1 Tuesday, 20th April, 1999
2 (Open session)
3 (The Appellant entered court)
4 --- Upon commencing at 10 a.m.
5 JUDGE SHAHABUDDEEN: Mr. Clegg, you are
7 MR. CLEGG: Your Honour, yes.
8 Can I turn to the question posed by the Court
9 yesterday? In our submission, the Prosecution would
10 have no right of appeal if the tables were reversed and
11 the Crown had been frustrated in their attempt to
12 present the evidence before the Trial Chamber.
13 In our submission, that is for two reasons.
14 First, the principle of equality of arms is intended in
15 an ordinary trial to ensure that the Defence has the
16 means to prepare and present its case equal to those
17 available to the Prosecution which has all the
18 advantages of the State on its side.
19 We would commend to the Appeals Chamber the
20 analysis of the relevant law by Judge Vohrah in the
21 Trial Chamber in the judgement given on the 27th of
22 November, 1996 on the Prosecution application for the
23 disclosure of witness statements. His analysis begins
24 at page 4 of that judgement, and he there says that he
25 comes to the Prosecution's argument that the principle
1 of equality of arms operates in this case to enable the
2 Prosecution to have access to prior statements by the
3 Defence witnesses.
4 He goes on to say:
5 "It is clear from the authorities submitted
6 that the principle of equality of arms is inherent in
7 the notion of a fair trial which is prescribed by
8 international conventions. The principle is intended
9 in an ordinary trial to ensure that the Defence has
10 means to prepare and present its case equal to those
11 available to the Prosecution which has all the
12 advantages of the State on its side."
13 He then sets out a number of authorities and
14 continues towards the bottom of the page:
15 "An even clearer statement in this regard
16 was made by the European Commission of Human Rights
17 when it stated," and the quotation reads that it "'is
18 of the opinion that what is generally called 'the
19 equality of arms,' that is the procedural equality of
20 the accused with the public prosecutor, is an inherent
21 element of a 'fair trial.'" A quotation of Pataki
22 versus Austria is set out there in the judgement.
23 He continues to review the relevant case law
24 and then on page 5 of his judgement says:
25 "This proposition that the equality of arms
1 principle was intended to elevate the Defence to the
2 level of the Prosecution, as much as possible, in its
3 ability to prepare and present its case is evident in
4 the case law arising out of the European Convention for
5 the Protection of Human Rights and Fundamental Freedoms
6 1950 and the International Covenant on Civil and
7 Political Rights 1966, both of which incorporate the
8 principle of equality of arms in the concept of a fair
10 The concept of equality of arms is really a
11 species of the principle that the defendant is entitled
12 to a fair trial.
13 If I could approach the question posed by the
14 bench in a slightly different way and address the
15 question of why this apparent imbalance exists in an
16 area of law that embraces the word "equality" and why
17 the Prosecution should not be entitled to what some may
18 perceive to be the same advantages, the reason, in our
19 submission, is that the principle of equality of arms
20 is part of the defendant's right to a fair trial. The
21 Prosecution have no right to a fair trial. They are
22 not on trial. The burden of proof rests on the
23 Prosecution. They have the task of discharging that
24 burden, and in the trial process, the defendant is
25 entitled to a fair trial.
1 Unlike the Defence, the Prosecution can
2 select when to issue an arrest warrant, and the trial
3 process begins only when they are ready and have made
4 the decision to proceed. They can delay, in reality,
5 indefinitely until they are satisfied that they have a
6 prima facie case. The trial process is then designed
7 to examine that prima facie case and test it to see
8 whether they have discharged the burden that the law
9 places on them to prove the guilt of the accused. A
10 warrant cannot be issued until evidence exists, and the
11 trial process, in our submission, is designed to see
12 whether that evidence that they have chosen to proceed
13 to trial on can prove guilt.
14 In contradiction, the Defence have no say
15 over when proceedings are instituted by way of warrant,
16 and thereafter, while they can have limited influence
17 on the further progress of the trial, the two pressures
18 of an unconvicted man in custody and the real anxiety
19 of the court to achieve a trial within a sensible time
20 frame combine to constrict the area of movement
21 available to the Defence. It is for those reasons that
22 we would submit that the principle of equality of arms,
23 being part of the overriding principle that the
24 defendant is entitled to a fair trial, is something
25 that only, in reality, impacts on the Defence and not
1 on the Prosecution.
2 Before moving to the third ground of appeal,
3 could I just --
4 JUDGE SHAHABUDDEEN: Mr. Clegg, would it be
5 convenient if, before you moved to the third ground,
6 and I understand that the second ground does not now
7 fall for consideration, for me to say a word on what
8 you have just said? You would first of all appreciate
9 that I was asking a question and not making a
10 statement. The Court at this time has no position on
11 these matters. The Court's interest is merely to test
12 the limits of a theory which you are offering.
13 Doubtless, we will hear in due course from
14 the Prosecution about that part of your presentation in
15 which I think you said something to the effect that the
16 Prosecution has no right to a fair trial. Maybe at the
17 appropriate time, the Prosecution would want to deal
18 with the question whether the Prosecution represents
19 the public interests at large and whether the public
20 interests itself dictates a need that the Prosecution
21 should also be entitled to a fair trial, the concept
22 applying to both sides.
23 May I draw to your attention a document which
24 you may find useful but which perhaps does not form
25 part of the record? It is a letter which Judge
1 Cassese, who has drawn it to my attention, wrote on 19
2 September, 1996. He was then President of the
3 Tribunal, and a letter was written to Mrs. Plavcic,
4 acting president of Republika Srpska. I would have it
5 shared around in a moment, and if there is no objection
6 from any side, we could have it included in the record
7 so that it forms part of the dossier.
8 Mr. Registrar, would you hand it out? It's a
9 letter in which President Cassese recalled that the
10 Presiding Judge of Trial Chamber II, Judge McDonald,
11 had brought something to his attention, namely, that
12 there was a threat by the chief of security for the
13 Prijedor area concerning the possible attendance of
14 three witnesses who had been summoned by the Defence,
15 and President Cassese was asking for the intervention
16 of Mrs. Plavcic to ensure that those threats were not
17 carried out. So that tends to support some of what you
18 have been saying, and, incidentally, it also shows
19 President Cassese and Judge McDonald did everything in
20 their power to ensure that witnesses needed by the
21 Defence would be available.
22 Perhaps you would like to look at the letter
23 and to make any use of it as you see fit, and the
24 Prosecution also would like, I'm sure, to reply on the
1 MR. CLEGG: I'm very grateful, Your Honour.
2 We would like to rely on the contents of the letter
3 from President Cassese. It's a clear reflection of the
4 ongoing frustration that Mr. Wladimiroff experienced
5 during the course of the trial which, of course, was
6 expressed and acknowledged by the judgement of the Trial
7 Chamber at paragraph 530 in their judgement when they
9 "A difficulty encountered by both parties
10 has been their limited access to evidence in the
11 territory of the former Yugoslavia, due in no small
12 part to the unwillingness of the authorities of the
13 Republika Srpska to cooperate with the International
14 Tribunal. While witnesses called by the Prosecution,
15 mainly Muslims and former residents of Bosnia, were now
16 living in Western Europe or North American countries,
17 most Defence witnesses, almost all Serb, were still
18 resident in Republika Srpska."
19 The judgement goes on to identify the steps
20 taken by the Tribunal to assist the parties in
21 attempting to alleviate the difficulties experienced by
22 both sides but concluded at the bottom of paragraph 531
23 by saying in terms:
24 "These steps did appear to alleviate the
25 inherent difficulties of the situation," and, of
1 course, the English word "alleviate" reflects a
2 reduction of the problem or the difficulties, not the
3 resolution of the problem.
4 So it is perfectly clear that in the judgement
5 of the Trial Chamber, they acknowledged and accepted
6 that the inherent difficulties existed throughout the
7 trial, and despite all efforts made by the Tribunal to
8 overcome the difficulties placed in the path of the
9 Defence by Republika Srpska, those difficulties still
11 It is a reflection of the ongoing problem
12 addressed by Mr. Wladimiroff when he opened the case
13 passage I didn't refer to yesterday where he said to
14 the Court:
15 "In preparing the Defence, we have struggled
16 with the hostility and suspicion with which this
17 Tribunal is viewed in Republika Srpska and in
18 particular, in the Prijedor area. Those in power in
19 this area have blocked avenues of investigation not
20 only to the Prosecution but also to the Defence."
21 So that is the problem that we are
23 If I could just revert to the question of
24 whether the Prosecution have a right to a fair trial.
25 I don't want it to be thought that I am suggesting that
1 the Prosecution have no rights. Of course, in the
2 conduct of the trial, the Prosecution have many rights
3 which, combined with the rights of the defendant, will
4 ensure that a fair trial takes place: They have the
5 right to call and present admissible evidence; they
6 have the right, of course, to cross-examine and test
7 evidence called by the Defence. In any trial process,
8 and the trial process before the International Tribunal
9 is no exception, there is always a balance between the
10 conflicting parties, the balance being held by the
11 judge or judges concerned to ensure that there is a
12 fair trial. But it is a trial of the defendant at all
13 times because he is the person who is on trial, and
14 that is why the expression "the right to a fair trial"
15 is always expressed as his right to a fair trial
16 because it is his trial that everybody is engaged in,
17 both Prosecution and Defence.
18 I am not suggesting that the Prosecution have
19 no rights in the trial process. Of course they do.
20 And the rights that they have must be compatible with
21 the fair trial of the accused.
22 JUDGE SHAHABUDDEEN: I just want to
23 understand you. Do I understand you correctly to mean
24 this: The Prosecution has a right to participate in
25 the trial and to ensure that the trial is fair, but if
1 there is any unfairness in the trial, with particular
2 reference to the matter of equality of arms, the
3 Prosecution may not appeal; is that the position?
4 MR. CLEGG: They cannot, in our submission,
5 appeal if -- the question the Court poses presupposes
6 that there is an unfairness if there is a lack of
7 equality of arms vis-à-vis the Prosecution.
8 I would put it slightly differently. I would
9 say that if the Prosecution elect to proceed to trial
10 against an accused person on a body of evidence and
11 have determined that that body of evidence establishes
12 a clear prima facie case upon which they can prove his
13 guilt on a number of charges, then if they present that
14 evidence before a Tribunal, there is no unfairness if
15 other evidence exists which might add to or enhance the
16 evidence upon which they have decided to proceed.
17 I would venture to suggest that in almost
18 every criminal trial in every jurisdiction in the
19 world, there will always be more evidence that the
20 Prosecution could find if given an unlimited budget to
21 find it. There will always be other witnesses that
22 could be traced, if unlimited manpower were devoted,
23 other tests or examinations that could be made of
24 exhibits if there was an unlimited budget to do so.
25 The Prosecution have the control of the
1 bringing of the case entrusted to them by either the
2 state or, here, the International Tribunal. They make
3 a decision that there is here a body of evidence that
4 they have decided will prove those charges, and they
5 say, "We don't need any more evidence. We can prove it
6 on this evidence. There is no point going on for
7 another year looking for another year of evidence or
8 another two years and finding two more years of
9 evidence. We are satisfied that we can prove these
10 charges on this evidence, and therefore, we will issue
11 a warrant and we will proceed to trial." They say to
12 the Defence, "That is the evidence that we say proves
13 you're guilty," and the Defence have the duty then to
14 meet that evidence.
15 Now, if that evidence that the Prosecution
16 presents doesn't prove their case, doesn't get them
17 home, then, in our submission, there is no unfairness
18 for the Prosecution to say thereafter, "Well, we
19 couldn't prove it. We'll go out and find some more
20 evidence now, come to the Appeals Chamber, and present
21 more evidence" in order to try to prove that which they
22 couldn't prove in the first place.
23 That, in our submission, ought not to be
24 described as a lack of equality of arms; that, when
25 properly analysed, is allowing the Prosecution what an
1 English expression is, "two bites of the cherry." In
2 other words, they are having a second chance at seeking
3 to prove the case that they are, in reality,
4 recognising the frailty of the case they originally
5 presented which couldn't prove the charge and are
6 seeking to shore up or make good the deficiencies in
7 the case they presented for trial.
8 So, in our submission, it is not accurately
9 described as an absence of equality of arms, and to use
10 that expression to describe the position of the
11 Prosecution seeking to supplement their case by further
12 evidence at this stage, is, in my respectful
13 submission, a misuse of the way that phrase has been
14 used and adapted by the courts in both the national and
15 international jurisdictions.
16 JUDGE SHAHABUDDEEN: Would you say,
17 Mr. Clegg, that any useful distinction can be drawn
18 between the position of the Prosecution in a municipal
19 system and the position of the Prosecution within the
20 system promulgated by the Statute having regard to the
21 peculiar realities on the ground? Does the Prosecution
22 have available to it, within the context in which it is
23 operating, the same superabundance of facilities which
24 it may be expected to enjoy in the context of municipal
1 MR. CLEGG: Well, I am not privy to the
2 budget, the financial budget, of the Prosecution, but
3 it would seem, looking at the row of distinguished
4 lawyers opposite me, that they aren't entirely devoid
5 of financial support. They also, of course, have
6 skilled and experienced investigators at their
8 There is obviously a distinction, but in a
9 municipal situation as well as an international
10 situation, many witnesses do not willingly cooperate
11 with the Prosecution. In the investigation of many
12 crimes, witnesses will seek to avoid cooperating with
13 the state, and that is something that is familiar in
14 every domestic jurisdiction and, of course, is a
15 feature of this jurisdiction.
16 The trial process that has evolved before the
17 International Tribunal is primarily an adversarial
18 process, and if one concentrates on the principles of
19 an adversarial process, it is my submission that the
20 right to a fair trial cannot be legitimately extended
21 to embrace a right for the Prosecution to call evidence
22 in an appellate situation to remedy deficiencies in
23 evidence that were exposed at trial. The reality would
24 be that in every case where there was a verdict of not
25 guilty, the Prosecution would be able to restart the
1 investigation, find fresh evidence, and to use the
2 appellate process as a second Trial Chamber. My
3 fundamental objection is that the principle of the
4 right to a fair trial is something that is peculiarly
5 the right of the person who is on trial and not the
6 right of anyone else.
7 JUDGE SHAHABUDDEEN: The Bench understands
8 you. Would it be convenient for you to pass to the
9 third ground?
10 MR. CLEGG: It would.
11 JUDGE SHAHABUDDEEN: Thank you.
12 MR. CLEGG: The third ground of appeal is one
13 that is limited to one decision of fact made by the
14 Trial Chamber which concluded that it was satisfied
15 beyond reasonable doubt that the appellant was guilty
16 of the murder of two Muslim policemen, Osman Didovic
17 and Edin Besic. That decision depended solely on the
18 evidence of one witness, Nihad Seferovic. In our
19 submission, the evidence of that witness was
20 implausible when analysed and has been described by
21 distinguished commentators as "curious."
22 The background to his evidence is that he was
23 a Muslim living in the area that had been under attack
24 by Serb paramilitary forces. There had been a
25 bombardment of the town where he lived, and he had fled
1 to some nearby hills or mountains for safety. The
2 cornerstone of his evidence was that before the
3 bombardment, he had kept tame pigeons, and he was so
4 concerned about their welfare that when the Serb
5 paramilitaries were still in the town, he decided to
6 return to the town in order to feed his pet birds.
7 As a rational decision, that is, on any view,
8 curious, because he was placing himself in the gravest
9 of jeopardy in order to do no more than feed some pet
10 birds who would have been most unlikely to have
11 survived the bombardment of the town in any event; but
12 that was the only explanation for him being in the town
13 at the moment that these two men were killed, the
14 evidence that he gave being that he approached the
15 killing in an orchard to the distance of some 30 metres
16 and, at that distance, was able to identify the
17 defendant as the man who took two men out of a line of
18 five and killed them in the area immediately in front
19 of the Orthodox church.
20 The evidence was identified in the judgement
21 of the Trial Chamber at paragraph 393, and it merely
22 recounts there the evidence that the witness gave; and
23 at 394, it sets out the case for the Defence, that he
24 was not in the town at the time those two people were
1 It was not, with respect to the Trial
2 Chamber, the most critical analysis of the evidence of
3 the witness Seferovic; it was, in truth, no more than a
4 recitation of the effect of what he said.
5 The evidence has been the subject of
6 consideration and analysis by commentators, and if I
7 could draw the Court's attention to just one, and it is
8 the seventeenth divider of the Defence bundle of
9 authorities, commentary on International Decisions by
10 Michael Scharf of the New England School of Law, who
11 says -- the article beginning on page 718 -- at page
13 "The most important Prosecution victory was
14 the trial chamber's determination that Tadic had
15 stabbed and cut the throats of two Muslim policemen
16 outside a church after they were taken into custody by
17 a group of Serb paramilitary forces. This is the only
18 killing for which Tadic was found guilty by the trial
19 chamber and was the key reason he received a
20 twenty-year sentence. The finding is curious for two
22 I underline the word "curious."
23 "First, the only evidence to support it was
24 the testimony of a single witness Nihad Seferovic, a
25 Muslim who told the Tribunal the unlikely story that he
1 had witnessed the murders when he had turned to Kozarac
2 to feed his pet pigeons after the Serb take-over of the
3 town. Second, nowhere in the indictment, which was
4 amended twice by the prosecutor before trial, is there
5 any reference to this murder. Nevertheless, the Trial
6 Chamber stated the murder was relevant because the list
7 of acts alleged in the general persecution charge is
8 preceded by the word 'included'."
9 I take no point on the drafting criticism.
10 It is the evidential position that we say should
11 exercise the minds of this Tribunal.
12 JUDGE SHAHABUDDEEN: Why did Mr. Scharf say
13 that the witness told an "unlikely story"? Did he give
14 any reasons to make out that proposition, that the
15 witness told an "unlikely story"? Perhaps he did. I
16 don't know.
17 MR. CLEGG: The words "unlikely story" are
18 followed by the assertion that the witness had returned
19 to Kozarac to feed his pet pigeons after the Serb
20 take-over, and I think that, as I read the commentary
21 of Mr. Scharf, is what he was saying was unlikely
22 because the --
23 JUDGE SHAHABUDDEEN: Was that the basis --
24 MR. CLEGG: Yes.
25 JUDGE SHAHABUDDEEN: -- on which he said that
1 the witness's story was "unlikely"?
2 MR. CLEGG: Yes, on my reading.
3 JUDGE SHAHABUDDEEN: I understand.
4 MR. CLEGG: And the unlikelihood is obviously
5 a reflection of the inherent improbability of anybody
6 with any regard to their own safety willingly entering
7 a town currently occupied by Serb paramilitaries when
8 they were in the process of actively deporting the
9 Muslims to concentration camps in order to feed a pet
10 bird. It is, we would submit, such an unlikely and
11 improbable story that any Tribunal would want to
12 reflect on whether it could possibly be true.
13 JUDGE SHAHABUDDEEN: I understand. Thank
15 MR. CLEGG: We would submit that of all the
16 evidence before the Trial Chamber in relation to the
17 various charges of which the appellant was found
18 guilty, this was undoubtedly the weakest, and we submit
19 that the Trial Chamber ought not to have relied upon it
20 in order to convict the appellant of these two,
21 effectively, two charges of murder.
22 We say that for two reasons. First, we say
23 that the unlikely account given by the witness is one
24 that the Appeals Chamber is entitled to reflect on and
25 to ask themselves whether there is not here a real
1 danger that there has been a miscarriage of justice in
2 relation to this charge. The accounted evidence of
3 this witness is just so implausible, curious, unlikely,
4 that to say that you could be satisfied beyond a
5 reasonable doubt that what this witness said was true
6 is, in our submission, a perverse conclusion for the
7 Trial Chamber to have come to.
8 JUDGE SHAHABUDDEEN: How would you present
9 this aspect of your case within the framework of the
10 Rules which regulate and delineate the extent to which
11 an appellate court can differ from findings of fact
12 made by the trial court?
13 MR. CLEGG: So far as their approach to this
14 witness is concerned, in our submission, the Trial
15 Chamber misdirected itself as to the state of the
16 evidence and an important respect that has significant
17 impact upon this count.
18 The position is that another witness called
19 Dragan Opijak -- Opacic, referred to initially much
20 more easily as "L," was a witness who, upon
21 investigation, it was acknowledged that he was
22 untruthful. In other words, there's no doubt this man
23 was lying to the Tribunal. The Trial Chamber dealt
24 with his evidence at paragraphs 553 and 554 of their
25 judgement, and it's an important section. What they
1 said was:
2 "During the course of this trial the
3 truthfulness of the testimony of one witness, Dragan
4 Opacic, first referred to as Witness L, was attacked
5 and ultimately, on investigation, the Prosecution
6 disclaimed reliance upon that witness's evidence. The
7 Defence contends that this incident is but one instance
8 of a quite general failure by the Prosecution to test
9 adequately the truthfulness of the evidence to be
10 presented against the accused, instead of simply
11 accepting as true the evidence given against a single
12 Serb accused by a whole array of Muslim witnesses.
13 "Two points should be made in regard to this
14 submission. First, the provenance of Dragan Opacic was
15 quite special. Apparently, of all the witnesses, he
16 was the only one who came to the notice of the
17 Prosecution as proffered as a witness by the
18 authorities of the Republic of Bosnia and Herzegovina
19 in whose custody he then was. The circumstances
20 surrounding his testimony were, accordingly, unique to
21 him; the fact that his evidence came to be acknowledged
22 as untruthful casts no light on the evidence of other
23 Prosecution witnesses, none of whom share his
25 Well, the fact was that the Trial Chamber had
1 overlooked the fact that this crucial witness Nihad
2 Seferovic, in fact, did share the same provenance as
3 the witness whose evidence was acknowledged as being
4 untruthful shared. It's our submission that where the
5 Trial Chamber can be demonstrated to have misdirected
6 itself as to what the evidence is, then that is a
7 matter that the Appeals Chamber is entitled to rely
8 upon when reviewing the decision in relation to this
10 I'm not suggesting that a Trial Chamber could
11 never convict anybody on the evidence of one witness.
12 I'm not suggesting that for a moment. Clearly, in
13 appropriate circumstances, one can have a safe verdict
14 of guilty even if there is only one witness against an
15 accused person, and I'm not suggesting that you can't.
16 What I am suggesting here is we start off
17 with a very unlikely and implausible account that has
18 been the subject of critical analysis by independent
19 commentators, and then one has built onto it a failure
20 of the Trial Chamber to recognise something that they
21 were clearly alert to and concerned about, namely, the
22 fact of whether any Prosecution witness shared the
23 provenance of the witness who was, in reality, planted
24 in the trial in order to deceive the Court. That was
25 the only sensible conclusion that could be made in
1 relation to that witness, his evidence having been
2 acknowledged as untruthful.
3 JUDGE SHAHABUDDEEN: Am I right in my
4 recollection that somewhere the Prosecution is averring
5 that they supplied the Defence with a copy of the
6 statement of this witness and that in that statement,
7 there was a reference to the fact that the witness had
8 been in touch with (redacted)? If so, did
9 the Defence make any point of that fact in the course
10 of the trial?
11 MR. CLEGG: I think the position is this:
12 The copy supplied by the Prosecution was in
13 Serbo-Croat, and my understanding is that it was not
14 translated at the material time, and it is only
15 afterwards that the English version has been recognised
16 as having a reference to the (redacted).
17 I invite correction if I have misunderstood
18 the position, but that is my understanding of it
19 without having the opportunity for full research.
20 JUDGE SHAHABUDDEEN: I thought you might find
21 it convenient to deal with that aspect in the course of
22 this branch of your submissions.
23 MR. CLEGG: Yes. It's also right, I think,
24 that at the trial, the Defence were trying to exploit
25 the position of Opacic in a much wider way than the
1 Trial Chamber were prepared to entertain, and they were
2 seeking to exploit it in order to cast doubt upon a
3 wide raft of evidence that the Prosecution were relying
5 What I am seeking to do is to very much
6 narrow down the impact of that evidence in light, of
7 course, of the judgement of the Court which reflects a
8 concern as to the provenance of the witness, which was
9 not a concern that would have been expressed until
10 after the trial was over. So it's with the advantage
11 of a sight of the judgement that I'm able to make the
12 point that I make today to the Appeals Chamber.
13 The position so far as the statement is
14 concerned of this witness, which is annexed to the
15 appellant's brief, is that in the second paragraph, he
17 "Recently I had contact with persons in the
18 (redacted) at which time it
19 was determined that I may have knowledge of certain
20 information ..." and as a consequence, he's put in
21 contact with the International War Crimes Tribunal here
22 in The Hague.
23 Now, the effect of that is that this crucial
24 witness, Seferovic, in fact approached the Prosecution
25 from exactly the same provenance as the witness
1 Opacic. Both were effectively offered to the
2 Prosecution by the authorities of the Republic of
3 Bosnia, and in our submission, on any fair reading of
4 paragraphs 553 and 554 of the judgement, any such
5 witness is one that the Trial Chamber expressed a view
6 that they would be concerned about, because it's the
7 absence of a shared provenance that gives them comfort
8 in relying upon the other witnesses. It must follow
9 from that that the existence of a shared provenance
10 will remove the comfort that otherwise existed.
11 Now, it's perfectly clear here that the Trial
12 Chamber firstly were concerned about a shared
13 provenance and, secondly, relied upon the absence of it
14 to accept the other civilian witnesses in the case.
15 There is no recognition by the Trial Chamber of the
16 important fact that this one crucial witness, the only
17 witness on this count of murder, happened to come from
18 the same government. They couldn't have known it. I
19 understand that the statement, although exhibited as
20 Defence Exhibit 14, I think, was exhibited, as I've
21 said, in Serbo-Croat which nobody could read.
22 The position is that a witness who has given
23 an unlikely account, described as "curious" by
24 distinguished commentators, being the only witness to a
25 charge, in fact, shares a tainted source with another
1 witness believed by the Prosecution to be perfectly
2 honest, believed by everybody to be telling the truth,
3 but who was subsequently accepted as being wholly
4 untruthful. Indeed, the man, on the basis of the
5 decision of the Trial Chamber, must have been
6 committing perjury, must have been lying. They say
7 it's accepted that his evidence was untruthful. That's
8 only a courteous way of saying that somebody has lied.
9 JUDGE SHAHABUDDEEN: The Prosecution
10 disclaimed eventually any reliance on his testimony?
11 MR. CLEGG: Yes. It goes slightly further
12 than that. They don't just disclaim reliance on it,
13 which I presume one could do if one was merely
14 concerned about the witness but not satisfied as to his
15 untruthfulness, what they say in the next paragraph
16 is: "His evidence came to be acknowledged as
17 untruthful." So it goes further than just not relying
18 on it.
19 In our submission, a reflection on that
20 evidence, a reflection on the link between the witness
21 and the Government of Bosnia, a link that was not known
22 or appreciated by the Trial Chamber, combines to raise
23 a real doubt about the safety of the Trial Chamber's
24 conclusion in relation to this charge. We would invite
25 the Court, on reflection, to conclude that this verdict
1 is unsafe and to quash the finding so far as it relates
2 to those two counts of murder.
3 Unless I can assist the Tribunal any further,
4 those are our submissions on the third ground.
5 JUDGE SHAHABUDDEEN: Mr. Clegg, let me see if
6 my colleagues need your assistance any further. You
7 may take your seat.
8 Ms. Hollis, we have 20 minutes to go, I
9 think. Mr. Clegg has done very well, indeed. He has
10 exceeded expectations in that he has closed his
11 argument 20 minutes before the scheduled time.
12 Ms. Hollis?
13 MS. HOLLIS: Thank you, Your Honours. The
14 Prosecution will attempt to follow that very fine
15 example that has been set by the Defence.
16 However, before we actually get into our
17 argument, Your Honours, there are two matters that the
18 Prosecution would request to deal with in private
19 session having to do with redactions.
20 JUDGE SHAHABUDDEEN: You trust the
21 Prosecution, Mr. Clegg?
22 MR. CLEGG: I do.
23 JUDGE SHAHABUDDEEN: Yes. Private session.
24 MS. HOLLIS: Your Honours, as of this
25 morning, the argument --
1 JUDGE SHAHABUDDEEN: Just one moment. Let's
2 be sure that the arrangements are in place.
3 Go ahead, Ms. Hollis. No? No, not yet.
4 Please proceed, Ms. Hollis.
5 (Private session)
13 Page 399 redacted – in private session
13 Page 400 redacted – in private session
13 Page 401 redacted – in private session
20 (Open session)
21 JUDGE SHAHABUDDEEN: The arrangements have
22 been concluded. You may proceed.
23 MS. HOLLIS: Thank you, Your Honour. Your
24 Honours, regarding the first ground of appeal of the
25 Defence, before the Prosecution goes into its prepared
1 remarks, I would first like to deal with the question
2 that was raised by Judge Shahabuddeen yesterday
3 regarding the application of this expanded principle of
4 equality of arms and whether, using this expanded
5 principle of equality of arms, if the Prosecution were
6 denied evidence from a State that refused to cooperate
7 or was obstructionist, if the Prosecution would have
8 the same right of appeal based on that obstruction and
9 failure to cooperate as the Defence would have using
10 this expanded concept of equality of arms.
11 First of all, Your Honours, the Prosecution
12 submits that, as the Defence conceded yesterday, this
13 expanded definition goes beyond the accepted
14 traditional concept of equality of arms, and we are
15 urging in our submissions that the Court not take the
16 invitation of the Defence to expand this concept but,
17 rather, apply the traditional accepted concept of
18 equality of arms. Under that condition, it would not
19 be an issue of equality of arms.
20 However, assuming for argument that equality
21 of arms were to be expanded so that the situation the
22 Defence is putting forth would impact equality of arms,
23 we would suggest that you could not exclude the
24 possibility that the Prosecution, in some
25 circumstances, would have a similar right of appeal.
1 We suggest that is true because the Prosecution is one
2 of two parties to a trial. There is, of course, the
3 accused, who has tremendous rights and tremendous
4 protection. The other party, however, is the
5 Prosecution who appears on behalf of the community
6 whose laws are alleged to have been violated, and that
7 community has a right to a fair trial, a fair hearing,
8 about the alleged violation of those laws. So, indeed,
9 the Prosecution, as representative of the community,
10 does have a right to a fair trial.
11 Secondly, Your Honours, if we look at the
12 term itself, "equality of arms," the term itself
13 implies parity; it does not imply that one side has all
14 the rights and the other side has none of the rights.
15 So the term itself implies that both sides would have
16 equal rights. That would lead to the conclusion that
17 under the appropriate circumstances, the Prosecution
18 would also have the right to appeal.
19 In addition, Your Honours, we are dealing
20 with a situation, as put forth by the appellant, where
21 all of the advantages the Prosecution is said to have
22 in a national jurisdiction do not apply. It is a
23 foreign state with whom the Prosecution is no more
24 aligned than is the Defence that is obstructing, that
25 is refusing to cooperate; and in this setting, in this
1 International Tribunal, the Prosecution has no more
2 link to that foreign state than does the Defence. The
3 linkage that we have is through the powers conferred
4 upon the Tribunal, and if the state does not cooperate
5 with those powers, the Prosecution has no more ability
6 to enforce that cooperation than does the Defence.
7 The real issue of equality of arms would be
8 if both sides have recourse to whatever measures are
9 available to force cooperation. That would be the
10 equality of arms that would be envisioned.
11 JUDGE SHAHABUDDEEN: What do you say about
12 Mr. Clegg's reference to something which was said in
13 the Prosecution's brief to the effect that if, in fact,
14 the material conditions indicated that a party was at a
15 significant disadvantage, that would go to the question
16 whether there was practical equality of arms even if
17 there was full procedural equality? That is how I
18 understood Mr. Clegg.
19 MS. HOLLIS: Your Honour, we would suggest
20 that that portion of our brief went beyond what we
21 deemed to be equality of arms and spoke in terms of
22 manifest injustice, and certainly we would agree that
23 in national jurisdictions as well as international
24 jurisdictions, there may be situations which arise
25 which result in one party being deprived of justice, of
1 a fair trial, because of the inability to obtain and
2 present certain evidence. That has to be examined on a
3 case-by-case basis. Our position is that it is not the
4 case here and our position is that is not equality of
6 In our submission, we looked at what the
7 Defence was arguing and said, "They're arguing equality
8 of arms. We believe it is not an equality-of-arms
9 issue, so what issues can they be raising?" The other
10 issue that we talked about was abuse of process. We
11 suggested that based on the submissions yesterday,
12 where they agree the Prosecution in no way hindered
13 their case, there is no abuse of process either.
14 So we had three alternative arguments for
15 ground number 1: The first was equality of arms, which
16 we dismissed as not being applicable; the second was
17 abuse of process, which we now know, based on the
18 Defence concessions, is not applicable; and the third
19 was this concept of a manifest injustice even if you
20 had equality of arms in the traditional sense which is
21 procedural equality before the courts.
22 JUDGE SHAHABUDDEEN: Thank you. Please
24 MS. HOLLIS: Thank you.
25 During the Defence's presentation this
1 morning, Judge Shahabuddeen also asked about a letter
2 that had been submitted from then President Cassese to
3 Mrs. Plavcic, and in that letter, the President
4 expresses his concern that three named witnesses may
5 not be allowed to appear in the trial. Indeed, we were
6 aware of that letter, and all three of those witnesses
7 named in that letter did appear and testify on behalf
8 of the Defence in the trial.
9 JUDGE SHAHABUDDEEN: Does that destroy
10 Mr. Clegg's point that there were, in fact, certain
11 difficulties in procuring the attendance of witnesses?
12 MS. HOLLIS: No, Your Honour, it does not.
13 Further, Your Honour, we suggest that it is
14 clear that there were difficulties; there were
15 difficulties for both sides. Indeed, the Prosecution,
16 if you will, had more equality in that sense than
17 did -- the Defence had more equality than did the
18 Prosecution because while the Defence, as I will
19 discuss later, did obtain a measure of cooperation from
20 the authorities of Republika Srpska, the Prosecution
21 was never able to obtain a measure of cooperation from
22 the officials of Republika Srpska.
23 I would suggest to you, however, that that is
24 not the test to be applied on this appeal. It is not
25 whether they received full cooperation, it is not
1 whether they achieved everything they wished to
2 achieve. The question is: Looking at the ability they
3 had to present a case and to cross-examine the
4 Prosecution evidence, did this lack of full cooperation
5 from Republika Srpska deny the accused a fair trial?
6 We believe that the issue is somewhat different than
7 the Defence has presented it.
8 Your Honours, if I could turn to the prepared
9 remarks to highlight the Prosecution position?
10 Through the appellant's submissions
11 yesterday, we submit that it is no longer a valid
12 argument that --
13 JUDGE SHAHABUDDEEN: Ms. Hollis, may I
14 suggest to you that if you are moving on to your
15 prepared submissions, that perhaps we had better take
16 the coffee break at this time? We can have half an
17 hour and resume at twenty to eleven. Would that meet
18 with your convenience?
19 MS. HOLLIS: Of course, Your Honour.
20 JUDGE SHAHABUDDEEN: Yes. Mr. Clegg?
21 MR. CLEGG: Yes.
22 JUDGE SHAHABUDDEEN: Then the court stands
23 suspended for half an hour.
24 --- Recess taken at 11.11 a.m.
25 --- On resuming at 11.40 a.m.
1 JUDGE SHAHABUDDEEN: Ms. Hollis.
2 MS. HOLLIS: Thank you, Your Honour.
3 Your Honour, as the appellant has conceded,
4 the traditional accepted concept of the principle of
5 equality of arms has not been violated in this case;
6 however, the Defence invites this Chamber to expand the
7 traditional principle of equality of arms. The
8 Prosecution submits to the Chamber that you should
9 decline this invitation.
10 The expansion that the Defence would have you
11 make, we would suggest, is not consistent with the end
12 that is sought to be achieved by the principle of
13 equality of arms; that is, that before the courts that
14 try cases, both parties would have parity. They would
15 have equal access to the powers of the court to enable
16 them to bring their case forward.
17 Regarding this question of whether the
18 equality of arms has been violated here and whether the
19 traditional concept will be adhered to or an expanded
20 view will be adopted, it is most important that the
21 Appellate Chamber does speak to this and speak to it
22 very clearly in order to ensure that Trial Chambers and
23 practitioners before this Tribunal have the benefit of
24 that guidance in defining what that concept means here
25 in this Tribunal.
1 We submit to you that when you look at the
2 real basis of ground number 1, that the issue that
3 presents itself is whether the degree of obstruction
4 and lack of cooperation that was exhibited on the part
5 of Republika Srpska denied the accused a trial that was
6 fundamentally fair.
7 There is some dispute, apparently, as to the
8 test that should be applied to determine this issue.
9 At one point in argument, the appellant seemed to point
10 to this Appellate Chamber's decision on additional
11 evidence in order to show what test should be applied.
12 If you will recall, and I am paraphrasing, the
13 appellant seemed to argue that the decision on
14 additional evidence shows that there was relevant
15 Defence evidence that was not called at the trial
16 either because witnesses were intimidated or because a
17 lack of full cooperation on the part of Republika
18 Srpska denied the Defence the opportunity to discover
19 the existence and location of these witnesses.
20 The argument continued that had Republika
21 Srpska cooperated fully, the Defence would have been
22 able to call at least some of these witnesses as a
23 matter of right. Republika Srpska did not fully
24 cooperate, and as a result of that, the witnesses were
25 not available at trial, so that now, on appeal, the
1 appellant must show more than relevance in order to use
2 the evidence that could be obtained from these
3 witnesses. Therefore, the argument ran, Republika
4 Srpska's conduct denied the appellant his trial right
5 to call evidence based on relevance and imposed upon
6 him a higher burden and thereby denied his right to a
7 fair trial.
8 The Prosecution submits that this argument
9 does not set forth the test to be applied in evaluating
10 ground number 1 and should not be adopted by this
11 Chamber. To adopt the appellant's argument would mean
12 that any time an accused was denied relevant evidence
13 at trial, then on appeal, the appellate court must
14 reverse the conviction, order a new trial, or take
15 other drastic corrective action. It would mean that
16 such a denial of evidence is per se reversible error.
17 It would mean that Appeals Chambers, when faced with
18 this issue, cannot assess the merits of the relevant
19 evidence in determining if corrective action is
21 We suggest that such an argument ignores the
22 reality that it is not uncommon that relevant evidence
23 will not be available at trial, it is not uncommon that
24 such evidence becomes available after trial. The
25 argument that has been put forward by the appellant
1 ignores the fact that the right to a fair trial does
2 not mean the right to a perfect trial and it does not
3 mean the right to call all relevant evidence that the
4 Defence may wish to call.
5 We also suggest that the argument ignores the
6 significant interest of society in the finality of
7 judgments and it ignores the fine balance that criminal
8 law strives to achieve between giving effect to the
9 finality of judgments and the need to ensure a fair
10 trial. That balance requires assessments of the merits
11 of the alleged error, assessment of the impact of an
12 error, if it does exist, on the integrity of the trial
14 The Prosecution suggest that the test to be
15 applied in evaluating this ground of appeal is given to
16 us by appellate practice and by the Tribunal's Statute
17 and Rules, and that that test does rightfully include a
18 showing by the moving party beyond relevance of
19 evidence that was not presented at trial. It includes
20 a showing of the impact of any error on the integrity
21 of the trial.
22 If the appellant is arguing that there is an
23 error of law, the prejudice that must be shown,
24 according to the Statute of this Tribunal, is that it
25 was an error of law such that it invalidated the
1 decision. If the appellant is basing his argument on
2 an error of fact, it must be such an error of fact that
3 occasions a miscarriage of justice. So you must have a
4 relevant showing of error plus the appropriate level of
5 prejudice before corrective action is required on
7 The Statute and Rules of this Tribunal
8 regarding the submission of additional evidence are
9 consistent with these principles in that they require
10 some showing beyond relevance before such additional
11 evidence must be admitted and considered.
12 If we look at this issue of ground 1 in this
13 context, we suggest that rather than showing a denial
14 of fair trial, the decision on the additional evidence
15 is consistent with no denial of a fair trial.
16 First of all, in regards to the impact of
17 lack of cooperation by Republika Srpska, the majority
18 of the additional evidence that was offered was found
19 to have been available to the Defence at trial.
20 Secondly, in regard to that portion of additional
21 evidence which was found not to be available, the
22 Appellate Chamber, after careful consideration, found
23 that the interests of justice did not require that it
24 be admitted for consideration at this date.
25 Assessing the alleged error and the impact of
1 that error, the Prosecution submits that this Chamber
2 must look at this alleged error and its impact in the
3 context of what evidence was adduced at trial both by
4 the Defence and by the Prosecution.
5 The Defence wanted to present an alibi case
6 at trial and they also wanted to attack the
7 identification of the accused. As for the alibi that
8 they wanted to present, they knew the identity of many
9 of the witnesses that they wanted, so they were not
10 prevented from knowing the identity of witnesses that
11 they wanted. Were there other witnesses that they
12 wished they could have searched for? We do not argue
13 that point.
14 At trial, the Defence was able to put on a
15 very vigorous defence. In terms of identification
16 issues, they were able to call an expert who went into
17 great length about identification, and they were very
18 vigorous and very complete in their cross-examination
19 of Prosecution witnesses regarding the issue of
21 In regard to alibi, they were able to call
22 witnesses to attempt to establish an alibi. They were
23 able to put on documentary evidence concerning this
25 The Defence was able to do this at trial, in
1 part, certainly because of the broad disclosure
2 obligations that the Prosecution has, so that we have
3 to give them evidence relating to our witnesses and
4 exculpatory evidence, but the Defence was also able to
5 do this at trial because they did receive a measure of
6 cooperation from Republika Srpska.
7 At trial, the Defence called 40 witnesses; 35
8 of those witnesses were from Republika Srpska; three of
9 those witnesses were police who appeared with the
10 authorisation of the authorities in Prijedor. They
11 submitted documentary evidence to attempt to establish
12 an alibi that they received from Republika Srpska
13 predominantly from Prijedor, including police evidence
14 of duty rosters and other such evidence relating to
16 This some measure of cooperation began in
17 advance of the trial. As early as 1995, the Defence
18 was able to obtain some documentary information from
19 Republika Srpska. As of February of 1996, the Defence
20 was able to say that there were remaining obstacles,
21 but they believed that the major obstacles had been
22 removed. Some of the ways that they did this was to
23 obtain a letter from Mr. Karadzic allowing them to
24 investigate their case. To receive an undertaking from
25 the Minister of Interior in Pale to allow them to
1 undertake their case, they presented this letter from
2 Dr. Karadzic to the chief of police in Prijedor and in
3 February received written permission signed on behalf
4 of the chief of police to investigate in the area of
5 Prijedor, to talk to witnesses. Was this full
6 cooperation? No, it was not. Was this grudgingly
7 given? Yes, it was. But they did receive cooperation
8 that allowed them to go forward with their theory of
9 the case at trial.
10 Yesterday, there was a question raised about
11 whether this delay between the Prosecution case and the
12 Defence case was the result of lack of cooperation from
13 Republika Srpska. The answer to that, we submit, is
14 "no." There was a three-week break between the
15 Prosecution case and the Defence case. The break was
16 at the Defence's request, and the reason for the break,
17 according to the Defence, was to allow them to organise
18 the bringing of their witnesses to the Tribunal to
19 testify. Also, they did say there was some
20 investigation they had left, but the main reason was to
21 allow them to organise to bring their witnesses to the
22 Tribunal to testify.
23 If we look at the ability that the Defence
24 had and showed to have at trial to bring evidence and
25 we look at that in the context of a Trial Chamber that
1 was very supportive of the Defence's efforts and very
2 sensitive to their problems, we suggest that there is
3 no basis to conclude that the Defence was denied a fair
5 In assessing this issue, we must, of course,
6 look at what the Defence did at trial. It was
7 mentioned yesterday that the Defence at no time during
8 the trial requested a stay of proceedings, and it was
9 discussed that this, in part, could have been because
10 of a concern about further delaying the trial.
11 However, looking at the record of trial, there is no
12 evidence in the record to show that the Defence ever
13 asked that the case be dismissed because of lack of
14 cooperation. That was another option that they had.
15 If they reached a point where they felt they could not
16 get a fair trial, they could have requested a dismissal
17 of the case and reopened that issue. They did not do
18 so. By not doing so, they did not give the Trial
19 Chamber the opportunity to take additional measures to
20 try to overcome obstacles they were still facing. We
21 would suggest that by not doing so, they gave you an
22 indication that they did not believe their right to a
23 fair trial had been violated.
24 Recall, please, that there were four Defence
25 attorneys who were working on behalf of the appellant
1 at the trial, two very experienced criminal defence
2 attorneys from The Netherlands and two experienced
3 criminal defence attorneys from Great Britain. So we
4 had both systems of criminal justice represented.
5 Surely they would have known the measures available to
6 them if they believed that they were being denied a
7 fair trial. They did not exercise those measures, and
8 we ask that this Appellate Chamber keep that fact in
9 mind when they conclude if, indeed, a fair trial was
11 At the trial, the Trial Chamber had the
12 benefit of this Defence evidence, it also had the
13 benefit of very rigorous and vigorous cross-examination
14 of the Prosecution's evidence, and it had available to
15 it the Prosecution evidence itself. Based on all of
16 that, the Trial Chamber made its conclusions about
17 proof beyond reasonable doubt.
18 It is in that context, we suggest, that the
19 Appellate Chamber must look at the issue of whether the
20 lack of full cooperation denied the appellant a fair
21 trial. We suggest the Defence has not made the
22 requisite showing that the lack of full cooperation was
23 such that they were denied their ability to put on a
24 case such as they wished to present. They were not
25 denied the right to call witnesses. Would they want
1 more? Yes. Is that the test? No. The lack of full
2 cooperation did not result in invalidating the
3 decision, the judgement in this case, nor did it
4 occasion a miscarriage of justice. We suggest that
5 this ground for appeal should be dismissed.
6 Now, moving on to ground 3 of the appeal --
7 JUDGE SHAHABUDDEEN: Perhaps I better look to
8 my colleagues to see if they need your assistance any
9 further on that point. Then you may proceed.
10 MS. HOLLIS: Thank you. Again, before going
11 into the prepared remarks, I would first like to deal
12 with some of the issues that arose this morning in the
13 Defence argument.
14 The appellant seemed to argue that because
15 this witness, Nihad Seferovic, would say that he would
16 go into a town where the Serbs were taking it over to
17 feed his birds, that his testimony is inherently
18 incredible. Now, is this a decision many people would
19 think is rational? Of course, it is not. But how many
20 times have we heard stories of people going into
21 burning buildings to rescue pets, of doing other things
22 that subject them to a very real and immediate threat
23 of death to save a pet? Are these rational acts? No,
24 they're not. Are these acts that people do engage in?
25 Yes, they are.
1 The question really becomes, by virtue of
2 this act, going to feed birds in a dangerous
3 environment, is that explanation so implausible, so out
4 of sync with the way human beings act, that that would
5 render this witness's entire account unworthy of
6 belief? In evaluating that, of course, we have to look
7 at the entire testimony. We have to look at the fact
8 that this witness was very, very strenuously, very
9 comprehensively cross-examined, and the Trial Chamber
10 had the benefit of that in arriving at its
12 JUDGE SHAHABUDDEEN: Ms. Hollis, would you
13 help the bench by addressing us on this point: To what
14 point does disbelief in the evidence of that witness
15 have to reach before an appellate court could disagree
16 with the assessment made by the trial court?
17 MS. HOLLIS: Yes, Your Honour. We would
18 submit to you that, of course, appellate judges may
19 reverse findings of facts. That is inherent in the
20 Statute; that's inherent in appellate practise. In
21 doing so, however, great deference must be given to the
22 Trial Chamber, three learned jurists who actually saw
23 and heard this witness and all the evidence and had the
24 ability of being there as it was delivered in making
25 their assessment of credibility. It is ultimately an
1 assessment of credibility that we are dealing with
3 Taking that deference in mind, however, we
4 would suggest that the standard to be applied is that
5 this Appellate Chamber would overturn that
6 determination if it were to conclude that no reasonable
7 person could have concluded what the Trial Chamber
8 concluded. It is not a matter of substituting another
9 reasonable person's judgement. It is a matter of
10 determining that no reasonable person could have
11 concluded this.
12 We would suggest that that is the standard
13 that should be applied in this case, and we would
14 suggest that applying that standard, that standard has
15 not been met.
16 An issue came up in the Defence argument
17 about the statement of Mr. Seferovic. We would like to
18 clarify what actually occurred at trial concerning that
20 First of all, the statement in question was a
21 statement taken by the Office of the Prosecutor. That
22 statement was taken down in English. The English
23 version, which was the only version we had, the English
24 version of that statement was provided to the Defence
25 in 1995. The Defence had that translated into B/C/S so
1 that the accused could read the statement. The Defence
2 at trial used the B/C/S version to show the witness who
3 could not read English. At trial, the Defence did not
4 offer into evidence either the English version that
5 they had been provided or the B/C/S version. At trial,
6 the Defence did not bring up to the Trial Chamber the
7 information in the statement about the witness's
8 contact with the (redacted). The Defence was aware of
9 that information. It had been provided to them in
10 English. They did not bring it up. They did not bring
11 it up in argument when they were discounting this
12 witness's testimony in closing argument.
13 We suggest to you that the Defence, in making
14 their argument here, has misstated the Trial Chamber's
15 findings regarding the witness Dragan Opacic, and we
16 suggest to you that that misstatement has been used as
17 a basis to build an argument that Nihad Seferovic is
18 tainted because he is similarly situated to Dragan
20 The Trial Chamber stated that the
21 circumstances surrounding the testimony of Dragan
22 Opacic were unique, and they stated that "he was the
23 only one who came to the notice of the Prosecution as
24 proffered as a witness by the authorities of
25 Bosnia-Herzegovina in whose custody he then was." We
1 put emphasis on those last words. That is what makes
2 him unique. He had been captured as a soldier and was
3 held and made statements, and we became aware of him
4 through the Bosnian government. That is not the
5 situation with Nihad Seferovic.
6 In addition to that, much has been said about
7 Witness L and what the Trial Chamber found or did not
8 find and what the Prosecution did or did not do.
9 Again, let us submit to you that the situation with
10 Witness L was such that, at a point in the proceedings,
11 the Prosecution became convinced that Witness L had
12 lied about his family situation. That lie became very
13 obvious. That is what we know he lied about. What
14 else did he lie about? We don't know. But the
15 Prosecution felt that because now his truthfulness was
16 put at issue, we could not offer him as a witness who
17 would be worthy of belief. Therefore, we withdrew
18 him. We at no time said we believed he lied about
19 Trnopolje. The point was we didn't know and we did
20 not, because of his other lie, have sufficient
21 confidence in him to put his version forward.
22 It is interesting to note in that regard that
23 the Defence found out about Dragan Opacic's family and
24 that they were alive because they were able to go to
25 Trnopolje. They knew his name. They knew what his
1 position supposedly had been at the camp. They were
2 asking around in the area, and someone told them they
3 knew a Pero Opacic and where he worked and that Pero
4 Opacic had been a guard in Trnopolje. Pero Opacic
5 turned out to be Dragan Opacic's brother. So did
6 Dragan Opacic have the opportunity to go there? Yes.
7 But we could no longer be confident of his reliability,
8 so we withdrew him. Because we withdrew him, there was
9 no need to ever find that he committed perjury - that
10 was not found - nor was he ever prosecuted for
11 perjury. So the taint on this witness had to do with
12 his lies about his family situation.
13 JUDGE SHAHABUDDEEN: Did the Court ask the
14 Prosecution to investigate?
15 MS. HOLLIS: Yes, and the Prosecution did
16 investigate and gave its results, and the results that
17 the Prosecution came up with do not support the Defence
18 allegation that he had been planted by the Bosnian
19 government. We were allowed full access to all
20 information and were not able to draw that conclusion
21 from our investigation.
22 Now, going back to this situation at trial,
23 trial Defence counsel knew of the circumstances
24 surrounding Dragan Opacic, they knew about Nihad
25 Seferovic, they knew about his statement; Defence
1 counsel at trial never equated the two. Defence
2 counsel at trial never asked that Nihad Seferovic be
3 recalled after the situation with Dragan Opacic became
4 obvious. Defence counsel at trial never asked that
5 Nihad Seferovic's testimony be struck because he was
6 tainted as was Dragan Opacic. Trial Defence counsel
7 did none of those things. They did not argue the
8 similarity in closing argument. Why is that? Because
9 they concluded, the appropriate conclusion, that these
10 two were not similarly situated. So that is not a
11 basis for discounting the evidence of Nihad Seferovic.
12 There is no need for corroboration of a witness. The
13 Trial Chamber looked very carefully at this witness,
14 concluded he was reliable. The Defence has made no
15 showing that would require you to go behind the
16 decision of the Trial Chamber and would require you to
17 not give them the deference to which they should be
18 entitled and we would ask that you also deny this
19 ground of appeal. Thank you.
20 JUDGE SHAHABUDDEEN: Thank you very much,
21 Ms. Hollis.
22 Let me see if there are any questions from
23 colleagues. No. There are no questions. Thank you
24 very much for finishing ahead of schedule.
25 I see on my scheme here, Mr. Clegg, that you
1 are down to reply for 15 minutes.
2 MR. CLEGG: Let's see if we can maintain the
3 progress that we have hitherto.
4 Dealing with the first ground of appeal, in
5 our submission, the Appeals Chamber shouldn't be
6 diverted by the description or labelling of the
7 principle that lies behind this ground. It matters not
8 whether one refers to it as "equality of arms" or "the
9 defendant's right to a fair trial." It seems to be
10 acknowledged by the Prosecution that if the effect of
11 the obstruction were such as to deny the appellant a
12 fair trial, then that is a factor that ought
13 legitimately be reflected in a decision in his favour
14 before this Tribunal. In our submission, it doesn't
15 matter enormously whether you describe it as "equality
16 of arms" or describe it as "a right to a fair trial" or
17 describe it in the way that the Prosecution have in the
18 course of their brief that I drew the Court's attention
19 to during the submissions I made yesterday. It is the
20 principle that underlines what we submit rather than
21 the labelling.
22 In our submission, the fact that there was
23 obstruction is accepted and acknowledged. No one
24 denies that such cooperation as was achieved was given
25 grudgingly and normally under pressure applied from
1 this Court or elsewhere. The final assessment must be
2 whether the degree of obstruction was such that the
3 appellant's right to a fair trial was prejudiced.
4 In this regard, in our submission, it is
5 irrelevant what lack of cooperation the Prosecution
6 suffered. There is no concept here of a quid pro quo,
7 that the obstruction of one side can be balanced
8 against the obstruction of the other. One side in this
9 process was in jeopardy of losing his liberty and was
10 on trial; one side was not.
11 JUDGE SHAHABUDDEEN: Did Ms. Hollis quite put
12 it that way, that obstructions suffered by one side
13 could be balanced by obstructions suffered by the other
14 side, or was she pointing to obstructions suffered by
15 the Prosecution as indicative of her conception of the
16 idea of equality of arms?
17 MR. CLEGG: I think it may well have been
18 expressed in the way that has just been indicated. The
19 effect of expressing it in that way, when analysed, is
20 still, is it not, to offset the impact of obstruction
21 to the Prosecution against the impact of obstruction to
22 the Defence and asking the question, when looking at it
23 in the round, has a fair trial still been possible?
24 In our submission, it is not a question of
25 weighing each side against each other. The inquiry
1 ought to be focused on what we submit is the right of
2 the accused to have a fair trial, and the question
3 that, in our submission, ought to be addressed, is
4 whether his right to have a fair trial, which must, in
5 our submission, entail and embrace his right to present
6 his case in a proper way before the Trial Chamber,
7 whether that was frustrated or not; and if it was, we
8 would submit that that does affect his fundamental
9 right to a fair trial. We would express it in the
10 terms of an extended principle of equality of arms, but
11 that may, to some extent, be more a label than a
13 The issue for the Appeals Chamber, if I may
14 respectfully suggest, is an assessment of the degree of
15 obstruction as it impacted on the Defence, not as it
16 impacted on the parties generally. We would submit
17 that every element of obstruction would not result in
18 an unfair trial. Obviously, if one take an extreme
19 example, if one witness on one minor, peripheral issue
20 was prevented from attending, nobody could sensibly
21 argue that could prevent a fair trial. If one went to
22 the other extreme and you could demonstrate that 35
23 crucial witnesses as to fact were all prevented from
24 attending, then it may be very easy to say that the
25 obstruction prevented a fair trial.
1 Here, the element of obstruction that we can
2 see in this case fell in the middle of those two
3 extremes, and it is, we would submit, for the Appeals
4 Chamber to resolve whether the level of obstruction, in
5 fact, went so far as to deny this appellant a fair
6 trial. In our submission, it did. It went beyond
7 obstructing the periphery of the case but went to the
8 obstruction of the Defence in putting forward matters
9 that were central to the case they were presenting, and
10 in those circumstances, we would submit that that level
11 of obstruction was such as to deny the defendant a fair
13 If I may move to the third ground of appeal?
14 I, of course, accept what Ms. Hollis has said so far as
15 the history of the exhibit in the case which was
16 referred to clearly as Defence Exhibit 14 but, as I
17 understand, it did not become a formal documentary
18 exhibit. It had some nebulous character between a full
19 exhibit and something else. But the Serbo-Croat
20 document did have a label attached to it, as I
21 understand it, that referred to it as a Defence Exhibit
22 even if it wasn't a form of document that was copied
23 for the Court.
24 The sequence, as I understand it, was that
25 Seferovic gave evidence a considerable period of time
1 before Opacic, and therefore, the importance of the
2 link between Seferovic and the Bosnian government would
3 have been quite unknown to anybody until the
4 untruthfulness of Opacic was discovered during the
5 course of his evidence. So it is important to remember
6 the sequence of events.
7 Whether one makes a decision to recall a
8 witness for further cross-examination is always, of
9 course, a difficult decision for an advocate to make.
10 Sometimes the advocate may think that the witness's
11 account, as it stands, is not one that the Trial
12 Chamber would be likely to accept. They may make a
13 value judgement, if one likes, and think that enough had
14 been done so far as that witness's testimony is
16 It may be -- I don't know what the reasoning,
17 if any, was behind the Defence team at trial here. But
18 that doesn't alter the fact that in an appellate
19 jurisdiction reviewing a decision of fact, the Appeals
20 Chamber is entitled to have regard to all relevant
21 evidence and, in our submission, isn't constrained by
22 what questions were asked in the lower court or the way
23 that the case was necessarily left to the Trial
24 Chamber. One's entitled to look at all the material
25 that is legitimately before you and to ask the question
1 whether this Court is satisfied that the decision of
2 the Trial Chamber, in accepting the evidence of Nihad
3 Seferovic, was the right decision or not.
4 I don't disagree with the approach of
5 Ms. Hollis as to the standard that the Appeals Chamber
6 would need to address in approaching that. It is not a
7 question of substituting your view of the witness for
8 the view formed by the Trial Chamber who, of course,
9 had the benefit of hearing the witness and hearing the
10 cross-examination. In our submission, the standard is
11 rightly expressed by Ms. Hollis. The standard is
12 whether this Chamber can say that no reasonable person
13 could conclude that the evidence of that witness was
14 capable of proving beyond reasonable doubt that the
15 appellant was the person responsible for those deaths.
16 JUDGE SHAHABUDDEEN: You assert then that the
17 Trial Chamber would not have been acting as a
18 reasonable person if they accepted the testimony of
20 MR. CLEGG: I do make that submission.
21 JUDGE SHAHABUDDEEN: I want to grasp your
23 MR. CLEGG: Yes. I embrace that proposition
24 with the added advantage of the concerns of independent
25 commentators on the evidence and what we submit is a
1 legitimate factor for this Chamber to take into
2 account, namely, the --
3 JUDGE SHAHABUDDEEN: Mr. Clegg, may I ask you
4 this: You have referred to the commentator's reference
5 to that aspect of the matter. Are you relying on the
6 commentator's observations as some kind of authority in
7 itself or are you adopting his remarks and making them
8 your own?
9 MR. CLEGG: The second.
10 JUDGE SHAHABUDDEEN: The latter.
11 MR. CLEGG: The latter.
12 The final matter so far as ground 3 is
13 concerned is that we do submit that the failure of the
14 Trial Chamber to recognise the common source of the
15 evidence between Opacic and Seferovic is something that
16 the Appeals Chamber is entitled to have regard to. The
17 fact is that in dealing with the evidence of Opacic,
18 the Trial Chamber expressly identified a link between
19 that witness and the government of Bosnia. I mean,
20 that is a fact, and it also concluded the witness was
21 accepted as being untruthful, and it rejected a
22 suggestion of contamination on the basis that it formed
23 the view that the witness was the only one who had
24 links with that government.
25 Now, it is a remarkable coincidence but it is
1 a fact that this other witness, who is the only one to
2 this incident, also has the same links, and I do ask
3 rhetorically whether the Trial Chamber had been alerted
4 to that, and it may be that the connection was not
5 something that had been drawn to their attention,
6 indeed I accept it wasn't, it may be they hadn't got
7 this statement in front of them in English to enable
8 them to make the connection, but they were denied the
9 connection, for whatever reason, and had they noted, I
10 ask the question rhetorically, whether they would, in
11 those circumstances, have accepted the evidence of
12 Nihad Seferovic. Of course, one knows not the answer
13 to that question. But I do say that that enables the
14 Appeals Chamber, when approaching this very difficult
15 issue, to take into account the fact that the Trial
16 Chamber did not have one significant factor before them
17 that you have the advantage of, namely, the knowledge
18 that this witness shared a common source with the
19 witness Opacic that the Trial Chamber took the view
20 could be a tainted source.
21 JUDGE SHAHABUDDEEN: Did the Defence make any
22 representations to the trial court about the
23 circumstance on which you rely, that the B/S/C
24 statement of the witness was not accessible to counsel,
25 or did the Defence try in some way to have a
1 translation made of it?
2 MR. CLEGG: I think the Defence must have had
3 a translation, on reflection. I don't think there can
4 be any doubt about it. Because when you read the
5 evidence of Seferovic, part of the statement is put to
6 him in cross-examination, so they must have had it in
7 English. They clearly never drew the Trial Chamber's
8 attention to the link that I am now making.
9 In our submission, that does not preclude the
10 Appeals Chamber, in reviewing the safety of a
11 conviction, in looking at that material, and we would
12 invite the Appeals Chamber to look at all of that
13 material and then to ask oneself the question whether,
14 in light of that link and in light of the inherent
15 improbability of the account, whether one can say that
16 no reasonable person could conclude safely and beyond
17 reasonable doubt that that witness was giving an
18 accurate account of seeing the appellant commit those
19 two murders. We would invite the Appeals Chamber to
20 approach the ground in that way.
21 Unless I can assist you any further ...
22 JUDGE SHAHABUDDEEN: Let me turn to my
24 Please be seated, Mr. Clegg. I believe that
25 concludes the arguments on appellant's appeal on
1 judgement. We are now in a position to begin the second
2 phase of our three-pronged exercise, and that is
3 Prosecution's cross-appeal on judgement.
4 I have forgotten, Ms. Hollis, who is handling
5 this department for you.
6 MS. HOLLIS: Yes, Your Honour, there are two
7 of us, and Mr. William Fenrick will begin with the
8 issues relating to international armed conflict and
9 crimes against humanity.
10 JUDGE SHAHABUDDEEN: We are prepared to
11 proceed up to 12.55 but we recognise, being not
12 unmindful of the convenience of professionals, that you
13 might find it more useful and appropriate to commence
14 afresh when we resume at a quarter to three. If you
15 wish to begin now, we are quite available to you.
16 MS. HOLLIS: Your Honour, we appreciate your
17 courtesy, and we would request that we be allowed to
18 begin our argument when we reconvene so that it is not
20 JUDGE SHAHABUDDEEN: Yes. That is agreeable,
21 is it? Then we stand adjourned until 14.45; is that
22 it? Yes, a quarter to three. Thank you very much
23 --- Luncheon recess taken at 12.23 p.m.
1 --- On resuming at 2.47 p.m.
2 JUDGE SHAHABUDDEEN: Are you ready,
3 Mr. Fenrick?
4 MR. FENRICK: Yes.
5 JUDGE SHAHABUDDEEN: May we signal to you at
6 the start that you might usefully help us on two
7 grounds, grounds 3 and 5, on this point: Ground 3, I
8 think, concerns the definition of crimes against
9 humanity, and the point there is whether the definition
10 is broad enough to include acts committed for purely
11 personal reasons. The second has to do with the
12 question of the right of a party to disclosure of a
13 witness statement after the witness has testified.
14 We ask your assistance only for this reason:
15 We observed that in your briefs I think you mention
16 that nothing really turns upon these points so far as a
17 reliefs prayed for are concerned. I think you put it
18 on the basis that these are matters of general
19 importance on which it would be desirable to have a
20 pronouncement from the Court. We have no position on
21 this matter, but it is an aspect of which we would be
22 indebted to you for your assistance, both sides.
23 MR. FENRICK: Your Honour, do you wish me to
24 address that in the sequence as I'm addressing the
25 other arguments or right now?
1 JUDGE SHAHABUDDEEN: Just as you please,
2 Mr. Fenrick. We just thought that we would mention
3 that to you at the beginning.
4 MR. FENRICK: Indeed.
5 Your Honours, I will be speaking to grounds
6 1, 3, and 4 on behalf of the Prosecution in the
7 cross-appeal, and I will address the specific issue
8 that you referred to when I get to my discussion of
9 ground 3. My colleague, Ms. Hollis, will be addressing
10 grounds 2 and 5, and I'm sure that she will address the
11 same issue when she gets to ground 5 in her
12 submission. Our intention is that I will address
13 grounds 1, 3, and 4 for approximately one and a half
14 hours, although I would expect that the major portion
15 of my presentation would, in fact, relate to ground 1,
16 and then my colleague, Ms. Hollis, would like to have
17 an hour of your time after I am finished to address the
18 other grounds.
19 If I may start with ground number 1, our
20 appeal ground, of course, is the finding by the Trial
21 Chamber that it had not been proved that the victims
22 were protected persons under Article 2 of the Statute.
23 The Prosecution submits that the Trial
24 Chamber erred in finding that it had not been proved
25 that the victims referred to in various counts charging
1 the appellant under Article 2 of the Statute with grave
2 breaches of the Geneva Conventions of 1949 were
3 protected persons under the provisions of the relevant
4 convention. As a consequence of this finding, the
5 accused was acquitted on counts 8, 9, 12, 15, 21, and
6 32. This finding was also part of the reason for the
7 acquittal on count 29.
8 A major reason for the erroneous decision on
9 protected persons was the preceding, we submit,
10 erroneous decision by the majority of the Trial Chamber
11 to rely exclusively upon the effective control test
12 that it derived from the judgement of the International
13 Court of Justice in the Nicaragua case in order to
14 determine the applicability of the grave breach
15 provisions of the Geneva Conventions.
16 The Prosecution submits that the Nicaragua
17 case was concerned with state responsibility, not with
18 individual criminal responsibility. Further, in the
19 case, the ICJ deliberately avoided deciding which body
20 of treaty rules applied by focusing on what it referred
21 to as the minimum yardstick of the rules contained in
22 Common Article 3 of the Geneva Conventions of 1949
23 which, in the view of that court, applied to all
25 Further, it is our submission that the
1 Nicaragua case would be relevant after a fashion if
2 what we were concerned with here was a situation where,
3 in fact, there was no other indicator of an
4 international armed conflict existing within Bosnia.
5 If there was no proof of Federal Republic of Yugoslavia
6 troops being engaged in combat in 1992, it is possible
7 that the Nicaragua decision would be of some relevance
8 in connection with determining whether or not
9 Yugoslavia was engaged in an international armed
10 conflict through its direct control of the armed forces
11 of the Republika Srpska. But as that, in fact, is
12 something which is not at issue, the Trial Chamber has
13 already accepted that Federal Republic of Yugoslavia
14 troops were involved in the conflict after the 19th of
15 May, 1992, we submit the Nicaragua decision is of
16 relatively little, if any, utility in this particular
18 It's the submission of the Prosecutor that
19 the proper test for determining whether or not a grave
20 breach of the Geneva Conventions has been committed
21 involves assessing the relevant provisions of
22 international humanitarian law, particularly, the
23 Geneva Conventions themselves, and applying these
24 provisions to the facts as they existed at the
25 appropriate time in the territory of the former
2 It is this single argument which the
3 Prosecution will focus on in this oral argument. In
4 the indictment, Dusko Tadic is alleged to have
5 committed grave breaches in Bosnia against Bosnian
6 Muslim and Bosnian Croat civilians between about the
7 23rd of May, 1992 and about the 31st of December,
9 It is submitted that the relevant questions
10 which must be answered are, and there are six of them:
11 First, were Bosnia and the other relevant State, that
12 is, the Federal Republic of Yugoslavia, legally bound
13 by the Geneva Conventions as a matter of treaty or
14 customary law between about the 23rd of May, 1992 and
15 the 31st of December, 1992?
16 Second, did a situation exist in Bosnia
17 during the relevant period such that the applicability
18 of the Civilians Convention was triggered as a result
19 of either Common Article 2 or Article 6 of the
20 Civilians Convention?
21 Third, was Tadic linked to one side or one
22 high contracting party?
23 Fourth, were the victims linked to another
24 side or high contracting party?
25 Fifth, did the victims constitute protected
1 persons under one of the Geneva Conventions with
2 respect to Tadic and the side to which he was linked?
3 Sixth, did Tadic commit an act prescribed as
4 a grave breach under the applicable Geneva Convention?
5 It is the submission of the Prosecution that
6 the answer to each of these six questions is "Yes," and
7 I will run through why we consider that to be the
8 position now.
9 First, Bosnia and the Federal Republic of
10 Yugoslavia were legally bound by the Geneva Conventions
11 as a matter of both customary and treaty law during the
12 period covered by the indictment.
13 Second, an international armed conflict
14 continued to exist between Bosnia-Herzegovina and the
15 Federal Republic of Yugoslavia throughout 1992, and as
16 a result of this, the grave breach provisions were
17 potentially applicable throughout the territory of
18 Bosnia and the FRY during this period.
19 If I might quote, in part, paragraph 70 of
20 the majority decision in the Tadic jurisdiction appeal,
21 and I'll just quote the parts referring to
22 international armed conflict:
23 "We find that an armed conflict exists
24 whenever there is a resort to armed force between
25 States. International humanitarian law applies from
1 the initiation of such armed conflicts and extends
2 beyond the cessation of hostilities until a general
3 conclusion of peace is reached. Until that moment,
4 international humanitarian law continues to apply in
5 the whole territory of the warring States, whether or
6 not actual combat takes place there."
7 The Red Cross commentary on Geneva Convention
8 4 adopts a similar, very broad view:
9 "Any difference arising between two States
10 and leading to the intervention of members of the armed
11 forces is an armed conflict within the meaning of
12 Article 2."
13 It is submitted that the SFRY/FRY is a party
14 to an international armed conflict with Bosnia on the
15 basis that, first, the Trial Chamber itself found that
16 until the 19th of May, 1992, the Yugoslav national army
17 was involved in an international armed conflict with
18 Bosnia-Herzegovina, and thereafter the VJ, the renamed
19 Yugoslav army, was directly involved in an armed
20 conflict against Bosnia.
21 If we accept that the Yugoslav armed forces
22 continued to be involved in the conflict after the 19th
23 of May, 1992, we have an international armed conflict.
24 There is no other legal conclusion that can possibly be
25 drawn. Further, there is no indication of a general
1 conclusion of peace before the Dayton Agreement in
3 If I might refer briefly to some paragraphs
4 of the trial decision in the Tadic case, part of
5 paragraph 118 of the majority decision: "VJ aircrew
6 and aircraft remained in Bosnia and Herzegovina after
7 the May withdrawal and worked with the VRS throughout
8 1992 and 1993."
9 Paragraph 119: "The Podgorica Corps of what
10 had been the JNA and was now the VJ remained in Bosnia
11 and Herzegovina for much of 1992 and, under the command
12 of General Perisic, was involved in the killing of
13 Muslims and Croats in the Mostar region."
14 Paragraph 569, in part: "The forces of the
15 VJ continued to be involved in the armed conflict after
16 that date." That date was the 19th of May.
17 One does not have an international armed
18 conflict occurring in part of a country. If we have
19 combat forces deployed in combat in Bosnia by the
20 Yugoslav government after the 19th of May, 1992, we
21 have an international armed conflict.
22 The third question which had been posed was:
23 Was Tadic linked to one side or one high contracting
24 party in the conflict?
25 It is submitted that Tadic was linked to the
1 FRY side in the international armed conflict between
2 the FRY and Bosnia. Dusko Tadic was born in Bosnia and
3 is of Serb ethnicity. He was actively involved in Serb
4 nationalist politics. He was employed as a reserve
5 policeman. The activities which are the subject of the
6 indictment occurred in areas controlled by Bosnian Serb
7 forces, the VRS. Tadic was linked to the RS, the
8 Republika Srpska, and the VRS, in the sense that the
9 RS was his entity and the VRS was the army of his
10 entity. In turn, the RS and the VRS were linked to and
11 on the same side as the VJ and the FRY.
12 The evidence shows that throughout 1992,
13 Republika Srpska was a self-proclaimed entity within
14 Bosnia that regarded itself as part of the FRY. In
15 particular, the evidence shows that in May 1992, the
16 SDS, that being the ruling political party in Republika
17 Srpska, did not seek to be separated from the FRY. Its
18 relationship with the FRY at that time cannot be
19 characterised as one of "merely coordinating political
20 activities" as they were by the Trial Chamber.
21 Further, the VRS should be regarded as being on the
22 same side as the VJ in an international conflict with
23 the Bosnian army.
24 It was accepted by the Trial Chamber that the
25 redesignation of a part of the JNA as the VRS was
1 deliberately planned by the authorities in Belgrade to
2 create the semblance of the withdrawal of FRY forces
3 from the territory of Bosnia. This creation did not
4 come as an immediate response to Security Council
5 Resolution 752 of 1992. The evidence does not point to
6 an independent initiative on the part of the Bosnian
7 Serbs to form a breakaway irregular military force.
8 The creation of the VRS by the FRY therefore
9 does not indicate any indication or any intention by
10 Belgrade to relinquish control of part of its own army;
11 rather, establishment of the VRS was undertaken in
12 pursuit of Yugoslavia's own objectives.
13 The evidence demonstrates that these
14 objectives were implemented by political and military
15 operations that were controlled by Belgrade and the
16 Yugoslav National Army. There is no evidence to
17 suggest that these objectives changed on the 19th of
18 May, 1992. In fact, the Trial Chamber found that they
19 remained unaltered.
20 Given that the FRY's pursuit of its political
21 and military objectives continued beyond the 19th of
22 May in much the same manner as before, no reasonable
23 basis exists for inferring a factual loss of control
24 over the VRS. It would have been illogical for
25 Belgrade to relinquish its control of its entire
1 military operation in Bosnia in 1992 when, after
2 extensive preparations, the operations had only begun
3 to be implemented. The high level of planning and
4 preparation in 1991 and early 1992, as noted by the
5 Trial Chamber in paragraphs 80 to 146 of its judgement,
6 did, however, permit less explicit forms of command
7 over military operations to be practised, and these
8 were adopted especially as a response to increased
9 international scrutiny.
10 As the evidence establishes, the renaming of
11 the JNA forces in Bosnia was one of the FRY's main
12 strategies for responding to international demands
13 while, at the same time, taking advantage of the
14 extensive preparations that had already been
16 From a purely practical point of view, JNA
17 military operations, under the command of Belgrade that
18 had already commenced by the 19th of May, 1992, would
19 not have been able to cease overnight in any event. It
20 is normal, when military operations are planned, that
21 military commanders are thinking at the very least a
22 few days ahead of time. The people on the front line,
23 the people involved in immediate operations, are
24 probably thinking with a very short time frame. Those
25 back at the core level or more senior level normally
1 are expected to be planning for things two or three
2 days away. The take-over of Kozarac certainly was not
3 something that wasn't planned well before the 19th of
4 May, 1992.
5 The Trial Chamber had before it sufficient
6 evidence of a chain of military command between
7 Belgrade and Pale. The Trial Chamber accepted that
8 General Mladic, formerly of the JNA, was appointed by
9 Belgrade as the commander of the VRS. The evidence
10 shows that he and the VRS main staff continued to
11 implement the JNA's military objectives and operations
12 in Bosnia and were provided with broad operational
13 control to achieve this end under the overall command
14 of Belgrade. The Trial Chamber did accept that the
15 VRS main staff had links and regular communications
16 with Belgrade.
17 I might draw your particular attention to the
18 Trial Chamber judgement at page 221, paragraph 598 in
19 that respect.
20 The evidence may not disclose the exact
21 details of how the VRS related to the main command in
22 Belgrade or that General Mladic and the VRS command
23 openly received regular orders from Belgrade. As the
24 testimony of one of the witnesses for the Prosecution,
25 James Gow, demonstrated, however, a clear intention
1 existed to mask the commanding role of the FRY. This
2 explains the evidence of Colonel Selak which was relied
3 upon by the Trial Chamber in finding that the
4 relationship between Belgrade and Pale was
5 characterised by a level of coordination only. That is
6 what the Trial Chamber decided at paragraph 598.
7 It is submitted that the intention of
8 Belgrade was to make it seem as if their links with
9 Pale were as partners acting only in cooperation with
10 one another.
11 The groundwork had been completed by the JNA
12 for launching extensive military operations in Bosnia,
13 and certain aspects had already been implemented. As
14 the Trial Chamber pointed out, these operations
15 unfolded with significant success during the summer and
16 autumn of 1992, and this in itself testifies to a
17 degree to the control that was maintained over military
18 affairs in Bosnia by the FRY.
19 From a number of additional factors, further
20 inferences can be drawn of effective military control
21 over the VRS by Belgrade. The FRY/VJ created the VRS,
22 and the structures and ranks of the VRS and the VJ were
23 identical. The FRY/VJ directed and supervised the
24 activities and operations of the VRS. As a result, the
25 VRS reflected the strategies and tactics devised by the
1 FRY and the VJ.
2 The FRY and its army, the VJ, directly
3 intervened in the conflict in Bosnia-Herzegovina after
4 the 19th of May, 1992, and was fighting alongside the
5 VRS and providing critical combat support to it. The
6 FRY/VJ provided extensive financial, logistical, and
7 other assistance and support to the VRS.
8 If I may, I would like to quote from a
9 paragraph, or part of a paragraph, of the Trial Chamber
10 majority judgement. This is part of paragraph 115, and
11 it talks about things that were happening around about
12 the 19th of May, 1992:
13 "Although then formerly members of the
14 VRS --"
15 This is after the 19th of May.
16 "-- rather than of the former JNA, they
17 continued to receive their salaries from the government
18 of the Federal Republic of Yugoslavia, Serbia, and
19 Montenegro, and the pensions of those who in due course
20 retired were paid by that government. At a briefing of
21 officers concerned with logistics, General Djordje
22 Jukic, then of the VRS but who had, until the 18th of
23 May, 1992, been chief of staff of the technical
24 administration of the JNA in Belgrade, announced that
25 all the active duty members of the VRS would continue
1 to be paid by the federal government in Belgrade which
2 would continue to finance the VRS as it had the JNA
3 with the same numerical strengths of officers as were
4 registered in the 19th of May, 1992."
5 It is conventional wisdom among international
6 lawyers that mere logistical support or financial
7 support provided to a group does not necessarily
8 indicate participation in the conflict. That may be so
9 if what we were talking about is something like, say,
10 the provision of lend/lease support by the United
11 States to the United Kingdom during World War II. No
12 one would suggest either before or after Pearl Harbour
13 that the Americans controlled or were intimately
14 involved on the British side as such just because of
15 financial support.
16 This is not what we are talking about here.
17 We are talking about a country paying its soldiers to
18 perform a task in another country. Not only continuing
19 to pay them but providing them with a pension after its
20 all over.
21 This is not mere logistical support. This is
22 proof, it is submitted, that the VRS, or at least this
23 corps of officers, its cadre of officers, its most
24 experienced professionals, were, in fact, performing
25 tasks for the Federal Republic of Yugoslavia. The
1 paymaster controls in this particular case. Most armed
2 forces, when and if they, for example, second soldiers
3 or officers to other armed forces for a period of time,
4 they do so under conditions whereby, if those forces to
5 which they are seconded are engaged in hostilities,
6 that automatically terminates the period of
7 secondment. You go back home. Because if you stay
8 there as a member of your country's armed forces in
9 somebody else's war, somebody else is quite likely to
10 come to the conclusion that your country is also
11 engaged in the armed conflict.
12 Well, here, despite the mask, despite what
13 perhaps may be a different label, despite what may
14 perhaps be different uniforms, you have the same
15 paymaster continuing throughout somebody's professional
16 career. People retire to Belgrade, they get their
17 pensions from Yugoslavia. This is nothing but the VJ,
18 the Yugoslav army, under another name.
19 In summary, it is the submission of the
20 Prosecution that Tadic was linked to the RS and the
21 VRS, and they, in turn, were linked so inextricably to
22 the FRY and the VJ that all can be regarded as on the
23 FRY side. In the words of paragraph 209 of the
24 Celebici decision:
25 "Should the conflict in Bosnia and
1 Herzegovina be international, the relevant norms of
2 international humanitarian law apply throughout its
3 territory until the general cessation of hostilities
4 unless it can be shown that the conflicts in some areas
5 were separate internal conflicts unrelated to the
6 larger international conflict."
7 Here there was an international conflict at
8 the appropriate time between the FRY and Bosnia. The
9 fighting between the VRS and the Bosnian army was a
10 part of that conflict.
11 The fourth question which I had suggested
12 should be posed is: Were the victims linked to another
13 side, another high contracting party? In this
14 particular case, yes, most emphatically. The victim
15 group constituted Bosnian Muslims and Bosnian Croats.
16 Their government was engaged in an international armed
17 conflict with the FRY.
18 Did the victims -- and this is the fifth
19 question -- did the victims constitute "protected
20 persons" under one of the Geneva Conventions with
21 respect to Tadic and the side to which he was linked?
22 The answer, once again, is "Yes." The victims were
23 civilians. They were protected under the civilians
24 convention. They were in the hands of the FRY and they
25 did not have the nationality of the FRY.
1 Last, did Tadic commit grave breaches under
2 the civilians convention? Yes.
3 The criminal liability of the appellant, we
4 submit, has been more than adequately established on
5 the basis of the record. For that reason, it is the
6 submission of the Prosecution that Tadic can and should
7 be held criminally liable for the Article 2 counts.
8 That concludes my oral argument with
9 reference to ground number 1. I will turn, unless
10 there are questions, to ground number 3.
11 JUDGE SHAHABUDDEEN: Mr. Fenrick, just one
12 question. Is my impression correct that your briefs on
13 this ground suggested a criterion which may be
14 described as a criterion of a demonstrable link being
15 applicable? Have you dealt with that?
16 MR. FENRICK: It was my view, Your Honour,
17 that what I had done in this outlining of the different
18 questions was intended to demonstrate how one
19 constituted that demonstrable link.
20 JUDGE SHAHABUDDEEN: You meant to build --
21 MR. FENRICK: Yes, I did.
22 JUDGE SHAHABUDDEEN: -- on that
24 MR. FENRICK: Yes, I did.
25 JUDGE SHAHABUDDEEN: Then my only remaining
1 question is whether there is any specific authority for
2 that suggestion.
3 MR. FENRICK: We are dealing -- I wouldn't
4 want to say we're entirely making new law here, Your
5 Honour, but what we are doing is trying to apply the
6 grave breach provisions of the Geneva Conventions, and
7 I think we have got to try, to the extent its
8 practicable, find all the answers within the Geneva
9 Conventions themselves or by means of extrapolation
10 from the Geneva Conventions.
11 If I might try the reverse side of this?
12 There is certainly more-than-adequate case law to
13 demonstrate that the accused needs no more than a
14 demonstrable link with his side in a conflict. For
15 example, there are post World War II war crimes cases
16 where we are talking about the perpetrators being
17 members of a lynch mob. We have got post World War II
18 cases where the accused would be, say, someone perhaps
19 of the same nationality as the victim but nevertheless
20 employed or acting in a position of some administrative
21 authority in a concentration camp. We have got a lot
22 of evidence for the other side, for the perpetrator
23 side, I think being regarded as where the demonstrable
24 link comes in.
25 I am unaware of any case law which
1 specifically adverts to the kinds of issues we've got
2 here. What I have been doing after a fashion is
3 turning the existing case law upside down, and I think
4 the argument applies going in the opposite direction.
5 I wish I could be more helpful, but frankly
6 this is not an area which has been covered a lot in the
7 case law.
8 JUDGE SHAHABUDDEEN: Then I understand you to
9 be saying that the burden of your submissions is that
10 the facts establish a demonstrable link and your
11 submission in law is that a demonstrable link is an
12 acceptable juridical criterion?
13 MR. FENRICK: Yes, essentially. If I may
14 just elaborate a little bit? One can look at things --
15 for example, the Encyclopaedia of Public International
16 Law. When it discusses what constitutes a war crime,
17 it talks about a war crime being something which is
18 committed by someone who is an agent of one side
19 against either a neutral person or a national of the
20 opposing side in a conflict. In fact, it is my
21 submission that, unfortunately, the author of that
22 provision got it demonstrably wrong because it is very
23 easy to demonstrate that there is no need for an agency
24 relationship between the perpetrator of a war crime and
25 the state, the entity, on behalf of which he acts. For
1 starters, if one always had to be an agent, a
2 relatively convenient defence would be saying, "Well,
3 my armed forces ordered me not to do this, my
4 government ordered me not to do this. I just did it
6 But to get beyond that which may look, to a
7 degree, facetious, there certainly are cases such as
8 the Essen lynching case, for example, where the
9 perpetrators of the offence constituted a lynch mob,
10 and I don't think a lynch mob would normally be
11 regarded as acting as an agent on behalf of the
12 government where it is located.
13 So it is that kind of reasoning, one would
14 wish there was more case law to support it, but these
15 are unprecedented circumstances we are trying to
16 address here to a degree, in any event.
17 JUDGE SHAHABUDDEEN: To sum it up, your
18 submission is that, as between the VRS and Yugoslavia,
19 there were three relevant criteria: One, effective
20 control; failing that, agency; failing that, a
21 demonstrable link. Is that a way of encapsulating your
23 MR. FENRICK: Very much so, Your Honour. Of
24 course, the briefs also address the effective control
25 and the agency arguments. It was the demonstrable link
1 which I thought was more appropriate to endeavour to
2 discuss here.
3 JUDGE SHAHABUDDEEN: What you're saying is
4 that the last one, a demonstrable link, would encompass
5 the other two criteria?
6 MR. FENRICK: I would word it slightly
7 differently in that I would suggest that a demonstrable
8 link is, first of all, the appropriate test in the
9 circumstances, and the other two would not be so
10 appropriate. But I would also submit and, in fact,
11 concede that the effective control standard and the
12 agency standard are both somewhat higher standards than
13 the demonstrable link.
14 JUDGE SHAHABUDDEEN: If you're correct,
15 shouldn't I understand you to mean that the last
16 criterion, a demonstrable link, is wide enough to
17 include the other two criteria.
18 MR. FENRICK: Yes. Very much so. That's
19 what I intended to say.
20 JUDGE SHAHABUDDEEN: Yes. Then you may
21 proceed to your next ground. My colleague would like
22 to put a question.
23 JUDGE CASSESE: Mr. Fenrick, you could be of
24 some assistance to us because I think I agree with you
25 that no link is required when you have a war crime by a
1 civilian. You quoted the Essen lynching case. Now,
2 civilians may commit war crimes, but for a civilian to
3 commit a grave breach, you have to prove that there's a
4 link between that particular civilian and a
5 belligerent. Otherwise, a civilian may commit a war
6 crime within an internal armed conflict and it is a war
7 crime or within the framework of an international armed
8 conflict, but for a civilian or anybody who has no
9 official capacity, who is not a member of the armed
10 forces, to commit a grave breach, you have to show the
11 link between the armed forces and a belligerent or a
12 foreign power taking part in the international armed
14 MR. FENRICK: With respect, Your Honour, I
15 would be inclined to disagree with that. I agree that
16 we're clearly talking about a different situation if
17 what we're talking about is an internal armed conflict
18 or an international armed conflict, but it would be the
19 submission of the Prosecution that the kinds of
20 standards which came out of the post-World War II cases
21 would be applicable in an international armed
22 conflict - and it is in an international armed
23 conflict - but in an international armed conflict to
24 both other kinds of war crimes and grave breaches.
25 If what we were doing was discussing internal
1 armed conflict, perhaps it might be a little different,
2 but I think the standard linkage for war crimes in an
3 international armed conflicts and for grave breaches
4 would be basically the same.
5 JUDGE CASSESE: Still, I fail to see how,
6 within the framework of an international armed
7 conflict, somebody who is not a member of the armed
8 forces or one of the belligerents may be accused of a
9 grave breach and not of a war crime.
10 MR. FENRICK: I would have no difficulty
11 doing that at all, Your Honour.
12 As an example, and we'll purify the situation
13 somewhat by saying, let us suppose we have a prisoner
14 of war in Yugoslavia from Bosnia. I would submit that
15 if a Yugoslav civilian killed that prisoner of war, he
16 would have committed a grave breach. He need not be
17 affiliated with the armed forces.
18 JUDGE CASSESE: Thank you.
19 Another question: I am afraid I don't have
20 the text of the Geneva Conventions close at hand, but I
21 remember in the IV Geneva Conventions, there is a
22 provision, a common provision, whereby in case of a
23 grave breach, of course, individual criminal
24 responsibility may arise for the perpetrator of a grave
25 breach, but at the same time, also the State to which
1 that particular person belongs may bear international
2 responsibility. So you have two notions: state
3 responsibility and individual criminal responsibility
4 for the same action.
5 Therefore, if this is correct, I fail to see
6 how you may say that the Nicaragua case only applies to
7 State responsibility and not to individual criminal
8 responsibility. I think the Nicaragua case test
9 applies to the criteria for attributing a particular
10 act committed by an individual to a State if the
11 individual is acting on behalf of the State. Again, we
12 fall back on the notion of agent or State official, a
13 de facto organ, to use the terminology of the
14 International Law Commission on State responsibility,
15 acts committed by private persons acting not in their
16 official capacity but as individuals who act on behalf
17 of a state.
18 Therefore, you have one test applicable to
19 both State responsibility and individual criminal
20 responsibility. This is my proposition, but I would
21 like to have your comments. I may be totally wrong.
22 MR. FENRICK: With respect, if I may at least
23 disagree to some extent. First of all, yes, there is a
24 provision -- I was trying to thumb through and I
25 couldn't find it either -- concerning the State
1 responsibility, but I would suggest there are some
2 circumstances where you would have State responsibility
3 for persons who have committed grave breaches and
4 others where you most emphatically would not.
5 I don't know. If, for example, you had an
6 armed force which had an elaborate law of armed
7 conflict, training programme, an elaborate monitoring
8 system, took all appropriate means to ensure
9 disciplinary action, ensured that its troops were
10 ordered not to commit offences, and then you had a
11 soldier, for example, commit an offence or commit a
12 grave breach, I don't think the State would necessarily
13 be held responsible for that. I think you would have
14 individual criminal responsibility. I don't know if
15 you would automatically have State responsibility.
16 With reference to the Nicaragua decision, the
17 Nicaragua decision is certainly concerned with State
18 responsibility. I don't know if I would suggest that
19 the kind of criteria that it talks about, it's
20 submitted by the Prosecution, would have some relevance
21 to determining whether or not you've got an
22 international armed conflict or the applicability of
23 the grave breach provisions. But it would be our
24 submission that that is perhaps more applicable when
25 you're talking about a situation where really what
1 you've got is a rebel or insurgent group functioning in
2 the territory of another state and what you're trying
3 to do is to determine the responsibility of another
4 State. I mean, the real Nicaragua situation, to what
5 extent is the U.S. responsible for the activities of
6 the Contras?
7 If what you've got and what we submit here we
8 do have is an international armed conflict involving
9 combat units from Yugoslavia, it would be the
10 submission of the Prosecution that we need not rely on
11 the Nicaragua test or the Nicaragua tests, to be more
12 accurate, as an exclusive means for determining whether
13 or not the actions of individual accused can be
14 referred to as grave breaches.
15 JUDGE CASSESE: Therefore, if I understand
16 you correctly, your proposition is that whenever you
17 have, say, in a case the possibility of two parallel
18 conflicts, an internal armed conflict plus an
19 international armed conflict, the rules relating to the
20 international armed conflict in a way embrace and cover
21 any event, even those committed within the framework of
22 the civil war? So everything would be covered by the
23 grave breach provisions?
24 MR. FENRICK: That was not -- at least it was
25 not intended to be our submission, Your Honour. To use
1 the wording of the Celebici decision, if you've got
2 clearly separate internal armed conflicts, then
3 certainly you wouldn't be talking about grave breaches
4 and you wouldn't be applying the law for international
5 armed conflict.
6 For example, in Bosnia, the conflict between
7 the Bosnian government and the Fikret Abdic faction, I
8 don't think there's any way in which we could talk
9 about grave breaches in connection with that. But when
10 what we're talking about is really, we would submit, a
11 clear international armed conflict between Yugoslavia
12 and Bosnia with the VRS or the Republika Srpska on the
13 same side and with many links to the Yugoslav
14 government, we would submit that it would be entirely
15 appropriate to apply the grave breaches there.
16 JUDGE CASSESE: Thank you.
17 JUDGE SHAHABUDDEEN: Perhaps I might ask your
18 help on this point: At all material times, say you,
19 Yugoslavia had fighting forces in Bosnia-Herzegovina,
20 both before the 19th of May and after the 19th of May.
21 Why then did the majority find that after the 19th of
22 May there was no armed conflict between
23 Bosnia-Herzegovina and Yugoslavia? Have I got the
24 facts wrong?
25 MR. FENRICK: I believe you have the facts
1 correctly, Your Honour. My understanding would be that
2 the majority misapplied the view of the Appeals Chamber
3 as expressed in the Tadic jurisdiction decision.
4 Although they used the words, for some reason or
5 another instead of saying, "Once you've got combat
6 forces involved in the country, you've got an
7 international armed conflict and it affects the whole
8 country," they said, "Well, okay, the Yugoslav army has
9 withdrawn," or to be more accurate, "The Yugoslav army
10 has divided," but they themselves, they're the ones --
11 I mean, when I was quoting those paragraphs from the
12 decision, that wasn't me. That was them, their
13 findings, that Yugoslav combat forces continued to be
14 engaged in Bosnia.
15 I think what they did was instead of looking
16 on the law as something which applies to the whole
17 territory, they looked on it as, "Well, you can have an
18 international armed conflict going on in this little
19 corner of Bosnia, but up here at this end, here you
20 still don't have the umbrella international armed
21 conflict applying." To me, the law applies to -- once
22 you have an international armed conflict, it applies to
23 the whole territory.
24 JUDGE SHAHABUDDEEN: All right. They then,
25 according to you, adopted a compartmentalised approach.
1 MR. FENRICK: Very much so, Your Honour.
2 JUDGE SHAHABUDDEEN: Will you pass to your
3 next ground then?
4 MR. FENRICK: Yes, indeed, sir.
5 The third ground, which I would intend to
6 address somewhat more briefly, is the finding that
7 crimes against humanity cannot be committed for purely
8 personal motives.
9 This finding does not affect the verdict
10 against the accused. We concede it does not strictly
11 fall within the wording of section 25(1)(a) of the
12 Statute, in that we're not talking about an error on a
13 question of law which invalidates the decision as
14 such. That being said, it is our submission that what
15 we're talking about is a significant question of law
16 that is of general importance to the Tribunal's
17 jurisprudence which it is possible for the Court to
18 correct on appeal and which should be corrected on
20 It's our submission that if this finding
21 stands, it is, unfortunately, persuasive authority for
22 other Trial Chambers, both of this Tribunal and for the
23 ICTR. If it's followed in other cases, it could result
24 in unjustified and legally erroneous acquittals. That
25 is the reason why we would wish to see this issue
1 considered on appeal, sir.
2 JUDGE SHAHABUDDEEN: That concludes your
4 MR. FENRICK: Well, that concludes why we
5 wish, but we do have a bit more on why we think it's
6 wrong. Do you wish me to proceed further?
7 JUDGE SHAHABUDDEEN: Yes, Mr. Fenrick.
8 MR. FENRICK: Indeed. Article 5 of the
9 Statute mandates that crimes against humanity within
10 the jurisdiction of the Tribunal must be committed in
11 armed conflict.
12 The Trial Chamber found that these words
13 require that there be a nexus between the perpetrator's
14 acts or omissions and the armed conflict. As to the
15 nature of the nexus required, the Trial Chamber found
16 that, subject to two caveats, it is sufficient for
17 purposes of crimes against humanity that the act
18 occurred in the course or duration of an armed
20 The first caveat was that the act be linked
21 geographically as well as temporally with the armed
22 conflict, which is, of course, quite appropriate. The
23 second caveat was that the act and the armed conflict
24 be related or at least that the act not be unrelated to
25 the armed conflict.
1 The Trial Chamber then went on to hold that
2 the requirement that the act not be unrelated involved
3 two aspects: First, the perpetrator must know of the
4 broader context in which the act occurs. Second, the
5 act must not be taken for purely personal motives
6 unrelated to the armed conflict.
7 The Prosecution, as indicated, challenges the
8 Trial Chamber's finding that, to fall within Article 5,
9 the act must not be taken for purely personal motives.
10 Nothing in Article 5 itself suggests it contains a
11 requirement that crimes against humanity cannot be
12 committed for purely personal reasons, nor is there
13 such a suggestion in the Secretary-General's report on
14 the Statute or in the Security Council debates related
15 to the adoption of the Statute.
16 It is submitted that the weight of authority
17 supports the proposition that crimes against humanity
18 can be committed for purely personal reasons. The only
19 authority which the Trial Chamber directly relies upon
20 is a 1948 case from the post Second World War trials
21 before German courts, and that case, it is submitted,
22 in fact, contradicts the Trial Chamber's conclusion.
23 In that case, the defendants had denounced a
24 Jewish victim to the Gestapo for her anti-Nazi
25 remarks. The Jewish victim subsequently died in a
1 concentration camp. The defendant's sole motive for
2 denunciation was to "get rid of the victim" because
3 they were unhappy with her hysterical behaviour.
4 Applying the provisions of Control Council
5 Law 10, the Court found that, despite the purely
6 personal motives underlying the conduct of the
7 defendants, their behaviour could still be
8 characterised as a crime against humanity.
9 To quote, in part, an unofficial translation,
10 the defendant's conduct "was intimately linked to the
11 national socialist regime of violence and arbitrariness
12 because, from the very outset, it clearly fit into the
13 organised campaign of persecution against all Jews and
14 everything Jewish in Canada." Not in Canada. I'm
15 sorry. That's a nationalist bias there or lack of
16 it. "... everything Jewish in Germany."
17 Now, what happened here was something which
18 was done for purely personal reasons. The people
19 involved had no desire except to "get rid of" the wife
20 of one of them, and they denounced that person to the
21 Gestapo as a result of that. We say that the court, in
22 that particular case, did not suggest that there was
23 any requirement that the defendant's motives not be
24 purely personal. In fact, they accepted that they were
25 purely personal.
1 It is submitted that it is inconsistent with
2 the humanitarian object and purpose of our Statute to
3 leave unpunished acts forming part of a widespread or
4 systematic attack against civilian populations simply
5 because they were committed for purely personal
6 motives. Such a requirement would create an expedient
7 justification for perpetrators of large scale crimes
8 allowing them to escape liability.
9 It is submitted that when you are considering
10 the requirement of non-personal motives for crimes
11 against humanity, it is important to define the term
12 "motive" as something distinct from "intent" or
13 "knowledge." The term "motive," it is understood, is
14 sometimes used in some civil law systems to refer to a
15 form of special intent. For example, the concept
16 of absicht, and I wish I could pronounce that properly,
17 at least it's spelled "A-B-S-I-C-H-T," under German law
18 refers to an intensified or a direct intention which
19 may be equated with motivation whereby the offender
20 wants a specific result. But we're not talking about a
21 form of special intent here. What we're talking about
22 is the kind of situation where what's at issue is the
23 ultimate reason perhaps for the accused to perform an
25 For example, it doesn't matter whether or not
1 an accused steals money in order to buy Christmas
2 presents for his poor children or to support a
3 heroin habit. All we're concerned with is that he
4 stole and he intended to steal, and what we're
5 concerned with, it is submitted here, is the same sort
6 of thing. There's no requirement for non-personal
7 motive beyond knowledge of the context of a widespread
8 or systematic act into which an accused's act fits.
9 The Prosecutor is submitting that, as a
10 general proposition and one which is applicable here,
11 motives are simply irrelevant in criminal law. It does
12 not matter if an accused committed inhumane acts for
13 reasons that are purely personal, for example, getting
14 rid of a Muslim neighbour to whom he owes money, so
15 long as he or she has the requisite knowledge of the
17 If this Chamber upholds the decision of the
18 Trial Chamber, it is submitted it will establish a new
19 and unnecessary additional element for crimes against
20 humanity. It will become necessary to establish motive
21 as well as intent and the other existing elements.
22 That's the argument on the third ground by
23 the Prosecution, Your Honour.
24 JUDGE SHAHABUDDEEN: Mr. Fenrick, let me ask
25 you one question. Do we have a problem here of the
1 meaning which the majority wished to ascribe to the
2 words "purely personal"? Did the majority accept or
3 reject the German case to which you referred?
4 MR. FENRICK: My recollection, Your Honour,
5 is that they viewed it as supporting their position
6 concerning "purely personal," and we would submit that,
7 in fact, it is contrary to their holding.
8 JUDGE SHAHABUDDEEN: Is there a possibility
9 of interpreting the majority judgement to mean that they
10 were talking of purely personal reasons otherwise than
11 as indicated in the German case? There you had the
12 word "fit." The man removed his wife from the scene,
13 denounced her, I think. He had knowledge of the
14 general final solution policy. Although he acted for
15 purely personal reasons, he not only had knowledge of
16 that general policy but he meant to connect the purely
17 personal with the policy. He meant to use the policy
18 to implement his personal objectives; am I not right?
19 MR. FENRICK: Yes, I would think so, Your
21 JUDGE SHAHABUDDEEN: Yes. Well now, I
22 understand the Trial Chamber, the majority, to be
23 accepting that situation. Then they moved further.
24 Let me say I am asking questions; I am not digging in
25 my heels and I am not stating a position. This is a
1 possible interpretation.
2 Having accepted that decision, they then
3 moved a little further and said: If you are acting for
4 purely personal reasons with knowledge of the system
5 but not intending that what you are doing fits into the
6 system, not intending that what you are doing should
7 utilise the system, then that is a case not caught by
8 the definition of crimes against humanity. Do you
9 think that is a possible interpretation?
10 Take the case instanced by Mr. Clegg of the
11 man killing another man for the reason that, while this
12 other man was a schoolmaster, he had beaten him up.
13 Let us assume that the assailant in that case knew of
14 the policy but did not intend to utilise the policy.
15 Would that, you think, be the kind of situation which
16 the majority had in mind when it spoke of "purely
17 personal reasons"? You know of the policy and you
18 commit a crime, but you do not intend that the
19 commission of the crime should fit into the policy or
20 should make any use of the policy.
21 MR. FENRICK: Your Honour, I would suggest
22 that if an individual dislikes his teacher, who happens
23 to be a Muslim and, for that reason, he informs the
24 Serb authorities, who come and pick up the school
25 teacher and take him away and mistreat him in some way
1 or other or kill him, it is submitted that that would
2 be a circumstance where we would be thinking we don't
3 have -- that would come within the kind of guidelines
4 that are talked about in that decision.
5 If what we are talking about, however, is a
6 person who goes and beats his teacher because of
7 personal resentment, I don't think the situation is or
8 should be legally any different. The only difference
9 is that in the situation where he does it himself, he
10 does it himself.
11 In both cases, it is being done in a
12 permissive environment which he knows exists. He knows
13 that what is happening here is the government or the
14 political authorities are not going to punish him in
15 any way and he is taking advantage of the existence of
16 that system. For that reason, it would be the
17 submission of the Prosecution that, no, in the kind of
18 case that Mr. Clegg referred to, assuming that we have
19 knowledge of the widespread or systematic attacks being
20 directed against the civilian population, we still
21 should have criminal culpability for an Article 5
23 JUDGE SHAHABUDDEEN: You are talking of
24 situations in which the accused has knowledge on the
25 general policy and is acting for personal reasons but
1 also intends that his personal actions should call upon
2 the general system either for protection or for
4 Now, was that the situation which the
5 majority had in mind or did they have in mind a model
6 under which the accused commits a crime, such as
7 murder, with knowledge of the general system but not
8 intending in any way to connect the general system with
9 the crime?
10 MR. FENRICK: It would be our submission that
11 as long as he is "taking a benefit" from the existence
12 of the system, it should not be something which is not
13 punishable under Article 5.
14 JUDGE SHAHABUDDEEN: I understand that, but I
15 am putting to you another model, a model under which he
16 knows of the policy, he commits a crime, but there is
17 no linkage between one and the other. He doesn't
18 intend to "take a benefit," to use your words. He
19 commits a simple crime. All that happens is that he
20 has knowledge of this general policy.
21 MR. FENRICK: It would be our submission that
22 knowledge is all he needs, Your Honour, and nothing
24 JUDGE SHAHABUDDEEN: Even if he intends in no
25 way to connect the one with the other?
1 MR. FENRICK: De facto he is receiving a
2 benefit after a fashion. I mean, he may successfully
3 conceal the body so that the political authorities
4 never become aware of what has happened or anything
5 like that, but it would be our submission that as long
6 as he knows of the existence of the system and he takes
7 an act, it is virtually impossible or extremely
8 difficult to separate the knowledge from the crime, and
9 the knowledge, we would submit, is what is necessary.
10 JUDGE SHAHABUDDEEN: What I am asking you is,
11 what was the model which you think the majority had in
12 mind? Did the majority have in mind a model under
13 which the accused knew of the general policy, committed
14 the crime and intended it, that the commission of that
15 crime should in some way benefit from the policy, or
16 did the majority have in mind a situation in which the
17 accused knew the general policy, committed the crime,
18 but intended in no way to connect the two, having acted
19 for purely personal reasons?
20 MR. FENRICK: I would imagine that the
21 majority had in mind the second option, but we would
22 submit that, in fact, with the knowledge basically
23 comes all that is needed for the link to the armed
24 conflict. Because of the knowledge, you have got what
25 you need for that linkage. Now, there are, of course,
1 many things which must be established before we have
2 criminal culpability, but insofar as the link to the
3 armed conflict is needed, that's all.
4 JUDGE SHAHABUDDEEN: Should I understand you
5 to mean that theoretically you understand the kind of
6 model which I believe the majority might have had in
7 mind, but what you are saying is the factual situation
8 would tend to override that model?
9 MR. FENRICK: Yes, and perhaps for policy
10 reasons, because it may provide a plausible excuse but
11 an unjustified one, it is one which the Court should
12 pay little heed to.
13 JUDGE SHAHABUDDEEN: Mr. Fenrick, my
14 colleague on my right.
15 JUDGE CASSESE: Just to support what
16 Mr. Fenrick has just said. Actually, I am aware of
17 about 20 to 25 German cases about denunciations, and
18 some of those cases support your proposition. What is
19 required is the action by the perpetrators,
20 denunciation of a Jew or a political opponent
21 to Gestapo or the other police corps, and the knowledge
22 that there is persecution against political opponents
23 or Jews. No intention is required. The objective link
24 between the act of denunciation and the general
25 oppressive policy of the national socialist regime was
1 sufficient. So therefore I feel that this
2 interpretation is the right one.
3 JUDGE SHAHABUDDEEN: Yes. I am very grateful
4 to my colleague for that explanation. It is, however,
5 a model which I would classify as belonging to
6 instances in which the accused not only knows of the
7 policy but intends to call upon the policy to cover his
8 crime because he is making a denunciation and the
9 denunciation has to be given effect to by the
10 instrumentalities which control the policy.
11 The model I was putting to you was one which
12 I believed it was possible that the majority had in
13 mind, a model in which the accused knew the policy,
14 committed his crime, the crime might not have been one
15 involving denunciation at all, and so he intended in no
16 way that his crime should benefit in any way from the
17 policy. Do you follow the model which I am putting to
19 MR. FENRICK: Yes, I do.
20 JUDGE SHAHABUDDEEN: I understand the model
21 which my colleague has in mind, but I have a different
22 model in mind.
23 MR. FENRICK: With respect, Your Honour, I
24 find it very difficult to envisage a practical
25 application of that sort of thing. I would think
1 perhaps it would be somewhat unlikely as a practical
3 JUDGE SHAHABUDDEEN: Very good. Well then,
4 it is two minutes past the hour. Shall we adjourn at
5 this point and resume in half an hour's time? At
7 I know we should resume at 4.20. Four
9 --- Recess taken at 4.04 p.m.
10 --- On resuming at 4.24 p.m.
11 JUDGE SHAHABUDDEEN: Ready with your next
12 ground, Mr. Fenrick?
13 MR. FENRICK: Yes indeed, Your Honour.
14 The next ground is ground number 4. The
15 Prosecution is appealing against a finding by the Trial
16 Chamber that all crimes against humanity require a
17 discriminatory intent.
18 It is the submission of the Prosecution that
19 the Trial Chamber erred in finding that all crimes
20 against humanity enumerated under Article 5 require a
21 discriminatory intent. Because of this finding, the
22 Trial Chamber restricted the scope of persecutions
23 under sub-paragraph (H) only to those acts not charged
24 elsewhere in the indictment under Article 5 rather than
25 imposing additional liability for all acts committed on
1 discriminatory grounds. In doing so, it would appear
2 that the sentence against the accused was significantly
4 It is submitted that there is no express
5 requirement for a discriminatory intent for all crimes
6 against humanity in the chapeau of Article 5 of the
7 Tribunal Statute. The inclusion of such a requirement
8 under the corresponding Article 3 of the Statute of the
9 Rwanda Tribunal applies a contrario that there was no
10 intention to impose a similar requirement under the
11 Statute of this Tribunal.
12 Further, there is no requirement of
13 discriminatory intent for all crimes against humanity
14 under international customary law. Indeed, the Trial
15 Chamber conceded that neither the Nuremberg Charter nor
16 Control Council Law No. 10 nor the Tokyo Tribunal
17 Statute, all of which provide a basis, after a fashion,
18 for Article 5, contain any provision imposing a
19 discriminatory requirement for all crimes against
20 humanity. Indeed, all of these provisions distinguish
21 between two types of crimes against humanity,
22 murder-type crimes, such as murder, extermination, or
23 enslavement, and persecution-type crimes committed on
24 political, racial, or religious grounds. Further, this
25 distinction has been reaffirmed under Article 7 of the
1 International Criminal Court Statute which expressly
2 rejects a requirement of discriminatory intent for all
3 crimes against humanity.
4 It is submitted that as a general rule,
5 provisions of the Statute defining crimes should be
6 interpreted as reflecting customary international law
7 unless an intention to deviate from customary
8 international law is express from the terms of the
9 Statute. Here, because of an unambiguous customary law
10 norm that there is no requirement for discriminatory
11 intent for all crimes against humanity, the commentary
12 of the Secretary-General and the interpretative
13 statements of three Security Council Members should not
14 be attributed authoritative weight in construing the
15 scope of Article 5. It is our submission that a
16 presumption exists whereby the Statute should be read
17 in conformity with international conventional or
18 customary law in the absence of an express intent
19 manifested in the Statute to deviate therefrom.
20 The Security Council may modify existing
21 norms but, if so, it is submitted that they must be
22 explicit. For example, Article 5 of the Statute
23 requires a nexus with armed conflict for crimes against
24 humanity. This does not violate the nullum crimen
25 principle and certainly is explicit and it is a
1 narrowing of the customary law norm.
2 Your Honours might recollect that reference
3 was made to statements of Security Council members in
4 the Tadic jurisdiction decision. In interpreting
5 Article 3 of the Statute so that it included Common
6 Article 3 within its scope, reference was made to the
7 text of the provision in Article 3 which provided that
8 laws or customs of war should include but not be
9 limited to certain enumerated offences. The
10 interpretative statements of the Security Council
11 members were then invoked in order to determine the
12 scope of crimes that were covered by this illustrative
13 provision. It is submitted, however, that at that time
14 those interpretative statements were secondary sources
15 in the interpretation of express provisions in the
17 It is our submission that relying on
18 interpretative statements to include discriminatory
19 intent for all crimes against humanity, when Article 5
20 does not contain any such requirement, would be the
21 equivalent of relying on such statements to argue, for
22 example, that Article 3 is exhaustive when, in fact, it
23 is illustrative.
24 It is our submission that factual precedents,
25 unfortunately, are often confused with law. The common
1 conception of crimes against humanity involves the
2 persecution of Jews in Nazi Germany, Muslims in
3 Bosnia-Herzegovina, Albanians in Kosovo today. Since
4 most historical precedents do, in fact, involve
5 discriminatory grounds, there may be an erroneous
6 assumption that such grounds are required as a matter
7 of law.
8 It is our submission that the rules of
9 statutory interpretation also militate against
10 requiring a discriminatory intent for all crimes
11 against humanity. Such a requirement would relegate
12 the crime of persecution under Article 5(H) to a mere
13 residual provision. Furthermore, it would also make
14 other inhumane acts under Article 5(I) redundant. It
15 is suggested that the Statute should be interpreted in
16 order to give proper effect to all of its provisions.
17 The requirement of discriminatory intent for
18 all crimes against humanity is inconsistent with the
19 humanitarian object and purpose of the Statute and
20 international humanitarian law. It would create, for
21 example, a significant normative lacuna by failing to
22 protect civilian populations not listed in the grounds
23 of discrimination.
24 The Rome Statute, as was indicated, does not
25 make any reference to discriminatory intent as a
1 requirement underlying all of the different forms of
2 crimes against humanity. This instrument is the
3 product of a prolonged and laborious process of
4 deliberation among Member States of the U.N. and other
5 interested parties. Reference to specific
6 discriminatory grounds can only be found in relation to
7 the specific crimes of persecution, Article 7(1)(H),
8 Article 7(2)(F), which has to do with affecting the
9 ethnic composition of a population, forced pregnancy
10 under Article 7(2)(F), apartheid under Article 7(2)(H)
11 and enforced disappearance of persons under 7(2)(I).
12 It can only be concluded that the
13 International Community thus considered that, as a
14 general rule, crimes against humanity do not require
15 any particular discriminatory intent or motive except
16 in the case of certain specific types of crime against
17 humanity. It is our submission that the overwhelming
18 weight of authority, in fact, supports the proposition
19 that there is no requirement for a discriminatory
20 intent or discriminatory grounds for all crimes against
22 That closes the submission of the
23 Prosecution, Your Honour.
24 JUDGE SHAHABUDDEEN: Mr. Fenrick, should I
25 understand you to mean this, that absent the
1 Secretary-General's report, absent the three
2 interpretative declarations, the Statute falls to be
3 read in accordance with existing customary
4 international law, and that when so read, it does not
5 include a general requirement for proof of
6 discriminatory intent?
7 MR. FENRICK: Yes, that's our position.
8 JUDGE SHAHABUDDEEN: Now, could you help the
9 Bench on one point? There is some literature on
10 interpretative declarations in relation to
11 multi-lateral treaties. Can you help us with any
12 literature on the subject of interpretative
13 declarations in relation to Security Council
15 MR. FENRICK: Unfortunately, I cannot, Your
16 Honour. We are familiar enough about interpretation of
17 statutes and interpretation of treaties, but I am not
18 aware of anything which specifically refers to
19 interpretation of Security Council resolutions.
20 JUDGE SHAHABUDDEEN: I haven't found any
21 either, but I thought I might profit from the occasion
22 by picking your brain, and counsel on the other side
23 would, at the appropriate time, make a contribution on
24 the subject, I imagine.
25 Now you will pass to your next ground then?
1 MR. FENRICK: That is the end of my grounds.
2 JUDGE SHAHABUDDEEN: Before you take your
3 seat, would you care to respond to a point which I had
4 put to you at the beginning concerning ground 3, I
5 think? I believe in your brief you recognised that it
6 does not impact on any of the concrete reliefs for
7 which you pray, and I caution by repeating that at this
8 point I have no particular position, but I wanted to
9 know whether you had any, whether you had any learning
10 to put to us on that subject, on the receivability of
11 this point having regard to your concession that it
12 does not have any practical impact on the actual
13 reliefs which you seek but you are seeking a
14 pronouncement because of the general importance of the
16 MR. FENRICK: Unfortunately, Your Honour, I
17 have nothing to add to what I said at the time in
18 connection with ground 3, and all we had to say at that
19 time was that we considered it to be a significant
20 question of law of general importance which should be
21 addressed on appeal and that if it stood, it might very
22 well have an adverse persuasive effect on other
23 decisions of the Tribunal. But those are our points in
24 connection with --
25 JUDGE SHAHABUDDEEN: I understand you. Judge
1 Mumba? The bench understands you.
2 Then it would be Ms. Hollis?
3 MS. HOLLIS: Yes, Your Honour.
4 Your Honour, as my colleague indicated, I
5 would be addressing Prosecution grounds of appeal 2 and
7 Ground 2 is the Prosecution appeal which asks
8 you to reverse the Trial Chamber's finding of not
9 guilty on counts 30 and 31 involving the killings of
10 five men in the village of Jaskici. We've had a
11 somewhat related issue this morning in the appellant's
12 presentation when we discussed with you their ground
13 number 3, but we suggest to you that there is a
14 significant difference in the two grounds for appeal.
15 In appellant's ground number 3, the appellant
16 was basically asking you to go behind the Trial
17 Chamber's finding of fact and, indeed, to find that the
18 findings of fact were erroneous. In our request and
19 our submission, in ground 2, we are not asking you to
20 do that. We accept the findings of fact of the Trial
21 Chamber; we accept them fully. We do not ask you to go
22 behind their findings and make a different assessment
23 of the credibility of the evidence.
24 Our position for ground 2 is that, while
25 finding the appropriate facts, the Trial Chamber erred
1 in two different ways. First of all, the Trial Chamber
2 erred by the way it applied the law of proof beyond
3 reasonable doubt to the facts that it found and,
4 secondly, that in reaching its determination that we
5 had failed to meet our burden of proof beyond
6 reasonable doubt, the Trial Chamber also erred in its
7 application of the principle of common purpose or
8 common criminal enterprise. I will address those in
9 the order I have just mentioned them.
10 First of all, Your Honour, we suggest that
11 when it reached its decision in this case, the Trial
12 Chamber erred in the way that it applied the test of
13 proof beyond reasonable doubt. We suggest further that
14 in deciding whether the Prosecution has proven its case
15 beyond a reasonable doubt and in testing whether the
16 Trial Chamber erred in concluding we had not met that
17 burden, that the Appellate Chamber must look at the
18 facts and all reasonable inferences that can be drawn
19 from the facts that were found.
20 Guilt is proven beyond a reasonable doubt if,
21 looking at the facts that are accepted as reliable
22 evidence, the only reasonable explanation or conclusion
23 from those facts is that of guilt. On the other hand,
24 reasonable doubt is not created by bare possibility or
25 by suggestion or by surmise. Reasonable doubt exists
1 only when, looking at the evidence, there is a rational
2 and fair doubt as to guilt of the accused.
3 Looking at the language that the Trial
4 Chamber used in reaching its determination that we had
5 failed in our burden, the Prosecution suggests that
6 that language demonstrates the Trial Chamber's
7 erroneous application of the test for proof beyond
8 reasonable doubt.
9 That language is found in paragraph 373 at
10 page 133 of the findings of fact, and at that point,
11 the Trial Chamber indicated that:
12 "The bare possibility that the deaths of the
13 Jaskici villagers were the result of encountering a
14 part of that large force," and here they are speaking
15 of the large force that entered Sivci, "would be enough
16 in the state of evidence, or, rather, the lack of it,
17 relating to their deaths, to prevent satisfaction
18 beyond reasonable doubt that the accused was involved
19 in those deaths."
20 That's the first ground that they use for
21 finding that we failed to prove our case beyond a
22 reasonable doubt.
23 They go on to indicate:
24 "The fact that there was no killing at Sivci
25 could suggest that the killing of villagers was not a
1 planned part of this particular episode of ethnic
2 cleansing of the two villages, in which the accused
3 took part; it is accordingly a distinct possibility
4 that it may have been the act of a quite distinct group
5 of armed men, or the unauthorised and unforeseen act of
6 one of the force that entered Sivci ..."
7 We suggest to you that by use of terms such
8 as "bare possibility" and "could suggest," the Trial
9 Chamber is indicating its misapplication of proof
10 beyond reasonable doubt.
11 Neither of these two bases for the Trial
12 Chamber's decision is reasonably supported by the facts
13 that they found in this case. In this regard, Your
14 Honours, we suggest to you that, though the issue is
15 different than this morning, the same test would still
16 be applied by Your Honours in resolving this issue.
17 That would be, in looking at the facts that were found
18 by the Trial Chamber, the Trial Chamber will have erred
19 if there is no reasonable support for their decision,
20 if no reasonable person could have concluded as they
21 did, and we suggest that is the case here, even taking
22 into account the deference that you give to decisions
23 on fact of a Trial Chamber.
24 If we could look just for a moment at some of
25 the facts that the Trial Chamber found in this case, we
1 believe it puts our position in very strong
2 perspective. At paragraph 369 of its findings of fact,
3 the Trial Chamber found among the following:
4 "... witnesses did indeed see the accused in
5 Sivci and Jaskici on 14 June 1992, that he entered
6 those two villages together with other armed men as
7 alleged in paragraph 12 of the Indictment, and in Sivci
8 took part in the removal of separated men from that
9 village ... and in Jazkici took part in the calling-out
10 of residents and the separation of men from women and
12 The Trial Chamber was further satisfied
14 "... said group were forcibly removed from
15 the village of Jazkici ..." a listed number of
16 men, "and that the accused participated in their
17 removal and further that the accused beat ..." and then
18 the Trial Chamber lists a number of men that they were
19 convinced the accused beat in the village of Jaskici.
20 The Trial Chamber indicated that:
21 "Of the killing of the five men in Jaskici,
22 the witnesses ... saw their five dead bodies lying in
23 the village when the women were able to leave their
24 houses after the armed men had gone ... That the armed
25 men were violent is not in doubt."
1 That was found by the Trial Chamber.
2 "... a number of these witnesses were
3 themselves threatened with death by the armed men as
4 the men of the village were being taken away. Apart
5 from that, their beating of the men from the
6 village ... is further evidence of their violence."
7 In paragraph 371, the Trial Chamber found:
8 "The group of armed men were relatively few
9 in number and the accused was one of them and took an
10 active part in the rounding up of the men in the
11 village ..."
12 In paragraph 372, the Trial Chamber found:
13 "The village of Jaskici had been quiet
14 before the armed men came; they arrived to the sound of
15 gunfire, conducted with the threats of death and great
16 violence a search of the village ... brutally beat the
17 village men as they lay on the road and, when they left
18 taking the village men with them, shots were heard and
19 five dead men remained lying where they had been killed
20 in the village."
21 In regard to these five dead men and where
22 they were lying, during the trial, there was undisputed
23 testimony of witnesses that out of the list of five men
24 who were killed, two of those victims at least, the
25 bodies of two of those victims were found on the road
1 not far from where the accused and the other members of
2 his armed group had beaten them and in the direction in
3 which the accused and the other armed men had taken the
4 village men away from the village.
5 We suggest to you, Your Honours, that given
6 the facts that were found by the Trial Chamber, they
7 could not have reasonably concluded that the accused
8 had no liability for these murders.
9 If we would look a moment at liability and
10 the findings that the Trial Chamber made concerning
11 liability, at paragraph 764 of the judgement, they found
12 that under the Statute, Article 7(1), that for
13 liability to be attributed, "we must first find intent,
14 and intent is an awareness of the act of participation
15 and a conscious decision to participate in the
16 commission of the crimes." They also indicated that
17 intent can be inferred from all the facts in the
18 circumstances of a case.
19 They also found the second requirement for
20 liability as a participant was participation in conduct
21 that contributed to the commission of an illegal act
22 and that this conduct must have been deliberate and
23 directly and substantially affected the commission of
24 that crime.
25 They also found at paragraph 678 to 687
2 "An accused need not have intended or known
3 of all of the consequences of an act but that an
4 accused who participates directly, deliberately, and
5 substantially with the requisite intent will be
6 responsible for all the natural results that flow from
7 his acts."
8 They gave as an example that the presence for
9 one beating, "if an accused is present for one beating
10 and then stays with the group as they go on to beat
11 another, then that presence, that remaining presence
12 has an encouraging effect and would make an accused
13 criminally liable as a participant."
14 In paragraph 685, they also talked about this
15 idea of a common purpose or a common criminal
16 enterprise, and they indicated that people altogether
17 at the same time taking part in a common criminal
18 enterprise, each in his own way assisting the other,
19 these people are guilty.
20 Now, taking those ideas of liability in the
21 context of these facts, we suggest to you that, indeed,
22 it was not a reasonable conclusion for the Trial
23 Chamber to determine that this accused was not guilty.
24 If we look, first of all, at their conclusion that
25 others may have committed this crime, others than the
1 accused and his group in Jaskici, the facts simply do
2 not support that in any reasonable way.
3 We had evidence at the trial that during the
4 time that men were taken out and put on the street and
5 beaten, women in houses were able to look out the
6 window and observe these beatings. None of these women
7 indicated that new people arrived to participate in
8 these acts.
9 We also had evidence at trial to indicate
10 that as the accused and his armed group led men away
11 from the village, women were able to watch that
12 happen. There was no indication that anyone saw
13 another group come and join with the group of the
14 accused. There was indication, there was evidence at
15 this trial that this group that came to Jaskici was a
16 very violent group, that they were engaged in very
17 violent behaviours, that they threatened to kill
18 members of the village if they did not do as they were
19 told. So the threat of death hung in the air in
21 The Trial Chamber found no such killings in
22 Sivci. There is a distinction here. The evidence
23 relating to Sivci showed the accused involved in one
24 minor part of what happened in Sivci. When we come to
25 Jaskici, the accused is an integral part of the
1 violence in that village, and when he and this small
2 group of men move away from Sivci and come into their
3 own in Jaskici, we see an escalation of the violence
4 and the very threat of death in the air.
5 The facts support the kind of circumstances
6 where death is a very natural consequence of the crimes
7 that this group were conducting in this village. It
8 certainly cannot be said that this would be an
9 unforeseen consequence of the extreme violence that was
10 visited upon the members of this village.
11 Secondly, if we look at the evidence as to
12 what happened in Jaskici and this accused, he was
13 certainly aware of his participation. He certainly
14 made a conscious decision to participate. His
15 activities were deliberate. They substantially
16 contributed to the crimes that were taking place
18 Then we come down to, what about the
19 killings? Were the killings intended? Were they a
20 natural consequence of what was going on? We suggest
21 that if they were not intended in the sense of as the
22 group came into the village, they had a conscious
23 desire to kill, then they were a natural consequence of
24 what occurred in that village and that all of those
25 armed members in that village were willing to engage in
1 such conduct. We know that because they threatened the
2 villagers with death, and that included the accused who
3 threatened one of the villagers with death.
4 We have intent, we have participation, and
5 now in Jaskici itself with this small group of men, we
6 have participation in a common criminal enterprise.
7 This common criminal enterprise was not an unforeseen
8 or an unauthorised enterprise because the enterprise in
9 Jaskici was the same as the enterprise in Sivci was the
10 same as the enterprise throughout all of opstina
11 Prijedor, and that enterprise was to rid opstina
12 Prijedor of non-Serbs, to rid them of all or at least
13 most of the non-Serbs in that area and to do it by a
14 variety of means, including killings.
15 Because throughout the evidence in Tadic, you
16 find situations where villages were cleansed, people
17 were killed. Non-Serbs were taken to camps; they were
18 killed. So to cleanse the area included killings and
19 other violent forms of conduct, as well as less violent
20 but certainly coercive means of removing non-Serbs from
21 the opstina. It was not an unforeseen act in the
22 context of this ethnic cleansing. It was not an
23 unauthorised act. It went on and on and on. It was
24 part of a plan.
25 There was a common criminal enterprise, and
1 the Trial Chamber, when it evaluated that common
2 criminal enterprise, erred by restricting it to too
3 small of an area. It should have taken into account
4 the common criminal enterprise that existed throughout
5 opstina Prijedor and, we would suggest, existed
6 throughout the entire area where Serbs attempted to
7 ethnically cleanse non-Serbs.
8 If we take this context then, we suggest to
9 you that the Trial Chamber erred not because we would
10 substitute a separate reasoned judgement but because
11 there's no reasonable basis for their judgement. Their
12 two bases to find the accused not guilty are not
13 reasonably supported by the record or by the law, not
14 supported by the facts they themselves found.
15 If we were to assume that, indeed, a
16 component or one person from this larger force that
17 entered Sivci was the person who came to Jaskici and
18 killed these five men, were we to assume that, even
19 though we suggest to you it is incredible, the accused
20 would nonetheless be guilty because he participated
21 with that armed force in Sivci. He participated in
22 Jaskici with the same common criminal purpose, to rid
23 these villages and the opstina of non-Serbs and to do
24 it with violence or with less coercive measures if
25 possible. Killing was not something that he could not
1 have foreseen. He himself was involved in killings and
2 not just the killings that are contested here, but you
3 have counts involving Sefik Sivac and counts involving
4 Salih Elezovic in the Omarska camp where the Trial
5 Chamber found that these men were beaten, the accused
6 participated to some extent in those beatings, and the
7 Trial Chamber found that, as a result of those
8 beatings, those men died.
9 The evidence against this accused is an
10 evidence of extreme violence and brutal treatment. It
11 could not have been unforeseen to him that this would
12 have happened; it certainly was not unauthorised that
13 it would happened. By not taking into account all of
14 these facts that they themselves found, we suggest that
15 the Trial Chamber erred in arriving at its decision
16 that there was a failure of proof beyond reasonable
18 One last point on this issue: The
19 Prosecution suggests that it is incredible to say
20 someone came from outside this armed group and
21 committed these crimes.
22 Why do we say that? Earlier, I pointed out
23 that no one in the village who was able to look out at
24 what was happening saw anyone come into the village and
25 join this group. No one heard anyone come into this
1 village and join this group. No one heard the
2 accused's group leave, a period of silence, and then
3 another group come in and shots being fired. All of
4 what happened was in the context of the accused and his
5 armed group in this village. So in order to assume
6 that someone else committed this crime, you would have
7 to assume one of two things: First, that these other
8 participants came into the village were totally
9 stealthy about their approach, made no noise, did not
10 come accompanied by gunfire as the accused had, made no
11 words of greeting to this group in the village; simply
12 came stealthily to the group, blended in with them, and
13 immediately killed five men. We suggest that that is
15 The second possibility would be that this
16 group came in, it came in accompanied by gunfire as the
17 accused had, it spoke to the accused's group, it
18 mingled in with this group, and then it committed these
19 killings, but the women in the houses, who had the
20 opportunity to hear what was going on and to
21 occasionally see what was going on, never saw that and
22 never heard that, and we suggest on these facts that is
23 not a plausible theory either.
24 So for these reasons, we suggest that the
25 Trial Chamber did err in this regard, and we would ask
1 you to reverse those findings of not guilty as to the
2 killings of the five men in the village of Jaskici.
3 Turning to ground number 5, and before --
4 JUDGE SHAHABUDDEEN: Ms. Hollis, I understand
5 you to mean that the error which you say was committed
6 by the Trial Chamber was twofold, that in determining
7 the content of the idea of common purpose or common
8 enterprise in this case, they should have taken into
9 account, but did not, the fact that the accused was
10 engaged in implementing a general policy of ethnic
11 cleansing, the characteristics of which should have
12 been known to him and which implied the possibility of
14 MS. HOLLIS: That is correct, Your Honour.
15 In fact, the natural consequence would include violence
16 to include murders.
17 JUDGE SHAHABUDDEEN: And your second point
18 is, as I understand you, the Trial Chamber expressed a
19 doubt based on the possibility, as it saw it, of
20 elements from a larger group coming into the locality
21 and committing the deed. I understand you to say that
22 there is no material on the record to support that
23 possibility and that a doubt must always have some
24 factual foundation for the doubt.
25 MS. HOLLIS: Yes, Your Honour. If I could
1 perhaps put that slightly differently?
2 JUDGE SHAHABUDDEEN: Please pass to your next
3 point then.
4 MS. HOLLIS: If I could respond to your --
5 JUDGE SHAHABUDDEEN: Oh, yes, yes.
6 MS. HOLLIS: The Prosecution's position is
7 that the Trial Chamber, based on a bare possibility,
8 concluded that another group may have been involved or
9 another individual may have actually carried out the
10 killings. Our position is that the bare possibility of
11 something does not rise to the level of reasonable
13 JUDGE SHAHABUDDEEN: Speculative.
14 MS. HOLLIS: It is speculative. And that
15 reasonable doubt has to be a fair and rational doubt
16 based on assessment of the evidence, and that on the
17 assessment of this evidence, there is no evidence from
18 which one could reasonably conclude that persons from
19 outside came to Jaskici and committed the murders.
20 Secondly, if you were to determine one could
21 reasonably conclude it was part of this larger force,
22 the accused would still be liable under the common
23 criminal enterprise doctrine because of this wider
24 ethnic cleansing that all of them were engaged in.
25 JUDGE SHAHABUDDEEN: Thank you. We are ready
1 to hear you on the last point.
2 MS. HOLLIS: Thank you, Your Honour.
3 Ground 5 of the Prosecution's submission is
4 one of the grounds, Your Honour, that you requested we
5 address in that it deals with the Trial Chamber's
6 denial of the Prosecution request that the Defence be
7 ordered to disclose statements of witnesses they were
8 going to call or had called in their case at trial.
9 This ground of appeal does not meet the
10 requirements of Article 25. We are not suggesting that
11 this decision by the Trial Chamber invalidated the
12 judgement. We have no basis to argue that this decision
13 resulted in a miscarriage of justice.
14 We request that the Appeals Chamber consider
15 this issue because we believe it is an issue of
16 significance to all practitioners before this Tribunal
17 and to Trial Chambers before this Tribunal, and we
18 believe that as it stands now, there is persuasive
19 authority from this case that the Defence may not be
20 ordered to disclose such witness statements. Our
21 position is that is an erroneous authority, that indeed
22 a Trial Chamber has the authority to order such
23 disclosure, that such an order would not violate any of
24 the statutory provisions or Rules of this Tribunal,
25 that such an order would not violate any fundamental
1 rights of the accused, and that indeed such an order
2 would contribute to the overall mandate of this
3 Tribunal, and that is, for the factfinders to be given
4 evidence which has been fully tested.
5 One of the ways to test that evidence is for
6 witnesses who have made statements that may be
7 considered inconsistent, to be confronted with those
8 statements and to be allowed to explain those
9 inconsistencies. Inconsistencies may or may not have a
10 bearing on the weight to be given evidence, but the
11 factfinder should have the benefit of weighing such
12 inconsistencies in arriving at their determination.
13 We suggest that the Trial Chamber erred in
14 determining that a privilege would be applied which
15 does not exist before this Tribunal. The Judges in
16 this Tribunal had the opportunity to enact rules that
17 would incorporate the privileges the Judges believed
18 were necessary to ensure a fair trial and proper
19 functioning of the Tribunal. The Judges of this
20 Tribunal chose not to set forth the privilege that was
21 used in this case. We suggest that privilege should
22 not be incorporated into the Rules of the Tribunal or
23 into the law of the Tribunal.
24 When we are looking at privileges, we suggest
25 that we must be very, very careful in applying them
1 because a privilege inevitably will result in what
2 could be highly credible evidence, highly relevant
3 evidence, not being presented to the factfinder. So
4 there must be some compelling reason to have a
5 privilege that excludes relevant evidence or relevant
7 This Tribunal did not adopt the privilege
8 that was used here, it adopted a very narrow
9 attorney-client privilege. It did not go beyond that
10 to include that statements given to Defence counsel
11 were privileged, not, at least, where these witnesses
12 then come forward to testify.
13 It could be argued by some that to grant the
14 Prosecution's ground of appeal here would infringe the
15 accused's right not to present a defence. We suggest
16 that, on further reflection, that is not an appropriate
17 argument because when this provision will come into
18 play is when the Defence has chosen to put on a
19 defence, they have chosen to present evidence, so it in
20 no way compels them to present evidence, but it says,
21 once they have chosen to do so, that evidence should be
22 subjected to the same scrutiny that the evidence
23 presented by the Prosecution should be subjected to.
24 Why is that? Is it to give the Prosecution
25 an edge in the case? No. It is for the same reason
1 that Prosecution evidence should be subjected to
2 scrutiny: So that the factfinder, in determining what
3 are the reliable facts, has the benefit of testing of
4 that evidence, very rigorous testing of that evidence.
5 One of the ways, traditionally, such evidence is
6 tested, is to look at prior statements that may have
7 inconsistencies and to determine the relevance, if any,
8 of those inconsistencies when assessing credibility.
9 The Trial Chamber, we suggest, also erred
10 when it determined that it would not look beyond common
11 law jurisdictions and practice in resolving this
12 issue. This Tribunal, in many ways, has a wondrous and
13 unique opportunity. It is an international tribunal
14 that blends the law from all the civilised societies of
15 the world. It takes the inquisitorial system, it takes
16 the common law system, it takes variance within all
17 those systems, and the unique opportunity is to take
18 all of those systems and from them to choose the very
19 best assets so that this Tribunal can come up with
20 procedures and rules that best enable you to do what
21 you are mandated to do: within the protections given
22 to the accused, to determine the truthfulness of what
23 happened, a truth-seeking process. That is what
24 criminal justice systems always are. But here you can
25 blend all aspects and come up with what is best, and we
1 suggest that what is best is to subject the Defence
2 evidence to the same level of scrutiny as the
3 Prosecution evidence by way of examination of prior
4 statements. That is what best gives the factfinder the
5 ability to determine what is the truth.
6 Now, there may be some issue that would arise
7 as to what is a statement, and that would be an issue
8 that would have to be resolved. Would notes of a
9 Defence counsel be a statement? We have the same issue
10 with notes that are taken by investigators. That issue
11 can be resolved by Trial Chambers. But what we would
12 ask this Appellate Chamber to do would be to find that
13 there is no privilege such as the Trial Chamber set
14 forth, and that when the Defence determines that the
15 accused will put on evidence, that at some point,
16 either before the witness is called or after the
17 witness is called and before cross-examination, the
18 Prosecution has the right to receive any statements
19 that that witness may have made to the Defence or that
20 may be in the possession of the Defence.
21 If the Defence is concerned that this may
22 cause some witnesses to be hesitant to come forward, we
23 would ask: What is the basis of the concern? If it is
24 because the witness is going to change their story, the
25 Trial Chamber should know that. If it is because there
1 is sensitive information that the witness does not want
2 to come forward, the Defence always has the possibility
3 of submitting such statements to the Trial Chamber for
4 an in-camera review. So that should not be dispositive
5 of the issue.
6 So we suggest for policy reasons and because
7 it violates no fundamental right of the accused and
8 because it is not inconsistent with the Statute and our
9 Rules, that this Appellate Chamber find that the Trial
10 Chamber erred and find that the Trial Chamber does have
11 the power to order production of such statements and
12 should do so in the circumstances that I have
14 I have no further comments on that ground.
15 If there are any questions ...
16 JUDGE SHAHABUDDEEN: You suggested an idea,
17 say you are right, that there are legal systems, the
18 practice wherein is consistent with the position you
19 are taking; is that what you're saying?
20 MS. HOLLIS: Yes, Your Honour.
21 JUDGE SHAHABUDDEEN: Such as what?
22 Continental systems?
23 MS. HOLLIS: For example, Your Honour, I
24 believe in practice in a continental system you would
25 have that because witnesses who appear to give evidence
1 for the Defence, if there were statements, those
2 statements would be part of a dossier both parties
3 would have access to. So in that sense, certainly the
4 Prosecution would have access to evidence that could be
5 relevant for the Defence.
6 In the United States, Your Honour, I will
7 speak for just a moment, if I might --
8 JUDGE SHAHABUDDEEN: Yes.
9 MS. HOLLIS: -- of the jurisdiction from
10 which I come, which is the military system in the
11 United States, and the military system, for many, many
12 years, had very, very broad disclosure obligations by
13 the Prosecution to the Defence and in recent years has
14 expanded the disclosure obligations of the Defence to
15 the Prosecution, including providing witness
16 statements, and the theory is that it will enhance the
17 truth-seeking process and it does not violate a right
18 of the accused, once the accused decides to put on
19 evidence, for them to disclose statements of their
20 witnesses so that the factfinder may be more informed
21 about any potential inconsistencies.
22 JUDGE SHAHABUDDEEN: You are inviting the
23 Appeals Chamber to take the position that the only
24 privileges which the accused has are privileges set
25 forth either in the Statute or in the Rules?
1 MS. HOLLIS: That is correct, Your Honour,
2 unless, of course, in the Statute and Rules the
3 provisions of either the Articles or the Rules would be
4 in direct contradiction to a well-established and
5 universally-accepted principle of the fundamental right
6 of the accused. For example, if the Statute were to
7 say that the accused had to present evidence and prove
8 his innocence, then, of course, we would not support
9 that. But we don't see any such extreme measure. So,
10 yes, with that sort of extreme situation aside, that is
11 what we are suggesting.
12 JUDGE SHAHABUDDEEN: How would you react to a
13 possible argument that the Rules being subordinate to
14 the Statute, the imperative direction of the Statute
15 that the accused should be afforded a fair trial,
16 overrides the Rules and means that in a possible case,
17 although the Rules do not provide for it, the Trial
18 Chamber was competent to exclude material on the ground
19 that to admit the material might be unfair to the
21 I am not putting that proposition to you as
23 MS. HOLLIS: I do agree that the Statute
24 overrides the Rules and I do agree that if a Trial
25 Chamber were to find that it could not enforce a Rule
1 because it would deprive the accused of a fair trial,
2 then the statutory provision for a fair trial would
3 have to prevail. I think there would have to be a
4 showing of the deprival of a fair trial, however.
5 It is interesting to note, if we talk about
6 the Statute and we look at the Statute, we have been
7 discussing, earlier today in much detail and yesterday
8 as well, Article 21 of the Statute, which, of course,
9 speaks in terms of the accused's rights at trial, and
10 it indicates, if we look at paragraph 4:
11 "4. In the determination of any charge
12 against the accused pursuant to the present Statute,
13 the accused shall be entitled to the following minimum
14 guarantees, in full equality ..."
15 Interestingly, if we look at sub-part (e):
16 "(e) to examine, or have examined, the
17 witnesses against him and to obtain the attendance and
18 examination of witnesses on his behalf under the same
19 conditions as witnesses against him."
20 Well, one of the conditions for witnesses
21 against him is that if we have statements of those
22 witnesses, they're turned over to the Defence. So if
23 we are talking about full equality, that would say that
24 the Defence turns their statements over to the
25 Prosecution because that is certainly a condition the
1 Prosecution must meet to call witnesses. We are not
2 saying that we have to create statements, but if we
3 have them, we have to turn them over. So, yes, Statute
4 would prevail.
5 JUDGE SHAHABUDDEEN: You have to turn them
6 over --
7 MS. HOLLIS: Yes, by the Statute, Your
9 JUDGE SHAHABUDDEEN: -- pursuant to a
10 direction issuing from the Rules; is that right?
11 MS. HOLLIS: That's correct, Your Honour,
12 Rule 66 is one and also, of course, Rule 68 --
13 JUDGE SHAHABUDDEEN: Is there a similar
14 requirement in relation to the Defence?
15 MS. HOLLIS: No, there is not, and that was
16 litigated at trial, that there is nothing that says the
17 Defence does not have to in the Rules but there is
18 nothing that specifically requires production, although
19 I think in the current Rules, which would not be
20 applicable to this case, but in the current Rules, at
21 least the Defence has to give a summary of the facts to
22 which witnesses will testify. So we are at least
23 moving in that direction.
24 JUDGE SHAHABUDDEEN: Any questions?
25 Ms. Hollis, we are obliged to you and to your
1 colleague for your assistance. Does that conclude your
3 MS. HOLLIS: It does, Your Honour.
4 JUDGE SHAHABUDDEEN: Then on the scheme, at
5 17.30, which is creeping up on us, we would be hearing
6 next Mr. Clegg, and I take it you would readily concur
7 with the Bench that it would meet your convenience to
8 start in the morning?
9 MR. CLEGG: Yes.
10 JUDGE SHAHABUDDEEN: Then the court stands
11 adjourned until 10.00 tomorrow.
12 --- Whereupon proceedings adjourned at
13 5.20 p.m., to be reconvened on
14 Wednesday, the 21st day of April, 1999,
15 at 10 a.m.