Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8338

1 Monday, 25th November 1996.

2 THE PRESIDING JUDGE: Good morning. I apologise for the delay. We

3 were due to begin at 10 o'clock. However, there have been some

4 technical difficulties. We are still attempting to resolve the

5 difficulties. I am told that the only remaining difficulty has

6 to do with the video that is going out to the press. So, we

7 will do what we can to resolve that. Oh, it is going out. OK,

8 there are no technical difficulties!

9 We have concluded the submissions of evidence and we

10 will now hear from the parties regarding their positions,

11 closing submissions. We have reserved today, tomorrow and, if

12 necessary, Wednesday. The Prosecution will begin. We will then

13 hear from the Defence and then, if requested, we will then hear

14 from the Prosecution once again and the Defence by way of a

15 rejoinder. Are you ready to proceed, Miss Hollis?

16 MISS HOLLIS: Yes, your Honour.

17 THE PRESIDING JUDGE: Very good. You may begin.

18 MISS HOLLIS: Thank you, your Honour. May it please the Court, some

19 50 years ago the world recoiled in horror at the unspeakable

20 carnage and destruction one group of human beings had inflicted

21 on another. The reaction to that horror and destruction was the

22 pledge "Never again". This Tribunal exists today, and you sit

23 here today, because that pledge was not kept. Perhaps one of

24 the witnesses to this trial best summarised why you are here

25 today to decide this case. When asked about the colour of the

26 police uniforms in Yugoslavia, witness S replied as follows:

27 "The police of Yugoslavia, that is, the Yugoslav police had

28 traditionally -- wore traditionally blue uniforms, but SDS took

Page 8339

1 over the power and they had traditional powers and traditional

2 uniforms and traditional authorities and traditionally wanted to

3 kill us all. That is the tradition."

4 You sit here today to break that tradition, a

5 tradition whereby retribution for past grievances has been

6 visited on present day members of the group held responsible for

7 those perceived wrongs.

8 Human beings do cry for justice for wrongs that are

9 done upon them, but only through the rule of law can that

10 justice ever be achieved. Only after an accused has been given

11 a fair trial and the society whose laws were violated given a

12 fair hearing can true justice be served.

13 Much has been made of this trial and, indeed, the

14 trial has required this Chamber to clarify, interpret and to

15 implement, sometimes for the first time, the rules the Tribunal

16 Chambers have adopted. There have been areas of international

17 law that you have had to clarify and rule upon in this unique,

18 international setting. But at the heart of all this, the role

19 you are performing is the role that is performed at each and

20 every criminal proceedings, to hear the evidence, to judge its

21 credibility and, based on that assessment, to determine if the

22 Prosecution has proven the guilt of the accused beyond a

23 reasonable doubt.

24 That standard, the highest known to law, is the same

25 in every criminal proceeding and is there for the same purpose,

26 to ensure that an accused is convicted only if and only when the

27 evidence is such as to exclude every reasonable doubt, that is,

28 that an accused may only be convicted when the only reasonable

Page 8340

1 explanation for the credible evidence is that the accused

2 committed the offences.

3 So too is the determination of credibility the same

4 here as for any criminal trial. Based on your experience as

5 jurists, your experience as human beings, you must critically

6 evaluate the evidence given to you in the light of factors that

7 are no different than the ones you would apply in your domestic

8 jurisdictions.

9 Much of the evidence you have received is in the form

10 of witness testimony and, again, determining the credibility of

11 witnesses is a task for fact finders in every criminal trial.

12 The same factors you would apply in your jurisdictions apply

13 here, considering the person's intelligence, their education,

14 considering their ability to observe and accurately remember,

15 considering what prejudices or biases they may have, what

16 relationship, if any, the witnesses may have to either side, the

17 extent to which the witness is supported or contradicted by

18 other evidence and where there are possible contradictions, are

19 those contradictions significant or minor? Are they the result

20 of different ways of remembering, of the passage of time, or are

21 they intentional untruths?

22 In regard to claimed prior inconsistencies, an

23 additional factor must be included in your deliberations here --

24 the problem of translation and interpretation. We have had

25 countless examples of difficulties that exist when witnesses

26 speak a language different than that spoken by investigators,

27 attorneys and Judges. We are accustomed to putting great

28 emphasis on the exact words of a witness. Remember here they

Page 8341

1 are the exact words of an interpreter. It is not that the

2 interpreters are unqualified -- they have performed superbly --

3 it is the inherent difficulty of interpreting a form of

4 communication, human speech, that is so rich and subject to so

5 many subtle differences.

6 So, despite the many challenges this Trial Chamber has

7 faced, the core of the task you have been performing and are now

8 to perform is no different than any other criminal trial. If

9 after careful evaluation of the evidence you determine that the

10 Prosecution has not proven the elements of the offences beyond a

11 reasonable doubt, you must acquit.

12 THE PRESIDING JUDGE: Excuse me. I thought that the transcript went

13 out for a moment, but it has not. OK.

14 MISS HOLLIS: Thank you. As I said, if after evaluating the evidence

15 you determine that a reasonable doubt exists as to one or more

16 elements of one or more offences, you must acquit of those

17 offences. Conversely, if the Prosecution has proven its case

18 beyond a reasonable doubt, your duty is to convict. The facts

19 of this case will lead you to conclude you have a duty to

20 convict.

21 Before addressing the proof of the offences charged,

22 it might be helpful to take a very brief look at the context in

23 which these offences were committed.

24 Former Yugoslavia was an area controlled by various

25 empires throughout history, including a medieval Serbian

26 empire.

27 The history and political movements of the region

28 fostered nationalistic sentiments in some areas, including

Page 8342

1 Serbia. Demographic patterns and various historical factors

2 created within the Serb national group a wish for a greater

3 Serbia, one entity where the Serbs would be all together.

4 The nationalistic views and goals of some areas of the

5 former Yugoslavia, including the goal of a greater Serbia, waxed

6 and waned throughout the last 130 years or so, as different

7 groups were in power or in privileged positions within the area

8 and as wars affected the region.

9 Bosnia Herzegovina was historically, and up until

10 1992, a very diverse area, with the three main ethnic groups

11 intermixed to a great degree. There was no one group that had a

12 clear majority to superimpose its will on the others.

13 Marshal Tito, through the force of his personality as

14 much as through his actions, managed to forge the former

15 Yugoslavia into a Federal Republic with Belgrade as its centre.

16 When he died, the unity he had forged soon followed.

17 Nationalism was again on the rise, fanned inside Serbia, and to

18 a significant degree outside Serbia as well, by the militant

19 nationalistic propaganda of Slobodan Milosevic. Not only did he

20 appeal to the nationalism of Serbs inside and outside Serbia,

21 but he also became a catalyst for the other Republics, such as

22 Slovenia, to respond in kind, based at least in part out of a

23 fear of a Serbian rule in the region.

24 The new constitutions of the Republics more

25 homogeneous than Bosnia and Herzegovina, that is, Croatia,

26 Slovenia and Serbia, reflected the nationalistic aim of a

27 preferred status for their own ethnic group.

28 You have heard testimony about the preamble to the

Page 8343

1 constitutions of Slovenia, Croatia and Serbia, all of those by

2 the language indicating a desire that the predominant ethnic

3 group would be in a favoured position in these new states.

4 For whatever reason, a practical reason because there

5 was no clear majority, or because of a more philosophical

6 reason, a true wish to embody the goals of a unified country of

7 equals, the Bosnian Constitutional preamble does not include

8 this nationalistic language, but rather refers to "We peoples,

9 mentioning Muslims, Serbs and Croats".

10 Although, eventually, Serbia itself became part of the

11 new independent entity of the FRY, the Federal Republic of

12 Serbia, when the movement towards independence began in Slovenia

13 and Croatia, it was opposed by Serbia, Serbian elements in the

14 federal leadership and by the JNA.

15 At some point, the JNA ceased to exist and to function

16 as the army of the peoples of Yugoslavia and, effectively,

17 became the army of the Serbs whose task was to ensure that the

18 vast majority of Serbs in Croatia and Bosnia and Herzegovina

19 would be part of and protected by the same Serbian-controlled

20 state to which Serbia itself belonged.

21 This led to JNA fighting in Croatia, not in order to

22 restore a heterogeneous, unified Yugoslavia, but rather to

23 achieve the goal of a Greater Serbia, a common area and state

24 where all Serbs would be united.

25 THE PRESIDING JUDGE: Excuse me, Miss Hollis, what effect would you

26 give to the testimony of Dr. Hayden, Professor Hayden, who was

27 called by the Defence? If I recall his testimony correctly, it

28 seems to me that he gave us a different picture and that is

Page 8344

1 instead of Greater Serbia motivations being the catalysts for

2 Slovenia and Croatia, it seems to me that his testimony related

3 more to their own desires for independence, Slovenia and

4 Croatia, and that thereafter there was no alternative left to

5 the Bosnian Serbs within Bosnia-Herzegovina other than to take

6 the action that they did. In fact, as I recall his testimony,

7 he said that war was inevitable.

8 The reason I recall that is that I recall my asking

9 him a question about it because I was just hoping that, perhaps,

10 war is not inevitable, but that relates more to the reaction on

11 the part of the Bosnian Serbs. But it seems to me that his

12 testimony, to the extent that it is even necessary for this

13 Chamber to make a determination as to what was the cause of the

14 conflict, was presented in a different way in terms of

15 responsibility. What do you say to that?

16 MISS HOLLIS: Yes, your Honour. First of all, your Honour, certainly

17 I do believe that the evidence shows that when Tito died various

18 areas, as I mentioned, especially the areas that were more

19 homogenous in their population, began to think of themselves as

20 an independent entity and began to move towards that. I think

21 Dr. Hayden talked about that. I think though, however, on

22 cross-examination he did admit that, in fact, in an article he

23 had written earlier he had indicated that one of the factors in

24 pushing these countries toward independence, in particular

25 Slovenia, was the very, very strident propaganda, nationalist

26 propaganda, that began to come out of Serbia when Milosevic took

27 over. So that one of the factors in the nationalistic stance

28 that Slovenia took, and certainly not the only factor, but one

Page 8345

1 of those factors, was in response to their fear of this very

2 militant Serbian propaganda and their fear that, in fact, Serbia

3 was attempting to become the primary dominant figure in the

4 region.

5 As to the reaction of the Bosnian Serbs in Bosnia,

6 I believe again he admitted that he had written articles talking

7 about the very, very aggressive fighting and dominance by the

8 Bosnian Serbs in Bosnia and that it was supported by the JNA.

9 It was supported by Serbia. The reason that they could be so

10 aggressive and they could demand war instead of trying to

11 reconcile differences was because they had the backing of the

12 JNA and the backing of Serbia.

13 So, given the context that we suggest existed at the

14 time, that is, the reemergence, for whatever reason, on the part

15 of Serbian peoples of this desire to be united into one entity,

16 that, yes, war was inevitable, because unless they could through

17 the vote, not just the referendum keeping Bosnia with Serbia,

18 but also at the local levels and the Republic levels, unless

19 they could win a clear majority to ensure that Bosnia would do

20 as Serbia wished, then the only way they could achieve that was

21 through the force of arms.

22 That eventually is what happened. Because of the mix

23 in Bosnia and Herzegovina, they were not able to achieve a clear

24 majority. The governments in Bosnia-Herzegovina, you will

25 recall, were basically mixed after the elections because of the

26 ethnic compositions of the areas.

27 So not able to forge a clear majority through the

28 polling places, they forged their own dominance by the use of

Page 8346

1 force. It was the JNA turning its role from being the army of

2 the peoples of Yugoslavia to being the vehicle of the Serbian

3 wish for a united Serbian people that enabled them to move to

4 violence and not really to have to seriously consider

5 reconciliation.

6 THE PRESIDING JUDGE: Then the Bosnian Serbs, of course, were the

7 minority. As I recall there was testimony that the Bosnian

8 Serbs had boycotted the elections so that, given the fact they

9 were a minority coupled with the fact of boycotting the

10 election, there was little chance, I suppose, for the election

11 to come out in favour of the greater Serbia notion, I guess. Is

12 that correct?

13 MISS HOLLIS: I would suggest, yes, your Honour, it certainly meant,

14 by the boycott meant, that they would not be able to voice their

15 desire to stay in Bosnia. From, apparently, almost 97 or 98 per

16 cent of the people who did vote voted for independence. If that

17 was a mix of Croatian peoples as well as Muslim peoples, then

18 even had the Serbs voted, they may very likely have not been

19 able to establish enough of a vote to defeat the referendum.

20 We have had some evidence here that not all the Serbs

21 did boycott the referendum, many of them did but some Serbs did

22 vote in that referendum. There is evidence that some Serbs

23 voted for independence.


25 MISS HOLLIS: It is in the context I have just spoken of that we turn

26 to proof of the common elements of Articles 2 and 5. For

27 Article 2, of course, we have to prove the existence of an

28 international armed conflict and the protected status of the

Page 8347

1 victims. For Article 5, we have to prove that there was a

2 widespread or systematic attack on a civilian population.

3 Turning first to the requirement that the Prosecution

4 prove the existence of international armed conflict in

5 Bosnia-Herzegovina, when you evaluate the evidence you will see

6 that we have done so. The evidence proves beyond a reasonable

7 doubt that the conflict in Bosnia continued to be international

8 after 19th May 1992, and that the victims of the crimes

9 committed by the accused were protected persons within the

10 meaning of the Geneva Conventions of 1949.

11 As to the classification of the conflict, the Appeals

12 Chamber in its decision on the Defence motion regarding

13 jurisdiction, held that the conflict in the former Yugoslavia

14 had been rendered international at least until 19 May 1992. It

15 went on to indicate that, to classify the conflict as

16 international after that date, direct involvement of the Federal

17 Republic of Yugoslavia must be proven.

18 In fact, the evidence we have presented to you does

19 prove that continuing direct involvement by the FRY.

20 That evidence ----

21 THE PRESIDING JUDGE: Before you go on, I will ask the Defence this

22 question, but, do you understand the evidence of the Defence to

23 challenge the existence of an international conflict, or do you

24 consider that their evidence really related to once again

25 Professor Hayden's testimony? I am not sure that really went to

26 whether or not there existed an international conflict or

27 whether the conflict was international or instead who was

28 responsible, who was the catalyst. Do you view the Defence as

Page 8348

1 challenging the existence of internationality in this conflict?

2 MISS HOLLIS: Your Honour, I would suggest that one portion of

3 Dr. Hayden's testimony may have that impact, and that is the

4 portion where he talks about whether the action in holding a

5 referendum and then declaring independence was, in fact, a

6 constitutional action on the part of Bosnia-Herzegovina.

7 I suggest that it maybe an interesting academic

8 argument, but the reality is that Bosnia-Herzegovina was

9 recognised by the international community as independent.

10 Therefore, the independence of that country is a proven fact.

11 I believe that is the extent to which the evidence would

12 challenge the internationality of the conflict.

13 THE PRESIDING JUDGE: But that is just one leg, I suppose, of your

14 argument that this was an international conflict, that is, the

15 recognition of Bosnia-Herzegovina ----

16 MISS HOLLIS: Yes, your Honour.

17 THE PRESIDING JUDGE: --- as a separate state and it is admittance

18 into the United Nations. The bulk of your argument really

19 relates to the involvement of the JNA and the reconstituting of

20 the JNA.

21 MISS HOLLIS: Exactly, your Honour, because I believe that is really

22 the fundamental issue that must be addressed. Even though

23 perhaps not challenged by the Defence, it would, of course, have

24 been a finding you would make in order to find the accused

25 guilty of the Article 2 offences.

26 Your Honour, we have highlighted for you some of the

27 evidence that proves the continuing involvement of the FRY after

28 19th May 1992. As we indicated in what may be considered a

Page 8349

1 disclaimer in the written submissions we made, we have attempted

2 to provide you with extracts of evidence and with certain points

3 of evidence we believe are significant, but we do not in any way

4 claim that to be an exhaustive listing. We are certain that

5 there is additional evidence you will find as you do your own

6 evaluation of the evidence in this case. But some of the

7 evidence that would point and prove beyond a reasonable doubt

8 the continuing participation of the FRY in this conflict after

9 19th May would be the following:

10 The evidence of the use of JNA helicopters to fly the

11 Muslim prisoners from the JNA barracks in Bijeljina, Bosnia, to

12 the JNA base at Batajnica in Serbia on approximately 4 May ----

13 JUDGE STEPHEN: I wonder if I can interrupt you for a moment? Can

14 you explain to me how much you will be repeating what we already

15 have in your quite detailed proof of international armed

16 conflict and how much is new?

17 MISS HOLLIS: To some extent, your Honour, it will be repetition of

18 those factors. If your Honours are satisfied with that and do

19 not wish that repetition ----

20 JUDGE STEPHEN: No, no, I am not stopping you. I am just wanting to know

21 how much I should note.

22 MISS HOLLIS: Most of it, your Honour, is indeed contained in the

23 written submissions.

24 JUDGE STEPHEN: Yes, thank you.

25 MISS HOLLIS: As I indicated, when Muslims prisoners were taken on

26 approximately 4th May from Bosnia to Serbia, they were taken

27 there in JNA helicopters. They were taken from the JNA barracks

28 in Bosnia to a JNA air base in Serbia. Prisoners were kept at

Page 8350

1 the air base and were later transferred to other JNA prisons in

2 Serbia until they were exchanged to Croatia in August 1992.

3 JUDGE STEPHEN: I am sorry to interrupt you again, but if you are

4 going to give us new material, it is going to be enormously

5 lengthy for us to trace it down to the 6,000 pages of

6 transcript. If you can usefully give the transcript reference,

7 that would help very much.

8 MISS HOLLIS: Yes, your Honour, and when it is something new I will

9 tell you that.

10 JUDGE STEPHEN: Thank you.

11 MISS HOLLIS: Yes, your Honour. While these prisoners were in JNA

12 prisons in Serbia, the Muslims and Croats were subjected to the

13 same types of beatings and torture by the JNA guards as they

14 were in these JNA installations in Bosnia.

15 Additional evidence of the continuing involvement of

16 the FRY includes the UN Security Council resolution, Prosecution

17 Exhibit 60, in which the Security Council imposed sanctions on

18 the FRY in part for its failure to meet the conditions to remove

19 JNA forces from the territory of Bosnia or place them under the

20 jurisdiction of the Bosnian government.

21 It also includes the evidence of the direct support of

22 paramilitary units from Serbia by the JNA and the police. It

23 includes the presence of the Podgorica Corps of what was then

24 the VJ, the army of the FRY, conducting military operations in

25 Bosnia through the summer and fall of 1992. As noted in the

26 written submissions, Mr. Doko indicated that in his testimony.

27 It also includes reports of artillery attacks from Serbia on to

28 positions in Bosnia. Both Colonel Kranjc and Mr. Vulliamy

Page 8351

1 testified concerning that.

2 It includes the evidence of military and paramilitary

3 units and equipment crossing into Bosnia from the Republic of

4 Serbia in August 1992 in the area of Loznica, Serbia, and

5 Mr. Vulliamy talked to you about that and that was part of the

6 discussion of his visit there before going to Omarska camp. You

7 will recall at that time as well that he spoke with prisoners

8 held at that camp in Serbia and they could look across the river

9 to their homes in Bosnia.

10 We suggest that such evidence of the continuous

11 military action by the FRY and its army in support of the

12 conflict in Bosnia is sufficient of itself to prove that the

13 conflict in Bosnia continued to be international beyond 19th May

14 1992.

15 However, in addition to this direct involvement, the

16 facts also provide a second basis for the determination that

17 this armed conflict was international in character. The

18 evidence confirms that after 19th May 1992, the relationship

19 between the Republika Srpska, the Serbs in Bosnia and the

20 supposed new army, the VRS, the army of the Serbs in Bosnia, the

21 relationship between them and the FRY was certainly one of

22 dependence -- the Bosnian Serbs being very dependent upon the

23 FRY and upon the FRY military -- but it went beyond mere

24 dependence. In fact, both politically and militarily, the

25 Republika Srpska and the VRS acted as an organ of the FRY and in

26 concert with the FRY for the attainment of a common goal. That

27 stated goal was to maintain the territories claimed as part of

28 Republika Srpska as part of this "greater Serbia".

Page 8352

1 The conflict which began in Bosnia at the end of 1991

2 involving Serbian forces was conceived, planned and initiated by

3 the Serbian authorities in Belgrade led by Slobodan Milosevic,

4 and was accepted and implemented without reservation by the SDS

5 leaders in Bosnia and Croatia.

6 As determined by the Appeals Chamber and proven by the

7 evidence in this case, the JNA was directly involved, along with

8 local Territorial Defence units, police forces and paramilitary

9 forces in all phases of the conflict in Bosnia prior to May

10 19th. The same political and military authorities continued to

11 direct and control the conflict in Bosnia after May 19th and up

12 to the conclusion of hostilities.

13 If you would look ----

14 JUDGE STEPHEN: Can I ask you, how or what conceivable weight do we

15 give to what the Appeals Chamber says as to matters of fact when

16 it heard no evidence?

17 MISS HOLLIS: Your Honour, I believe that you have to independently

18 determine matters of fact.

19 JUDGE STEPHEN: Yes. So that when you say, I think you refer to the

20 Appeal Chamber and its finding as to internationality, that is

21 something we have to accept its views on international law, but

22 not on the facts?

23 MISS HOLLIS: That is correct, your Honour.

24 JUDGE STEPHEN: Yes, thank you.

25 MISS HOLLIS: If you will recall -- if you will look at the diagram

26 that we are putting on the Elmo -- in regard to the fact that

27 very little changed at the officer levels after 19th May, you

28 will recall the testimony of retired Colonel Selak who prepared

Page 8353

1 many charts for you, only one of which I will use, and that is

2 the chart where he was basically showing you what the

3 composition of the senior Officer Corps of the Fifth Corps was

4 after this supposed creation of a new army, after 19th May.

5 As you recall, many of the people -- in fact, most of

6 the senior leaders -- were in the same position. There was one

7 change, and that was at a lower level where a non-Serb was, in

8 fact, replaced by a Serb. As you will recall that chart, you

9 will recall that the double red Xs on that chart indicate to you

10 that these are officers who are Serbs from Serbia who continued

11 to serve in their positions after this supposed split of the two

12 armies.

13 We suggest to you that the evidence proves that the

14 creation of the VRS and the VJ on 19th May 1992 was nothing more

15 than an act of political expediency. Why was it felt necessary

16 to do this? It was felt necessary to do this because of the

17 response of the international community and the fear of Serbia,

18 that the international community would respond if they did not

19 do something to make it appear that they had withdrawn from this

20 conflict in Bosnia-Herzegovina. But, in fact, what they did is

21 what they did in many instances, and that is they told the world

22 community what the world community wanted to hear and then they

23 continued to do what they wanted to do. That is what happened

24 in this instance.

25 In that regard, your Honour, you, Judge McDonald, have

26 asked on a couple of instances questions that perhaps have a

27 component of who started the war, why was the war started, and

28 at one point you asked even if you had to determine that. We

Page 8354

1 suggest that you do not have to determine why it was started in

2 the sense of, was it a war of aggression? We have not charged a

3 war of aggression. The comments that I am making in argument in

4 no way suggest that this was a war of aggression. It is not an

5 element that has to be proven. It was not charged. The Serbs,

6 for whatever reason, did what they did. It could have been

7 because of their history and their fear of renewed outrages

8 against them. For whatever reason, what they did made this an

9 international conflict, made it a widespread or systematic

10 attack and made it persecution. So, to the extent my remarks

11 may appear to be arguing that this was a war of aggression, they

12 are not intended that way, nor do we believe it is an issue that

13 must be resolved by this Chamber.

14 Again we believe that there is a great deal of

15 evidence to prove that this dependent relationship, this consort

16 of action, between the FRY and the Republika Srpska continued

17 after 19th May 1992. Some of the examples of that are examples

18 that have been given to you and that has to do with what really

19 happened when the VRS and the VJ, that is, the army of Republika

20 Srpska and the army of the FRY, split. The answer to that is

21 very little different happened. Units were redesignated and

22 became units of the VRS, but every one of those had been a unit

23 of the JNA. As I mentioned, the commanding staff of those units

24 remained virtually the same.

25 The Commander of VRS and the Generals of the main

26 staff of the VRS had all been Generals in the JNA. Many were

27 appointed to their positions by the General Staff of the JNA at

28 the time of the redesignation. Main staff maintained direct

Page 8355

1 communication links with the General Staff of the VJ. You

2 recall Colonel Selak telling you that in order to contact

3 General Mladic he went through a Belgrade number. So it really

4 was business as usual in all significant respects after this

5 supposed breakup of the JNA into two armies.

6 The role of the JNA units across Bosnia in assisting

7 the SDS to take over power in the various municipalities and the

8 subsequent attacks prior to May 19th were conducted by the same

9 officers who continued to work hand-in-hand with the same

10 political leaders to conduct the conflict after 19th May.

11 The direction from the JNA General Staff for the

12 removal of all soldiers from Bosnia -- again this was primarily

13 related to conscripts, not to officers but to the lower ranking

14 enlisted Corps -- who were citizens of the FRY and to remove or

15 to return to Bosnia all conscripts who were from Bosnia, we

16 suggest that that order, that direction, was motivated more out

17 of a concern about how well conscripts from different Republics

18 might fight for Bosnia and for the Serbs than from any intention

19 to withdraw the FRY army from Bosnian soil.

20 This reasoning and this action was in line with the

21 principle followed by the JNA throughout the conflicts in

22 Croatia and in Bosnia, that is, to rely on local Serb forces and

23 paramilitary extremists as the front line infantry troops for

24 attacks in the various regions, and to bolster the army cadre of

25 conscript soldiers. The JNA's main contribution in this area

26 was focused on the use of its heavy weapons, the heavy

27 artillery, the rockets, the tanks, on the use of air power, on

28 the logistics and the commanding control components.

Page 8356

1 All of the officers of the JNA who remained in Bosnia

2 after 19th May 1992 continued to be paid from Belgrade by this

3 supposedly new army, the army of the FRY, the VJ army. In

4 addition, personnel matters such as retirement requests were

5 addressed and approved in Belgrade, not in Bosnia. Personnel

6 records of the officers continued to be maintained in Belgrade,

7 not in Bosnia.

8 The JNA and then the VRS provided direct support to

9 paramilitary units from the Republic of Serbia for their attacks

10 and other operations in Bosnia. When the JNA or the VJ

11 operating in Bosnia used the paramilitary units for their

12 operations, the units then came under the operational control of

13 the VJ even while they were operating in Bosnia.

14 The JNA assisted in organising and training

15 paramilitary forces and local Serb military and police forces in

16 Bosnia, and these forces then took part in the attack there. It

17 also organised, equipped and armed Serb Territorial Defence

18 units in Bosnia. These units were all led by regular JNA

19 officers who continued to lead them after this supposed split.

20 Of course, the VRS continued to receive all of its

21 logistical support from Serbia, and in regard to how it got that

22 support, what the procedures were, who was called, there was

23 really no difference. It was again business as usual.

24 The evidence that you have in the record before you

25 suggests no other reasonable explanation but that Republika

26 Srpska and the VRS were acting as organs of, or in concert with,

27 Serbia with FRY and with the VJ in the actions that took place

28 after this supposed split.

Page 8357

1 This argument, of course, involves a balance on your

2 part, a very important balance, and that is, it is a balance, on

3 the one hand, of the right of nations to determine their own

4 foreign policy and to engage in foreign relations with other

5 states. The balance, on the other hand, however, is the right

6 of a country to be free of such involvement from the outside in

7 a conflict in its country, that, in effect, the outside country

8 has become a participant in the hostilities.

9 So, I believe that is the balance you have to make.

10 There is a point at which, even though states have wide latitude

11 in determining their foreign policy and their foreign affairs,

12 their involvement in conflict in another State is of such

13 significance, is such an integral part of that conflict in the

14 other state, that the international community must step in and

15 say, despite disclaimers from that country, that the country has

16 become involved to such an extent it is a participant and the

17 conflict has become international.

18 That, I believe, is the balance that has to be looked

19 at and has to be struck based upon the facts that are provided

20 in each case. We suggest here that balance falls on the side of

21 such intensive, such extensive, such integral connection between

22 what was happening in Bosnia and what FRY was doing, both with

23 its troops in Bosnia, with its support of Bosnian Serbs, that it

24 was so integrated into that conflict that the balance become

25 struck in favour of saying it was an international conflict.

26 THE PRESIDING JUDGE: I do not know that I fully understand that.

27 The balance of the right of states to engage in foreign

28 relations with the right of a country to be free from

Page 8358

1 involvement from an outside, from another ----

2 MISS HOLLIS: Yes, that is right.

3 THE PRESIDING JUDGE: --- country in a conflict within their own

4 country? Are you saying that it is the right of the Federal

5 Republic of Yugoslavia to engage in foreign relations or are you

6 focusing on the state of Bosnia-Herzegovina?

7 MISS HOLLIS: Every state has that right and, of course, the FRY had

8 that right to be involved in foreign relations. There are some

9 types of support for hostilities in other countries that would

10 not rise to the level of making it international. The Nicaragua

11 case that has been discussed before you indicates that, indeed,

12 you can have involvement through foreign relations providing

13 support, providing assistance, providing perhaps some type of

14 training, and that support would be basically for a country, a

15 state, engaging in its right to be involved in relations with

16 other countries, with other groups, and to determine a foreign

17 policy.

18 So there are some levels of involvement pertaining to

19 a conflict elsewhere which would not make it international in

20 scope. However, there is a point at which that involvement is

21 so great that, indeed, it can be said that the country, the

22 outside country, providing for that support or that direct

23 involvement has become a participant.

24 It is certainly not, we suggest, for this Tribunal or

25 perhaps for any International Tribunal to say that a country may

26 not take actions in support of groups that are in conflict in

27 other countries. That would be an absolute ruling that,

28 perhaps, would unduly infringe upon the right of states to be

Page 8359

1 involved in foreign affairs and to pursue their own foreign

2 policy goals. But what we are saying is there comes a point at

3 which that involvement is so significant that the international

4 community has a right to say, through a Tribunal such as this or

5 other body, that that country has, in fact, become embroiled,

6 enmeshed, in the conflict itself and that transforms the

7 conflict into an international conflict.

8 THE PRESIDING JUDGE: We, unlike Nicaragua, this Tribunal is not

9 seeking to ascribe any state responsibility; instead what we are

10 doing is to determine individual responsibility. So, to that

11 extent even, the standard enunciated in Nicaragua may be a very

12 different standard.

13 MISS HOLLIS: That is correct, your Honour.

14 THE PRESIDING JUDGE: It is not an exact fit.

15 MISS HOLLIS: That is correct, your Honour.

16 The common element of Article 2 also includes the

17 requirement that we prove that the status of the victims in this

18 indictment were protected persons under the 1949 Geneva

19 Conventions. Again, once you review the evidence that has been

20 presented to you, you will conclude that that evidence proves

21 this common element beyond a reasonable doubt.

22 There is no question that Dragan Lukac, Fadil Redzic

23 and Sulejman Tihic were protected persons within the meaning of

24 the Geneva Conventions when they were seized by members of the

25 JNA or those acting on its behalf prior to May 19th 1992.

26 Similarly, there can be no doubt that the victims named in the

27 indictment and the thousands of other unnamed Muslims and Croats

28 represented in count 1 were seized, detained, maltreated and

Page 8360

1 persecuted by the accused and other Serbs in opstina Prijedor

2 were protected persons within the meaning of the Conventions.

3 Article 4 of the Geneva Convention IV, Relative to the

4 Protection of Civilian Persons in Time of War, states:

5 "Persons protected by the convention are those who at

6 any given moment and in any manner whatsoever find themselves in

7 the case of a conflict or occupation, in the hands of a Party to

8 the conflict or Occupying Power of which they are not

9 nationals".

10 The evidence provided to the Trial Chamber in the

11 motion phase of the proceedings and, in particular, in

12 Prosecution Exhibits 61, 63, 74 and 76 have established that the

13 FRY and BiH were required to abide by the obligations of Geneva

14 Conventions.

15 The evidence in this case clearly establishes that the

16 accused and the other Serb forces, including the military, the

17 police and irregular forces were operating as an organ of, or on

18 behalf of, or in concert with the FRY. In such an instance, the

19 Bosnian Muslim and Croat victims who are the subject of this

20 indictment may be regarded as having been "in the hands" of the

21 FRY at the time they were being subjected to the conduct alleged

22 in the indictment.

23 On 23rd May 1992, the forces that attacked Kozarac

24 were led by and under the control of military units staffed and

25 commanded by soldiers and officers who only four days prior had

26 been designated as the JNA. Those Commanders were implementing

27 the strategy and tactics that had been devised by the JNA

28 General Staff and Serbian political leaders. They were simply

Page 8361

1 continuing the same type of operation to achieve the same goal

2 as had been conducted in the other areas of eastern Bosnia prior

3 to 19th May, that is, to destroy and remove the physical

4 impediments to a greater Serbia. That activity continued in the

5 months and years after May 19th 1992 in the exact same fashion

6 and through the same military and political leaders as had been

7 conducted prior to 19th May.

8 The victims of the crimes committed in opstina

9 Prijedor between May and December 1992 clearly fall within the

10 wide protection of the Conventions. As indicated in the

11 commentary to Article 4, that Article was drafted with the

12 intent to provide the widest possible protection. The phrase

13 "at any given moment and in any manner whatsoever" was intended

14 to ensure that all possible situations were covered. The phrase

15 "in the hands of" similarly "must be used in an extremely

16 general sense ... [it] need not necessarily be understood in

17 the physical sense. It simply means that the person is in the

18 territory which is under the control of the power in question".

19 That comes from a commentary to Article 4.

20 Even if we accept that the announced division of the

21 JNA into the VJ, that is, the army of the FRY, and the VRS, that

22 is the army of Republika Srpska, did in fact create two armies,

23 there is no doubt that the Serb forces in Bosnia after 19th May

24 were acting on behalf of the FRY and in concert with the FRY and

25 that, therefore, the Muslim and Croat persons in the opstina

26 Prijedor can be treated as being in the hands of the FRY and, as

27 a consequence, were protected persons under the Geneva

28 Conventions.

Page 8362

1 There is no evidence to suggest that any of the

2 victims in the counts which charge violations of Article 2 were

3 combatants and, therefore, not within the provisions of Geneva

4 Convention IV. Even if the Trial Chamber were to consider the

5 issue as being in question, it would not affect the validity of

6 the charges, nor would it deprive the victims of their protected

7 status.

8 JUDGE STEPHEN: I wonder if I could interrupt you to ask you where

9 does this really get you? We are not, of course, trying the

10 JNA, nor the FRY. You say it is clear that they find themselves

11 in the hands of the FRY, in effect, which must be interpreted

12 very widely. How does that bear on the accused? How is the

13 accused to be distinguished from, say, some Serb or Croat or

14 Muslim who happens to mistreat for his own pleasure and

15 satisfaction somebody that he comes across who happens to be a

16 protected person?

17 MISS HOLLIS: As to why we are focusing on the JNA, your Honour, is

18 to satisfy the common element of Article 2, that is, to show an

19 international conflict and, secondly ----

20 JUDGE STEPHEN: I appreciate that.

21 MISS HOLLIS: --- that they were protected. As to a person who just

22 for his own purposes would mistreat a Croat or a Muslim, if that

23 person was mistreating them for their own purposes and also with

24 knowledge that that mistreatment was part of a widespread or

25 systematic attack, that would then also, if a widespread or

26 systematic attack existed, make that a crime against humanity.

27 In other words, a person may be acting for more than

28 one purpose. If the only reason they are acting is out of a

Page 8363

1 wish of their own to harm someone, and they are not aware that

2 this was part of and would advance a widespread or systematic

3 attack, it would not fall under the Article 5 crimes.

4 In regard to Article 2, we would suggest that if there

5 is an international conflict, if the victim is a protected

6 person and if the perpetrator is someone who is acting within

7 the military or the police or the paramilitary units who are

8 carrying out this conflict against these protected persons, then

9 it would still transform that into a violation of Article 2.

10 Again, if it is a person who simply on their own, is

11 in the opstina, takes this as an opportunity to enact revenge,

12 perhaps, against someone, then we would say, no, that would not

13 transform that crime into a violation of Article 2 or into a

14 violation of Article 5.

15 JUDGE STEPHEN: Or, indeed, that crime, if one can call it a crime,

16 would not be within the jurisdiction of this Tribunal,

17 I suppose?

18 MISS HOLLIS: No, it would not, your Honour. We need more than

19 that. We need the person to be committing these crimes, it may

20 be for personal motives as well, but permitting or committing

21 these crimes in some capacity that is linked with the conflict.

22 JUDGE STEPHEN: Yes. Thank you.

23 THE PRESIDING JUDGE: What is your basis for saying that there is no

24 evidence that any of the victims were combatants? What is the

25 meaning of a "combatant"? In the traditional sense, I suppose,

26 in traditional wars, then if we go back to World War II,

27 perhaps, except for the resistance, people wore uniforms.

28 Someone had a different uniform from someone else. You could

Page 8364

1 easily tell that somebody was a combatant.

2 Here, though, we have heard testimony that sometimes

3 there were not common uniforms, that soldiers wore different

4 uniforms because there may have been a shortage of uniforms. We

5 have heard testimony that sometimes individuals would try to

6 defend their homes. In Jaskici, for example, and Sivci there

7 was an attempt, if I recall the testimony, to defend; does that

8 make the defender a combatant?

9 MISS HOLLIS: Traditionally, your Honour -- the reason that I mention

10 combatant in this context is to show another potential category

11 of protected persons -- a combatant would be seen as one who was

12 part of an organised armed force, who was a member of that

13 organised, recognised military, who wore a uniform, who was in a

14 formal chain of command, who bore arms openly and also who was a

15 person who was subject to the requirements of the Geneva

16 Conventions. That is the clearest example of a combatant.

17 In the law of war, as it has evolved, we have looked

18 at other persons who could be also considered combatants. That

19 would be persons who were part of a formal paramilitary unit

20 where they also had a distinctive uniform for that unit, they

21 had a very formal chain of command for that unit, they bore arms

22 openly, they also were responsible to follow the requirements of

23 the Geneva Conventions. Those also would be combatants.

24 Another example of people who could transform

25 themselves into some type of combatant would be when an area is

26 attacked by a force, and the civilians in that area rise up to

27 protect their homes. Then perhaps they could be considered a

28 levy en masse and they would be also given combatant status.

Page 8365

1 The significance for us here is that there has been

2 some evidence of some loosely united groups in Kozarac, civilian

3 groups, who performed sentry duty in the town, almost what you

4 might call neighbourhood protection, neighbourhood watch

5 groups. There were also some people in the TO there, and the TO

6 had been mobilized the prior year, Territorial Defence, had been

7 lawfully mobilized the prior year. There were a few of those

8 people in the Kozarac area who performed functions of, perhaps,

9 security and, sort of, overlooking what was going on. They were

10 in the Kozarac area as well. How would they fit into this

11 concept of combatant?

12 We suggest that in the facts given you, they do not

13 fit into that because they, sort of, got together on their own,

14 they were very loosely organised, if at all. If any chain of

15 command existed, it was a very, very loose one. It was not an

16 effective one, so it did not meet the requirements for them to

17 become a combatant force.

18 If you were to look at that and determine that this,

19 perhaps, 100 people or so in Kozarac had at some point become an

20 entity you could characterise as a combatant force, then once

21 they are captured, their status is still protected because it is

22 no longer protected as a civilian, however now it is protected

23 as a prisoner of war. That is the significance of what status a

24 person might have.

25 The evidence that you have in this case shows that the

26 crimes that had been charged here occurred after the victims

27 were within the custody and control of the accused and other

28 Serb forces. At that time, even if there was an issue about

Page 8366

1 what their status was previously, they were protected. They

2 were protected as civilians, which is what we suggest they all

3 were, or they were protected as combatants, as prisoners of war,

4 people who had been taken out of combat.

5 JUDGE STEPHEN: You just said "in the hands of the accused and other

6 Serb forces".

7 MISS HOLLIS: Yes, your Honour.

8 JUDGE STEPHEN: The whole of the evidence suggests that this accused

9 was intent on avoiding the status of being a member of the Serb

10 forces.

11 MISS HOLLIS: Your Honour, I would disagree with that interpretation,

12 most respectfully. What I would suggest is the evidence shows

13 that prior to being told he had to go to the front lines and

14 fight, this accused was very willing to carry out the objectives

15 of the conflict, of the attacks, in opstina Prijedor. What we

16 believe the evidence suggested and proves to you is that this

17 accused did become part of this force on 4th May, as the

18 certificate shows; that he was involved in various capacities

19 throughout this time but as a part of this force; that in fact

20 on 4th May he was mobilized, he was given his orders, and on 4th

21 May (and from that time on) he had a very clear part in what was

22 to happen. So that, indeed, at some point he tries to avoid the

23 frontlines, but he did not try to avoid carrying out what

24 happened in opstina Prijedor, what happened in Kozarac. He was

25 willing to remain there, to remain there and to ensure that the

26 Muslims were gone from there, but he was not willing to go to

27 the front lines and fight. That is the point at which he was no

28 longer willing to go along with this. That is what we believe

Page 8367

1 the evidence proves.

2 THE PRESIDING JUDGE: Are you saying that you have to be a member of

3 the JNA -- you are speaking of internationality now. Your

4 argument is that the JNA was present before May, 18th/19th, 1992

5 and that that makes it an international conflict. After May

6 18th or 19th of 1992, then basically the official forces of the

7 Republika Srpska were acting in concert with and as agents of

8 the forces of Serbia, and that Serbia, therefore, was so related

9 to the armed forces, the official armed forces, if I may call

10 it, that the forces in Bosnia-Herzegovina were acting as agents

11 or were in concert with Serbia. Therefore, it not only makes it

12 an international conflict, but it makes persons who are

13 victimized at the hands of an aggressor a protected person. But

14 the aggressor need not be a member of the army of the Republika

15 Srpska.

16 MISS HOLLIS: That is correct.

17 THE PRESIDING JUDGE: You do have to make the showing of an intent

18 and you have to make the showing of a nexus, because offences

19 happen during conflicts and sometimes they are totally

20 individual, in that people are going on their own mark to get

21 back at a neighbour because the neighbour knocked down his fence

22 or whatever and has nothing to do with furthering the conflict.

23 But if you can show that the acts were taken in furtherance of

24 the conflict, then the aggressor need not be a member of

25 official armed forces, is that so?

26 MISS HOLLIS: That is correct, your Honour. There has to be the

27 nexus.

28 THE PRESIDING JUDGE: You have to show the nexus.

Page 8368

1 MISS HOLLIS: The nexus between your actions or the actions of the

2 perpetrator and the ongoing armed conflict. There has to be

3 that nexus. It does not have to be a member of the military, a

4 member of the police, indeed not even a member of paramilitary,

5 as long as the actions have a nexus with the conflict, with what

6 is trying to be achieved by the side with whom the nexus is

7 established.

8 In regard to the argument about why this continued to

9 be an international conflict, yes, one of our arguments is that

10 the FRY continued to have such an involvement that basically the

11 Bosnian Serbs were acting as agents or in concert with. We also

12 suggest that the evidence proves that, in addition to that, FRY

13 continued to be directly involved because they sent their own

14 units into Bosnia and continued to do so after 19th May in

15 Bosnia. So that there was direct involvement and there was

16 also this, if you will, secondary involvement.

17 Certainly we are not suggesting that the accused was

18 part of the armed forces, although at some point, perhaps, he

19 could have been; nor do we believe it is necessary that he be

20 part of the armed forces, but again he must be someone who has a

21 nexus with the conflict, for purposes of Article 2. He must be

22 someone, for purposes of Article 5, who knows that his acts are

23 something that will contribute to the widespread or systematic

24 attack against the civilian population.

25 We do believe that the accused was acting either in a

26 capacity, in military or with the police, in the actions that

27 were carried out here or later, of course, as one of the

28 political people in the opstina, one of the SDS political people

Page 8369

1 in the opstina.

2 THE PRESIDING JUDGE: You will speak to the meaning of nexus at some

3 point, will you?

4 MISS HOLLIS: I will have to speak to that now, your Honour; I was

5 not going to.

6 THE PRESIDING JUDGE: OK. The Appeals Chamber spoke to the issue of

7 whether or not the acts charged had been committed in the

8 context of an armed conflict. I believe that the Defence took

9 the position in their pretrial brief that this was a preliminary

10 finding, jurisdictional, and relates really to the question that

11 Judge Stephen raised, and that is that it was done without the

12 benefit of testimony.

13 We had exhibits, of course, the Trial Chamber did, and

14 those exhibits remained part of the record that went to the

15 Appeals Chamber, but need we not now find that and what does

16 that mean? Does it mean that the act committed has to be

17 committed during the armed conflict -- I think that maybe the

18 Defence's position -- or while the conflict is not going on but

19 has begun and has not ended through a formal cease-fire?

20 MISS HOLLIS: In fact, I believe that there is some law to suggest

21 that, perhaps, for a year after a cease-fire they may still be

22 under the protections of the Conventions. But in the brief that

23 was submitted on this at an earlier stage, we had spoken to what

24 the nexus was.

25 THE PRESIDING JUDGE: We will stand in recess for 20 minutes. Before

26 we do that, Miss Hollis, you mentioned earlier in your argument

27 that the evidence had shown that there were prisoners taken in

28 JNA helicopters, transferred to Serbian prisons and subjected to

Page 8370

1 the same treatment. I do not recall that being in the

2 submission that you filed on internationality. It may be in

3 there. I may have missed it. But in response to Judge

4 Stephen's request, if you can find a transcript cite if it is

5 not in there during the break, please do so.

6 (11.40 a.m.)

7 (The Court adjourned for a short time)

8 (12.00 p.m.)

9 THE PRESIDING JUDGE: Miss Hollis, you may continue.

10 MISS HOLLIS: Thank you, your Honour. Your Honour, first of all, in

11 relation to your question about the reference for the use of JNA

12 helicopters on about 4th May, that is found in the testimony of

13 Mr. Tihic at pages 441 to 451. In the written submissions on

14 proof of international armed conflict, that same cite was given

15 on page 3 at the bottom of the very first paragraph that ends

16 there.

17 THE PRESIDING JUDGE: Page 3, the last paragraph?

18 MISS HOLLIS: No, the very first one, your Honour, where it starts

19 out "BiH after May 19 1992". That includes the reference to

20 Tihic at pages 441 to 446.

21 THE PRESIDING JUDGE: Very good. Thank you.

22 MISS HOLLIS: Your Honour, it also has been pointed out to me that

23 I misspoke on something that there should be no question about

24 and that is, of course, the attack on Kozarac was 24th May.

25 I believe I said 23rd. I am correcting that for the record.


27 MISS HOLLIS: As to your question about nexus, your Honour, in the

28 Prosecutor's pretrial brief, at page 12 of that brief, we very

Page 8371

1 briefly talk about the nexus. In that regard, we indicate that

2 the nexus required between the commission of the crimes and the

3 conflict, as described by the Appeals Chamber, is only a

4 relationship between the conflict, not that the acts occurred in

5 the midst of a battle.

6 In that regard, your Honour, we would submit that the

7 nexus requirement would be as follows, and that is that the

8 person committing the grave breach need not be a member of the

9 military forces to commit a grave breach, but in order to

10 establish the necessary nexus, then the perpetrator must be

11 operating in concert with and or in some way with the acceptance

12 of the belligerent to the conflict. We suggest that means much

13 more broadly than the military; the belligerent to the conflict

14 in this regard is the FRY. A person could be acting in concert

15 with and or with the acceptance of the belligerent either

16 through their position in the police, in the political

17 leadership or hierarchy in the military, as a paramilitary troop

18 or even outside that if a person is operating under

19 circumstances that lead you to believe they are operating with

20 the acceptance of the belligerent.

21 In this regard, we have this accused involved in the

22 acts throughout opstina Prijedor to such a great extent that we

23 suggest the only reasonable conclusion from that is that he was

24 acting in concert with and or with the acceptance of the

25 belligerent. We suggest it is too great a coincidence to be

26 coincidence that the acts he was involved in were the very acts

27 that were being carried out also by the police, by the military,

28 were being ordered, sanctioned and involved in by the SDS

Page 8372

1 leadership.

2 If there are no other questions about international

3 conflict or the protected status of the victims, I would now

4 like to turn to the Article 5 common element, that is, the proof

5 of widespread or systematic attack against the civilian

6 population. There is extensive evidence in this record and that

7 record proves beyond reasonable doubt that the attacks against

8 non-Serbs in opstina Prijedor were widespread or systematic

9 attacks against a civilian population. If you could also look

10 at the Elmo, given uncertainties about the proof here as to how

11 widespread or how systematic -- I think we are experiencing some

12 technical difficulties, your Honour.

13 THE PRESIDING JUDGE: The Elmo needs to be turned on.

14 MISS HOLLIS: While they are working with that, your Honours, in

15 regard to this proof ----

16 THE PRESIDING JUDGE: Here we are, it is on.

17 MISS HOLLIS: --- we believe that the evidence goes well beyond what

18 we needed to prove in this case. We have, in fact, proven

19 through the evidence that there was a widespread or systematic

20 attack, not only against the civilian population in opstina

21 Prijedor, but civilian populations throughout Bosnia. This

22 chart indicates the areas for which you have evidence indicating

23 attacks against civilian populations.

24 JUDGE STEPHEN: This is an existing Exhibit, is it?

25 MISS HOLLIS: No, your Honour. This is a demonstrative aid for this

26 argument. Certainly it will be available. We can see here how

27 truly widespread the attacks were, and the evidence about the

28 attacks show how truly systematic these attacks were.

Page 8373

1 We submit in this case it would have been sufficient

2 to prove widespread or systematic attacks only within opstina

3 Prijedor, and in fact we have done that as well. If you would

4 look again, this is evidence given to you by the many witnesses

5 you have seen about the widespread nature of the attacks, the

6 systematic nature of the attacks, and you will recall that in

7 summary what the witnesses told you was basically the

8 following. This is throughout Bosnia and in opstina Prijedor.

9 Witnesses told you that at some point there came into existence

10 a shadow government in their area; that at some point there had

11 been brought into existence these SAOs, as we call them, these

12 Serbian autonomous regions, that were set up by the Bosnian

13 Serbs. When it became apparent that they would not be able to

14 remain within Yugoslavia by the vote, they began to set those

15 up. They set up parallel governments at that time, shadow

16 governments.

17 Then once that was all in place, they began working

18 with the JNA and others to be sure to arm the local population

19 of Serbs. They began to take actions to cut off the Muslims and

20 the Croats from basically being a part of that area, from having

21 any say in that area. They also in different areas actually

22 took over the opstina, as they did in Prijedor. In Prijedor,

23 they were able, because it was so well planned, to do it without

24 a shot being fired. But these were concerted actions between

25 the military, the police, the SDS leadership.

26 They told you that what would happen. Azra Blazevic

27 told you that when the blockade came into effect around Kozarac

28 they knew what was going to happen. Why did she say that?

Page 8374

1 Because they had seen it happen in Croatia. They knew that it

2 had happened in other parts of Bosnia. What happened? They

3 isolate the area. While they are isolating the area, they bring

4 in weaponry. Witnesses told you about helicopters at night

5 bringing weapons in. They told you about seeing the artillery

6 being moved in place throughout the opstina. The Serbs more and

7 more armed with the modern weapons. Serbs being made parts of

8 either the military or Serb TO units.

9 So, they bring in the weaponry, they isolate the area,

10 blockades, checkpoints prior to the blockades where they check

11 the non-Serbs going through and sometimes do not allow them to

12 pass or harass them. They at some point decide they can no

13 longer work at their jobs, though to be sure they know where

14 they are, they have them show up for work though they cannot

15 perform duties. They take over the police.

16 You heard the evidence about the non-Serbs being

17 forced to either sign allegiance to Republika Srpska or to leave

18 the police. Most of them left. Then they isolate the area they

19 are about to attack, as they did in Kozarac. They did that with

20 a blockade. Not just the Prosecution witnesses, but Ljubo Tadic

21 told you that the blockade was such that even he could not get

22 in after the blockade was set up, although somehow the accused

23 managed to get out. So, they set up a blockade of the area and

24 then they attack the area, usually with very, very heavy

25 shelling. Again this is from weaponry that belonged to the JNA

26 that was left in place for them.

27 Then after the attack, what did they do? In all these

28 areas they go in, they round up the population and they move the

Page 8375

1 population out and, typically, they separate out the service

2 aged men from the women, the children and the elderly. In some

3 instances, that separate out all the men from the women and

4 children, leaving the women and the children then more

5 vulnerable to attacks on them.

6 They send off the men to camps. Very often they send

7 off the women to camps as well or they allow them to remain for

8 a time in the villages. It follows on from there. Widespread

9 or systematic, both within the opstina and outside the opstina.

10 That has certainly been proven by all the evidence. This

11 widespread or systematic attack took place in the opstina and

12 the accused acts in the opstina or acts that he knew was in

13 furtherance of this widespread or systematic attack.

14 Everything that he did paralleled what everybody else

15 was doing. Everything that he did was to achieve the goals of

16 this widespread or systematic attack. That is, to attack

17 non-Serbs, to force them through a variety of means to leave the

18 area. That included killing some of them, beating them

19 savagely, depriving them of their homes, depriving them of their

20 property, making it impossible for them to continue to live in

21 the area.

22 THE PRESIDING JUDGE: Regarding the attack, is there any evidence

23 that the accused knew about the attack?

24 MISS HOLLIS: We have evidence that puts him there on the night of

25 24th firing a flare that illuminates the area around the

26 hospital, and that shortly thereafter there is shelling that

27 recommences near the hospital. In fact, the hospital is hit

28 that night. Azra Blazevic told you about the hospital being

Page 8376

1 hit. Witness Q told you about seeing the accused.

2 In addition to that, we have something that perhaps on

3 its own would be coincidence but, given the overall

4 circumstances, we suggest is not coincidence, and that is that

5 the accused does, in fact, leave, according to the evidence,

6 Kozarac on 23rd. We suggest, in part, that is because he knows

7 what is going to happen on 24th and needs to clarify what his

8 involvement will be.

9 We also have evidence of him being at Keraterm in

10 police uniform, although that is later clarified to mean

11 camouflage top, on 26th when, from the evidence we know, there

12 had been a negotiated agreement that the non-Serbs in Kozarac

13 would surrender on that morning. We have a witness seeing him

14 in Keraterm that morning around 10 o'clock or after in his

15 camouflage uniform. We suggest that is because he was aware

16 that this surrender had been agreed upon and was prepared to go

17 back into Kozarac at this time to participate in the round-up

18 and the transport of these now captured peoples to camps.

19 JUDGE STEPHEN: Can I ask you ask you something here? This seems to

20 me to go both to the question of nexus and also to that of

21 widespread or systematic. One might assume from the evidence

22 that the overall plan, of which you say he was part because his

23 actions were parallel with it, and also which is material

24 because to know what the plan was overall assists one with the

25 nexus question. One might assume from the evidence that the

26 overall plan, as far as Kozarac was concerned, was its erasing

27 from the face of the countryside, the destruction of the houses

28 and leaving it as a ghost city, as it were; yet all he did

Page 8377

1 seemed to be pointing in a quite different direction, the

2 reconstruction of Kozarac. I mean, even the fact that he allows

3 his brother to start a business in Kozarac just a few weeks

4 before the attack certainly does not suggest that he thought

5 that Kozarac was going to become a ghost town. What do you say

6 to all of that?

7 MISS HOLLIS: Yes, your Honour. I believe that, in fact, the plan

8 was to remove the non-Serbs from Kozarac and that was going to

9 involve some damage to the town, to basically make it impossible

10 for them to live there and that was going to involve some damage

11 to the town. I do not know that the overall plan was to erase

12 it from the earth.

13 I believe there has been testimony from Azra Blazevic

14 and others who talked about the fact that the shelling of the

15 town certainly resulted in damage and there were fires as the

16 people were being rounded up and taken away. If you recall,

17 I believe she tells you that after she was taken to Trnopolje,

18 there were two occasions she came back to Kozarac. The second

19 occasion was when there was some damage and that on the

20 subsequent occasion it had been, as you say, virtually erased.

21 I believe what happened is that the activities there went

22 somewhat beyond what the plan may have been. So I do not

23 believe that is inconsistent with what we have here.

24 THE PRESIDING JUDGE: Your map 1, which you are submitting as an aid

25 which is acceptable, and your map 2 are somewhat different. Map

26 1, if I recall, covers more than the evidence that we received

27 during the trial. It goes all the way down to Mostar. Map 2,

28 though, covers less than the evidence that we received. If

Page 8378

1 I remember correctly, when the map was on the Elmo, it did not

2 go as far as Sanski Most, I think, and Bijeljina, was it ----

3 MISS HOLLIS: Bijeljina, yes, your Honour.

4 THE PRESIDING JUDGE: --- which is further east and south, I think.

5 If we can see it again? The maps are helpful, except that this

6 is the first one. Of course, we did not have evidence that

7 dealt with all of this, did we?

8 MISS HOLLIS: Your Honour, you see Bijeljina appear. The evidence

9 that was put in, either through experts or through fact

10 witnesses, talked about all of these areas. You will recall

11 that we had evidence from Mr. Vulliamy who, in his capacity as a

12 journalist, visited many areas in Bosnia and talked to you about

13 ethnic cleansing or widespread or systematic attacks that had

14 occurred there, and also Mr. Doko. Both of them talk about

15 Mostar. So this has been pulled from references made throughout

16 the transcripts, your Honour.

17 THE PRESIDING JUDGE: Mr. Doko was from Bosanski Samac maybe, was

18 he? Somewhere up there, as I recall OK. That is fine.

19 MISS HOLLIS: As for the second one, your Honour, again we have

20 attempted to go back and to pull out testimony that talked about

21 all of these different areas.

22 THE PRESIDING JUDGE: But that is in Prijedor.

23 MISS HOLLIS: That is only opstina Prijedor. It was our contention

24 that the proof of the widespread or systematic attack in the

25 opstina itself would be sufficient, but we have gone beyond that

26 in the proof.


28 MISS HOLLIS: Is there another question?

Page 8379

1 JUDGE VOHRAH: Just a specific question, Miss Hollis: I refer

2 particularly to charge No. 9 relating to serious injury, cruel

3 and inhumane treatment, and to the incident where the accused was

4 supposed to have discharged the contents of a fire extinguisher

5 into the mouth of a person in a wheelbarrow. Can a person be

6 guilty of cruel and inhumane acts to a dead body?

7 MISS HOLLIS: Your Honour, that is certainly the issue in that

8 charge. The position that we take on this is, as far as cruel

9 treatment is concerned, you would not be able to prove that if

10 it is a dead body because of the requirement for cruel treatment

11 that you have injury, great injury or suffering inflicted, and

12 if a person is dead, you could not. As far as other inhumane

13 acts, your Honour, we would suggest that even if you were to

14 conclude that the person in the wheelbarrow was dead, that

15 certainly a beaten, battered person who has died in a

16 wheelbarrow, discharging, shoving a hose into his mouth, could

17 constitute other inhumane acts, that would certainly be an

18 attack upon that person's dignity even though he is a dead

19 person. But we do not believe that, if you conclude that the

20 victim is dead, there could be a finding of guilty of either

21 serious bodily harm or great suffering or of cruel treatment.

22 The issue would boil down to the Article 5 charge of other

23 inhumane acts.

24 THE PRESIDING JUDGE: I think the problem with that count, one of the

25 problems, is that the witness Mr. Grozdanic testified in answer

26 to a question from one of the counsel that he did not know

27 whether the witness was alive or dead, I think.

28 MISS HOLLIS: That is exactly right, your Honour.

Page 8380

1 THE PRESIDING JUDGE: So we do not know.

2 MISS HOLLIS: That is what raises the issue.

3 THE PRESIDING JUDGE: What do we do with that? I may be getting you

4 ahead of yourself and, if so, you can address it at a later

5 time, if you wish. Are you going to discuss the various counts

6 ----

7 MISS HOLLIS: I can handle it now, your Honour, if you wish. That is

8 no problem.

9 THE PRESIDING JUDGE: Fine. Tell me. We do not know whether he is

10 dead or alive from the testimony. That is our problem.

11 MISS HOLLIS: As we see it from the testimony, there is no testimony

12 that he is alive; there is no testimony that he is dead. A

13 reasonable inference from the accused's acts could be that the

14 person, and we believe there is a reasonable inference, is alive

15 and he is shoving this into his mouth to inflict further pain or

16 suffering on this individual or to commit an inhumane act upon

17 him.

18 If you determine that the evidence is insufficient to

19 show that the person is alive, and I believe, as I said, that

20 the charge of the Article 2 violation, great suffering and

21 serious injury, you would have to find the person is alive. The

22 Article 3 charge, cruel treatment, you would have to find the

23 person is alive. If you find that the evidence does not prove

24 that beyond a reasonable doubt, then you must look at inhumane

25 acts.

26 So, for purposes of the Article 2 and Article 3

27 charges, I believe you would have to make a determination about

28 whether he was alive or dead. Quite honestly, looking at the

Page 8381

1 evidence, I think it would be difficult to conclude beyond a

2 reasonable doubt that he is alive. I think there is a

3 reasonable inference there and an argument to be made, but I

4 think that there is a very difficult factual determination for

5 you to make.

6 If you conclude the proof does not establish that

7 beyond a reasonable doubt, then the issue remains inhumane acts

8 under Article 5.

9 JUDGE STEPHEN: You do not have to be a living member of humanity to

10 be the victim of inhumane acts.

11 MISS HOLLIS: I would suggest not, your Honour, but there are things

12 that can be done to corpses that would be an inhumane act.

13 JUDGE STEPHEN: Vis-a-vis the corpse?

14 MISS HOLLIS: Yes, your Honour, because of philosophical attitudes

15 towards what happens to you when you die, and also because of

16 the standards we expect of respect for human beings even after

17 the moment that they cease to live.

18 THE PRESIDING JUDGE: With respect to widespread or systematic, does

19 the accused need actual knowledge that his acts were part of a

20 widespread or systematic attack in order to incur liability or

21 is it sufficient if he should have known?

22 MISS HOLLIS: Of course, we have under 7(3) the idea that a person in

23 a position or superior position can be found guilty for either

24 did know or should have known, but I would suggest that here

25 either standard would be appropriate; that if your act is in

26 such concert with the widespread or systematic attack that you

27 reasonably should have known, then you could hold a person

28 liable. I think this evidence, though, looking at the evidence

Page 8382

1 itself and all reasonable inferences to be drawn from that

2 evidence, in fact, the evidence proves that the accused knew

3 that his participation here was in furtherance of this

4 widespread or systematic attack.

5 THE PRESIDING JUDGE: Also need there be State involvement to

6 establish a crime against humanity?

7 MISS HOLLIS: To the extent it has to be a widespread action or a

8 systematic action, then at least you have to have, I believe,

9 some group that is planning this widespread action or this

10 systematic action, whether that group has to be a State entity

11 or some other organised entity. I would suggest it does not

12 have to be state entity, but it has to be some sort of group

13 that is conducting this in some sort of concert of action. So

14 there does have to be an organised entity somewhere in that.

15 For example, if you were to conclude that Republika

16 Srpska or the SDS officials in opstina Prijedor were the ones

17 who were carrying out this widespread or systematic attack,

18 I believe that is sufficient. Republika Srpska is not a State,

19 is not an independent nation of the world, but I believe that

20 would be sufficient proof.

21 Also, again referring to our pretrial motion, on pages

22 48 and 49 we discuss crimes against humanity being committed by

23 or on behalf of entities exercising de facto control over a

24 particular territory. So again you certainly do not need

25 recognition as an independent state. If you have an entity that

26 is exercising de facto control over an area, that would be

27 sufficient for crimes against humanity as well. Again, your

28 Honours, that was in our pretrial brief and that was pages 48

Page 8383

1 and 49 where we discussed that.

2 THE PRESIDING JUDGE: Article 5, Crimes against Humanity, in our

3 Statute requires that it be directed against a civilian

4 population. If the civilian population is part of a resistance

5 group, particularly with reference to the Barbie case, does

6 that change the protection that is afforded a civilian? So if

7 you could tell me, what do you mean by a civilian population or

8 what do you think that the Statute in Article 5 means by

9 civilian population?

10 MISS HOLLIS: What we believe it means, your Honour, is that the

11 population as being attacked is a population that is

12 predominantly civilian, that it is not a fortified military

13 camp, that it is not a fortified police area where the police

14 are part of the belligerent force that is carrying out attacks,

15 but that, rather, it is the civilian community. It could be

16 that in this regard we also get into considerations of were

17 there military targets within a town, because you can have a

18 civilian community that would have military targets; those

19 military targets would be subject to attack. Then the issue

20 would become one of proportionality. But especially today we

21 have in many civilian communities military targets. We have

22 communication centres that would be military targets.

23 We suggest, though, that for purposes of the attacks

24 that were carried out through opstina Prijedor, we are not

25 talking about such attacks against military targets, because if

26 you think about Kozarac, for example, what were the military

27 targets? The hospital was not a military target. What was the

28 one thing that, based on the evidence, could potentially have

Page 8384

1 been a military target? That was, perhaps, where the TO

2 supposedly had its weaponry and headquarters and that was at the

3 old school. But were the attacks carried out in such a fashion

4 that you can say what they were really trying to do was to hit

5 this one target, or was it carried out so that what you say is

6 what they were really trying to do was to attack the civilian

7 population of this town? We believe that the evidence here

8 clearly shows what they were really trying to do was attack the

9 civilian population of this town.

10 Again, your Honour, for your assistance, we refer you

11 back to the pretrial brief, and again at pages 45, 46 over to 47

12 where we talk about what it means to say "civilian".

13 In regard to the widespread or systematic nature of

14 these attacks, one of the things that we found (and the evidence

15 proves) is that they included terror tactics such as killings,

16 rapes and tortures. These were used and these were condoned by

17 the military, by the police, by paramilitary groups, by local

18 Serb Territorial Defence units and certainly by the SDS leaders

19 in the area. The terror of these attacks served to intimidate

20 and discourage resistance and to compel non-Serbs to leave the

21 area which was the overall aim.

22 During the attacks or shortly following, the non-Serb

23 cultural and religious symbols such as mosques were destroyed.

24 Non-Serb businesses and houses were plundered, looted and

25 destroyed. The camps that existed were also part of this plan

26 and again the camps were run by the military, by the police.

27 Sometimes, as at Omarska, you will note you had both the

28 military and the police carrying out various functions at the

Page 8385

1 camp. The military, at least on the outer areas, performing

2 guard duties. You have heard evidence from a Defence witness

3 that those duties were to protect the inmates from the people

4 outside. We suggest it was to make sure that none of those

5 prisoners were able to leave the area. But these camps were all

6 established in conjunction with this overall plan.

7 The guards at these camps wore a variety of uniforms.

8 You would have police uniforms, you would have camouflage

9 uniforms. All of these camps allowed in visitors who were

10 allowed to basically do what they wished with the inmates there

11 -- all of this in furtherance of the overall plan that existed.

12 In regard to this overall plan, opstina Prijedor was

13 very significant because it was strategically placed in a

14 corridor that was linking the Serb dominated area in Croatia

15 with Serbia and Montenegro. They wanted to keep open this

16 ability to be in touch with and to bring in the Croatian Serbs

17 into this larger area so they needed opstina Prijedor.

18 As you recall before the war, the population of

19 Prijedor was almost evenly divided between Muslims and Serbs and

20 there were some Croats. As an indication of what the plan was

21 in opstina Prijedor, you will recall the evidence that by June

22 1993 of the nearly 50,000 Muslims living in opstina Prijedor,

23 all but 6,000 of those had either fled, been killed or forcibly

24 transferred. That is certainly strong evidence of what the plan

25 was here.

26 In opstina Prijedor, also you found that the SDS and

27 the military and other military and police forces followed the

28 same pattern that I discussed before, that is, they acted in

Page 8386

1 concert. The JNA was used primarily to secure areas or for the

2 heavy weaponry that was required to go in and shell the areas.

3 The checkpoint incident at Hambarine was used as a

4 reason to conduct the attacks on Hambarine and is a reason to

5 basically kick off the following attacks in the opstina. The

6 Muslims and Croats who survived the artillery bombardments and

7 the infantry and mechanized attacks were then rounded up by the

8 military and police forces and brought to these camps after they

9 had been segregated and singled out at collection points. On

10 occasions, lists were seen to be used to identify certain

11 people. Those people were subjected to special treatment, very

12 often resulting in death, almost always resulting in severe

13 beatings.

14 This cleansing, this forced removal of non-Serbs

15 continued for several months. Cultural monuments and property

16 of the Muslims were destroyed. Much of the personal and

17 business property was plundered and looted. At the camps you

18 received evidence of the horrific conditions that existed

19 there. All of this was part of this overall widespread or

20 systematic attack.

21 As for Kozarac, Kozarac was also strategically placed

22 within Prijedor. As you recall, it sat on the new highway going

23 from Prijedor to Banja Luka, and from that area Banja Luka on

24 towards Serbia and from Prijedor on up to the border.

25 Kozarac was a very small town. It was very pleasant.

26 If you would look at the Elmo, you will recall the Exhibit

27 introduced showing what Kozarac was like before these attacks

28 began. The overall area, as you recall, was an area of about

Page 8387

1 24,000 people, but Kozarac itself, the town, was a fairly small

2 town -- about 4,000 people lived there -- and it had a very,

3 very small main business area with Marsala Tita being the main

4 business street that ran through the town. It was an area that

5 boasted many cafes. It was a very pleasant area. It was a

6 tourist area. It was an area that, for a variety of reasons,

7 the cleansing of which was an integral part of the plan in

8 opstina Prijedor.

9 Looking at all of the evidence before you, the

10 evidence of record proves beyond reasonable doubt the existence

11 of both a widespread attack and a systematic attack, although we

12 submit we need only prove one or the other, widespread or

13 systematic, but in fact the evidence here proves both.

14 Your Honours, in regard to the evidence that I have

15 discussed ----

16 THE PRESIDING JUDGE: Before you go on, just as to the difference,

17 if I may, because the Defence takes the position, at least in

18 the pretrial brief, that you do have to show widespread and

19 systematic. You say "widespread or systematic". What does

20 "systematic" mean? Are you referring to the way that the

21 attacks were co-ordinated, that they occurred in other locations

22 even outside of the Prijedor? Tell me?


24 THE PRESIDING JUDGE: What is the meaning of "systematic"?

25 MISS HOLLIS: Yes, your Honour, I believe "widespread" just talks

26 about the scope of the attacks, and "systematic" talks about

27 when you look at them you can see that there is a plan here, an

28 overall purpose to these attacks themselves. They are planned.

Page 8388

1 They are a deliberative process. They are not an accidental

2 process here, an accidental process there. That is what I mean

3 when we talk about "systematic", that they are carried out in a

4 planned, organised, deliberate sort of way to achieve an overall

5 purpose. Either one of those, we suggest, are sufficient

6 because either one of those impacts upon the reason that we have

7 crimes against humanity as crimes in the first place. First of

8 all, if you have a group being involved over a large area with

9 carrying out a variety of offences against another group, that

10 is a reason that we should say this is not allowed. This

11 transcends a national jurisdiction. This becomes an

12 international matter of certain.

13 By the same token, if you have one group in a very

14 systematic, deliberate fashion attacking another group, even

15 though it may be in a smaller area, again this is something the

16 international community steps in and says: No, we will not allow

17 that and that sort of deliberativeness, that sort of planning,

18 is what brings it out of the sphere of a national jurisdiction

19 and brings it to the level of international concern and an

20 International Tribunal. So that we believe that indeed as it is

21 written it is in the disjunctive. It is "or" because either of

22 those types of acts bring it within the gamut of crimes against

23 humanity.

24 If we could again refer you to the pretrial brief, on

25 page 48 we also talk about factors that are considered in

26 looking at both the scale of the acts and the deliberate nature

27 of the acts. Certainly "widespread" could be something of an

28 indicia of systematic. When you see that the same types of

Page 8389

1 things are occurring over a large area, again that would be

2 another indicia of the fact that it is a systematic attack.

3 Your Honours, we have provided you in writing with a

4 summary of what we believe is significant evidence, although

5 again not all the evidence, and we have a great many references

6 to the transcript in that summary we provided. We have also for

7 your assistance, if you wish, compiled extracts of the cites

8 that were referenced in the summary. If you wish that, we have

9 that available and we will make it available to you. It may

10 assist you without having to look through the entire transcript

11 for these cites.

12 THE PRESIDING JUDGE: This is for widespread or systematic?

13 MISS HOLLIS: It is for both international armed conflict, your

14 Honour, and widespread or systematic.

15 THE PRESIDING JUDGE: I just quickly looked again at your submission

16 on widespread or systematic and I do not see the cite to the

17 reduction of the Muslim population in Prijedor from 50,000 to

18 6,000.

19 MISS HOLLIS: Your Honour, I believe there was testimony about that with

20 Greve and there was also an Exhibit that was introduced that

21 showed basically who we are, and that was from the paper in

22 Prijedor showing the population based on ethnic groups.

23 I believe that was a 1993 study. I will make a note of that and

24 at a later time, your Honour, tell you what that Exhibit number

25 was.

26 If there are no further questions about the common

27 elements, I would like for a moment to address theories of

28 liability under 7(1). Again we have provided you with a legal

Page 8390

1 memorandum talking about various theories of liability and how

2 we believe 7(1) should be interpreted. It is, of course, true

3 that we must go beyond the common elements and prove that the

4 accused by his actions incurred individual criminal liability.

5 It is article 7(1) that gives us the boundaries of that

6 individual liability. We suggest that looking at Article 7(1)

7 it draws those boundaries very widely indeed. The language of

8 Article 7(1) and the Secretary General's comments reflect the

9 modern trend to move away from very technical definitions about

10 the degree of culpability, and instead move us to focus on

11 whether the accused's actions in any way incurred criminal

12 liability. Statutory language such as to encompass all forms of

13 liability, the relative degree of culpability, is a matter for

14 sentencing should you reach findings of guilt.

15 In the findings phase the issue should be the

16 accused's act render him liable under any theory of liability,

17 not that the Prosecution must select a theory and then once that

18 theory is selected, all other theories are foreclosed.

19 The Prosecution charging in this case is consistent

20 with the Secretary General's comments defining the scope of

21 liability, that is, that through his acts the accused

22 participated in the crimes alleged. The Secretary General's

23 comments indicate that any participation which contributes to

24 the preparation or commission of offences renders him

25 individually liable.

26 To assist you in your deliberations in the written

27 submissions we have suggested various bases for liability, but

28 those suggestions are in no way limiting. Depending on your

Page 8391

1 assessment of the evidence and the accused's acts, you may have

2 different views of liability. Should you find the evidence

3 proves the accused's guilt beyond a reasonable doubt under any

4 of the theories of liability covered by Article 7(1), then the

5 Prosecution has met its burden and the accused should be

6 convicted.

7 The Memorandum of law that we provide you gives

8 examples of how to define some of the terms that we find in the

9 Statute. The Statute puts the emphasis where it does belong,

10 and that is: did the accused through his knowing actions

11 contribute in any way to the commission of the charged

12 offences? He can do that in a number of ways. He can do that

13 by knowingly aiding and abetting or otherwise assisting in the

14 commission of the offences. He can do that by in any manner

15 whatsoever being engaged in the operation of one of the camps.

16 The Mauthausen case talks about that.

17 In this case you have evidence of this accused

18 regularly visiting the camps in opstina Prijedor. He is seen

19 there by people on numerous occasions. He is seen in Keraterm.

20 He is seen in Omarska. He is seen in Trnopolje. Regularly seen

21 there, especially in Omarska, the worst of all of these camps, a

22 camp which can only be described as a death camp, a camp which

23 had no lawful reason for existing. He can also be found guilty

24 by the evidence that shows him connected with the commission of

25 the offences.

26 Under Australian law the most marginal act of

27 assistance or encouragement would amount to an act of complicity

28 in the crime.

Page 8392

1 The accused's presence as a member of a group that is

2 furthering the persecution of non-Serbs certainly assists and

3 encourages that crime. This presence at scenes where prisoners

4 were being beaten renders him there available to assist,

5 reinforces the control over the victim, prevents the victim from

6 acting on any thoughts the victim may have of fleeing the scene,

7 even if that flight would only take him away from the immediate

8 vicinity of the crime. Certainly, presence among a group when

9 these crimes are being committed renders him individually liable

10 for these crimes. Aiding and abetting includes all acts of

11 assistance by word, by acts, by encouragement, support or again

12 by presence.

13 You have received evidence in this case from a number

14 of people who told you that they had seen the accused at the

15 camps in the opstina. They did not see him beating anyone,

16 killing anyone. They saw him there either with camp personnel

17 or alone, but there. The significance of those repetitive

18 sightings must be evaluated in the context of what happened at

19 those camps, and what the accused's other activities were during

20 the time period. If the presence is intended to aid, to support

21 or to encourage the chief factors, liability is incurred.

22 Repetitive presence at a camp such as Omarska transforms passive

23 presence into presence that is pregnant with meaning, and can be

24 the basis for determination that it is not mere presence but

25 rather significant presence.

26 When you view the sightings that these witnesses have

27 talked about in context, which you must do to determine the

28 significance of those sightings, you must view them with the

Page 8393

1 surrounding circumstances in the light of everything you know.

2 When you view those sightings in that context, they become

3 significant presence, pregnant with meaning, not mere presence

4 and signify the accused's criminal participation in the ongoing

5 persecution that occurred in opstina Prijedor during the time

6 period alleged.

7 If there are no questions about theories of liability,

8 I would like to move on to knowledge of the accused.

9 THE PRESIDING JUDGE: I have a few questions. Looking at the

10 material that you submitted it appears that some countries treat

11 someone who has aided or abetted as an accessory and other

12 countries, most notably the United States, would treat that

13 person as a principal. We of course will be applying not

14 national laws or national case law. We will be applying

15 international humanitarian law. From looking at the Statute, of

16 course, it must rise to the level of customary international

17 law. So, can you tell me whether there is any support within

18 the notion of customary international law that an accomplice

19 would be treated as a principal, or does it make any

20 difference? I think from the very first statement you made you

21 are saying, if I understand you correctly, that we decide the

22 culpability and then -- you did not say this but I gather you

23 meant -- whether we treat the accused, should we find him

24 guilty, as an accessory or as a principal that is matter for

25 sentencing.

26 So need we look for some support in customary

27 international law that an accessory is treated as a principal or

28 is it enough for us to determine that there is culpability and

Page 8394

1 then handle it at the time sentencing?

2 MISS HOLLIS: Your Honour, I believe that it is enough to determine

3 there is culpability. In that regard I also believe that you

4 are guided by the language of Article 7(1) itself which is very

5 broad in its scope. Once you determine that within the

6 reasonable definitions of the words used in that Article the

7 accused is culpable, then the findings of guilty would be

8 entered. So that it would not matter if you determine that his

9 culpability in some crime perhaps was as a chief actor,

10 principal in the first degree. In other instances it was as an

11 aider and abettor, perhaps a principal in the second degree in

12 some jurisdictions. In others perhaps it is an accessory which

13 in some jurisdictions an "accessory" means accessory after the

14 fact, the crime is committed, but still that is a theory of

15 criminal liability. It does not really matter which one of

16 those theories, or if you go beyond to the thought of complicity

17 which may not be specifically embodied in those theories, it

18 simply is that at the finding stage interpreting the language of

19 7(1) you find culpability proven beyond a reasonable doubt that

20 is sufficient for a finding of guilty.

21 THE PRESIDING JUDGE: With respect to the intent requirement, is it

22 necessary that we find that the accused intended to further the

23 commission of an illegal act, or only that he intended to commit

24 an action that had the effect of furthering an illegal act?

25 MISS HOLLIS: Certainly if we look at Article 5, I believe the

26 elements of proof that we submitted to you was that he committed

27 an act and that it was unlawful. I think you are going to have

28 to determine that the accused had some criminal mens rea or you

Page 8395

1 cannot find him guilty. But there are various theories for

2 establishing criminal mens rea as well. Did it have to be an

3 overtly expressed intent?. No, I do not believe so and I do not

4 believe any jurisdiction really requires that.

5 THE PRESIDING JUDGE: I suppose what I was thinking about is, let us

6 suppose that there are a number of acts that are committed and

7 there is evidence that the accused directly was involved in some

8 of those acts, and that the acts were committed over a short

9 period of time so that they could be interpreted as being part

10 of the same transaction, using that word loosely, and that for

11 some of the acts, as I said, there is evidence that the accused

12 was actively involved and committed the acts, for another act,

13 however, the only evidence is that he was there; can his

14 presence then be interpreted as furthering the commission of the

15 illegal act and, thus, he would be liable either as an accessory

16 or as principal, depending on how we would treat those different

17 concepts?

18 MISS HOLLIS: Yes, I believe it would and I think we have two

19 different issues here, perhaps. No. 1 is, if you have a single

20 transaction and the accused is involved in certain discrete

21 parts of that same single transaction, unless he does something

22 affirmatively and decisively to remove himself from that single

23 transaction, he is guilty of the entire criminal enterprise, the

24 entire ongoing transaction.

25 Secondly, as to presence, his presence there under

26 those circumstances, his continued presence after he has

27 participated, I would suggest, certainly is not mere presence

28 but again is very significant presence and would be such as to

Page 8396

1 indicate that he continues to participate by being there, ready

2 to render assistance or encouragement for the discrete portions

3 of that transaction in which he is not directly involved. So,

4 yes, I believe there would be criminal liability.

5 THE PRESIDING JUDGE: Regarding this Mauthausen case that you cited on

6 page 12 of your submission, there the persons charged were, you

7 say, more than senior staff. Yes, in the Dachau case, they

8 were all staff members at the camp; in the Mauthausen they were

9 not. Did that court then find that the mere presence was

10 sufficient to make a person aware of this common design and hold

11 them culpable just by being present at the camp?

12 MISS HOLLIS: I think the indication there was that it was not mere

13 presence. I think that is the issue that we have to deal with.

14 If it is mere presence, then I do not believe criminal liability

15 attaches. It is the mere qualification that makes it not

16 criminal liability. So were you to find mere presence anywhere,

17 then you would not find criminal liability.

18 Presence, however, given the circumstances of what is

19 going on around you, given a camp which its only objective can

20 be to commit crimes against persons, that it is an unlawful

21 operation, the camp itself, then presence at that camp,

22 especially in the context of an ongoing crime there, is not mere

23 presence; it is, in fact, presence that is significant

24 presence.

25 In addition to that, when you look at the facts as we

26 have them here, where you have repetitive presence at this camp,

27 then you cannot really argue that this is mere presence,

28 accidental presence -- went to the camp one day, did not know

Page 8397

1 what was going on at the camp, did not know who was at the camp,

2 perhaps, did not even know there was a camp there, stumbled upon

3 it, left the camp, never returned -- but repetitive presence

4 there, that is something that transforms presence into something

5 meaningful, presence there while the atrocities were being

6 committed, part of those atrocities you have taken part in, that

7 makes it meaningful presence, presence there on other occasions

8 when you were not just present, if you will, but you were there

9 committing other crimes, given all those circumstances, that

10 transforms that presence during this transaction, during a

11 portion of this transaction, into a criminal presence, a

12 presence for which you have individual criminal liability.

13 THE PRESIDING JUDGE: Also you indicate on page 11 of your submission

14 that the cases that you cite (and those are World War II

15 concentration camps) provide the most analogous factual

16 comparison for many of the counts against the accused. You

17 refer to this as a "more narrow common plan or scheme theory of

18 individual criminal responsibility". Why do you say it is more

19 narrow?

20 MISS HOLLIS: Because we believe that 7(1) is broader in scope than

21 the theory of individual liability as being part of a common

22 plan or scheme. We believe that the language is much broader.

23 THE PRESIDING JUDGE: Why is that?

24 MISS HOLLIS: Because we believe that a person acting in any of the

25 ways that are set forth in 7(1), you would not even have to show

26 acting in concert with others, common plan or scheme, at some

27 point you are acting in concert with others. You do not have to

28 have the agreement that is required for conspiracy, but you do

Page 8398

1 have this concert of action. 7(1) is much broader than that,

2 though, and would not require such group activities to render a

3 person criminally liable.

4 THE PRESIDING JUDGE: So you do not have to show that a group sat

5 down and had a little meeting to decide what would be done?

6 Instead, if they act together, then you are saying that is

7 sufficient.

8 MISS HOLLIS: That would be a common scheme or plan, but we say that

9 7(1) is even broader than that. You do not have to put him in a

10 group section where you can imply some sort of commonality of

11 agreement or purpose. Your Honour, I am not sure what your

12 break time will be for lunch?

13 THE PRESIDING JUDGE: I think we are ready to break now, as soon as

14 we gather our papers together. We will stand in recess for an

15 hour and a half, 2.30.

16 (1.00 p.m.)

17 (Luncheon Adjournment)












Page 8399

1 (2.30 p.m.)

2 THE PRESIDING JUDGE: Miss Hollis ----

3 JUDGE STEPHEN: Before you start, can I raise one matter? I seem to

4 find myself in a position that I do not really know what the

5 boundaries of Republika Srpska were. I have enumerable maps as

6 exhibits. None of them seem to actually show that. I realise

7 that it is not a recognised Republic, but it would still be

8 useful. Am I wrong? Is there a map that shows us that?

9 MISS HOLLIS: I believe we can prepare a demonstrative aid that would

10 assist you, your Honour. I do not have one at this time. There

11 is not one in evidence ----


13 MISS HOLLIS: --- but if we may make a note of that?

14 JUDGE STEPHEN: Thank you very much.

15 MISS HOLLIS: Your Honour, my colleague Mr. Keegan points out that

16 the Dayton Agreement map (which I believe you do have in

17 evidence) may indicate to you the boundaries of this subentity

18 within Bosnia that is known as Republika Srpska.


20 THE PRESIDING JUDGE: You may continue.

21 MISS HOLLIS: Your Honours, the Exhibit number of that map is Exhibit

22 181.

23 JUDGE STEPHEN: Thank you.

24 MISS HOLLIS: Your Honour, one additional matter that was raised

25 earlier and that was in regard to the census figure showing the

26 remaining Muslims in opstina Prijedor as of 1993. That was

27 Exhibit 123 and the newspaper article that discussed the census

28 results was Exhibit 124. Those census results were part of an

Page 8400

1 unofficial census; it was not just a newspaper estimate of the

2 numbers.

3 If there are no additional questions concerning the

4 theories of liability, I would like to move now into a

5 discussion of knowledge of the accused. It is, of course, true

6 that no matter how broadly you define liability, the Prosecution

7 must prove that it was the accused who committed the acts that

8 render him criminally liable.

9 In this case, we have called some 50 fact witnesses

10 who testified as to the accused's involvement in the crimes

11 alleged. Of those some 50 witnesses, all but four knew the

12 accused before the Serb attacks began in opstina Prijedor. Four

13 of them did not know him before but recognised him when shown a

14 photographic lineup after the fact.

15 All of those witnesses came into this courtroom, took

16 an oath to tell you the truth and testified that they had seen

17 the accused either committing crimes, ordering others to commit

18 crimes or being present at camps which the Serbs created to

19 forcibly detain and severely mistreat civilians. How was it

20 that the great majority of these people knew this accused? The

21 facts before you in this record make the explanation quite

22 clear.

23 The Tadic family was a very prominent family in

24 Kozarac. The accused's father was a World War II hero who was

25 known and respected by all. His wife had been a captive at the

26 notorious Jasenovac prison camp and was also very well known.

27 The accused grew up in the Tadic family home in the heart of the

28 business street in Kozarac, and that was a very small area. He

Page 8401

1 lived there most of his adult life as well, even after he

2 married. He did for a short period live at another address in

3 Kozarac, but that was not far away. Indeed, it was not far off

4 the main street itself. He, no doubt, continued to be seen on

5 the main street very often even when he lived at that other

6 address.

7 In the later years, the accused was in Libya but for

8 less than a year. When he had the business in Croatia, he was

9 not far away, perhaps 70 kilometres, maybe a two-hour drive.

10 His family remained in Kozarac and, no doubt, he visited Kozarac

11 very often. So the accused was a well-known, continuing

12 presence in the Kozarac area.

13 Kozarac, as I mentioned earlier, was a small town and

14 he lived on the small main business street there. So he was

15 seen by many as they came to Kozarac for their shopping, for

16 their visiting, for their entertainment.

17 Because he came from a well-known family and that

18 notoriety rubs off on to the children of those parents, many

19 people knew him because of his family. In addition, his

20 brothers and he were also well-known as karateists. He taught

21 boys karate and was to some of them an idol. They would watch

22 him train or teach classes, or take classes from him. Students

23 remember and recognise teachers or coaches or trainers,

24 especially those whose talents they admire. Teachers or

25 coaches, on the other hand, do not remember all or even most of

26 their students. So it is not surprising or puzzling that Elvir

27 Grozdanic would remember his trainer, the accused, but the

28 accused would not have a clear memory of what Elvir Grozdanic

Page 8402

1 looked like.

2 There was one primary school for the Kozarac area and

3 children from the surrounding area came to that school. They

4 saw the accused when they came to school there. Some of them

5 have told you they went to school with him there.

6 The accused married a woman from the local area, the

7 area of Vidovici. Some people living in that area, such as

8 Senija Elkasovic, knew the accused both from Kozarac and also

9 because others like her knew his wife Mira Tadic and saw the

10 accused with her and learned more familiarity of him after he

11 married her.

12 The accused later opened a coffee bar in Kozarac at

13 the end of 1990 or at the beginning of '91. His brother Ljubo

14 told you that it was a popular bar frequented by many people in

15 Kozarac and the surrounding area. People knew him from that as

16 well. Emsud Velic told you that the accused displayed in that

17 bar his karate trophies, photos and newspaper articles about

18 him; further evidence of how people would be familiar with him.

19 For very logical reasons, many people from the Kozarac

20 area knew the accused to say "hello" to him in passing or just

21 to recognise him when they saw him on the street or about in

22 Kozarac. Many of those people came into this courtroom and

23 testified to that effect. Hakija Elezovic's knowledge of the

24 accused is perfectly consistent with the small town setting that

25 was Kozarac. He knew of the accused, that is, knew his name for

26 one reason because his son, Salih, knew the accused and would

27 talk about Dule Tadic to his father, Hakija Elezovic. He also

28 knew the accused because he had seen him when he went to

Page 8403

1 Kozarac, but for sometime had no name to connect with that

2 face.

3 Then an incident provoked much public attention and

4 comment, the incident involving the alleged threatening letter.

5 It was a news item for those in the local area. Hakija was

6 interested in that and, as a result, had someone point out this

7 Dule Tadic who, it was rumoured, may have written the

8 threatening letter to himself. When this Dule Tadic was pointed

9 out to Mr. Elezovic, he realised that this was the man he had

10 seen in passing in Kozarac for five or six years. So at that

11 time he linked up the face with the name. That is the

12 reasonable explanation for how he was able to recognise the man

13 who beat him in Keraterm and beat him, his son and the others at

14 Omarska.

15 Some Prosecution witnesses, like Hakija or Azra

16 Blazevic, knew the accused in passing. Others knew him very

17 well. The recognition witnesses in the case all had sufficient

18 knowledge of him to recognise him when they saw him.

19 The 46 or so witnesses who were recognition witnesses

20 had sufficient knowledge to recognise him. The Defence expert,

21 Dr. Wagenaar, told you that if you know someone it takes less

22 time to recognise them when you see them, to imprint that on

23 your mind, and you can certainly do that in less than optimum

24 conditions.

25 As for the four identification witnesses in this case,

26 that was Senad Muslimovic, Kasim Mesic, Witness R and Sead

27 Halvadzic, Dr. Wagenaar told you these witnesses have additional

28 significance to you. If you find credible their testimony that

Page 8404

1 they saw the accused in Keraterm, Omarska and Jaskici, in the

2 case of Zemka Sahbaz, that testimony places him there.

3 To determine credibility of these witnesses, in

4 addition to the factors I previously mentioned, it is necessary

5 to determine whether the photo array and the procedures used

6 were so grossly inadequate as to invalidate the identification.

7 The procedures do not have to be perfect, but may not be so

8 suggestive that you cannot trust the result. There were no such

9 problems with the photo identifications used in this case.

10 First, concerning the photo array that was used:

11 Dr. Wagenaar himself okayed that photo array in his letter of

12 27th March 1996 which is Exhibit D90. Interestingly in that

13 letter and before you in this courtroom, he mused about whether

14 there were physical differences between either Yugoslavs and

15 other people, or among Muslims, Serbs or Croats, which could

16 render the choice of foils too suggestive. He did not give any

17 scientific basis for these museings. Whether or not they may

18 some day be proven to have a basis, there is no evidence before

19 this court that this hypothetical concern has any foundation.

20 To the extent it is a valid concern, the foils used in this

21 photo array contain nine Yugoslavs. Dr. Wagenaar noted in his

22 testimony that such a number would satisfy his concern on that

23 possible issue.

24 As for the procedure used, Dr. Wagenaar in his

25 testimony gave you some of his rules concerning the procedure

26 that should be followed. Many of those rules you are, no doubt,

27 familiar with because many of those rules are common sense

28 factors that should be considered when devising, showing and

Page 8405

1 evaluating the results of any photographic lineup or other

2 lineup. But, again what is of concern is gross deficiencies in

3 those procedures.

4 There were no gross deficiencies in the procedures

5 used with the Prosecution witnesses. No witness was shown a

6 single photo lineup or a photo lineup of only two or three

7 individuals. The lineups that were shown contained either 11 or

8 13 photographs -- more than many jurisdictions would require as

9 a minimum number. No witness was shown more than one photo

10 lineup. No witness chose more than one person whom they

11 identified as the accused. So no one had two or more chances at

12 the identification. All the witnesses were certain about their

13 choices.

14 In total, the photo spread was shown to nine persons,

15 including those who testified. Of those nine, eight identified

16 the accused. The ninth did not pick anyone. Eight out of nine

17 statistically tells you that the identifications were not based

18 on chance. No witness took an unduly long time to look at the

19 photo book.

20 Dr. Wagenaar gave you his personal preference for a

21 witness to be shown each photo only 30 seconds. Again, that

22 appears to be a personal opinion of his. He did not indicate

23 any scientific evidence to back up 30 seconds. When he

24 contrasted that time, if you will recall, he contrasted it to a

25 witness being allowed to spend hours looking at a photo book.

26 In any event, the witnesses to whom the Tadic photo spread was

27 shown took, on average, about three minutes to view the photo

28 book.

Page 8406

1 During the testimony it was stated that Senad

2 Muslimovic seemed to know there was a trial going on. That, we

3 suggest, does not imply that, contrary to his testimony, he had

4 seen anything about the accused in the media. The circumstances

5 would have led him to surmise that. He had been interviewed

6 about the accused, then asked to take part in a photo lineup. A

7 logical conclusion from that would be that there was an ongoing

8 or upcoming trial or some proceeding in order for those prior

9 interviews and then this photo lineup to have been conducted.

10 Dr. Wagenaar told you that an identification witness must

11 have sufficient time to form a good impression of the accused.

12 The time it takes to do that may not be all that long, however.

13 Because another important factor to consider when evaluating the

14 photo identifications is that the human brain seems to be "hard

15 wired" to recognise human faces and remember human faces.

16 In that recognition and memory, it is not a discrete

17 process whereby an individual looks at a face and memorises each

18 discrete detail, but rather it is a global process in which the

19 overall image is stored for memory. Of course, witnesses who

20 knew the accused before seeing him at the camps would be able to

21 recognise him very quickly and under much less than optimal

22 conditions.

23 As for distance and identification, Dr. Wagenaar

24 postulated that a sighting within 15 metres is fine, no problems

25 there, but that problems could begin after that distance. We

26 suggest that is a very conservative estimate and that, in fact,

27 people are able to see and recognise faces well beyond that

28 distance, even those of us with eyes that have been looking at

Page 8407

1 faces for some years now.

2 THE PRESIDING JUDGE: May I ask you a question on that?

3 MISS HOLLIS: Yes, your Honour.

4 THE PRESIDING JUDGE: Was it Dr. Wagenaar's testimony regarding that

5 point that that 15 metres problem was for persons who did not

6 know the accused before or was it for both groups? I thought it

7 was only for if they did not know him before, but I am not

8 certain.

9 MISS HOLLIS: My recollection, your Honour, is that he was speaking

10 in that context of identification. I would assume that distance

11 becomes a problem at some point even for those who know him, but

12 the 15 metres was again a distance within which you should have

13 no difficulty recognising someone. He indicated that beyond

14 that problems may start but did not indicate that there were

15 problems immediately. It is just that then distance becomes a

16 factor, perhaps.

17 THE PRESIDING JUDGE: Was that for the four individuals who had

18 indicated they did not know Mr. Tadic before?

19 MISS HOLLIS: I believe it was the identification witnesses, the four

20 I had indicated, your Honour.

21 JUDGE STEPHEN: Can I ask you two questions? It is right, is it,

22 that we have only heard from one person who administered to one

23 witness a photospread?

24 MISS HOLLIS: That is correct, your Honour. Mr. Reid provided the

25 information concerning the others, but he did not administer the

26 test.

27 JUDGE STEPHEN: But that was second-hand; he had been told it.

28 MISS HOLLIS: That is correct, your Honour.

Page 8408

1 JUDGE STEPHEN: The other thing is, do we know whether any other,

2 apart from the eight, from evidence, were not shown photospreads

3 and did not, for instance, make incorrect recognitions?

4 MISS HOLLIS: The evidence that you were given, your Honour, from

5 Mr. Reid was that nine persons, total, had been shown the

6 photospread.

7 JUDGE STEPHEN: And no others?

8 MISS HOLLIS: And no others.

9 JUDGE STEPHEN: Mr. Reid can testify to that?

10 MISS HOLLIS: Yes, your Honour.

11 JUDGE STEPHEN: Thank you.

12 THE PRESIDING JUDGE: Mr. Paepen did testify regarding the one that

13 there was non-recognition at first -- at least that is how

14 I would characterise it -- but he is not the person who

15 administered the photospread in the first instance. That is my

16 recollection.

17 MISS HOLLIS: Yes, he did, your Honour.

18 THE PRESIDING JUDGE: Did he administer it the first time?


20 THE PRESIDING JUDGE: I thought he was testifying about when he went

21 back to her -- sorry.

22 MISS HOLLIS: In fact, he did not go back to her, your Honour. That

23 was his testimony.

24 THE PRESIDING JUDGE: OK. Sorry, I misunderstood.

25 MISS HOLLIS: Another issue that Dr. Wagenaar talked to you about was

26 the issue of facial hair. Dr. Wagenaar, you will recall, told

27 you that if a witness saw an accused with facial hair and then

28 was shown a picture of that accused without facial hair and

Page 8409

1 could still recognise that accused, then that witness would not

2 be guessing. In effect, by taking a witness who had seen the

3 accused at the crime scene, the accused having facial hair, and

4 then showing that witness a photo of an accused without facial

5 hair, you are building, sort of, a test within a test, and

6 indicated that the difference in that, from the viewing at the

7 scene and the viewing in the photospread, in fact, made the test

8 more difficult for the witnesses and indicated, as a matter of

9 fact, that was why criminals often shave off their facial hair

10 so that they can fool people about identity.

11 He indicated that if people knew the accused, if they

12 could recognise him, that whether they could remember he had

13 facial hair or not was not really that significant to their

14 overall identification or recognition.

15 Another area that was discussed by Dr. Wagenaar was

16 the effect of exposure to the accused's image in the media or

17 elsewhere. The photospread identification, in the event that

18 such other exposure was had, could then be based on seeing that

19 image and not based on seeing the accused at the crime scene.

20 Of course, if a witness saw the accused at the crime scene and

21 then later saw an image of the accused on the television or in

22 the media, that does not negate the first showing; it is simply

23 for your decision-making here that that would be a factor to

24 consider. That issue becomes a normal issue of assessing the

25 believability of the witnesses.

26 The issue of prior exposure has been addressed by the

27 Defence in their cross-examination of identification witnesses.

28 The witnesses have said that they had no prior exposure. They

Page 8410

1 have explained why it is that they have not seen the accused's

2 image in whatever area they are in. The explanations are very

3 reasonable explanations.

4 First of all, many of these witnesses are in areas

5 where they do not understand the language so that their interest

6 in the media is much less. Secondly, some of them do not have

7 access to programmes that would show anything about the accused

8 or this case. Because of where they live, it is simply not an item

9 of great significance.

10 Perhaps most importantly, however, the witnesses told

11 you over and over again that they have been traumatized by their

12 experiences in opstina Prijedor and they do not want to see

13 these kinds of images. In fact, they try very consciously to

14 stay away from them. That is not at all unreasonable to

15 understand that traumatized people want to avoid seeing things

16 that bring back all of the memories that are so painful and so

17 difficult for them. That is what these witnesses have told

18 you. There is no reasonable basis in record to conclude that

19 the identification witnesses saw an image of the accused in the

20 media such as to invalidate their identifications.

21 The reasonable explanation for the evidence that was

22 given by these some 50 fact witnesses in conjunction with the

23 documentary evidence in this case is that the accused is guilty

24 as charged.

25 I would like now to turn to the counts themselves for

26 a more in-depth discussion of the proof of each. In doing this,

27 I will generally follow the counts in the order charged, but

28 will vary on some occasions for a more chronological flow. When

Page 8411

1 I do that, I will tell you that that is what I am doing.

2 I would like first to turn to count 1 which is the

3 count which alleges the accused took part in persecution of

4 non-Serbs in opstina Prijedor from about 23rd May until about

5 31st December 1992. Of course, for that we have to prove that

6 the accused participated in the commission of certain acts and

7 that those acts were intended to harass, cause suffering or

8 otherwise discriminate based on political, religious or racial

9 grounds.

10 Count 1 alleges that the Serb actions in opstina

11 Prijedor from May through December 1992 constituted persecution

12 against the non-Serbs in that opstina, and that the accused

13 participated in that persecution.

14 The evidence clearly establishes that. Virtually all

15 the fact witnesses told you of their hamlets, villages, towns

16 and cities being taken over by Serb forces always with some form

17 of force, often with shelling. In Prijedor, the barrage was

18 with tanks primarily because the firing needed to be more

19 selective because great areas of Prijedor were going to be saved

20 and used by the Serbs. What was the area in Prijedor that was

21 devastated? The old town area which was inhabited

22 predominantly, almost exclusively, by Muslims.

23 The same witnesses told you that virtually all the

24 non-Serbs from these hamlets, villages, towns and the city of

25 Prijedor were forced from their homes, beaten, some killed, men

26 separated from women and children, sent to camps where they were

27 mistreated and then people were expelled from the area after

28 being forced to sign forms giving over all their property and

Page 8412

1 agreeing not to return.

2 The campaign of terror included rapes both inside and

3 outside the camp. Suada Ramic testified that she was raped in

4 the Prijedor military barracks, at her apartment, at the

5 Prijedor SUP and on multiple occasions as she was held prisoner

6 in the Omarska camp. She also told you of women taken out of

7 their rooms almost every night. The victims of all of this

8 persecution -- Muslims and some Croats. The victimizers --

9 Serbs.

10 Why were these people forced from their homes, beaten,

11 killed and otherwise abused? The evidence tells you that it was

12 because they were non-Serbs, in particular, they were Muslims.

13 The curses directed at them almost in every instance were the

14 derogatory terms for Muslims,"Balija", as directed towards the

15 SDA leader, a Muslim, Alija Izetbegovic, "Fuck your Alija" was a

16 very common curse directed at them, both religious and political

17 motivations for that.

18 The abuse directed against Croats was also for

19 political reasons. You will recall the testimony of Husein

20 Hodzic about the severe treatment of Silvio Saric, who was the

21 HDZ leader in opstina Prijedor. What did he tell you about

22 Mr. Saric's treatment? He told you that Mr. Saric's condition

23 after he was called out was one of the worst of all the men that

24 were going and coming back. He could not walk. The only signs

25 of life were heavy breathing and he did appear to be able see.

26 Mr. Saric died of his injuries a few days later.

27 In addition, the abuse was directed against this

28 group, these non-Serbs, as a way to rid them from the area in

Page 8413

1 keeping with the historic goal of greater Serbia, to intimidate,

2 coerce, forcibly disperse or liquidate the non-Serb population

3 to ensure Serb control of the area. Vasif Gutic told you of

4 hearing the Trnopolje Camp Commander, Kuruzovic, explain that

5 the Serb plan was to reduce the number of Muslims in Prijedor to

6 10 per cent or less, and then at a later point indicated, well,

7 perhaps that has dropped to two per cent or less.

8 The abuse was directed against this group for

9 religious reasons, as I have mentioned, the men who had crosses

10 carved on their bodies. This was a consistent practice. Elvir

11 Grozdanic told you the Serbs did that to him. Hase Icic told

12 you that was done to men in his room when he first arrived in

13 Omarska. In addition, the men were consistently forced to hold

14 their fingers, their hands, in the three finger Serb salute.

15 What was that? That is the way that those of Orthodox faith

16 cross themselves.

17 You will recall Ljubo Tadic on the film clip that was

18 shown to you justifying what was done to the Muslims as a result

19 of a holly war the Muslims directed against all Christians and,

20 therefore, they retaliated.

21 Clearly, the acts committed against this group were

22 done for religious or political purposes. The evidence also

23 proves beyond a reasonable doubt that the accused willingly took

24 part in the persecution of non-Serbs during the time period

25 alleged.

26 Even before the events occurred in opstina Prijedor in

27 1992, the accused was, apparently, only superficially tolerant

28 of Muslims. Sofia Tadic told you of the accused seeing his

Page 8414

1 Muslim neighbours pass by and saying, "The balijas are going to

2 the mosque". When Milosevic came to power, the accused intended

3 to name his next child after him if that child were a boy. He

4 made statements to the effect that Milosevic was the only real

5 man, the only real politician, in Yugoslavia. With the rise of

6 Serb nationalism the family became religious where before they

7 had not been.

8 The accused became more overtly nationalistic as the

9 political parties and, in his own estimation, was one of the

10 first SDS members in opstina Prijedor. He was a trusted member

11 of the SDS who was given the task of organising the Serb

12 plebiscite for Kozarac. He and his wife Mira held the

13 plebiscite at the Serb church in Kozarac. He would have you

14 believe that he held it there because he felt it was unfair to

15 hold it in a private place. This supposed concern for fairness

16 is hardly supported by the record, however. He obviously had no

17 problems with the fairness of giving non-Serbs a differently

18 worded ballot, one that hid the true objective of the vote.

19 THE PRESIDING JUDGE: Excuse me, may I ask you a question on that,

20 actually two questions? I may have forgotten the first question

21 already. The second question is I think Mrs. Tadic testified

22 that there were not two ballots, unless I am misunderstanding

23 the testimony. Dr. Greve, though, testified that there were two

24 ballots.

25 Then my second question relates to whether or not

26 Mr. Tadic, from your point of view, was responsible for the

27 plebiscite or just that one polling place? There seems to have

28 been some confusion. As I re-read Mr. Tadic's testimony, I did

Page 8415

1 not quite understand what he was saying, but then I read

2 Mrs. Tadic and I understood something and then, of course,

3 looked at the work report and understood something else.

4 So, from your point of view, what was Mr. Tadic's

5 involvement and responsibility for the plebescite? Was it

6 limited to the polling place in Vidovici and, secondly, were

7 there two different coloured ballots?

8 MISS HOLLIS: Yes, your Honour. We have introduced, in fact, into

9 evidence the ballots that were given, and that is Prosecution

10 Exhibit 97, that showed the wording of the ballot for Serbs and

11 the wording of the ballot for non-Serbs. The wording, we

12 suggest, is significantly different.

13 As to Mira Tadic's testimony on that particular point,

14 if we could note that and check the transcript so that I do not

15 misstate what she may have said?

16 As to the last question about the voting at the Serb

17 church, certainly the accused has tried to down play the

18 importance of that polling station and did indicate that it was

19 really just for people from Vidovici and that there were,

20 I believe he indicated, seven houses in Vidovici.

21 Kozarac itself was an overwhelmingly predominant

22 Muslim area with very few Serbs there. We believe, it is our

23 position, that the evidence shows that the polling place in

24 Kozarac was not just for Vidovici but, rather, was for the

25 larger area. The report for the results of the voting in the

26 plebiscite that the accused prepared -- that is Prosecution

27 Exhibit 147 -- shows that there were 102 registered voters who

28 voted and that, in addition, there were 37 Serbs who voted on

Page 8416

1 the strength of their identification cards, and I believe

2 indicated that there were eleven non-Serbs who voted in the area

3 as well.

4 So, we are talking about 139 people. If that is from

5 seven households, those are fairly large households. So our

6 position is that, no, it was not just for Vidovici; it was for

7 the Kozarac area. Again it was a predominantly Muslim area, but

8 those Serbs who lived in that area voted at that polling place.

9 THE PRESIDING JUDGE: I have read the work report and Mrs. Tadic's

10 testimony regarding whether or not voters voted at the home of

11 the Tadic's and, of course, their home was in Kozarac.

12 I thought that the work report had said that Muslims had voted

13 at their home, that Muslims voted at their home; Mrs. Tadic

14 testified they did not. But again I am asking you something

15 that you will have to check the transcript on.

16 MISS HOLLIS: But it is our understanding of the evidence that, in

17 fact, the voting did take place at the Serb Orthodox church in

18 Kozarac.

19 THE PRESIDING JUDGE: That is what I heard in testimony, but then

20 when I heard from Mr. Tadic that is what I heard and not in the

21 church. I think Mr. Tadic said that it was in the yard, the

22 courtyard.

23 MISS HOLLIS: That is something else we will note and check for you.

24 THE PRESIDING JUDGE: But with respect to Muslims voting at the

25 Tadic's home, if you will check the work report and testimony of

26 Mrs. Tadic?

27 MISS HOLLIS: Yes, your Honour. I know that there is evidence that

28 at some point there was, perhaps, a determination made that they

Page 8417

1 would hold the voting at the home and then later that was

2 changed to the Serb church, but we will check that, your Honour.

3 THE PRESIDING JUDGE: I believe it was held at the church or

4 somewhere within the confines of the church, but it had to do

5 with Muslims voting. Again I was re-reading this just to get a

6 handle on what was the plebiscite about, who was responsible for

7 it and whether it was done at the request of the President of

8 the SDS in Prijedor and whether it was limited to Vidovici.

9 I saw some confusion about that. If you will locate it for me,

10 I would appreciate it.

11 MISS HOLLIS: Yes, your Honour.

12 JUDGE STEPHEN: Can I ask you some questions about this? The first

13 one, why do you say it is unfair to have two different printed

14 forms? Of course, the accused has nothing to do with the forms

15 that are used -- he was only a returning officer -- but why

16 anyway would it be inappropriate to have two forms, one for

17 Serbs and one for non-Serbs, when their voting really is

18 directed to ascertaining what the Serbs want ----

19 MISS HOLLIS: It would not be unfair ----

20 JUDGE STEPHEN: --- in Bosnia.

21 MISS HOLLIS: --- to have two different forms if they were worded the

22 same.

23 JUDGE STEPHEN: But if they were worded differently -- but they are.

24 MISS HOLLIS: They were worded very differently.

25 JUDGE STEPHEN: Yes. It was perfectly obvious to everyone

26 participating that different questions were being asked.

27 MISS HOLLIS: I do not know that it was obvious to the non-Serbs

28 that, in fact, the language was different. I do not know that

Page 8418

1 is established in the evidence at all. The reason we believe

2 that it was unfair is that the language for the non-Serbs was a

3 much broader sort of language in keeping with a unified goal,

4 one people, one nation; whereas the language for the Serbs was

5 very clearly to keep the Serbs all together. That was the

6 misleading nature of it which we believe could have led to a

7 different vote had the non-Serbs been shown the exact same

8 language as the Serbs were. That is why I characterised that as

9 unfair.

10 Certainly, the accused did not write the language.

11 However, he must have been aware of the language. So the point

12 I was making is that his supposed concern about fairness in

13 polling places does not transform itself to concern about

14 fairness with the different wording in the ballots.

15 JUDGE STEPHEN: Then the second thing is the significance of his role

16 in relation to this plebiscite. He was, in effect, nothing more

17 than a returning officer, was he not?

18 MISS HOLLIS: He was a returning officer. However, the evidence in

19 the case suggests that only those people who were very solidly

20 loyal to the SDS cause and aims were given that responsibility.

21 JUDGE STEPHEN: How many other SDS members were there in Kozarac? Do

22 we know?

23 MISS HOLLIS: I am not sure we have evidence on that. There were

24 very few Serbs.

25 JUDGE STEPHEN: Very few members, presumably?

26 MISS HOLLIS: I presume so.

27 JUDGE STEPHEN: Yes, thank you.

28 MISS HOLLIS: In addition to this evidence, the evidence shows that

Page 8419

1 the accused began to have more Serb nationalists at his cafe

2 displaying nationalist clothing or badges; Goran Borovnica,

3 Witness W and perhaps as many as 30 others on occasion. While

4 there they would sing Serb nationalistic songs and some of them

5 came into that area armed with weapons. Very often the three

6 fingered Serb salute was shown -- again other indicia of the

7 rising nationalism in the area of which this accused was part.

8 Also prior to the Serb attacks that began in opstina

9 Prijedor, the accused was forced to leave Sefik Sivac's cafe

10 after the accused became involved in a heated political argument

11 there. The accused indicated after that his knowledge and his

12 support for what was about to happen. You will recall that

13 Witness AA testified that the accused said there would be

14 greater Serbia, it would be theirs, meaning the Serbs, and

15 Muslims would not be there, there would be no place for Muslims

16 there any more.

17 The evidence also seems to indicate his foreknowledge

18 of the Serb takeover of Prijedor. Nada Vlacina said that she

19 saw the accused on 27th or 28th April and that he was on his way

20 to pick up his wife and family who were staying in another

21 area. When he testified, the accused claimed that he was

22 surprised when his wife and family came back on that date. Is

23 it not too great a coincidence that she came back immediately

24 before the Serb takeover of power in opstina Prijedor which, of

25 course, we know occurred on 30th? Why would she come back at

26 that time? Because the accused, and very possibly she herself,

27 knew that this takeover was going to happen, and that after that

28 the Serbs would be firmly in control. Also she came back to

Page 8420

1 Kozarac because very soon after they were going to Banja Luka,

2 and it was in Banja Luka that the accused was mobilized on

3 4th May.

4 The evidence in this case does prove that the accused

5 was mobilized on 4th May when he received the certificate for

6 his automatic weapon and 300 rounds of ammunition, which was

7 twice the normal amount that would be issued. Certainly, even

8 if he were not mobilized on that date, it would not allow him to

9 escape criminal responsibility for his later acts. However, the

10 evidence is such that it is clear that on that date he was

11 mobilized. That did not mean he took up arms at that date and began

12 shooting anyone, but on that date he was mobilized.

13 We have the certificate showing that he was issued the

14 weapon on that date. You have the Exhibit indicating that the

15 mobilization, a general mobilization, occurred on that date.

16 The accused is, understandably, trying to discount the

17 certificate and has come up with several stories concerning it,

18 ranging from "I do not know anything about it", which he told to

19 the Germans, to "Well, I had two certificates, a legitimate one

20 and this one, given to me by my brother Ljubo". Of course, he

21 got rid of the legitimate one. He tells you he did not keep

22 that one. The one found in his apartment was the one he tells

23 you was false, the one showing the 4th May provision of the

24 weapon and the ammunition in Banja Luka.

25 His brother Ljubo tried to help the accused with this

26 story, but they contradict each other as to when he gave the

27 certificate to the accused. Ljubo said it was after the first

28 trip to Kozarac around 1st or 2nd June. The accused said it was

Page 8421

1 4th May when his brother gave it to him. That is what he told

2 you in his testimony.

3 What the evidence shows is that it was on 4th May when

4 he received this certificate and it was given to him by

5 officials in Banja Luka. No doubt at that time in Banja Luka,

6 which was the headquarters for the regional Crisis Staff and

7 also for the Banja Luka Corps, it was determined what his role

8 would be in the eventual takeover of Kozarac. He knew the town

9 and the people. He was still a trusted person there. You will

10 recall that Ljubo told that business was thriving up until just

11 before the takeover there. The people were still treating him

12 as part of the community so that he could return to Kozarac. He

13 had a cafe there, he had a home there, he had a legitimate

14 reason to be there and he could go back and keep an eye on what

15 was happening there. That was an area of significant interest

16 to the SDS to the events that were about to happen.

17 He did that. He went back there. He continued to try

18 to discourage Serbs from working with locals on joint security

19 efforts. In fact, in his work report he denounces the Serbs who

20 took part in those joint security efforts.

21 When he was asked to take part in a last minute

22 predominantly Muslim attempt to peacefully negotiate concerning

23 the Serb demands that were made on Kozarac, he first had a

24 private meeting with Simo Miskovic, the SDS President, before

25 going to the group meeting. That was to tell Miskovic what was

26 happening, what was going to come up in the group meeting and to

27 talk with him about what the accused's role would be in that

28 meeting. You may recall Kemal Susic testifying that after the

Page 8422

1 meeting the accused told him, "Kemal, Kozarac will be shelled".

2 Other indications of the accused's special status at

3 this time are that both before the attack on Kozarac and in the

4 few weeks after that attack, by the testimony of his own

5 witnesses, the accused is able to move about at will throughout

6 the opstina, throughout the Prijedor, Kozarac and Banja Luka

7 area. He can travel back and forth between Kozarac and Banja

8 Luka as he pleases. When the blockade is in a place a few days

9 before the attack on Kozarac, he is still able to get through

10 that blockade and he is still able to get to Banja Luka, though

11 his brother Ljubo testified that for him, Ljubo, it would have

12 been impossible for him to get to Kozarac. After he had

13 participated in the attack on Kozarac and the subsequent

14 cleansing, he is able to go in and out of Kozarac with no

15 difficulty, even getting, in his own name, a certificate for 10

16 ten litres of petrol from the military in Lamovita during a time

17 when petrol was strictly rationed. The local man, Timarac, was

18 not the one who got the petrol; it was the accused who got the

19 petrol.

20 These are not activities of a person who is evading

21 the call up. These are not the kind of activities such a person

22 would be engaged in. These are the activities of a man who was

23 fully integrated into the upcoming attacks and, therefore, would

24 be allowed to engage in such activities.

25 The accused's positions and activities after much of

26 the cleansing had been accomplished proved his contributions

27 towards that cleansing and his status as a trusted and loyal SDS

28 nationalist. He became the primary person in Kozarac. He was

Page 8423

1 the Secretary of the Local Commune, President of the Kozarac

2 SDS, in charge of population resettlement in Kozarac, given the

3 authority to re-establish civilian control, the representative

4 to the Prijedor Municipal Assembly. Only a person who was

5 absolutely loyal to the Serb people could hold such positions.

6 It tells you that in Prosecution Exhibit 367(B) and Prosecution

7 Exhibit 104. He wrote of some of those positions in his work

8 report, Prosecution Exhibit 344, a document that tells you much

9 about his orientation and goals. Of course, he did not include

10 his crimes in this document which he intended to be provided to

11 the media but he did boast of the activities that would be, on

12 the surface at least, non-criminal, such as his efforts to give

13 guns to Serbs, to prevent joint patrols and other such

14 activities.

15 During the latter half of 1992 and a part of 1993, he

16 continued to benefit from his past contributions to the effort.

17 He got permission to take over a cafe, the OK cafe. He was

18 prepared to pay 20 deutschemarks a square metre for 50 square

19 metres of space, so he was getting money from somewhere. He

20 continued to live in the nice apartment in Prijedor. This is

21 the man who committed the offences in opstina Prijedor.

22 This is not the common man, the refugee, he would have

23 you believe he was. This is the Serb nationalist who saw the

24 persecution there as an opportunity to contribute to the Serb

25 aim of ethnic dominance in the region and, at the same time, to

26 enhance his own status in the area, particularly in Kozarac. He

27 also is a man who is willing to use violence to get what he

28 wants and to pay back those with whom he disagrees. Sofia Tadic

Page 8424

1 told you that in her testimony. That is the man who committed

2 the crimes alleged in this indictment.

3 The indictment talks about, in count 1, various acts

4 of persecution in several different places and also includes the

5 substantive counts in the persecution. It talks about his

6 persecution efforts in Kozarac. On 24th May 1992, Kozarac and

7 the surrounding areas were shelled by Serbs forces. On 26th

8 May, Muslims and Croats in the Kozarac area began to surrender.

9 Did the accused commit persecution in Kozarac during

10 the attack on the town in the forced expulsion of these

11 civilians and the forced transfer of those civilians to camps?

12 The accused himself told you that he was part of that

13 persecution when he told Mirsad Blazevic the following

14 September, "I liberated Kozarac and nothing leaves here over my

15 dead body". Mirsad Blazevic heard him saying that, in fact, not

16 to Mirsad, but to Serbs who were trying to remove property from

17 his town, from Kozarac. The accused was not saying that to

18 protect Muslim property until their return. The accused was

19 saying that to exercise his ownership over the town from which

20 he had helped expel the Muslims, a town he now began to see as

21 his town, his reward after his efforts.

22 If you would look at the Elmo for the sightings we are

23 going to talk about, five witnesses corroborate that statement

24 of the accused that he liberated Kozarac. Five witnesses

25 testified concerning incidents in which the accused participated

26 directly in ensuring the Serb capture and cleansing of Kozarac:

27 Witness Q, Azra Blazevic, Nihad Seferovic, Meho Alic, Nasiha

28 Klipic. The five witnesses had known the accused for nine years

Page 8425

1 or more before seeing him take part in the persecution in

2 Kozarac. Four of the five had known him most of their lives or

3 most of his life.

4 They all gave evidence of the accused's direct

5 involvement in the actual military attack on Kozarac beginning

6 with the shelling on 24th and in the subsequent forced expulsion

7 of the civilian inhabitants from that area and in separating

8 them to be sent to camps. He directly participated in this

9 persecution. His actions in this area directly contributed to

10 the larger persecution as well.

11 Witness Q described for you how on a Sunday night, the

12 first night of the shelling, the accused and Bosko Dragicevic

13 fired a flare, illuminating the area around the hospital. This

14 was about 8.00 or 9 p.m., not far from the hospital, and there

15 was sufficient light, Witness Q told you, for him to be able to

16 recognise the accused.

17 Shortly after seeing the accused and Dragicevic

18 jumping over a fence, Witness Q saw the flare fired from the

19 direction in which the accused had gone, and not long after that

20 shelling recommenced, primarily in the area of the hospital.

21 There were injured people in the hospital that night, and Azra

22 Blazevic told you that, in fact, the hospital that night was hit

23 by shells.

24 On the night and early morning of 25th and 26th May,

25 the Muslims in Kozarac accepted terms of a surrender. It was

26 arranged that a column would be formed the next morning with the

27 police in the front of the column and that the column would go

28 down Marsala Tita Street and surrender.

Page 8426

1 The next morning the column did set off with the

2 police in the front. Ermin Strikovic, who was in that column,

3 told you that about one kilometre from Kozarac on the new

4 Prijedor/Banja Luka road the police vehicle was pulled off and

5 the other parts of the column then continued on.

6 In Keraterm at this time, on 26th, Witness S testified

7 that he saw the accused in the morning after 10.00 a.m. He

8 testified that the accused was about 30 metres away from him,

9 and was wearing what the witness described as the top part of a

10 police uniform and then single coloured pants. Later in his

11 testimony he described what he meant by the top part of the

12 police uniform. He said it was similar to a camouflage uniform

13 the special units of the JNA used to wear, the people who had

14 special tasks in the woods, that it was a uniform that looks

15 like the ground.

16 Why was the accused there at Keraterm that morning?

17 Because he knew that the town was surrendering and he was

18 preparing to go to Kozarac to participate in that forced

19 expulsion of the civilian population there.

20 After he left Keraterm, he went to Kozarac and began

21 participating in the forced expulsion and murder of Muslims in

22 Kozarac and their being taken to the detention camps. This was

23 a busy period of time for the Serbs as they were rounding up

24 people, separating them out and moving them off to camps. The

25 accused was involved in all aspects of this activity and was

26 seen at Kozarac, Keraterm and Omarska during those first days

27 after the attack.

28 In Kozarac, Armin Mujcic saw the accused and Goran

Page 8427

1 Borovnica on a tank in the town during the day. The accused was

2 getting off the tank. Armin Mujcic told you that when a young

3 boy approached the accused, he saw the accused slap the boy.

4 Azra Blazevic, who knew the accused previously as

5 well, saw the accused crossing the road at the triangle area,

6 crossing the road toward the school. She saw the accused just

7 after a man had been called out of her group and he had been

8 called out by a name by an unknown soldier. She told you that

9 the accused at that time was in uniform and had a weapon in one

10 hand with his hand raised as though he were greeting someone or

11 calling to someone.

12 Meho Alic told you that he saw the accused on 26th at

13 the Limenka bus stop where men were being separated from women

14 and children. The accused was passing by a bus.

15 Those activities on the part of the accused described

16 by those three witnesses constitutes participation in this

17 persecution. The people who were being forced to leave their

18 homes were being forced to do so because they were non-Serbs,

19 for the most part Muslims. Again the names they were being

20 called reinforces this, the derogatory names for Muslims. The

21 accused's presence was effecting the persecution, aiding and

22 abetting the larger persecution offence and encouraging the

23 offence. To the extent you believe these three witnesses

24 testify about the accused's presence only, it is not mere

25 presence, it is significant presence, and must be considered in

26 the context, not just of Kozarac on that day, but of the overall

27 circumstances that you know about this accused.

28 Nihad Seferovic saw the accused the day Kozarac

Page 8428

1 surrendered. He testified that he thinks that it was Tuesday

2 that he saw the accused. He saw the accused and other Serbs,

3 including Goran Borovnica, with six Muslim policemen lined up at

4 the Serb church. The policemen were Edin Besic, Ekrem Besic,

5 Emir Karabasic, Osman, who was the Commander of a police unit,

6 and others that the witness did not name. The accused stabbed

7 both Osman and Edin Besic in the throat and body. Nihad saw

8 this from a position across the street during the day time.

9 Hamdija Kahrimanovic told that you when he was finally

10 released from the camps and allowed to go to Prijedor, the Chief

11 of Police there, Simo Drljaca, confirmed that Osman was dead

12 saying, "Look what you people have done, you have murdered him".

13 On Wednesday, 27th May, in the afternoon, probably

14 between 12.00 and 2.30 p.m., witness S again saw the accused in

15 Keraterm, this time not in the morning but in the afternoon.

16 The accused was wearing the same type of clothing, but this time

17 when the witness saw him it was from some 20 metres away and the

18 accused had his foot on a police vehicle.

19 That same day in the afternoon, Nasiha Klipic also saw

20 the accused as she came from Brdjani with others to surrender.

21 As the column moved on the new Prijedor Banja Luka road in the

22 direction of Prijedor, she saw a Golf police car. She saw Brane

23 Bolta driving a car and she saw the accused and Goran Borovnica

24 in the car. The car was coming from the direction of Prijedor.

25 When the column reached the Kozarusa bus station, the

26 accused, Goran Borovnica and other Serbs were separating men

27 from 15 to 65 years of age from their wives, mothers and

28 children. The accused was asking, "Where do I take these?

Page 8429

1 Where do these go?" Shouting at people, "Hey, you?" The column

2 of people surrendering and being separated were unarmed

3 Muslims. The elderly women and children were taken to Trnopolje

4 camp. The men were being separated to be taken to either

5 Keraterm or Omarska. By all these acts, the accused was

6 committing or aiding and abetting in harassing, causing

7 suffering to and discrimination against non-Serbs, predominantly

8 Muslims, based on political and religious grounds.

9 The accused's evidence does not give him an alibi for

10 these incidents. His duties with the traffic police had not yet

11 begun. The testimony of Witness X does not assist him. Even if

12 you believe that she independently remembers that the accused

13 came to her home on 23rd May, she says that he left the next

14 day, 24th May. The evidence shows how freely the accused moved

15 about the area. So, even if you believe she could remember the

16 dates independently, her testimony does not give him an alibi

17 for the night of 24th. Her testimony is suspect in that

18 regard.

19 How does she remember it was the evening of 23rd May

20 when the accused came? What was the significance of that date

21 that makes her remember? She was not shelled the next day. She

22 was not even close enough to hear or see the shelling. No doubt

23 the accused at some point came to her home for meals, but she

24 does not remember the date we suggest to you, not independently,

25 rather, she has had the date suggested to her by persons who

26 have reason to give the accused some cover for his crimes.

27 What of witnesses V and W?

28 THE PRESIDING JUDGE: What about witness Petrovic? Is not his

Page 8430

1 testimony that Mr. Tadic visited him either that weekend of the

2 conflict and stayed until dusk? Then Mr. Ljubomir Tadic

3 testified that he came and he saw him on the 23rd.

4 MISS HOLLIS: He testified -----

5 THE PRESIDING JUDGE: Mrs. Gajic said she saw him on the 23rd. What

6 do you do with all of them?

7 MISS HOLLIS: Ljubo said he saw him on the 23rd. His wife said he was

8 with him on the 23rd and the 24th. We suggest that they have, that the

9 wife certainly has very strong motives to fabricate on his

10 behalf. As far as Nikola Petrovic, his testimony says he was

11 there the weekend the 23rd to the 24th. That was when Kozarac was

12 attacked. He is not able to give you a specific day that he was

13 there. He says, "He was at my house until dusk". The accused

14 himself says he was at witness X's that day, the 24th, so there

15 is some contradiction in the Defence evidence on that.

16 We suggest that Mr. Petrovic does not have a clear

17 recollection of which day he saw the accused at his house, 23rd

18 or 24th. It is very possible that he saw the accused on 23rd.

19 The accused had lunch on 23rd there and then later went to

20 witness X's house. So, we do not believe Nikola Petrovic gives

21 him a clear alibi for that time.

22 THE PRESIDING JUDGE: Does Mrs. Tadic not testify that after they

23 left witness X's house, that they spent the night, then came

24 back, I think, the next day for lunch and then left and went

25 home to Banja Luka, as I recall her testimony?

26 MISS HOLLIS: Witness X does live in Banja Luka?

27 THE PRESIDING JUDGE: No, this is Mrs. Tadic.

28 MISS HOLLIS: Witness X does live in Banja Luka, and again what that

Page 8431

1 points out is the conflict, because we have Petrovic

2 saying, "I know it was on the weekend 23rd to 24th they were at

3 my house for lunch. They were there for the evening"; we have

4 witness X saying, "I remember", we are not sure how, "they came

5 on the evening of 23rd. They stayed until the next day". She

6 is not absolutely clear about when the next day. Then they left

7 Mira Tadic saying, "We went home", but remember Petrovic saying,

8 "Well, they were at my house for lunch". The accused saying

9 that they stayed with X.

10 So the record, as far as the Defence evidence is

11 concerned, is very inconsistent on that point. Given the

12 accused's ability to move freely throughout the area, and the fact

13 that Banja Luka is, I believe, on the record some 40 or 50

14 kilometres away, they do not give him alibis for the night of

15 24th at 8.00 or 9.00 p.m.

16 As to 26th and 27th, what about the witnesses V and W

17 who testified here? Do they give the accused an alibi at this

18 time? If you review their evidence carefully, you will see

19 that, no, they do not. Witness V says that he was, indeed, in

20 Kozarac on 26th and 27th May during the forced expulsion of the

21 non-Serbs there or, rather, he says he was there to provide

22 protection for the citizens of Kozarac, especially to the women

23 and children and expectant mothers. By his testimony he did not

24 see the killing of the policeman at the Serb church, so he

25 cannot tell you if the accused was there or not.

26 Assuming for a moment his testimony should be given

27 significant weight, his statement that he did not see the

28 accused in Kozarac that day is of no assistance to the accused.

Page 8432

1 Witness V told you he was very busy. First, he told

2 you that on 26th he really did not move from the intersection of

3 the new road and Trnopolje/Kozarac, but he was there at that

4 intersection. The next day he begins to move up the road. What

5 did he tell you? The next day he was very busy shuttling people

6 back and forth to the collection point, so that he was up and

7 down the road. Again he does not tell you, "I was present on

8 26th when the Muslim policemen were killed at the Serb church".

9 He does not tell you, "I was present on 27th when the other

10 incident occurred". So he does not establish an alibi for the

11 accused at all. His saying, "I did not see him" does not mean

12 the accused was not there. There were hundreds of people,

13 thousands of people, in the street by 27th and he was very busy

14 collecting people.

15 In addition to that, you will recall that witness V

16 told you that not only did he not see the accused on 26th or

17 27th, but that, in fact, he never saw the accused during the

18 period of late May until late June when he was assigned duties

19 in Kozarac and travelled back and forth from Kozarac to Prijedor

20 going through the Orlovci checkpoint. He told you he never saw

21 the accused.

22 As for Witness W, we suggest that, given all the

23 circumstances in this case, Witness W's testimony is not to be

24 believed. One of the things he told you when he was asked on

25 cross-examination was that, indeed, he had watched some of this

26 trial on TV, I believe telling you, "Nobody is going to tell me

27 what I can do in my home" and that, in fact, he had watched

28 certain Prosecution witnesses testify.

Page 8433

1 Who, in particular, did he just happen to see

2 testify? The man whose testimony the witness just happens to

3 contradict, Nihad Seferovic. In addition to that, the witness

4 is related to the accused's wife. He works for the accused's

5 brother in Kozarac. Are those factors that automatically make

6 him unworthy of belief? No. Are those factors to be considered

7 when assessing his credibility? Yes. His violence towards

8 Muslims is another factor. Jusuf Arifagic told you about the

9 incidents where Witness W intended to throw a grenade at a

10 Muslim's home. This was before the attacks began. He told you,

11 "I am not afraid because I carry a grenade around with me". In

12 fact, he was arrested when he threatened to pull the pin on a

13 grenade in a coffee bar in Kozarac before the Serb attacks

14 began. We suggest that when you evaluate this witness, in the

15 light of all factors and the other testimony, his testimony is

16 not credible.

17 Now turning to Keraterm ----

18 THE PRESIDING JUDGE: What about Witness U, I think? Witness U was

19 the Defence's, I think, first witness. He says he came down the

20 column on whatever,the 27th would it have been? He saw Goran,

21 shook his hand, never saw the accused.

22 MISS HOLLIS: That is correct, your Honour. Again that testimony of

23 itself does nothing for the accused, because the witness did not

24 say he saw the killing that occurred on 27th, so he cannot tell

25 you whether the accused was there or not. Again, we are not

26 saying that the accused was with Goran Borovnica the entire day

27 of 27th. We are saying that an incident occurred on that day

28 when he was with Goran Borovnica. This witness can tell you

Page 8434

1 nothing of that incident.

2 THE PRESIDING JUDGE: He says that he did not see anyone being pulled

3 out, that the soldiers treated everyone nicely.

4 MISS HOLLIS: That is right. That is contradicted by the great

5 majority of the evidence in this case. When you are reviewing

6 the factors and considering this evidence, we would suggest that

7 there are some additional factors to take into account with this

8 witness. One of those factors is that the witness continues to

9 live in an area that is intolerant, we suggest, of those who do

10 not subscribe to the ideology of the leaders.

11 Given that factor and this witness's presence in that

12 area, he basically continues to live there at sufferance.

13 Again, is that a determinative factor on credibility? No. Is

14 that a factor you should consider? Yes. We suggest,

15 considering all those types of factors, in the light of all the

16 other evidence, that this witness's testimony does not establish

17 an alibi for the accused.

18 THE PRESIDING JUDGE: But I guess my point was that he does say that

19 he did not see anyone pulled out ----

20 MISS HOLLIS: That is right.

21 THE PRESIDING JUDGE: --- as they were coming down in the column.

22 MISS HOLLIS: But I would assume, your Honour, that there were

23 hundreds of people who saw no one called out. You remember the

24 length of that column. You remember people talked about

25 hundreds, thousands, of people in that column winding its way

26 down through Kozarac and, depending upon where you were in that

27 column when that incident occurred, you may have gone past it,

28 you may not yet have even been there to the point that you could

Page 8435

1 see the victims of 24/28 called out from the column.

2 THE PRESIDING JUDGE: He was at the head of the column, but I thought

3 that the column ----

4 MISS HOLLIS: He would have gone past by the time that happened.

5 THE PRESIDING JUDGE: --- was divided into two. I do not think

6 I ever fully understood that, but he was at the head of the

7 column. That is how I remember it. If it was divided into two,

8 what would that mean?

9 MISS HOLLIS: I think the evidence on that was, your Honour, that it

10 was a very long column, that as the column progressed things

11 were happening. At some points the column was bunched up, at

12 other points there was a separation. There was a separation at

13 the point where the incidents on 24/28 occurred. There were

14 people being taken out and the column basically was waiting

15 there as that was happening. So that because it was so long

16 there were gaps in the movement, if you will, but they were not

17 really two columns. The front of the column would have been

18 well beyond that point when this incident happened, the 24/28.

19 Thank you, your Honour.

20 Turning now to Keraterm, as for the camp itself and

21 the evidence of the persecution in that camp, the evidence

22 proves that the conditions in this camp were one of physical and

23 mental horror. You will recall the camp (and we have put it on

24 the Elmo here) was a ceramics factory. It had been turned into

25 a camp, and that people were held basically in four major areas

26 there, rooms or cells 1 through 4. The prisoners were there

27 were routinely beaten, murdered, both by guards and by people

28 from the outside. The living conditions were horrific;

Page 8436

1 insufficient food, no adequate toilet facilities. People were

2 beaten as they went to the toilet. It is in this context that

3 the accused's presence in Keraterm must be evaluated.

4 Witness S's sightings of the accused in Keraterm are

5 significant. You will recall he saw him there on 26th and

6 27th. The accused had no legitimate purpose to be there. It

7 was a camp set up to forcibly detain non-Serb civilians and to

8 beat, murder and otherwise mistreat them. The accused gives no

9 legitimate explanation for his presence there, but says he was

10 not there.

11 Given the fact he is there several times, the nature

12 of the camp, the fact that on other occasions he beat prisoners

13 there or took prisoners away from there in the direction of

14 Kozarac and Omarska, his presence there is not mere presence but

15 significant presence. He was connected with the operation of

16 the camp in that he supported, encouraged, directly contributed

17 to the abuse of prisoners by his presence there. That recurring

18 presence is but another facet of his overall continuing

19 involvement in the persecution of non-Serbs in opstina

20 Prijedor.

21 In addition to Witness S's sightings of the accused in

22 Keraterm, three other witnesses testified to the accused's

23 direct commission of crimes in Keraterm. All three knew the

24 accused for some years prior to seeing him at Keraterm. The

25 accused beat Sefik Kesic and other men from Kozarac within the

26 first 10 days of Kesic's arrival at Keraterm.

27 Kesic and the others were called out of room 2 and

28 lined up outside. It was night time and the area was lit by

Page 8437

1 lights from a car. The accused went down the line of men

2 beating them, Kesic included.

3 The accused also beat Hakija Elezovic during

4 interrogation of Hakija at Keraterm. He beat Hakija Elezovic

5 using his feet and hitting him in the chest. The accused used

6 a "master's kick" such as Hakija had seen in judo and karate

7 films.

8 The accused also came to Keraterm and took prisoners

9 from there in a van in the direction of Kozarac and Omarska.

10 Witness Q on that occasion heard people from Kozarac

11 saying, "Tadic is coming". On hearing that, he went to the door

12 and looked out and saw the accused coming from the brick

13 building near the weighing station. If you will look at the

14 monitor, the weighing station, the kiosk, the brick building

15 there he is talking about, he saw him coming from that direction

16 towards the cells where the prisoners were kept. He saw the

17 accused laughing and joking with the guards. Then 15 or 20

18 minutes later, Witness Q heard people saying, "Tadic is

19 leaving". Witness Q again went to the door and looked out.

20 That is when he saw the accused leaving in the van with the

21 prisoners in it.

22 Did the accused commit these acts to harass, cause

23 suffering or to discriminate based on political or religious

24 grounds?

25 When Kesic and the others from Kozarac were called

26 out, the accused asked each of the men their name, where they

27 were from and if any had weapons. The witnesses in this case

28 have testified to you that you really cannot distinguish between

Page 8438

1 a Muslim, a Croat and a Serb based upon facial features. In

2 response to many questions about, how can you distinguish? Many

3 of them have told you name is significant. There are names that

4 are associated with Serb names. There are Muslim names, Croat

5 names. So names are a way to classify you into a certain group.

6 In addition, where you are from may tell the person

7 what your ethnic group is because there were hamlets, villages,

8 that were predominantly Muslim, predominantly Serb. These were

9 the types of questions that were asked of these men.

10 When the accused beat Hakija, the interrogator of

11 Hakija, a man by the name Radakovic, who was the director of the

12 Kozarac National Park, was asking Hakija questions primarily

13 about his son Salih. You recall Hakija Elezovic told you that

14 his son had been a reserve military officer, a reserve JNA

15 officer, during the conflict in Croatia but he was only there

16 for a very short time, in fact, a little over a month and then

17 he left. He came home prematurely saying, "It was not a war"

18 and would no longer be involved in it. You will recall that

19 Mr. Elezovic told you that during the interrogation he was told

20 that he was to blame for his son's desertion; he had advised him

21 to leave the military.

22 As for the prisoners that witness Q saw the accused

23 take away from Keraterm, the accused had no legitimate purpose

24 for taking those prisoners other than to take them to another

25 camp which was not a legitimate purpose. Again with these

26 sightings and with these acts, the Defence evidence does not

27 give him an alibi for his visits. The 27th May sighting is

28 prior to his traffic police duties in opstina Prijedor.

Page 8439

1 As for the beating of Sefik Kesic, who arrived there

2 around 15th June, within 10 days after that, even if you do

3 believe the schedules that were submitted to you, even if you

4 believe they are accurate, the June schedule gives the accused

5 multiple opportunities to be in Keraterm at night. He is listed

6 as having several shifts during the day or ending about 9 p.m.

7 at night. In addition, you will remember that the checkpoint is

8 not far from Keraterm which is on the outskirts of Prijedor in

9 the direction toward the checkpoint.

10 The same is true of the beating of Hakija Elezovic

11 which occurred during the time period between 9th July and about

12 20th July. The schedule gives the accused ample opportunities

13 to engage in beating. Indeed, according to the schedule, the

14 accused was not on duty on 19th July.

15 But as for those schedules themselves, what weight

16 should you give those schedules? In assessing that, making that

17 determination, first, do not forget that these are schedules

18 obtained from the force that was an integral part of the running

19 of the camps in Prijedor, and in the persecution of the

20 non-Serbs of that opstina. In addition, is it really reasonable

21 to assume that if a person was a member of the traffic police

22 and assigned to a checkpoint, he would be foreclosed from

23 engaging in the overriding objective of the Prijedor police at

24 the time, taking part in and facilitating the persecution of

25 non-Serbs? What better way to give privileged people cover for

26 their activities? Is it not the situation that such a man could

27 leave his duties to take care of the greater duties, the

28 persecution, and still be given credit for being on duty?

Page 8440

1 Furthermore, at a time when fuel is severely rationed,

2 when many civilians who had cars are dead, are in camps or have

3 been expelled, is it not highly suspicious that the traffic

4 police numbers increased over the peace time numbers? Is that

5 not even more suspicious when you take into account what

6 Mr. Prpos told you, and that was that the civilian traffic

7 police were only concerned with civilian vehicles, had no

8 authority over military vehicles or military in civilian

9 vehicles? Yet more suspicious, in the light of the testimony of

10 Radoslavka Lukic, who told you that there was a curfew in place

11 for civilians from 9.00 p.m. until 6.00 a.m. In those

12 circumstances, is it reasonable to believe that all of these

13 people who were supposedly assigned these checkpoint duties

14 were, in fact, restricted to those checkpoints?

15 But what of the testimony of Mr. Prpos? He told you

16 many things that are open to question. He said that the traffic

17 police had to be at their post at all times. Assuming for a

18 moment that was true, he did not say what post that would be.

19 Of course, the post would be the post assigned, wherever, doing

20 the duties assigned, whatever.

21 He would have you believe that his men did not escort

22 buses of prisoners. But Mr. Reid testified that one of the

23 traffic policemen named Bosko Grabez, who appears on the

24 schedule, has been named by many as engaging in crimes against

25 prisoners while they were being taken from Omarska to Manjaca

26 and these people identify him as a traffic policeman. A man

27 named Zeljko Maric, another traffic policeman, has also been

28 named as one who took part in the round up of Muslims fleeing

Page 8441

1 Kozarac.

2 Nasiha Klipic told you that he was at the separation

3 point in Kozarusa on 27th May taking part in the separation

4 there.

5 Mr. Prpos's statements are not supported by the

6 evidence. He also told you that he did not even know about

7 movements of buses of prisoners on the roads in opstina

8 Prijedor, though he was the head of traffic police and such

9 movement would have impacted on his job, that is, the control of

10 the highways in opstina Prijedor.

11 Mr. Prpos's testimony is seriously weakened by other

12 considerations as well. First, his denials of knowledge or

13 participation in the takeover of Prijedor at the end of April.

14 Those denials ring false when you consider that, prior to the

15 attacks on non-Serbs villages, Mr. Prpos was, in fact, ensuring

16 that weapons seized from Serbs by the police were immediately

17 returned to them. Furthermore, immediately upon the takeover,

18 he became the head of the traffic police.

19 Do you think they would have given a position of

20 leadership and authority to someone who did not have a clue

21 about what was going on and who was not a loyal supporter of

22 what was going on? In addition he has remained in a position of

23 authority in the Prijedor police. Those facts make a lie of his

24 knowledge, of his statement, that he had no knowledge of the

25 planned takeover and his feigned ignorance of the subsequent

26 persecution.

27 He also testified that he had no idea that prisoners

28 were beaten at the SUP, were brought there in buses and beaten.

Page 8442

1 His officers were at the SUP and at least on one occasion when

2 those beatings occurred Mr. Prpos was there. Fikret Kadiric

3 told you that.

4 Beyond the fact that the schedules were a good way to

5 cover for other activities, another reason the schedules do not

6 give the accused a credible alibi is that the accuracy of the

7 schedules depends on many human factors that lead to errors.

8 First, the testimony is that they were based on the plan that

9 was made up in advance. The final schedule would only deviate

10 from the plan if the people on the shift reported the change,

11 reported it promptly, and the person filling it in entered the

12 data accurately and in a timely fashion.

13 The evidence shows that the schedules were in error on

14 at least two occasions. You recall that in September, when the

15 schedules put him performing duties in Prijedor, that police

16 patrol warrants in Kozarac put him in Kozarac, either

17 overlapping the time he was to be in Prijedor or having him in

18 Kozarac at the same time he is in Prijedor beginning his duties

19 there. The point is that these schedules are not accurate,

20 cannot be relied upon to establish an alibi defence.

21 JUDGE STEPHEN: Just to be clear on that, that is a separate schedule

22 maintained by a different officer, is it not?

23 MISS HOLLIS: Yes, your Honour. That was, I believe, the schedule

24 about which Mr. Vujanovic testified in his testimony. It was

25 not the traffic police schedule.

26 JUDGE STEPHEN: Yes, thank you.

27 MISS HOLLIS: Your Honour, I am about to move to another area.

28 THE PRESIDING JUDGE: Let me ask you a question. Of course, you did

Page 8443

1 not mention the second mistake. Was it his position that the

2 dates were transposed? Was it 21st instead of the 12th? What

3 do you say to that?

4 MISS HOLLIS: Your Honour, let me tell you what I say to that.


6 MISS HOLLIS: What I say to that is that, first of all, it shows that

7 mistakes were made, whatever the resolution of that issue.

8 Secondly, what I suggest to you is it is very convenient to say,

9 as they did, "Well, when they typed up the work schedule that

10 was posted, what they did was transpose the numbers on that".

11 So the big schedule is accurate and that was in error.

12 I suggest to you it is just as reasonable to conclude that, in

13 fact, that August schedule was completed at the end of August

14 and when they stacked all the papers up from which they were

15 going to write that schedule, they, in fact, mixed up 21 and

16 12. So that 21 August work schedule that was posted is

17 accurate, but they put that chronologically, numerically, where

18 12 August should have been and they put 12 August where 21

19 August should have been, and they were not paying attention to

20 it. Either way, what we suggest is that it shows that these

21 were not accurate, that mistakes were made.

22 THE PRESIDING JUDGE: You indicated that the ceramics factory was

23 outside of the city limits. Do you know how far? I do not know

24 remember.

25 MISS HOLLIS: Your Honour, I believe it is actually on the outskirts

26 of Prijedor itself, just as you exit the town. I believe the

27 testimony is that the Orlovci checkpoint was approximately six

28 kilometres from Prijedor. Since it was on the outskirts of the

Page 8444

1 town, approximately Keraterm to Orlovci checkpoint, we would

2 suggest, would be about six kilometres. So it is not that far

3 away. It would be four to six, perhaps.

4 THE PRESIDING JUDGE: OK. We will stand in recess for 20 minutes.

5 (4.00 p.m.)

6 (The Court adjourned for a short time)

7 (4.20 p.m.)

8 THE PRESIDING JUDGE: Miss Hollis, you may continue.

9 MISS HOLLIS: Is there a question?

10 JUDGE STEPHEN: I wonder if I can ask you this? The volume

11 marked "proof 2", by and large, includes those extracts from the

12 transcript which are the passages that you have been referring

13 to? Is that statement correct or not?

14 MISS HOLLIS: Yes, your Honour.

15 JUDGE STEPHEN: Yes. Therefore, it serves a very useful purpose of

16 relieving us from looking at the whole of the transcript and

17 being able to concentrate on these pages.

18 MISS HOLLIS: That is correct, your Honour. I would note with the

19 exception, I would believe, in several instances where the

20 discussion of the Defence evidence, the Defence extracts are not

21 in there, but as to the Prosecution witnesses, yes.

22 JUDGE STEPHEN: Surely, yes. Thank you.

23 THE PRESIDING JUDGE: As you were referring to S and Q a few moments

24 ago, that was my concern. I do not know. I must admit that

25 I have not gone through each and every of these boxes. But Q

26 you begin with. We will locate it. Thank you. That helps.

27 MISS HOLLIS: Your Honour, in response to an earlier question you had

28 about the work report, Mira Tadic's testimony concerning the

Page 8445

1 plebiscite, turning first to the accused's testimony at page

2 5913 of the record, he indicates that the voting took place in

3 the church in that testimony. In Mira Tadic's testimony she

4 indicates on pages 4949 and 4950 that, in fact, there was no

5 voting in their home but all of that did occur at the church.

6 In his work report at the bottom of page 1 and the top

7 of page 2 where the accused discusses the plebiscite, he

8 indicates that initially it was going to be held in his home.

9 Then they decided to change it to the church. But in that he,

10 in fact, indicates that there were, as you recall, "a large

11 number of Muslims and Croats, although that particular group

12 voted later in the evening in my home".

13 THE PRESIDING JUDGE: That is what I recall. As I recall

14 Mrs. Tadic's testimony, I thought that she had said that they

15 had not voted in the home but perhaps not.

16 MISS HOLLIS: She did say that.

17 THE PRESIDING JUDGE: In addition to saying that they did vote in the

18 church area, there has been much discussion as to whether it was

19 in the church or in the courtyard of the church. So when you

20 say "church", it is your understanding it was in the courtyard

21 or the office of the church?

22 MISS HOLLIS: I am not sure exactly where in the church. Somewhere

23 in that area I include. I am not saying it was definitely in

24 the church proper.

25 THE PRESIDING JUDGE: Very good. Thank you.

26 MISS HOLLIS: Your Honour, in addition to that, it was brought to my

27 attention that when Mr. Brdar testified, he indicated that the

28 distance from Keraterm and the outskirts of Prijedor to the

Page 8446

1 checkpoint was three to four kilometres, to Orlovci.

2 THE PRESIDING JUDGE: When we finish today, I have a number of

3 questions about the distances, but I suppose we will wait and

4 then shortly before we adjourn I will ask you the questions.

5 I would really like the Defence and the Prosecution to agree, if

6 they can, on some distances. Thank you. You may proceed,

7 Miss Hollis.

8 MISS HOLLIS: Thank you, your Honour. If I could turn now to

9 Prijedor? When we look at the evidence of persecution involving

10 the accused's actions in Prijedor, we have two witnesses who

11 testified about the accused's treatment of them, rather

12 mistreatment of them, in Prijedor. Both Uzeir Besic and Sead

13 Halvadzic testified that the accused beat them while they were

14 being held at the Prijedor military barracks in early June

15 1992. Besic knew the accused since Besic was a schoolboy;

16 Halvadzic recognised the accused in a photo lineup.

17 In addition to that, from the first week in June until

18 August 1992, Hamdija Kahrimanovic saw the accused in Prijedor

19 very often, most frequently with the Chief of Police, Simo

20 Drljaca. That evidence places the accused in Prijedor before he

21 says he was there, if you accept Mr. Kahrimanovic's testimony to

22 mean that beginning in the first week of June he saw the accused

23 in Prijedor. Even if you do not accept that as a reasonable

24 interpretation of that, it places the accused very often with

25 the Chief of Police for opstina Prijedor. Mr. Prpos, the head

26 of the traffic police, did not even indicate a common

27 association with the Chief of Police.

28 How does the accused, who would have you believe that

Page 8447

1 he was a very low level traffic policeman, doing everything he

2 could to avoid taking part in what was happening in opstina

3 Prijedor, how does such a man come to frequently associate with

4 the Chief of Police whose nationalism and other extreme

5 attitudes are known to this Chamber? His frequent association

6 with Drljaca proves the position of responsibility that the

7 accused had and the nationalistic attitudes that he held.

8 The evidence of his position of responsibility is

9 further supported by the evidence that the accused was allowed

10 to take a very nice apartment in Prijedor, the apartment of the

11 former police chief, Talundzic. Prosecution Exhibit 367A shows

12 you that the accused could not have received that apartment

13 unless he had contributed substantially to the persecution

14 efforts in the opstina.

15 The testimony of Munevera Kulasic further supports

16 that. According to her, while she is in the apartment and other

17 officials are in her apartment, the accused enters the apartment

18 and, in effect, exerts authority over the other officials, and

19 they accept that assertion of authority. Her testimony also

20 illustrates that the accused and his wife were willing to lie to

21 this Chamber to make the accused appear innocent.

22 Munevera's version of how she and her aged mother were

23 thrown out of that apartment by the accused is directly

24 contradictory to the accused and Mira Tadic's benign, courteous

25 version of that event.

26 JUDGE STEPHEN: Was that the lady who, in fact, had another larger

27 apartment to which she moved? I mean, "thrown out" is putting

28 it rather dramatically, is it not?

Page 8448

1 MISS HOLLIS: Given the evidence that she presented, your Honour,

2 I would say, no, it is not overly dramatic, because they were in

3 the apartment. They were living there. She did not know it was

4 the accused, but then he puts his name on the door ----


6 MISS HOLLIS: --- came in and basically said, "You are gone, and

7 don't worry about finishing your food, you are gone". So

8 I would say that is "thrown out". The witness does indicate

9 that, indeed, they had other places to go to, that she had

10 another apartment.

11 JUDGE STEPHEN: They were occupying a relative's apartment ----

12 MISS HOLLIS: That is right.

13 JUDGE STEPHEN: --- not their own.

14 MISS HOLLIS: That is right, Mr. Talundzic's apartment. Again the

15 import of that, we suggest to you, is the accused's ability to

16 take that apartment, No. 1, and the fact that it was not this

17 courteous, "Hello, how do you do? I would like to see

18 this apartment and, by the way, I have been given it" version of

19 events that both the accused and his wife testified to.

20 JUDGE STEPHEN: That is perfectly true, yes.

21 MISS HOLLIS: I would like to turn now slightly out of order to

22 Trnopolje and then conclude with Omarska because that then leads

23 into the 5-11 charges.

24 Trnopolje was a camp at which the conditions were the

25 least severe of the three camps, but that must be put in the

26 context of those camps themselves, because if you will look at

27 the Elmo and recall the testimony of Azra Blazevic, it is very

28 clear that this was not a very kind, caring collection point for

Page 8449

1 non-Serbs in the area. The detainees in Trnopolje were

2 subjected to murders, to severe beatings, rapes and horrible

3 living conditions as well.

4 People did sometimes come to that camp voluntarily,

5 that is true, others did not. Those who came voluntarily did so

6 because the campaign of terror was effective, because they had

7 no other place to go and their only hope for survival was to

8 leave opstina Prijedor and this camp was the main springpoint

9 from which the Muslims that had not been killed were going to be

10 forced out of the opstina.

11 Regarding the accused's presence in Trnopolje, eleven

12 Prosecution witnesses testified that they saw the accused at

13 Trnopolje camp during the period from the end of May until the

14 end of December 1992. Again, if you will notice, on the

15 overhead we have prepared a demonstrative aid showing the

16 witnesses and where they say they saw the accused.

17 All witnesses knew the accused. On two occasions in

18 early June, during the day, Nasiha Klipic saw the accused at the

19 camp or going in the direction of the camp. The first sighting,

20 she told you, was the accused in a police car, and the second

21 occasion when he was at the tavern or the pub which was across

22 from the camp. On both occasions the accused was in uniform.

23 Vasif Gutic saw the accused at Trnopolje camp the day

24 six prisoners were taken from the camp in a civilian truck. He

25 saw the accused with what appeared to him to be a list of some

26 sort in his hand. It was a list, a piece of paper, and there

27 was writing on the left side, but no writing on the right side.

28 Mr. Gutic at the time was at the window of the

Page 8450

1 ambulanta in the camp looking out when he saw the accused. He

2 saw the accused talking to the deputy camp Commander at this

3 sighting.

4 Mustafa Mujkanovic saw the accused at Trnopolje on two

5 occasions, the first time on 21 August when the convoy was

6 leaving, and that was the convoy from which later many men were

7 take and massacred on Vlasic Mountain. He saw the accused on

8 that date with Goran Borovnica and with others. The accused and

9 the others followed the convoy as it left Trnopolje. He next

10 saw the accused on 1 October when the large convoy left

11 Trnopolje, the convoy, other witnesses have told you, was the

12 ICRC convoy.

13 Many other people saw the accused at Trnopolje, often

14 more than once. Witness S saw the accused there talking to the

15 camp Commander, Major Kuruzovic. Advija Campara saw the accused

16 on multiple occasions at the camp between 27th September and

17 25th or 26th December 1992.

18 The accused admitted to being at Trnopolje camp on

19 five occasions. He explained those trips as follows: once with

20 Jovo Samardzija, looking for Mr. Samardzija's sister, an end of

21 October visit to Adil Jakupovic, once there with Ljubo to look

22 for a friend of Ljubo's friend, the 1 October visit as security

23 detail for the ICRC and one other visit when he says he was

24 there to deliver Red Cross messages.

25 Mr. Samardzija did go to Trnopolje with the accused on

26 one occasion. He said the accused on that occasion was wearing

27 an SMB uniform. You will recall the accused said, "No, I was

28 not. I had such a uniform but I was not wearing it". But

Page 8451

1 Mr. Samardzija, who is a retired JNA Officer, told you that on

2 that occasion the accused had the automatic weapon and he had an

3 SMB uniform which was the uniform of the JNA, the olive green

4 colour uniform.

5 THE PRESIDING JUDGE: Did not Mrs. Tadic say that he was wearing a

6 camouflage uniform and did not Ljubomir Tadic say that he was

7 wearing no uniform? So what do we do with those three

8 versions?

9 MISS HOLLIS: Your Honour, what I suggest you do with those versions

10 is that Mr. Samardzija's version is the version which, in the

11 context of all this evidence, is the most credible. Ljubo said

12 that he saw the accused before the accused went to the camp. It

13 is possible that the accused put on a uniform at home before he

14 went to the train station. The accused himself does not want to

15 have many kinds of uniforms because he wants to distance himself

16 from all of that, so while he must admit that he had an SMB

17 uniform, he tells you that he had on this pullover type

18 uniform. Certainly, Mr. Samardzija, who again as a retired JNA

19 Officer, would be able to distinguish between the camouflage

20 uniform and the SMB.

21 On this occasion of this visit to the camp with

22 Mr. Samardzija, Mr. Samardzija told you that while he,

23 Mr. Samardzija, talked with his Muslims friends and neighbours

24 and saw their plight, a plight which reduced him to tears, that

25 the accused talked to the guards whom the accused apparently

26 knew. Mr. Samardzija told you, "I did not walk about the camp

27 because I found very early that my sister was not there, so my

28 friends and my neighbours came to me", and the accused talked to

Page 8452

1 the guards while Mr. Samardzija talked with his neighbours.

2 That is quite a different version of the event than

3 the one the accused told you. The accused's version, painting

4 the accused as talking with the Muslim prisoners there, greeting

5 them as friends and neighbours, again another lie by the accused

6 to rewrite history, to make himself look innocent. It is

7 totally different than Mr. Samardzija's recollection of that

8 event.

9 The accused's continuing presence at Trnopolje must be

10 evaluated in the light of the purpose of that camp. The camp

11 was a place of abuse, of rapes and murders. It was also the

12 culminating point, if you will, for the final phase of the

13 persecution, the forced expulsion of the non-Serbs who were not

14 killed. This continued presence there in uniform visiting with

15 the camp Commander, the deputy Commander, the guards, is

16 significant presence pregnant with meaning.

17 Even should you believe his testimony on the five

18 visits, the accused has only given you an explanation for his

19 presence for the five times he admits to being there. The

20 evidence proves that the accused's repetitive presence at

21 Trnopolje was support for and encouragement of the continuing

22 persecution of the non-Serb population of opstina Prijedor.

23 Now if I could turn to Omarska? As brutal as the

24 conditions were at Keraterm and as horrific as they would be if

25 they stood alone, Omarska was a nightmare from which far too

26 many never awoke. The murders, beatings and abuse were

27 continuous. Prisoners were taken out at night and many never

28 returned. Many who did return were carried back in or had been

Page 8453

1 terribly beaten. Women were taken out at night and raped. The

2 white house was, perhaps, the horror of horrors there where the

3 intellectuals, leaders and others were held and subjected to the

4 most extreme continuous abuse.

5 Men were overcrowded in rooms until they could not

6 move, could not lie down to sleep. They were denied water

7 during the hot summer they were held there or made to pay money

8 or sing songs, Serb nationalist songs, in order to get the small

9 amount of polluted water they were allowed. You have heard

10 testimony of many witnesses who were there that during the

11 course of their imprisonment at Omarska they lost 30 kilograms,

12 40 kilograms, of weight. So truly horrific conditions.

13 You will recall again the testimony of Azra Blazevic.

14 You see on your screens the photograph that was taken of one of

15 the men who was brought to Trnopolje when Omarska was forced to

16 be closed because the journalists, the international community

17 had found out about it.

18 You saw the emaciated men on the film, some of them so

19 weak they could not walk without support. It is in this context

20 that you must evaluate the accused's presence at Omarska, plus

21 the context that on many occasions there he was not seen at the

22 camp doing nothing but, in fact, was at the camp engaged in very

23 brutal murders, beatings and other misconduct.

24 Thirteen witnesses saw the accused in Omarska camp

25 during May onward. These are sightings that are exclusive of

26 the counts in 5 to 11 or 12 to 14 and 21 to 23. These witnesses

27 saw the accused on multiple occasions in various places, on the

28 pista going into the white house, coming out of the white house,

Page 8454

1 near the restaurant building. Ten of those witnesses had known

2 the accused for a long time before seeing him at Omarska.

3 Others identified the accused through a subsequent photo lineup

4 identification.

5 Nine witnesses testified to seeing the accused

6 standing on the pista. We have a diagram for you to look at

7 talking about those sightings. They saw him standing on the

8 pista going into the white house or the administration

9 building.

10 Kasim Mesic saw the accused on the pista area with

11 what appeared to be a notebook or a book of some kind in his

12 hand. He saw him there immediately after a man had been

13 murdered. The accused was talking to the guard who had shot the

14 man, with the man's body still lying there.

15 Kasim Mesic also saw the accused upstairs in the

16 administration building when Kasim was ordered to take a

17 prisoner there for interrogation. The prisoner was so badly

18 beaten he could not walk on his own and a guard forced Kasim to

19 take the man upstairs in the administration building. As he

20 went past the top of the stairs and past the table at the top of

21 the stairs, he saw the accused up there sitting on a chair with

22 his feet up on the table.

23 Saud Hrnic saw the accused on the pista with what

24 looked like a file folder of some type in his hand. Witness R

25 saw the accused coming from the white house and going in the

26 direction of the area where the dead bodies were thrown.

27 Ferid Mujcic in the hangar saw the accused on the

28 pista as Ferid looked down from a room on the first floor.

Page 8455

1 These people saw him in daylight. Some of these people saw him

2 from as close as seven to 10 metres away. Several facts that

3 I have previously mentioned make these sightings at Omarska

4 significant presence, not mere presence.

5 All of these factors transform the accused's presence

6 at the camp into acts of encouragement and participation in the

7 operation of that camp, participation in the reign of terror

8 that existed at that camp, participation in the ongoing

9 enterprise that was the functioning of that camp.

10 In addition, four other witnesses, Senad Muslimovic,

11 Edin Mrkalj, Mehmedalija Huskic and Uzeir Besic were either

12 beaten by the accused at Omarska or saw the accused beat

13 others.

14 About a week before the accused again beat Senad

15 Muslimovic, during the commission of the crimes charged in 5 to

16 11, about five to seven days prior to that, the accused and

17 other Serbs beat Muslimovic as he returned to the hangar after

18 being interrogated. The accused and the other Serbs viciously

19 beat him, made him kiss a Kokarda on someone's hat. He was able

20 to escape from that beating, but only after he had been

21 viciously beaten.

22 On 16th June, the accused severely beat Edin Mrkalj at

23 the top of the stairs in the administration building. The

24 accused hit Mrkalj on the head with a baton, put a rifle muzzle

25 in Mrkalj's mouth, and then raised him up with that muzzle and

26 then began to beat him on the head with a baton while the muzzle

27 was still in Mrkalj's mouth causing serious damage to Mrkalj's

28 teeth and head.

Page 8456

1 After he had beaten Mrkalj in this way, the accused

2 forced Mrkalj to hit a man who was lying on the floor in the

3 hallway. The man's skull was already crushed, but the accused

4 made Mrkalj hit that man in the head. You will recall, as

5 Mr. Mrkalj told you when he hit him there, the sensation and the

6 effect was quite horrific. Something came out of the man's head

7 when Mrkalj did that, a scream but not a scream.

8 Mrkalj had been a policeman in Prijedor. The accused

9 knew that. He had met him with Emir Karabasic at a police

10 gathering a year before. At the top of the stairs at Omarska

11 the accused asked Mrkalj, "How come you are here? What brought

12 you here?" With a cynical smile, asked what Mrkalj's occupation

13 was.

14 The accused came into room A17, that was the

15 electrical workshop room, the first day that Mehmedalija Huskic

16 was in that room. He thought that it was probably 20th June and

17 verbally abused the men in the room using Alija's name in a

18 profane way. Then the accused went down the line, hitting every

19 other man on the head with a pistol, saying to those men he hit,

20 "You had a weapon, you had a weapon". The accused hit

21 Mehmedalija Huskic on the head as he went down the line. The

22 accused was within a few metres of Huskic or face to face with

23 him during this incident.

24 The accused also beat men lying on the pista near

25 Uzeir Besic. Besic was sitting facing the restaurant building

26 when he first heard yells and then saw prisoners and the accused

27 near the restaurant building. He and others were ordered to lie

28 down. He heard moaning and looked to see what it was and saw

Page 8457

1 the accused jumping on the backs of the men who were near

2 Besic. Then the men were ordered to go to the white house.

3 Some of them had to be carried because of their injuries, one of

4 the men begging to be killed.

5 By his presence and actions in Kozarac, Keraterm,

6 Prijedor and Omarska camps, did the accused intend to harass,

7 cause great suffering or otherwise discriminate against his

8 victim based on political, racial or religious grounds? The

9 evidence says, yes, he did. The evidence is replete with

10 references that his victims were chosen because of their

11 perceived political or religious identity. The victims were

12 predominantly Muslims, including Muslim police who were

13 especially victimized, well known and successful Muslim

14 businessmen and leaders -- another group that were particularly

15 victimized. His actions against these victims were part of the

16 overall campaign of terror and of taking all measures to rid the

17 opstina of non-Serbs.

18 The accused is guilty of these acts of persecution as

19 well as the other crimes he committed which also form part of

20 the overall persecution that was being carried out in opstina

21 Prijedor during May to December 1992.

22 At this time I would like to move on to the offences

23 charged in counts 5 to 11.

24 THE PRESIDING JUDGE: I had just a couple of more questions really on

25 the elements relating to crimes against humanity. May I ask you

26 them now?

27 MISS HOLLIS: Of course.

28 THE PRESIDING JUDGE: The first one relates to Article 5 of our

Page 8458

1 Statute. Article 5(H) says of the Rules, 5(H) says,

2 "persecutions on political, racial and religious grounds", and

3 both the Prosecution and the Defence in your pretrial brief have

4 referred to that with the word "or". Is there a difference as

5 you see it?

6 MISS HOLLIS: There would be a difference, certainly, if you were to

7 conclude that, in fact, what was meant was "and", then we would

8 have to show persecution on all those grounds. It is our

9 position that that was inartfully drawn or, perhaps, an error

10 that was not detected and that, in fact, it means "or". We find

11 it very hard to believe that in setting up this Tribunal they

12 would require that the persecution on all of those grounds to be

13 proven to constitute a crime against humanity since, in general,

14 the crime against humanity is effected when the persecution is

15 based on any of those grounds.

16 So we believe that, in fact, the proper interpretation

17 of that would be "or" but, indeed, were you to find that it is

18 "and", we would have to prove for all three, assuming all three

19 were factually pled and proven.

20 The difficulty, for example, for the racial grounds in

21 this regard is that, although we treat these people as different

22 ethnic groups, racially you could not say I do not believe they

23 were of a different group, although certainly the Serbs, in

24 carrying out acts against Muslims and Croats, were separating

25 them and isolating them as a different group. But I do not

26 believe you would be able to say it was a racial group. So I do

27 not believe on these facts you would be able to meet the test

28 for "and"; yet it was these groups that were being addressed in

Page 8459

1 the crimes against humanity. It was Muslims, Croats, Serbs and

2 perhaps the other small numbers of other groups in the country.

3 So I do not believe if you look at the purpose of the

4 Article in the Statute, if you look at what is commonly accepted

5 as crimes against humanity, what constitutes it, and you look at

6 the facts in Bosnia and Herzegovina, that they intended "and",

7 because I believe then, depending upon how you define "racial",

8 it would be impossible to ever prove crimes against humanity in

9 this context.

10 THE PRESIDING JUDGE: I suppose you could read persecutions on

11 political, racial and religious grounds as being, I suppose, an

12 enumeration of the possible grounds that may apply ----

13 MISS HOLLIS: That is correct, your Honour.

14 THE PRESIDING JUDGE: --- rather than saying that you have to prove

15 them all. It is just these are three that we consider would fit

16 into 5(H).

17 MISS HOLLIS: That is correct, your Honour, and the report of the

18 Secretary-General concerning the Statute as well, when he at

19 paragraph 48 talks about crimes against humanity, he there

20 indicates that they would be committed as part of a widespread

21 or systematic attack against any civilian population on

22 national, political and here they include ethnic, racial or

23 religious grounds. So in the report they use "or" when they are

24 talking about those bases.

25 THE PRESIDING JUDGE: For widespread or systematic, you would have to

26 show a multiplicity of acts, would you not?

27 MISS HOLLIS: Even given systematic, I believe you would have to show

28 more than one act because you would have to establish the

Page 8460

1 systematic nature of it.

2 THE PRESIDING JUDGE: In order to prove a case for persecution, would

3 you have to show a multiplicity of acts?

4 MISS HOLLIS: In order to satisfy the common element, I believe that

5 you would because we cannot have an Article 5 violation unless

6 we meet the requirements of the common element.

7 THE PRESIDING JUDGE: So if you meet the chapeau, that is, crimes

8 against humanity, and you would have to show widespread or

9 systematic, then could a single act constitute persecution if it

10 was on the basis of one of these enumerated grounds?

11 MISS HOLLIS: I believe yes, indeed, your Honour, it could because

12 then the issue becomes was this act done in furtherance of the

13 persecution? So I do not believe you have to have an accused

14 who is engaged in multiple acts as long as the one act that he

15 or she commits is in furtherance of the persecution.

16 THE PRESIDING JUDGE: And satisfies, of course, the elements for

17 crimes against humanity generally ----

18 MISS HOLLIS: Exactly.

19 THE PRESIDING JUDGE: --- which would require widespread or

20 systematic.

21 MISS HOLLIS: Exactly, your Honour.

22 THE PRESIDING JUDGE: If we were to find that this conflict was based

23 on, motivated by, racial, well, not racial, it would be either

24 religious or perhaps political grounds ----

25 MISS HOLLIS: Or ethnic -- they use ethnic in the report.

26 THE PRESIDING JUDGE: --- or ethnic in the report, would we not then

27 find, if we found widespread or systematic, would we not find

28 then that every act constituted persecution?

Page 8461

1 MISS HOLLIS: Very possibly. If you found widespread or systematic

2 and you found that they were in furtherance of discrimination

3 based on one of those grounds, then it could be charged as

4 persecution. It could all be persecution. In fact, in our

5 indictment we have indicated that, not only the incidents I have

6 just spoken about were persecution, but in fact all of the

7 following counts of the indictment would also constitute part of

8 the persecution charge.


10 MISS HOLLIS: Now if I can move on to counts 5 to 11, alleging

11 violations of Articles 2, 3 and 5 against numerous prisoners at

12 Omarska, including Emir Karabasic, Jasmin Hrnic, Enver Alic,

13 Fikret Harambasic and Emir Beganovic and also alleging forced

14 sexual assaults involving H, G and Fikret Harambasic. The

15 evidence of record proves these charges beyond reasonable

16 doubt.

17 On 18th June 1992 the accused went to Omarska camp

18 with a group of Serbs dressed in camouflage uniforms. They were

19 there to call out the non-Serb men who were policemen or well

20 known members of the community in opstina Prijedor, in Kozarac.

21 During the course of that day they looked for certain men and

22 when they found them they brutally beat, tortured and killed

23 them. There were several discrete parts of their activities

24 that day, but those discrete parts made up one criminal

25 transaction, the calling out, beating, torturing and killing of

26 these selected individuals.

27 The evidence proves beyond reasonable doubt that the

28 accused took part in this ongoing criminal episode on that day,

Page 8462

1 18th June, in the hangar in Omarska camp.

2 Was it the accused who committed the crimes in Omarska

3 on that day? Eleven witnesses saw him at Omarska on that day.

4 Ten of those people knew him before, nine of the 10 for about 10

5 years or more. One witness picked him from a photo lineup.

6 That was Senad Muslimovic. Of these eleven men who saw him,

7 nine saw him inside the hangar involved with the ongoing

8 criminal act.

9 Two surviving victims, Beganovic and Muslimovic, told

10 you it was the accused who brutally beat them. Muslimovic also

11 told you that he saw this accused cutting Jasko Hrnic like one

12 slices chops. The accused was beating a man at a table against

13 the wall near the water closet, the WC. Elvir Grozdanic saw him

14 doing that. The accused was at the door to Jasko Hrnic's room

15 when Jasko was called out. Emsud Velic and Muharem Besic saw

16 him there. The accused was on a tyre and near one of the canals

17 when the incident with Karabasic, Hrnic, Alic and Harambasic was

18 going on. Halid Mujkanovic saw him there during that incident.

19 Emir Karabasic himself told you, through Husein

20 Hodzic, that the accused was there the day he was called out.

21 "Dule has come, I am finished". At least one other murder

22 victim told you, through survivors of the Omarska camp, that it

23 was the accused who was there that day committing the crimes

24 charged in counts 5 to 11. Through Senad Muslimovic, Jasko

25 Hrnic told you that the accused had committed the charged

26 crimes. You will recall Mr. Muslimovic hearing Jasko Hrnic

27 say, "I have done nothing, Dule, cross my heart".

28 Meho Alic, when he came back down the stairs with his

Page 8463

1 son and out into the hangar, as he was forced to leave his son

2 behind, heard "Dule, brother, how have I wronged you?" The

3 living and the dead have proven that this accused is guilty of

4 these counts 5 to 11.

5 The accused and the Serbs arrived at the camp in the

6 morning, but the beatings and tortures and murders that are the

7 subject of counts 5 to 11 occurred in the afternoon. The

8 lighting was good in the hangar on that day, 18th June. It was

9 during the day and had light from windows at the outside walls

10 and in the inner rooms upstairs as well. The hangar had been a

11 repair facility with a big open area that used available light,

12 so it was constructed so that there was light available.

13 In addition to that, Witness H told you that one of

14 the big doors was open because there was where soldiers were by

15 that door, some inside, some outside, and that is where witness

16 G, Mr. G, went after he had been forced to emasculate Fikret

17 Harambasic, to spit out the tissue and other material in his

18 mouth.

19 The afternoon of 18th June, the accused and this group

20 of Serbs engaged in one ongoing act of beating, torture and

21 murder beginning with beatings of two men from room 15 and

22 culminating five victims later in the mutilation and murder of

23 the sixth victim of that day's crime. The accused and this

24 group began their rampage with Emir Beganovic, a successful

25 Muslim businessman from Prijedor. Then, when they had satisfied

26 themselves with him, they moved on to Senad Muslimovic, a Muslim

27 whose family was well-known throughout Bosnia and whose brother

28 was a famous musician.

Page 8464

1 After the accused and the other Serbs had brutally

2 savaged Senad Muslimovic, leaving him in the hangar area, they

3 called out a group of three, Emir Karabasic, a Muslim policeman,

4 Jasko Hrnic, a well-known and popular Muslim businessman from

5 Kozarac, and Eno Alic, a Muslim who had worked in Croatia.

6 Fikret Harambasic was called out at an unknown time, but by the

7 time he was forced into canal Y with H and G, Fikret Harambasic

8 had been beaten black.

9 The day, the 18th June, Emir Beganovic and Senad

10 Muslimovic were held in room 15. We have provided you with

11 diagrams, the first one showing the rooms where the people were

12 held and the second one showing the various sightings during

13 that day. You will see from those diagrams, as I said, that

14 Emir Beganovic and Senad Muslimovic were held in room 15.

15 Emir Karabasic and Eno Alic were held upstairs in this

16 big room that comprised A15 which was the stairwell, B14 and

17 B16, a room and corridor upstairs from the stairwell. Jasko

18 Hrnic was held in the electrical workshop room which is A17 on

19 the floor plan.

20 On that day, in the morning, the accused first came

21 upon Elvir Grozdanic, a young Muslim man who had been a reserve

22 policeman before the start of Serb attacks in opstina Prijedor

23 in May 1992. He came upon Grozdanic near the WC close to the

24 entrance to the hangar building. He came upon Grozdanic, took

25 him by the chin and asked him either if he was a reserve

26 policeman or if he was Elvir Grozdanic, a reserve policeman.

27 Grozdanic lied and gave a false name and locale and the accused

28 walked off.

Page 8465

1 Elvir Grozdanic told you that prior to the conflict he

2 had an encounter with the accused when he was acting in his duty

3 as a traffic policeman in Kozarac on a market day; that the

4 accused and another man parked an automobile which was blocking

5 market traffic and, when asked to move the automobile, the

6 accused's reply to Grozdanic was that, basically, Grozdanic was

7 a nobody who could not tell the accused what to do, and that "A

8 day will come when you will also disappear from here". It is in

9 that context that the accused was looking for Elvir Grozdanic

10 or, in general, looking for reserve policemen.

11 Later that day, the accused was seen at the corner of

12 the restaurant building by Mehmed Alic, also known as Meho Alic,

13 and by Husein Hodzic. He was seen by them when they went to

14 lunch. That afternoon, the accused and other Serbs (referred to

15 in general as the "coloured ones", those in camouflage uniforms

16 who came to Omarska to call out prisoners and beat them) came

17 back into ground floor of the hangar building to begin their

18 afternoon of terror.

19 As the accused and the other Serbs advanced from the

20 direction of the WC, Armin Mujic, who had been sitting near the

21 entry to the stairwell room, heard the warning that the coloured

22 ones were coming. He immediately hurried back to return to his

23 room and get into his room entering through A15. He was unable

24 to get into that door because of the press of people from the

25 outside trying to enter. As he looked back to see if he was in

26 danger of being called out by the coloured ones, he saw the

27 accused. The accused was with others who were also in

28 camouflage uniforms. He says that the accused was wearing

Page 8466

1 sunglasses, a hat, a camouflage uniform and some type of white

2 belt or new belt.

3 One would ask oneself, how could he have recognised

4 the accused wearing what the accused was wearing? Both Mira

5 Tadic and the accused told you in their testimony that they

6 recognised a man by the name of Bahonjic who tried to prevent

7 them from leaving Kozarac, although the man at the time had on a

8 hat and sunglasses. The testimony of Mr. Mujic is that, indeed,

9 he recognised the accused.

10 That testimony taken alone, perhaps you would have to

11 look at that very carefully; that testimony, however, is taken

12 in the context of 10 other men who also saw the accused at

13 Omarska on that date, eight other men who also saw the accused

14 in the hangar.

15 The accused and the seven to 10 other Serbs that he

16 was with, having returned to the hangar, then began the beatings

17 and torture and killings. Emir Beganovic and Senad Muslimovic

18 were called out from room 15 that afternoon. Nihad Haskic who

19 was in room 15 and Saud Hrnic who was in room 15 heard these men

20 called out.

21 At one point during the beating of Emir Beganovic,

22 Beganovic was hung by his feet or legs by a cable and was

23 beaten. You have seen in evidence a photo of Omarska camp

24 showing one of the cables at the camp, that is Prosecution

25 Exhibit 346, hanging from the ceiling in this repair facility to

26 enable the people to carry out their repairs.

27 After he was hung by his feet or legs by the cable and

28 beaten, he was at some point then allowed or dropped down from

Page 8467

1 that or slipped out of that, and he was told or he heard the

2 order for someone to take him upstairs and he also heard the

3 order "Send Senad Muslimovic". When Beganovic reached the

4 upstairs, he passed out and was later revived. After he was

5 revived, at some point he heard screams, he told you screams

6 such as he had never heard before from the ground floor of the

7 hangar.

8 The accused and his group next turned their attention

9 to Senad Muslimovic. The man Muslimovic later identified as the

10 accused and the other Serbs beat Muslimovic severely as well.

11 The accused is the same man who had savagely beat Muslimovic

12 five to seven days earlier as Muslimovic entered the hangar

13 after lunch. When Muslimovic came down the stairs from room 15

14 that day, a man in a white belt in military uniform, camouflage

15 uniform, was waiting for him. No doubt this man was the same

16 Dragan who had called out Emir Beganovic earlier that day.

17 Blows from the side and the back drove Muslimovic into

18 the circle of other Serbs including the accused. When he went

19 into the hangar he was hit with blows from back and sides

20 pushing him into the hangar. He was then beaten from all sides

21 by the accused and his group. The strongest blows, actually

22 karate kicks, came from the accused. The group was spread all

23 around Muslimovic.

24 They asked him where his money was, what kind of

25 mortar he had -- those types of questions. At some point he was

26 tied to a big dumper truck tyre. Like Beganovic, Muslimovic as

27 well was hung by his feet or legs from a cable and beaten. The

28 beating was accompanied by curses, swearing at his mother and by

Page 8468

1 religious curses. At one point the accused held a knife to

2 Muslimovic's throat and threatened to at least cut his ear off.

3 Instead, the accused stabbed him twice in the shoulder. During

4 these beatings, Muslimovic passed out several times. Once when

5 he came to, he had been put in one of the canals, but he did not

6 know how he had gotten there.

7 At some point in this, Muslimovic saw a man he knew by

8 sight, Jasko Hrnic, being dragged over. Hrnic was being beaten

9 and cut. He heard Jasko said, or he heard the question, "Jasko,

10 what are you doing at Benkovac?" You will remember that Armin

11 Kenjar testified that Jasko Hrnic had been captured at

12 Benkovac.

13 Muslimovic heard Jasko say in response to that

14 question, "I do not know. I have done nothing, Dule, cross my

15 heart, I know nothing". Then Muslimovic saw the accused, the

16 man he identified as the accused, slicing Jasko Hrnic like one

17 slices chops. Then they poured some black liquid over Jasko.

18 At some point Muslimovic heard "Look, he is still

19 alive", apparently referring to Muslimovic, and he was beaten

20 and passed out again. Then when he came to, he was told to

21 scram and he was able to leave that area and make it back to

22 room 15. At that point he passed out.

23 Saud Hrnic saw both Emir Beganovic and Senad

24 Muslimovic when they came back from those beatings. Both men

25 were in appalling condition, Beganovic black all over his body

26 from the beating. Comparatively, Muslimovic was not in as bad a

27 condition as Beganovic who had been beaten perhaps even more

28 severely, but Muslimovic himself had also been very badly

Page 8469

1 beaten. Saud in that room 15 also heard when later Meho Alic

2 was called out of the room to go find his son Enver Alic.

3 After Beganovic and Muslimovic had been called out,

4 and while Muslimovic was still on the ground floor of the

5 hangar, the accused and the other Serbs turned their attention

6 to three other victims, and that is Emir Karabasic, Jasmin or

7 Jasko Hrnic and Enver or Eno Alic.

8 Before Emir Karabasic and Jasko Hrnic were called out,

9 the accused was seen by Armin Kenjar between the canals marked X

10 and Y on the model. If you will look at the screen, Defence

11 Exhibit 23 is the diagram where Kenjar marked for you where he

12 saw the accused. Kenjar was close enough to be able to

13 recognise the accused. After that sighting, Kenjar quickly went

14 back to his room and told Jasko Hrnic that he had seen the

15 accused. Kenjar was in A17 with Jasko Hrnic. Jasko's reaction

16 was one of fear.

17 Sometime following, Emir Karabasic and Jasko were

18 called out. In the time following that, Kenjar heard screams,

19 blows, cries, heard the command "Bite to the balls, give it a

20 blow", like a nightmare. When Emir Karabasic was called out of

21 room B14, he went to the window in that room and looked down on

22 to the hangar floor and became very frightened and said, "Dule

23 has arrived. I am finished". He then left the room.

24 Husein Hodzic heard Emir say that. Emir had repeated

25 previously that he was frightened that the accused would come.

26 That was Emir's biggest worry. He would not say what had

27 happened or why he was afraid, only that he had seen something

28 he should not have seen, that he had been somewhere he should

Page 8470

1 not have been. Emir was hesitant to talk but acknowledged to

2 Nihad Seferovic, who was also in the room with Emir, that indeed

3 Emir had been with a group of Muslim policemen in Kozarac when the

4 accused had killed two of those men, Edin Besic, and the police

5 Commander Osman. After Emir Karabasic left the room that day,

6 that was the last time that Husein Hodzic ever saw him.

7 During this incident the accused was also seen at a

8 table against the wall beating someone on the floor there with a

9 metal bar. Elvir Grozdanic saw him there when Elvir's Serb

10 friend, a guard at the camp, took Elvir to hide in the water

11 closet. Elvir Grozdanic told you that he saw the accused some

12 20 to 30 metres away, was able to see a part profile of the

13 accused as he was beating the person near that table. This was

14 the second time Grozdanic had seen the accused in the hangar

15 that day.

16 The accused was at the door to the electrical workshop

17 room A17 when Jasko Hrnic was called out. Jasko was at his

18 place on the table in that room when he was called out. He had

19 been badly beaten before and had a place on the table so he

20 could rest more comfortably. He was initially called out as

21 "Asko". At some point the door to the room opened, the accused

22 was at the door behind a guard.

23 Two prisoners in that room saw the accused there.

24 Emsud Velic was leaning against the back wall. We have on the

25 overhead for you a diagram showing this room. In the bottom of

26 the screen is the back wall and in the front of the screen, the

27 top of the screen, is the front of the room.

28 Emsud Velic, standing against the back wall, turned to

Page 8471

1 face the door squarely when it opened and he saw a guard at the

2 door and he saw the accused. Velic told you that the accused

3 looked into the room looking the people over. Velic heard

4 "Jasko". Jasko Hrnic did not respond to that summons. The

5 door was closed partially. Then Jasko was called out again

6 maybe one or two minutes later. Velic, who had slid down to a

7 sitting position, saw Jasko make his way to the door this second

8 time and, as Jasko was maybe one to one and a half metres from

9 the door, the door opened, and Velic thinks he again saw the

10 accused at the door but testified to you he was not 100 per cent

11 certain about that second sighting.

12 Muharem Besic also saw the accused at the door as

13 Jasko left the room. After Jasko was taken out, Besic heard

14 sometime later "Bite, suck. Where is your karate now?" A third

15 man, Ferid Mujcic, also saw the accused at the door to room A17

16 that afternoon. Mujcic testified that he saw the accused when

17 Emir Karabasic was called out of that room on that day, and that

18 he also saw Jasko Hrnic called out of the room that afternoon.

19 However, Emir did not stay in that room -- he was upstairs --

20 nor was in that room when he was called out.

21 How did Ferid Mujcic make such a mistake about Emir?

22 The reason Mujic made that mistake is that Emir and Jasko

23 visited each other in each others' rooms. You had testimony

24 about that. People were able to visit each other in various

25 rooms. Emir visited Jasko in his room; Jasko visited Emir

26 upstairs. Ferid Mujcic in room A17 would have seen Emir

27 Karabasic visiting there.

28 Over the passage of time, the reasonable explanation

Page 8472

1 for Ferid Mujcic's sighting, linking it with Emir, was that he

2 confused the prior visits of Emir with this occasion. As for

3 his sighting of the accused when the door opened, that evidence,

4 that testimony, is supported by Emsud Velic and Muharem Besic

5 who said that, indeed, the accused was at the door, but it was

6 not when Emir Karabasic was called out; it was when Jasko Hrnic

7 was called out.

8 THE PRESIDING JUDGE: Now what do we do with that? Was that the door

9 when Hrnic was called out but not Harambasic? Is that what you

10 are saying?

11 MISS HOLLIS: Karabasic was upstairs in another room. They saw the

12 accused when Jasko Hrnic who was in room A17 was called out of

13 the room. They saw him standing behind a guard at the door.

14 THE PRESIDING JUDGE: Was there not a witness who saw the accused

15 arriving, looked out the window and saw the accused outside?

16 MISS HOLLIS: Not arriving on that occasion. Ferid Mujcic after this

17 incident was upstairs in the hangar building and looked out and

18 saw the accused on the pista. In this instance Armin Mujcic who

19 was inside the hangar seated next to room A 15 saw the accused in

20 the group, apparently as they were coming back in the

21 afternoon. He saw the accused coming in, coming past the WC,

22 coming in the direction of the rooms A15, A17.

23 THE PRESIDING JUDGE: Would that not have been after these incidents

24 occurred?

25 MISS HOLLIS: No. That was when they were coming back in the

26 afternoon to begin these incidents.

27 JUDGE STEPHEN: But I suppose Karabasic is meant to have seen the

28 accused out of the window?

Page 8473

1 MISS HOLLIS: Yes, your Honour.

2 JUDGE STEPHEN: The curious thing is that he saw him after he,

3 Karabasic, had been called.


5 JUDGE STEPHEN: Which would mean that the accused was not in the

6 hangar when Karabasic was called?

7 MISS HOLLIS: Yes, your Honour, it would mean he was in the hangar

8 because the window through which Emir Karabasic was looking was

9 a window that looked into the hangar area. It was not a window

10 that looked out on to the pista.


12 MISS HOLLIS: Yes, your Honour.

13 JUDGE STEPHEN: Which room is that?

14 MISS HOLLIS: He was in room B14, your Honour. There are windows

15 from that room that look into the hangar, a portion into the

16 ground floor. There are windows ----

17 THE PRESIDING JUDGE: Where the canals are?

18 MISS HOLLIS: It looks down into that area. It was that window

19 looking down into the hangar area from which Emir Karabasic saw

20 the accused and made that statement.

21 JUDGE STEPHEN: I see. Thank you.

22 THE PRESIDING JUDGE: Mujcic, you say that his mistakes had to do

23 with the location of where the detainees were?

24 MISS HOLLIS: We suggest that his mistake was not in the sighting of

25 the accused, but in saying that Emir Karabasic was in that room

26 at that time. His mistake was a reasonable one based on the

27 fact that Emir Karabasic came into that room to visit Jasko

28 Hrnic. The other two witnesses support Mujcic's sighting of the

Page 8474

1 accused, because they too say they saw him at the door, but they

2 tell you it was when Jasko Hrnic was called out. Indeed Jasko

3 Hrnic's normal place was in room A17, and he was in that room

4 when he was called out.

5 JUDGE STEPHEN: We have photographs of that room where Karabasic is

6 meant to have looked out of the window, have we not?

7 MISS HOLLIS: Yes, we do, your Honour. We are rustling for those

8 now, your Honour.

9 JUDGE STEPHEN: Thank you.

10 MISS HOLLIS: Would you like me to wait and put that on?


12 MISS HOLLIS: Here we have it. That is the photograph showing that

13 room, those windows down into the hangar area. Husein Hodzic,

14 your Honour, in his testimony indicates he was looking down.

15 Husein Hodzic in his testimony indicates that Emir Karabasic was

16 looking through the windows down into the hangar area, the

17 ground floor hangar area, when he made that remark.

18 JUDGE STEPHEN: Thank you.

19 MISS HOLLIS: Just prior to Jasko Hrnic being called out from his

20 room, Elvir Grozdanic's Serb friend came to take Grozdanic from

21 the WC back to his room. As Grozdanic exited the WC he saw two

22 men there in the WC face down. He could not see their faces.

23 In his direct testimony he did not tell you he recognised them

24 because he could not see their faces. During cross-examination

25 it was brought to light that because of their size he later

26 thought it may have been Emir Karabasic and Fikret Harambasic

27 whom he saw lying there in the WC. He thought that later

28 because this was the relative size of these two men and he later

Page 8475

1 heard that these two men had been called out.

2 Emir Karabasic and Fikret Harambasic being in the WC

3 at this time would be consistent with the evidence of what was

4 happening here in the hangar building. We know at this time

5 that people were being beaten until they were unconscious, that

6 they were being moved about, and it would be certainly

7 consistent with what was happening for these two men to have

8 been dragged into the WC area because there was water there to

9 revive them for the subsequent beatings and tortures that were

10 going to be inflicted upon them. So Elvir Grozdanic telling you

11 that from the size it could have been Emir Karabasic and Fikret

12 Harambasic is in no way inconsistent with the evidence before

13 you and the events as they were unfolding on the floor of the

14 hangar.

15 Elvir Grozdanic told you that there was blood around

16 both men, but you will recall that Meho Alic told you when he

17 went to fetch his son that he saw Emir Karabasic and that he was

18 very bloody. Obviously the beatings and the abuse of Emir

19 Karabasic had been going on. Also Witness H told you that

20 Fikret Harambasic when he was later forced into the canal was

21 badly beaten. That again would be consistent with the condition

22 of these men in the WC.

23 Grozdanic tells you that when he came out of the WC at

24 that point he saw the accused back, as the accused walked toward

25 part of the hangar where the big doors are away from the WC.

26 Either Grozdanic was mistaken in this identification of the back

27 of this man, or the accused then went around the canals and back

28 to the electrical workshop room. We suggest to you that

Page 8476

1 certainly the latter explanation is consistent with the facts.

2 You will recall that Elvir Grozdanic wanted to run, to fly like

3 a bird to get into that room, and his Serb friend very wisely

4 said, "No, we must go slowly or you will get both of us

5 killed." They were moving very slowly back to the room so as

6 not to attract undue attention.

7 The accused had no such restrictions on his movement.

8 If you will see the layout of the ground floor of the hangar, it

9 is not a great distance for the accused to have gone around the

10 corner of that canal and made his way back to room A17.

11 THE PRESIDING JUDGE: Can you, Miss Hollis, point out what you would

12 suggest would be the route that he took, looking at this exhibit?

13 MISS HOLLIS: Yes, your Honour. Now I know what the witnesses must

14 have felt like! Your Honour, we have the witness coming out

15 here from A11 and saying that as he came out of A11 he saw the

16 accused walking in this direction toward the large doors. Then

17 the witness goes very slowly along here moving back to his room

18 A17. The accused of course would have no such restrictions on

19 his ability to move quickly or at a normal pace. He comes

20 around here and cuts through there back to the room, or he would

21 even have had time to come all the way here and come back to the

22 room. So either he cuts between Y and Z or he comes all the way

23 around room Z to the room, that could be a route that he would

24 take.

25 The other explanation may be that unlike the other

26 occasions that day, that the witness had seen the accused face

27 to face or had been able to see a profile of him in the face,

28 that the view of him from the back was a mistaken view.

Page 8477

1 When Grozdanic got to the room he saw Jasko come out

2 of the room and then slipped behind him and went back into

3 Jasko's place in the room. You will recall Elvir Grozdanic told

4 you that he did not see the accused at the room when he went

5 back there. Again, we must focus on what Elvir Grozdanic's

6 focus was at that time. The focus was I see what he described

7 as a military policemen. You will remember that the other

8 witnesses told you that a guard, a solider, came to the room to

9 call Jasko out. He is focused on that man. He is not looking

10 anywhere else. He is looking on him and a way to get back into

11 the room.

12 So he is not looking behind the man, looking beyond

13 the man. He is focused on him and the door. As he goes there

14 he is not looking to see who may be with the man in the

15 uniform. He is focused on going back into the room.

16 So if we have the accused standing back as Jasko comes

17 out the door, he is standing back, the guard is standing back,

18 then Grozdanic would not have seen him. You will recall as

19 Grozdanic gets there it is when actually Jasko is being called

20 out, because as Grozdanic exits he could already have been

21 called out and be making his way to the door. You recall that

22 it was very difficult for him getting to the door. He had to

23 zigzag because of all the people in the room. So the fact that

24 Elvir Grozdanic does not see the accused at the door, does not

25 invalidate the testimony of the people who did see him there

26 when Jasko was called out.

27 THE PRESIDING JUDGE: Because the accused could have moved away, is

28 that what you are saying?

Page 8478

1 MISS HOLLIS: Yes, your Honour, stepped back, because Jasko is now

2 out the door, the accused has stepped back, they are now going

3 to take Jasko back into the other area where the beatings, the

4 torture and, ultimately, the murder will take place.

5 At some point Armin Mujcic saw Jasko and Emir taken

6 toward the canal. So after these men were taken out and beaten

7 in whatever places, at some point Armin Mujcic sees the two of

8 them taken toward the canal. After each of these men were

9 called out the prisoners heard cries of pain and screams. At

10 some point in this ongoing transaction Eno Alic was called to

11 come out. You will recall he was upstairs in that big room that

12 you entered through the stairwell. You will also recall that

13 the guards did not go up into that area because it was so

14 crammed full of prisoners. So word was relayed up to them that

15 Eno Alic was to come out.

16 Eno Alic did not respond to that call. When he did

17 not respond as if the horrors already occurring were not enough,

18 the terror and pain not great enough, when Eno did not reply or

19 come out, a Serb guard forced Eno's father to come from room 15

20 to find his son. Meho Alic told you how he went toward Eno's

21 area knowing all the time what he was doing, and along the way

22 he saw Emir Karabasic on a table near the WC. Emir was bloody.

23 Soldiers were around him cutting him all over with a knife.

24 When Meho paused there ----

25 THE PRESIDING JUDGE: Excuse me. Miss Hollis, how long do you think

26 you will need to complete your closing statement regarding five

27 to 11? This is the last incident I think that you are getting

28 to, are you not?

Page 8479

1 MISS HOLLIS: Your Honour, on the script that I am using I have three

2 more pages and a little explanation of the diagram that you

3 have. So I do not believe it would be that long.

4 THE PRESIDING JUDGE: I was wondering if you want to complete that

5 this evening?

6 MISS HOLLIS: I would prefer that if you would allow it.

7 THE PRESIDING JUDGE: Very good. Continue. Take your time.

8 MISS HOLLIS: Thank you. I do not believe it will be that long, your

9 Honour, depending on questions of course.

10 Your Honour, as Meho Alic paused near Emir Karabasic

11 one of the soldiers there became concerned that Meho would

12 recognise him, so Meho was hurried on and hit in the kidney with

13 a rifle and on the head with a knife to hurry him forward. He

14 was forced to go on and up the stairs to his son. There, as he

15 told you, both of them shivering Meho told Eno: "Son, they say

16 you have to come out." Eno told his father that Eno had been

17 told if he was called out again he would be no more. Meho Alic

18 who had already lost one son shot on a performing stage at

19 Benkovac, had to take another son, his Eno, downstairs to the

20 fate that awaited him there. That was the last time he saw his

21 son, Enver Alic, and the last words he heard Enver say

22 were: "Father, take care of my children." As Meho moved back

23 toward the entrance doors he heard: "Dule, how have I wronged

24 you?"

25 During the beginning of this incident Halid Mujkanovic

26 had been at his usual place which was on top of lockers in

27 stairwell room A15. He saw Emir Karabasic come down from

28 upstairs and go out into the hangar. A man in a camouflage

Page 8480

1 uniform called Emir out and cursed Emir's balija mother and hit

2 him when Emir emerged. Mujkanovic also heard Eno Alic called

3 and saw Eno Alic go up the stairs to get his son. After Alic

4 went out again he heard screams and cries and men in the

5 stairwell room began to run upstairs.

6 Mujkanovic jump down off the locker to the corner on

7 the right side of glass doors and crouched or knelt there on

8 some clothes or something piled up there. We have as a

9 demonstrative aid put on the screen for you a picture of those

10 doors looking out into the hangar and, based on the transcript

11 description, the approximate place where Mujkanovic was

12 crouching by the door.

13 As he crouched by the door there intermittently he

14 looked out into the hangar to see what was going on. He put his

15 hands over his face so that it would not be so obvious he was

16 watching. So he saw portions of the following incident. He was

17 able to see out of those glass doors the glass starting between

18 20 and 40 centimetres from the bottom of the door. Mujkanovic

19 saw Jasko Hrnic's face as Jasko passed by the door, saw the

20 guard with Jasko hit Jasko. As each of the men were called out

21 their followed screams and cries of pain. Then two men from the

22 staircase room G and H were called out as volunteers. There

23 were more screams and cries. Mujkanovic saw G coming out of a

24 canal all covered with oil. Just before he came out Mujkanovic

25 heard noises like pigs. Then Mujkanovic saw H holding a man's

26 hands and saw G at the man's crutch. G was ordered to bite the

27 man's genital. When Mujkanovic looked up again there were

28 screams and G got up with his mouth full. Then someone shot

Page 8481

1 into the air. A soldier brought a live bird at that point and

2 made someone lying on the floor there eat it. During these

3 events the group of seven to 10 soldiers were acting as if they

4 were at a sporting event supporting a team.

5 During this incident as he looked intermittently,

6 Mujkanovic saw the accused first on a dumper tyre, one of the

7 big tyres on those vehicles, and then by one of the canals

8 across from the WC. Both times Mujkanovic saw the accused the

9 accused was facing in the direction of Mujkanovic. He saw the

10 accused close to where the incident by the canal was happening.

11 It was a bearded Serb who called out Witnesses H and

12 G. They were taken toward a spot by the canal marked "Y" on the

13 model and the floor plan. As they went there H saw the body of

14 Emir Karabasic lying near the canal which is marked "Z" on the

15 floor plan. Near canal Y Witness H saw Jasko Hrnic and Eno

16 Alic. When ordered to pick those men up Eno Alic resisted the

17 attempt. Eno Alic at that point was still alive. H and G were

18 forced to drag the apparently lifeless body of Jasko Hrnic back

19 and forth in the hangar, then to do push-ups by the body

20 apparently for the amusement of the Serbs there, as well as the

21 detrimental, physical and psychological impact on both H and G.

22 At some point H and G were ordered to get into canal Y and

23 ordered to drink oil in the canal. Then witness H heard: "Hari,

24 come here", and another man came into the canal. Though Witness

25 H knew Fikret Harambasic, he did not recognise the naked man who

26 was severely beaten, bloody, black. H was then ordered to lick

27 Fikret's buttocks and G was ordered to suck Fikret's penis.

28 Then the three, H, G and Fikret, were ordered out of the canal

Page 8482

1 and H had to first hold Fikret's hands, then hold Fikret's mouth

2 shut as G was ordered to bite off Fikret's testicle. H was on

3 his stomach and someone had a foot on H's neck pushing H's face

4 into the concrete. H did not know and did not see all of the

5 people who were in that area. He could not see what was going

6 on behind him or around him, but heard the Serbs yelling and

7 acting as though they were at a sporting match being entertained

8 by this horror. G did bite off a testicle or a portion of a

9 testicle and then spat it out into the grate at the large doors

10 to the hangar.

11 At that time Mujkanovic was observing this incident

12 and Mujkanovic was telling you that he saw the accused at some

13 point during all of this incident near this area. During his

14 forced participation in these horrors in the hangar H kept his

15 attention very strictly focused, and did not look around at the

16 Serbs in the hangar. He did not see all the Serbs who were in

17 the area. He knew the accused. He did not see the accused in

18 the hangar area.

19 H was ordered to drag Fikret to the table on the

20 hangar floor and stay there with him. Fikret asked for water,

21 but H dared not leave to get him any water. Then H was told to

22 leave the area and he ran back to the staircase room and

23 upstairs vomiting.

24 Armin Mujcic saw both G and H come up the stairs

25 vomiting, G all smeared with oil. This horrific criminal

26 episode beginning with the beating of Emir Beganovic and

27 culminating in the mutilation of Fikret Harambasic, took

28 approximately one hour.

Page 8483

1 Not long after the screams and shouts had stopped, the

2 sounds of a truck engine starting up were heard, the small

3 yellowish coloured truck that was used for both bringing food to

4 the people and for taking away murdered prisoners. Some short

5 while later Armin Kenjar heard the sound of a gunshot as though,

6 he told you, one of them was still alive and had been finished

7 off. About one hour later Armin Kenjar, knowing he would never

8 see Jasko Hrnic again, wrote the date "18 June" on the wall of

9 room A17. He also wrote the time that he was writing down the

10 date, the time 1900 which, in his estimation, was about one hour

11 after the incident was over.

12 We have provided you with a diagram showing you the

13 various sightings on that day. The diagram is, we believe,

14 informative but it is not completely clear as you first look at

15 it, and that is why we have provided you with copies for your

16 own perusal in more detail at a later time.

17 The purpose I would like to address now of this

18 diagram is to show you during this afternoon of terror all of

19 the different places in this hangar that the accused was seen,

20 and all of these different places were places where the victims

21 of this ongoing horror were being brought, were being taken,

22 were being called out from. When you look at all of the

23 evidence of the accused's involvement there that day, you see

24 that the accused was an integral part of the horrific crimes

25 that were committed that day on these victims. The evidence

26 proves the murders. H told you that Jasko Hrnic was likely dead

27 when he and Witness G were dragging him around the garage

28 floor. Emir Karabasic, Jasmin Hrnic, Enver Alic and Fikret

Page 8484

1 Harambasic have not been seen since that day.

2 The descriptions of the beatings and mutilation

3 inflicted upon them, Jasko sliced like one slices chops, Emir

4 being cut all over his body, Fikret emasculated by a prisoner's

5 teeth, would certainly be fatal in that place where even much

6 less serious injuries received no medical care.

7 Did the accused intend the result that occurred that

8 day? This criminal episode clearly was not some random act.

9 The accused and the others travelled to this place, had definite

10 victims in mind, persons who were in categories subjected to

11 even more brutal treatment than others. The acts were done to

12 the victims in such a way as to show his intent to kill. In

13 addition to that, the acts that were done, the natural and

14 probable consequence of the accused's voluntary acts, was that

15 these men would die. The intent to commit murder is proven by

16 this evidence. The violence visited upon these victims can only

17 be said to rise from an intent to kill, either premeditated or

18 an intent from which it can be inferred that a person may be

19 held liable for the reasonable and probable consequences of his

20 voluntary acts. In this instance, the reasonable and probable

21 consequences are the death of these victims.

22 The accused is criminally responsible for their deaths

23 whether he committed all the murders directly or whether he

24 aided and abetted in the commission of some of them, or whether

25 he took part in earlier acts and never withdrew from this

26 ongoing transaction. His presence gave both support and

27 encouragement to the other members of his group, reinforced the

28 sense of helplessness and security of that group in the area at

Page 8485

1 that time. With all of these Serbs around cheering, yelling,

2 firing guns into the air, victims would be less likely to flee,

3 to try to escape their fate even if it was only momentarily.

4 The accused's presence, as well as the presence of other members

5 of the group, assisted in creating an intimidating, terrorizing

6 situation that rendered these victims completely helpless.

7 While the evidence does not establish that the accused was the

8 member of the group who ordered G to emasculate Fikret

9 Harambasic, the evidence of H tells you it was not the accused,

10 no member of that group can evade responsibility for any of the

11 victims by claiming that he did not assault a particular victim.

12 That is particularly true of the accused who we know

13 was at the scene when this atrocity was being committed amidst

14 the yells and encouragement of the Serbs watching the crime.

15 There is no evidence of an affirmative and decisive act to

16 remove himself from the criminal transaction. Instead the

17 accused says: "I was not there."

18 As for the torture or inhumane acts charged relating

19 to this incident, the beatings and mutilation that were

20 occasioned upon the victims that day certainly did constitute

21 severe physical or mental pain. Several witnesses in describing

22 the events of that day told you the cries and screams they heard

23 were superhuman. One person said: "They were made by humans but

24 I could not imitate it. People were screaming like wild

25 animals." The testimony of those who survived the event proved

26 the torture, hung by their feet or legs and beaten by the

27 accused and others. Beganovic beaten black and in an appalling

28 condition. Muslimovic beaten severely, stab wounds into the

Page 8486

1 shoulder. The nature of the beatings and mutilations themselves

2 is sufficient proof to constitute the required pain and

3 suffering for torture.

4 The evidence provides proof of more than one reason

5 for torturing the victims. They were Muslims, either Muslim

6 police who were especially victimized, or they were well-known

7 and successful Muslim businessmen, part of another group who

8 were subjected to especially brutal treatment. The pain and the

9 suffering inflicted on them that day were part of the overall

10 campaign of terror and of taking all measures to rid the opstina

11 of non-Serbs. The element for any other discriminatory purpose

12 would suffice of itself, yet here we have proof that the torture

13 was because they were Muslims, because they were Muslim leaders

14 who posed a threat if they were allowed to remain in the

15 opstina, if they were allowed to remain alive, also for

16 religious reasons. Throughout this the reference is again to

17 "balija", the religious references.

18 This was also done to extract information or to punish

19 at least two of the victims. "Jasko, what are you doing at

20 Benkovac?" That either means that he was captured there and "Why

21 are you there?", or it means that he was being held there and

22 that meant he could not be loyal to the Serbs.

23 Also Muslimovic, "Where is your money? What kind of

24 mortars did you have?" Also of Emir Karabasic, he had been

25 somewhere he should not have been and seen something he should

26 not have seen.

27 As for the requirement that the accused acted at the

28 instigation of or with the consent or acquiescence of an

Page 8487

1 official or a person acting in an official capacity, the

2 evidence proves that as well. Look to the surrounding

3 circumstances. The accused was in a murder camp run pursuant to

4 Republika Srpska authority, a camp which functioned with full

5 knowledge of and support of official Republika Srpska police,

6 political and military officials. There were visits by officials

7 there. The Commander there, Meakic, had been a policeman from

8 Ormaska. When reporters went there their escorts were police,

9 Serb officials, Simo Drljaca. You remember Mr. Vulliamy telling

10 you that when they were in Prijedor talking about visiting

11 Omarska, the military person there said: "Go to Manjaca, that's

12 the better camp." Then when they persisted in going to Omarska

13 he was told: "Well, it is not a military camp. The police are

14 the ones who run that", and it was the police and the

15 politicians who then talk to him about going there and it was

16 the Police Chief who escorted him there. The acts were

17 committed at a minimum with acquiescence of Serb officials, but

18 the weight of the evidence shows that it was at the instigation

19 of those officials as well.

20 The evidence of this crime also meets the requirements

21 of proof for inhumane treatment. The evidence proves severe

22 impairment of these victims' physical, moral integrity or that

23 they were subjected to disproportionate indignities or pain.

24 The evidence proves the counts alleging infliction of grave

25 suffering or serious injury, cruel treatment and also other

26 inhumane acts.

27 What of the Defence evidence here? What of Witness Z,

28 the witness who told you he was a guard there at the approach

Page 8488

1 the camp buildings? His evidence does not disprove the

2 Prosecution evidence, does not cast reasonable doubt on it. In

3 fact, his evidence is of no import to these charges or any other

4 charges concerning Omarska camp, except in a way that in fact

5 assists in the proof of those charges.

6 What did he tell you about control over those who

7 wished to enter the camp? He told you that, in essence, he

8 reported for duty. That is what he knew about. He reported in

9 for duty. Anybody in the military who is going on to a shift

10 reports in for duty. He did not know anything about controls

11 for other people at the entry to the camp. In fact, what he

12 told you was: "At my post I really had no authority to stop

13 anybody. If it was a policeman, if it was a military person,

14 I had no authority to stop anyone. I never stopped anyone. In

15 fact, I could not even see who was in the cars as they went by

16 because I was a few metres below the road." So he told you

17 nothing that would say this accused was not able to enter

18 that camp, nothing that would tell you this accused did not

19 enter that camp. In fact, his evidence seems to indicate that

20 anyone who wished could enter that camp. The people who were

21 controlled were the prisoners who could not leave that camp.

22 What of Defence Exhibit 63C, the traffic police

23 schedule for that day in June? That is of no assistance to this

24 accused either, even if you give it weight as being accurate,

25 because if you look at that schedule, according to that schedule

26 he did not work until 9.00 p.m. on that date, well after he had

27 committed the beatings, the torture, the murder at Omarska. But

28 what of H's testimony saying he did not see the accused when he

Page 8489

1 was called out toward the end of this criminal transaction that

2 was taking place that day? What does that testimony mean in

3 terms of the accused's criminal liability?

4 First, it must be taken in context. H was not looking

5 at all the Serbs. He was being forced to participate in their

6 grisly activities and was not looking beyond the immediate

7 area. Secondly, his ability to look at the immediate area was

8 very restricted because after he was pulled out of the canal he

9 was on his stomach, faced down with his face being pushed into

10 the concrete, with a knife at the edge of his eye. He was

11 unable to look around and see who else may have been there,

12 either who may have had his foot on H's neck pushing his face

13 down or who may have been there supporting, cheering, giving

14 encouragement to this horrible, horrible crime that was taking

15 place.

16 Secondly, the evidence of the other prisoners who were

17 able to look, who did look, put the accused in the hangar. The

18 evidence on these counts, five to 11, prove beyond any

19 reasonable doubt that the accused committed the crimes alleged.

20 That is the only reasonable explanation for that evidence.

21 THE PRESIDING JUDGE: Miss Hollis, regarding the demonstrative aids

22 that you have used, I think it would be helpful if we had them.

23 Perhaps you might number them on the back in the order that you

24 have used them. Show them to the Defence, if you have not

25 already.

26 MISS HOLLIS: We will give copies to the Defence, your Honour.

27 THE PRESIDING JUDGE: Very good. Give copies so that the Defence

28 will have the opportunity to point out anything that might not

Page 8490

1 conform to the evidence we have received. We can talk tomorrow

2 about the distances and some more elements I suppose as well.

3 We will adjourn until tomorrow at 10.00 a.m.

4 5.55 p.m.

5 (The court adjourned until the following day).