Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8895

1 Wednesday, 7th May 1997

2 (11.00 am)

3 THE REGISTRAR: Case number IT-94-1-T, the Prosecutor

4 versus Dusko Tadic.

5 JUDGE McDONALD: May I have appearances for counsel,

6 please?

7 MR NIEMANN: If your Honour pleases, my name is Niemann.

8 I appear with my colleagues Miss Hollis, Mr Tieger and

9 Mr Keegan, and Miss Sutherland assisting. Thank you,

10 your Honour.

11 JUDGE McDONALD: Thank you, Mr Niemann. May I have

12 appearances for the defence, please?

13 MR VUJIN: Yes, your Honour. My name is Milan Vujin.

14 With me is today Mr Nikola Kostic and Jelena Lopicic.

15 JUDGE McDONALD: Very good. Mr Vujin, you have been

16 previously counsel of record for the accused; is that

17 correct?

18 MR VUJIN: Yes.

19 JUDGE McDONALD: Mr Kostic has recently joined the team,

20 having been appointed by the Registrar upon the entry of

21 an Order granting the accused's request that

22 Mr Wladimiroff withdraw.

23 MR KOSTIC: Yes, your Honour. I also was at one time prior

24 officially an attorney of record and I have just

25 returned.

Page 8896

1 JUDGE McDONALD: Very good. You were here once before

2 then?


4 JUDGE McDONALD: Now you are back. Thank you. Ms

5 Lopicic?

6 MS LOPICIC: I am assistant of Mr Vujin and Mr Kostic in

7 this case now.

8 JUDGE McDONALD: Very good. Welcome. Thank you.

9 I would like to this morning read the remarks that

10 we have prepared. In order to prepare the Opinion and

11 Judgment which is being handed down in this case today,

12 the Trial Chamber has had to consider a great quantity

13 of testimonial and written evidence. The trial itself

14 lasted for more than six months and the transcript runs

15 to more than 7,000 pages. There were more than 400

16 exhibits to consider, along with the testimony of some

17 120 witnesses.

18 In addition, being the first such judgment to be

19 issued by this International Tribunal and the first by

20 such a Tribunal in relation to serious violations of

21 international humanitarian law for more than fifty

22 years, the Trial Chamber has had to explore the relevant

23 factual and legal issues in considerable detail. The

24 written Opinion and Judgment is a sizeable document,

25 with the Opinion and Judgment itself amounting to more

Page 8897

1 than 300 pages, together with one separate and

2 dissenting Opinion and a further 30 pages or so of

3 annexes.

4 For this reason we have decided not to read the

5 Opinion and Judgment in full, but to do more than

6 describe its main points, ending with a reading of the

7 judgment itself. The Opinion and Judgment is divided

8 into eight sections.

9 First is a procedural section, setting out the

10 legal steps taken to indict and arrest the accused,

11 Dusko Tadic, and the procedures both before and during

12 trial that have led to today's judgment. It is

13 followed by a section describing the historical

14 background to the conflict in the former Yugoslavia,

15 both in general and in the area of Opstina Prijedor,

16 where the alleged offences are said to have taken

17 place. This section sets the scene for the review of

18 the factual evidence and of the accused's alibi which

19 follows.

20 Various evidentiary issues that arose during the

21 trial are dealt with in the next portion of the Opinion

22 and Judgment, and the following section on the

23 applicable law reviews in detail the law to be applied

24 in this case under the Statute of the International

25 Tribunal, namely Articles 2, 3, 5 and 7, and under

Page 8898

1 customary international law.

2 This in turn leads to the section on legal

3 findings, where the law is applied to the factual

4 findings, and conclusions of innocence or guilt are

5 reached. Finally there is the Judgment itself, in

6 which the counts charged against the accused are dealt

7 with in turn and a verdict pronounced on each one.

8 I will reiterate what I stated at the opening of

9 this trial exactly one year ago today. This is a trial

10 of an individual accused, who entered a plea of "not

11 guilty." Although this is the first trial conducted by

12 the International Tribunal, and thus has some historic

13 dimension, the goal of the Trial Chamber was always,

14 first and foremost, to provide the accused with the fair

15 trial to which he is entitled. This, we believe, has

16 been done.

17 Now a further word or two about each of the eight

18 sections of this Opinion and Judgment. Section one is

19 the Introduction. As most people will be aware, the

20 accused was the first person to be surrendered to the

21 International Tribunal, being transferred from Germany

22 in April 1995, where he was in custody. This

23 procedural section of the Opinion and Judgment

24 summarises the charges of the indictment, which include

25 persecution, inhuman treatment, cruel treatment, rape,

Page 8899

1 wilful killing, murder, torture, wilfully causing great

2 suffering or serious injury to body and health and

3 inhumane acts, all alleged to have been committed in the

4 Omarska, Keraterm and Trnopolje camps and at other

5 locations in Opstina Prijedor in the Republic of Bosnia

6 and Herzegovina.

7 It also sets out in some detail the many and

8 varied interlocutory motions that have been filed on

9 both sides and how they were dealt with. Both parties

10 experienced difficulty in obtaining access to the area

11 where the events are said to have occurred, and to

12 witnesses who still live in the region.

13 The Trial Chamber has been particularly concerned

14 that the defence should have adequate time to prepare

15 its case and acceded to a number of requests for

16 extension of time on this basis.

17 Some witnesses were willing to testify only if

18 their identity was protected. Some were given safe

19 conduct, that is protection against indictment by the

20 prosecution while in The Hague to give evidence, and a

21 number of defence witnesses, unwilling to come to The

22 Hague, were permitted to give their testimony via

23 video-conferencing link. All of these aspects are

24 covered in the first procedural section of the Opinion

25 and Judgment.

Page 8900

1 Section 2, Background and Preliminary Findings,

2 looks at the context of the conflict in the former

3 Yugoslavia, both in general terms and in Opstina

4 Prijedor. It examines the historical and geographical

5 background leading to the disintegration of the

6 Socialist Federal Republic of Yugoslavia and its impact

7 on Bosnia-Herzegovina in particular. It then examines

8 the historical development of the concept of a Greater

9 Serbia and how this idea took root and flourished in the

10 period following the death of Marshal Tito and the

11 collapse of communism in the country. The events that

12 led to the establishment of the Serb autonomous regions

13 are reviewed, as is the formation of crisis staffs in

14 those regions, which effectively took over control of

15 the area.

16 The role of the Yugoslav People's Army, the JNA,

17 is then looked at in some detail, how its role changed

18 during the disintegration of Yugoslavia and its

19 transformation from a truly national army that reflected

20 the multi-cultural aspects of Federal Yugoslavia into

21 one whose main aim was to protect the Serb people, both

22 within Serbia itself and elsewhere.

23 The background to the division of the JNA into the

24 VJ and the VRS, the latter being the army of Republika

25 Srpska, is looked at in detail, having, as it does,

Page 8901

1 considerable importance to the applicability of Article

2 2 of the Statute to this case, and is the subject of a

3 separate and dissenting Opinion.

4 Finally, the Opinion and Judgment examines the

5 military action taken in the early 1990s, following the

6 announcement of independence by both Croatia and

7 Bosnia-Herzegovina. This leads into the discussion and

8 review of events in Opstina Prijedor itself, which must

9 be understood, since they provide the context in which

10 the charges contained in the indictment occurred.

11 The Opinion and Judgment discusses the state of

12 affairs in Opstina Prijedor in the years before the Serb

13 takeover in April 1992, the events leading up to that

14 takeover and the events that followed it, including the

15 armed attack on the town of Kozarac and surrounding

16 villages and the expulsion of their predominantly Muslim

17 population, with men being sent to some camps and women

18 and children to others. There then follows a

19 description of those camps, the brutal treatment and the

20 horrific conditions which the prisoners experienced,

21 recounting how many of the men were killed and women

22 prisoners raped.

23 This section of the Opinion and Judgment ends with

24 a description of the accused himself, his family

25 background in Kozarac, his activities as a karate

Page 8902

1 instructor and cafe proprietor in Kozarac before the

2 conflict, his appointment as President of the local

3 board of the Serb Democratic Party; also his activities

4 after the attack on Kozarac, first as a reserve traffic

5 policeman and later as Secretary of the local commune of

6 Kozarac.

7 In Section 3, Factual Findings, the Trial Chamber

8 then considered the factual evidence before it relating

9 to each count of the indictment. The accused is now

10 charged with offences in 31 counts, each of which is

11 alleged to constitute both a violation of the Laws or

12 Customs of War and a crime against humanity, and

13 additionally in the case of 11 counts a grave breach of

14 the Geneva Conventions of 1949. Two counts are charged

15 alternatively.

16 The indictment is divided into paragraphs relating

17 to individual incidents. The first three paragraphs

18 are of an introductory nature, and paragraph 4 relates

19 to the charge of persecution. Paragraph 5 was not

20 proceeded with, for reasons which are stated in the

21 Opinion and Judgment. Paragraphs 6-10 relate to

22 incidents at the Omarska camp; paragraph 11 to one at

23 Kozarac; and paragraph 12 to incidents at the nearby

24 villages of Jaskici and Sivci.

25 Due to the cumulative nature of the charge of

Page 8903

1 persecution in paragraph 4, the Trial Chamber reserved

2 its review of it to the end of this section, dealing

3 first with the incidents alleged to have occurred at

4 Omarska in roughly chronological order rather than in

5 the order set out in the indictment, then with the

6 charges relating to the incidents alleged to have

7 occurred during the takeover of Kozarac and then with

8 the incidents alleged to have taken place at Jaskici and

9 Sivci.

10 In respect of each paragraph the Opinion and

11 Judgment first reviews the evidence as to the events

12 alleged, then the evidence as to the role of the

13 accused, followed by the case for the defence. It

14 concludes with findings of fact for each count comprised

15 within the paragraph.

16 In Section 4, the Accused's Defence of Alibi, the

17 Trial Chamber considers the accused's defence, which

18 consisted in essence of a denial of all the allegations

19 against him, supported by an alibi which relies both

20 upon his own testimony, given under solemn declaration

21 at trial, and that of a number of witnesses, and also

22 upon some documentary evidence.

23 Section 5, Evidentiary Matters, is devoted to a

24 discussion of eight distinct matters relating in one way

25 or another to the evidence in this case, its reception

Page 8904

1 and the weight to be given to it.

2 Then follows Section 6, Applicable Law, which

3 discusses the law relating to the offences charged.

4 This necessarily includes a lengthy and detailed

5 consideration of the relevant Articles of the Statute of

6 the International Tribunal and of those aspects of

7 international humanitarian law which they invoke.

8 In Section 7, Legal Findings, the law described

9 earlier is then applied count by count to the facts as

10 already found.

11 Finally, in Section 8, the Judgment, the Trial

12 Chamber states its findings, guilty or not guilty, in

13 respect of each count.

14 I will read that section aloud, but before doing

15 so, should say that immediately following it in the

16 Opinion and Judgment there appears my own separate and

17 dissenting opinion regarding the application of Article

18 2 of the Statute. That in turn is followed by certain

19 annexes, consisting of the indictment, a map and a

20 number of photographs.

21 I read now Section 8, being the Judgment of the

22 Trial Chamber.

23 Mr Tadic, will you please stand?

24 (Defendant stands up)

25 JUDGE McDONALD: For the foregoing reasons, having

Page 8905

1 considered all of the evidence and the arguments, the

2 Trial Chamber finds as follows:

3 (i) by a majority, Judge McDonald dissenting,

4 decides that the charges brought under Article 2 of the

5 Statute of the International Tribunal were in the

6 present case inapplicable at the time in Opstina

7 Prijedor, because it has not been proved that the

8 victims were protected persons, which is an element of

9 those offences charged, and therefore finds the accused,

10 Dusko Tadic, not guilty on Counts 5, 8, 9, 12, 15, 18,

11 21, 24, and the alternative charge under Count 27,

12 Counts 29 and 32;

13 (ii) unanimously finds on the remaining charges as

14 follows:

15 Count 1, guilty.

16 Count 6, not guilty.

17 Count 7, not guilty.

18 Count 10, guilty.

19 Count 11, guilty.

20 Count 13, guilty.

21 Count 14, guilty.

22 Count 16, guilty.

23 Count 17, guilty.

24 Count 19, not guilty.

25 Count 20, not guilty.

Page 8906

1 Count 22, guilty.

2 Count 23, guilty.

3 Count 25, not guilty.

4 Count 26, and the alternative charge under Count

5 28, not guilty.

6 Count 30, not guilty.

7 Count 31, not guilty.

8 Count 33, guilty in respect of Beido Balic, Sefik

9 Balic, Ismet Jaskic and Salko Jaskic; not guilty as to

10 Ilijas Elkasovic, Nijas Elkasovic, Meho Kenjar and Adam

11 Jakupovic.

12 Count 34, guilty in respect of Beido Balic, Sefik

13 Balic, Ismet Jaskic and Salko Jaskic; not guilty as to

14 Ilijas Elkasovic, Nijas Elkasovic, Meho Kenjar and Adam

15 Jakupovic.

16 Mr Tadic, having been found guilty by the Trial

17 Chamber of 11 of the counts on which you are charged,

18 you will remain in custody at the United Nations

19 Detention Centre, pending the completion of the

20 sentencing proceedings and of any appeal that may be

21 lodged. You may be seated.

22 (Defendant sits down)

23 JUDGE McDONALD: The Trial Chamber has scheduled sentencing

24 for July 1st at 10.00 am. If either party wishes to

25 provide written submissions, they are to be filed by

Page 8907

1 Monday, June 9th.

2 If either party wishes to offer any oral testimony

3 prior to sentencing, you should advise the Trial Chamber

4 in your written submissions, and we would then hear

5 those statements on either June 17th, 18th, 19th or

6 20th. We need to know, of course, what your plans are

7 in terms of offering any statements and how long you

8 will need for that purpose, but we will set aside those

9 four days, if needed. However, you need to advise the

10 Trial Chamber. Sentencing then is set for July 1st at

11 10.00 am.

12 Are there any other matters that should be brought

13 to the attention of the Trial Chamber at this time?

14 Mr Niemann?

15 MR NIEMANN: No, your Honour.

16 JUDGE McDONALD: Mr Vujin?

17 MR VUJIN: No, your Honour.

18 JUDGE McDONALD: The Trial Chamber then will adjourn.

19 (11.25 am)

20 (Hearing adjourned)

21 --ooOoo--