this breakthrough, and with regard to this operation,

16     Mladic took notes about this in his diary, and that is in evidence.  As a

17     result of the war rations concerning the deblockade of the arms depot,

18     the population of Lovinac left the area.  In Mladic's diary, which is

19     material in this case, there is no mention of Simatovic, and therefore it

20     is only reasonable to conclude that this attack was planned and carried

21     out by the JNA.

22             The Defence also contends that Simatovic had absolutely nothing

23     to do with the activities in Glina and Struga in the summer of 1991.

24             We just need to briefly say a few words about the alleged

25     contribution of Simatovic to the alleged JCE in Sanski Most.

Page 91

 1             The Prosecution contends that the evidence indicates that the

 2     accused financed and deployed Arkan in Sanski Most in 1990 and 1995.  The

 3     Prosecution also contends that between 1991 and 1993, the Serb Volunteer

 4     Guard and Arkan committed many crimes against non-Serb civilians in the

 5     area of Slavonia, Baranja, and Western Srem, Bijeljina, and Zvornik, with

 6     the assistance of the SDB of Serbia, which is something that the accused

 7     would have to know about.

 8             We would like to point out that this is contradictory and quite

 9     unclear as far as the appeal is concerned.  Namely, the Prosecution does

10     not say that the Franko Simatovic was not responsible with regard to what

11     the SDG did before 1995 in Slavonia, Baranja, and Western Srem,

12     Bijeljina, and Zvornik, before 1995, but they want Simatovic to be held

13     accountable for aiding and abetting crimes in Sanski Most because,

14     allegedly, Stanisic knew about this previously, and he had to know that

15     the SDG could commit the crimes of persecution and murder.

16             To this day, the Defence does not understand how come Simatovic,

17     and on the basis of somebody else's knowledge about crimes committed

18     previously, there could have been an awareness that such crimes could be

19     committed yet again.  There is no evidence linking Simatovic to what

20     happened in Sanski Most, except for the testimony of an absolutely

21     incredible witness, a witness that totally lacks credibility, and we have

22     already dealt with this extensively in our brief.

23             Arkan and SDG were sent to Banja Luka as members of the RSK under

24     the direct control of the 11th Corps.  Witness Pejlovic, Arkan's first

25     deputy in the SDG, testified before the Trial Chamber and confirmed all

Page 92

 1     of this material evidence is absolutely correct.  In addition to that,

 2     Arkan came to the area of Sanski Most as invited by the top leadership of

 3     Republika Srpska and agreement with the officials of the army of the RSK

 4     and placed himself under the direct control of General Talic, who was

 5     then commander of the 1st Krajina Corps of the VRS and who commanded the

 6     entire defence of Banja Luka and Sanski Most.

 7             In this context, when the Defence, on the one hand, weighs all

 8     the adduced evidence and, on the other hand, the position and title that

 9     Simatovic had in the SDB, it is absolutely not clear on the basis of

10     which evidence the Prosecution contends that Simatovic had the capacity

11     at all to organise salaries and medical care for members of the SDG.

12             The same pertains to Operation Pauk, Spider, where it is claimed

13     that Simatovic, together with Stanisic, made it possible for the SDG to

14     take part in this operation.  The Prosecution mentions Simatovic,

15     although Simatovic did not participate in any preparatory meeting for

16     this operation with high officials, including Mladic, Perisic, and

17     others.  It is clear that Simatovic did not have any capacity to make it

18     possible to have the SDG participate in Operation Pauk.

19             Also, there is no evidence in this case that Simatovic provided

20     ammunition and uniforms to the SDG in view of the specific position that

21     Simatovic had in the service.

22             The Defence wishes to conclude at this point that there was ample

23     evidence that proved beyond a reasonable doubt that Simatovic, in terms

24     of his position and in terms of the title he had and in terms of his job

25     description, could not have proposed, let alone approved or secured

Page 93

 1     financial support to anyone, the SDG included.

 2             The Defence wishes finally to conclude that the Trial Chamber

 3     should fully affirm the trial judgement that all three grounds of appeal

 4     of the Prosecution should be dismissed and kindly ask this

 5     Appeals Chamber to affirm the acquittal pronounced for Franko Simatovic

 6     because that is the only judgement that is possible in terms of fact and

 7     law.

 8             Thank you, Your Honours.

 9             JUDGE POCAR:  Thank you, counsel.

10             We will now adjourn for 20 minutes and so reconvene at quarter

11     to 4.00.

12                           --- Recess taken at 3.23 p.m.

13                           --- On resuming at 3.44 p.m.

14             JUDGE POCAR:  We resume the hearing, and I will give the floor to

15     the Prosecution for their reply.

16             MS. JARVIS:  Thank you, Mr. President, and Your Honours.  I have

17     just four points in reply, and I will endeavour to be brief.

18             The first point relates to the submission made by counsel for

19     Mr. Stanisic that the Prosecution, through its appeal, is seeking to

20     construct a new house without looking at whether the existing doors and

21     windows are valid.

22             We accept that the doors and the windows in the house constructed

23     by the Chamber are sound.  Our problem is that the Chamber constructed

24     its house without any foundations, and the missing foundations, of

25     course, are the common criminal purpose analysis and the analysis of the

Page 94

 1     accused's knowledge of that common criminal purpose.  Without those

 2     foundations, the house constructed by the Chamber cannot be sound.

 3             The Defence don't address these two issues in their submissions.

 4     We've not heard anything from them that will help us to understand where

 5     is the missing analysis in the judgement, where is the missing analysis

 6     on the common criminal purpose and on the accused's knowledge of that

 7     criminal purpose.  The foundations of the house are still, indeed,

 8     missing.

 9             Your Honours, we accept, of course, that the Trial Chamber made

10     many findings throughout the judgement that are sound.  Other than the

11     ones we challenge in ground 3 and the ones tainted by the absence of the

12     common criminal purpose lens, we accept the findings in the judgement, as

13     we've set out in brief and as we've argued in our submissions today.  But

14     what we want is for Your Honours to fix the missing foundations.  To add

15     those foundations into the house.  And the fact that the rest of the

16     structure of the house is sound supports our position that this case is

17     not so difficult to fix.

18             Counsel for Mr. Stanisic concluded his submissions by saying that

19     the OTP can only succeed in its appeal if it establishes three things or

20     if we accept that there was a criminal purpose where the crimes were

21     inherent to the territorial control, if we accept that the accused knew

22     of that, and we accept that the accused contributed consistently.

23             We agree with those three propositions.  But again, the problem

24     is that despite all of the evidence adduced by the Prosecution at trial

25     about the common criminal purpose, about the accused's knowledge of that,

Page 95

 1     about their contributions, the Trial Chamber did not factor that into its

 2     analysis of shared intent.

 3             My second point concerns counsel for Mr. Stanisic's arguments

 4     that the Prosecution is asking Your Honours to assume guilt in this case.

 5     In relation to our bank robbery hypothetical, counsel has suggested that

 6     this demonstrates there is a presumption of guilt inherent in our

 7     argument, that we're asking you to suggest that a driver who indeed drove

 8     lawfully to the bank and others robbed it afterwards should be guilty.

 9     But, of course, this misses the key point of the hypothetical example:

10     It's about the relevance of the missing common criminal purpose analysis

11     in determining intent and why it was not open to the Trial Chamber to

12     simply fail to address it all together in its analysis.

13             Your Honours, I want to clarify that we, of course, do not say

14     that you should assume the common criminal purpose or assume that the

15     accused knew about it.  In Mr. Marcussen's submissions, he was dealing

16     with a Defence argument raised in the briefing that perhaps one might

17     view the Trial Chamber's approach as having assumed arguendo the common

18     criminal purpose.  Our point is that if you really look at that as a

19     suggestion and follow that through, you can see from the Trial Chamber's

20     own findings that it did not credit arguendo the common criminal purpose.

21     And even if it had, Your Honours, that still would not have been a valid

22     approach to adjudicating a JCE case.

23             Your Honours, the Trial Chamber had to engage with the evidence

24     the Prosecution produced about the common criminal purpose because that

25     evidence has a bearing on the accused's connection to the common criminal

Page 96

 1     purpose.  For example, the evidence about the pattern of crimes, the

 2     evidence about the statements of the JCE members, Karadzic and others,

 3     who clearly expressed their intent to ethnically cleanse, that had to be

 4     factored into the evidentiary mix in order to understand what the

 5     accused, given their connections and relationships and co-ordination and

 6     co-operation with those JCE members, what they would have known and

 7     indeed did know.

 8             Your Honours, the third point concerns the Defence's attempts to

 9     trivialise what has happened in this case.  Counsel for Mr. Stanisic has

10     suggested that the Prosecution's position is so far reaching --

11             JUDGE POCAR:  Judge Afande would like to put a question.

12             MS. JARVIS:  Sure.

13             JUDGE POCAR:  Sorry to interrupt you.

14             JUDGE AFANDE: [Interpretation] Good afternoon.

15             A while ago you talked about the foundation of the house.  I

16     believe you were referring to your first ground of appeal, which

17     according to you - I stand to be corrected, of course - according to you,

18     the Trial Chamber should have reached its conclusions on the basis of the

19     common criminal purpose before analysing the mens rea element.

20             Am I right in saying so?

21             MS. JARVIS:  Yes, Your Honour.  We say it was an integral part of

22     that analysis.  Whether the Chamber made a finding as step number 1 or

23     whether it factored it into the intent analysis, the analysis had to be

24     done as part of the adjudication of this case.

25             JUDGE AFANDE:  Right.  [Interpretation] But had that been the

Page 97

 1     case, and the way that you present it is that there has been an error in

 2     law, what legal finding do you rely on, in other words, that you have not

 3     applied the law, or is there a case law which enables you to support this

 4     analysis which the Trial Chamber would not have made?

 5             MS. JARVIS:  We say it's an error of law, Your Honour, because it

 6     was a failure to provide a reasoned opinion, which is one category of

 7     legal error recognised in the jurisprudence of this Tribunal.

 8             So whenever you fail to address an essential issue in the case or

 9     you fail to address essential evidence in the case, that can constitute a

10     failure to provide a reasoned opinion and constitutes a legal error.

11             Yes, Your Honour.

12             JUDGE AFANDE: [Interpretation] May I continue?  You seem to have

13     given us two citations this morning - in Kvocka, paragraph 23, and

14     Gotovina, paragraph 12, I believe - to illustrate your position which

15     seems to not conform with your appeals brief.  How can you explain this

16     difference between your position of a reasoned opinion that is lacking

17     and your initial position in your appeals brief which does not address

18     the question of a reasoned opinion?

19             MS. JARVIS:  Your Honour, in ground 1 of our appeal, we have

20     indeed alleged that the Trial Chamber has failed to provide a reasoned

21     opinion.  So the submissions made today are consistent with the arguments

22     that we've made in our brief, and we have in the brief included

23     additional citations to support that argument, but it certainly is the

24     case that what we are maintaining today is an explanation of what we've

25     already put in our brief.

Page 98

 1             Thank you, Your Honour.

 2             JUDGE AFANDE: [Interpretation] Thank you.

 3             MS. JARVIS:  Your Honour, my third point in reply concerns the

 4     Defence suggestion that the Prosecution is taking such a far-reaching

 5     position that we are suggesting any time a minor infraction is committed

 6     in the course of a conflict, a unit must be disbanded.

 7             Your Honours, of course that's not what is at issue here.  Let's

 8     not forget what happened in Bosanski Samac and Doboj.  In Bosanski Samac,

 9     the unit, the accused's unit that they directed and controlled, beat and

10     killed non-Serb detainees after the take-over and throughout April 1992

11     and into May.  The Chamber discussed evidence of the unit members beating

12     detained non-Serbs on the back of their heads with a rubber truncheon,

13     beating to death a 60-year-old man with a table leg before dragging him

14     into a courtyard, shooting him, ordering others to throw "this dog into

15     the Sava River," that's at paragraph 666, beating Muslims in the crotch,

16     and stating that Muslims should not propagate.  That's at paragraph 665,

17     666, 673, and 676.

18             The Chamber accepted that unit members perpetrated these beatings

19     and killings; paragraph 685.  In addition, the Chamber found that on

20     7 May 1992, unit members massacred 16 civilians held within a warehouse;

21     paragraph 608 to 615 and 685.

22             THE INTERPRETER:  Kindly slow down.  Thank you.

23             MS. JARVIS:  In Doboj, knowing of these ongoing crimes in

24     Bosanski Samac, the accused deployed another unit -- other unit members

25     who were not busy still terrorising civilians in Bosanski Samac into the

Page 99

 1     Doboj take-over on 3 May 1992.  That's at paragraph 718 of the judgement.

 2             By 7 May 1992, they had caused thousands of Muslim and Croats to

 3     flee Doboj town.  On 24 May 1992, unit members took ten detainees from a

 4     prison and they were not heard or seen of again.  That's at

 5     paragraph 777.  In June 1992, members of the unit killed at least 30

 6     civilian detainees from a warehouse and buried them in mass graves;

 7     paragraph 776.  In May or June 1992, unit members attacked the villages

 8     of Doboj municipality.  They captured, tortured, and killed members of

 9     the Muslim and Croat armies and killed the whole civilian --

10             THE INTERPRETER:  The speaker is kindly asked to slow down for

11     the purpose of interpretation into B/C/S.  Thank you.

12             MS. JARVIS:  Of Johovac; paragraph 747.

13             So, Your Honours, it really is a misrepresentation of the record

14     to suggest that the accused would not have known about the massive and

15     appalling nature of the crimes and the role that they played in the

16     ethnic cleansing campaign.

17             Your Honours, my fourth point, and I'm reluctant to tell you I

18     actually have five points, a problem with my numbering, the fourth point

19     concerns aiding and abetting.

20             Counsel for Mr. Stanisic argued today that that not much turned

21     on the Trial Chamber's legal error requiring specific direction as an

22     element of aiding and abetting.  But let's look at how the majority's

23     error resulted in a misappreciation of the accused's role in aiding and

24     abetting the crimes of the unit in Bosanski Samac and Doboj which

25     included murders, forcible displacement, and persecution.

Page 100

 1             Let's look at how this erroneous requirement, which has been

 2     found to be not consistent with customary international law, has resulted

 3     in their acquittal.

 4             In paragraph 2359, the Trial Chamber concluded that:

 5     "Contributions of the accused assisted the commission of the crimes."

 6             In other words, the Trial Chamber found that the legal

 7     requirement of contribution was met.

 8             In the subsequent paragraph, though, the majority considers that

 9     this assistance did not have a substantial effect because their acts were

10     not specifically directed at the crimes.  So, as a direct result, it

11     acquitted the accused of aiding and abetting in relation to crimes in

12     Bosanski Samac and Doboj.

13             So, Your Honours, the suggestion that the specific direction

14     requirement did not have an impact on the results achieved in this case

15     is not accurate based on a reading of the Chamber's own findings.

16             Your Honours, finally, the counsel for both accused have

17     addressed the issue of the fairness of entering convictions on appeal.

18     And we agree that that is a matter that Your Honours will obviously be

19     concerned to think carefully about.  But, Your Honours, this is a

20     question that has already been addressed and decided by this

21     Appeals Chamber.  Over the years, the argument has been put many times

22     that the Appeals Chamber should not enter convictions on appeal where

23     there is no further right of appeal, but the Appeals Chamber has

24     consistently taken the position that it does have that power and that it

25     is appropriate to do so.

Page 101

 1             Your Honours, this power, of course, stems from Article 25 of the

 2     Statute and the Chamber's power to affirm, reverse, or revise decisions

 3     of the Trial Chamber.  And for examples of where the Appeals Chamber has

 4     entered convictions before, I refer you to the Djordjevic appeal

 5     judgement at paragraph 928, Popovic appeal judgement at paragraph 539,

 6     the Gatete appeal judgement of the ICTR Appeals Chamber, paragraph 265.

 7     And there are, of course, many additional examples over the years of the

 8     Tribunal's cases.

 9             Your Honours, it has already been determined that this is not

10     inconsistent with the fair trial rights of the accused.  And in

11     particular, both the ICCPR and the European Court of Human Rights --

12     European Convention of Human Rights recognise either reservations or

13     exceptions that this is not an absolute right to have an appeal from a

14     conviction if the conviction is entered by the highest level Tribunal,

15     and that is what the situation, of course, is here before Your Honours.

16             So, Your Honours, we submit that this is a well-decided, already

17     determined issue in terms of your power to enter convictions.  That is

18     beyond dispute.  It is now for Your Honours to determine whether you want

19     to exercise that power in the present case.  For all of the reasons that

20     I have given earlier in my submissions on remedy, we say that is the most

21     appropriate submission, the most appropriate remedy in the circumstances

22     of this case.

23             Thank you, Your Honours.

24             Oh, Your Honours, I would just mention that we have copies of the

25     slides that we relied upon today which we will hand out for your legal

Page 102

 1     officers and the Defence.

 2             JUDGE POCAR:  Thank you, counsel.  Is this concluding your

 3     submissions?

 4             MS. JARVIS:  Yes, Your Honour.  It concludes our submissions.

 5             JUDGE POCAR:  Thank you.

 6             So this also concludes the hearing of appeal in this case.

 7     Before we adjourn, let me just take a moment to thank the parties for

 8     their work on this case and for their arguments today.  I would also like

 9     to express my gratitude to the Registry staff here in the courtroom who

10     have facilitated our hearing today, and in particular the interpreters

11     for their excellent assistance.  Sometimes the interpreter missed it and

12     because the counsel go too quickly their submissions, and I wish to thank

13     them particularly.  And, of course, I also thank the legal officers of

14     the Appeals Chamber.

15             The Appeals Chamber will render its decision in due course, and

16     the parties will be notified.

17             The proceedings are adjourned.

18                           --- Whereupon the hearing adjourned at 4.04 p.m.