Tribunal Criminal Tribunal for the Former Yugoslavia

Page 513

1 Wednesday, 21st April, 1999

2 (Open session)

3 (The Appellant entered court)

4 --- Upon commencing at 10 a.m.

5 JUDGE SHAHABUDDEEN: Following on what was

6 decided Monday afternoon in response to a proposition

7 which you presented to us and in respect of which we

8 held a private session, the Prosecution is to report

9 this morning. So the question I raise is: What is the

10 sense of both sides as to whether the report should be

11 done during a private session?

12 MR. CLEGG: I would submit that it ought to

13 be done in private session.

14 JUDGE SHAHABUDDEEN: Any objections?

15 MS. HOLLIS: No, Your Honour.

16 JUDGE SHAHABUDDEEN: Then it is so ordered.

17 We are in private session, Mr. Registrar?

18 THE REGISTRAR: Not yet. Now we are.

19 (Private session)

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11 JUDGE SHAHABUDDEEN: Yes, yes. Very good.

12 Then shall we go back into public session at this

13 point?

14 MR. CLEGG: Yes, Your Honour.

15 MS. HOLLIS: Yes, Your Honour.


17 (Open session)


19 MS. HOLLIS: Your Honour, we would draw the

20 Appellate Chamber's decision to paragraph 6.5 of our

21 brief regarding ground 5, wherein we state --


23 MS. HOLLIS: It is 6.5, Your Honour. Wherein

24 we state that the witness statements' decision is

25 directly contradicted by more recent practice at the

Page 518

1 Trial Chamber level, and we cite to a decision in the

2 Dokmanovic case.

3 On further reflection, Your Honours, the

4 Prosecution would withdraw that paragraph because it

5 appears to us that the Dokmanovic decision does not

6 directly contradict the Trial Chamber decision in this

7 case. The Dokmanovic decision was issued for reasons

8 entirely separate, having to do with being able to

9 ensure a trial without undue delay and to ensure to the

10 accused a right to a fair and expeditious trial; and as

11 set forth in the decision, the Trial Chamber wanted

12 documents from the Defence primarily for the purpose of

13 trial management and to promote a better comprehension

14 of the issues that the Trial Chamber would face.

15 Therefore, it was a decision rendered for entirely

16 different purposes, and we do not wish to mislead the

17 Appellate Chamber. We do not believe that it directly

18 contradicts the Trial Chamber.

19 JUDGE SHAHABUDDEEN: Ms. Hollis, that is

20 entirely in the spirit of the bar, and I take it,

21 Mr. Clegg, you offer no objection?

22 MR. CLEGG: Of course not.

23 JUDGE SHAHABUDDEEN: Yes, yes. Thank you

24 very much.

25 MS. HOLLIS: Thank you, Your Honour.

Page 519

1 JUDGE SHAHABUDDEEN: Then, Mr. Clegg, are you

2 ready to open your response?

3 MR. CLEGG: Yes.

4 JUDGE SHAHABUDDEEN: Yes. We have you down

5 for two hours. That is a maximum period.

6 MR. CLEGG: A minimum. Could I begin by

7 indicating to Your Honours that I will be dealing with

8 the first four grounds of the Prosecution's appeal in

9 the order in which they presented their submissions to

10 the Appeals Chamber, and Mr. Livingston will be dealing

11 with the fifth ground.

12 Turning first to ground 1. In our

13 submission, in order to determine whether victims enjoy

14 the protection of Article 2 of the Tribunal Statute, it

15 is necessary to determine whether they were protected

16 persons under the Geneva Convention.

17 Article 4 of the IV Geneva Convention states

18 that:

19 "(Protected persons) ... are those who ...

20 find themselves in case of a conflict or occupation, in

21 the hands of a Party to the conflict or Occupying Power

22 of which they are not nationals."

23 It follows that a number of questions need to

24 be determined in deciding whether any individual enjoys

25 protection under Article 2.

Page 520

1 The first question, that which has exercised

2 the Court most anxiously, is: What is the appropriate

3 test to be applied in order to answer the question, "Is

4 this an international conflict?"

5 A second and, to some extent, related

6 question is: Can you have an international conflict

7 and an internal conflict in the same jurisdiction at

8 the same time?

9 Then the third question is: Applying the

10 facts as found by the Trial Chamber to the correct

11 test, was there an international or an internal

12 conflict in the region of the former Yugoslavia that we

13 are concerned with in this appeal after the 19th of May

14 of 1992?

15 Turning then, if I may, to the first

16 question, namely, what is the appropriate test to be

17 applied in order to answer the question "Is this an

18 international conflict?" The Prosecution has submitted

19 that the correct test is the demonstrable link test.

20 That test is a wide test and would embrace all

21 situations covered by the more restrictive effective

22 control test or a very similar but differently

23 described agency test. In our submission, the proper

24 test is the effective control test, and the

25 demonstrable link test is the wrong test.

Page 521

1 It was conceded yesterday by Mr. Fenrick that

2 there is no authority to support the demonstrable link

3 test that he submits is the correct test to apply. We

4 rely upon the absence of authority because we submit

5 that there is authority to support the effective

6 control test that we submit is the correct test.

7 It is, we submit, implicit in the submission

8 of the Prosecution that the reasoning of the Appeals

9 Chamber in the interlocutory appeal on jurisdiction in

10 the Tadic case applied the wrong reasoning in its

11 judgement. We submit that that judgement proceeded on

12 the effective control test. We draw attention to

13 paragraph 76 of the judgement of the Appeals Chamber in

14 which the judgement refers in the following terms to the

15 question that we are now addressing:

16 "If the Security Council had categorised the

17 conflict as exclusively international and, in addition,

18 had decided to bind the International Tribunal thereby,

19 it would follow that the International Tribunal would

20 have to consider the conflict between Bosnian Serbs and

21 the central authorities of Bosnia-Herzegovina as

22 international. Since it cannot be contended that the

23 Bosnian Serbs constitute a State, arguably the

24 classification just referred to would be based on the

25 implicit assumption that the Bosnian Serbs are acting

Page 522

1 not as a rebellious entity but as organs or agents of

2 another State, the Federal Republic of Yugoslavia

3 (Serbia-Montenegro). As a consequence, serious

4 infringements of international humanitarian law

5 committed by the government army of Bosnia-Herzegovina

6 against Bosnian Serb civilians in their power would not

7 be regarded as grave breaches ..."

8 Now, the important words used by the Appeals

9 Chamber in the Tadic interlocutory appeal are, in our

10 submission, "as organs or agents of another State." If

11 somebody is the organ or the agent of another state, in

12 our submission, that is another way of expressing the

13 effective control test.

14 The Appeals Chamber judgement is not couched

15 in language that is consistent with a demonstrable link

16 test. Therefore, we submit that the Appeals Chamber

17 judgement in the Tadic case is authority to support the

18 effective control test.

19 We would also submit that the Nicaragua

20 decision is also consistent with the effective control

21 test. Mr. Fenrick strove manfully yesterday to seek to

22 distinguish the Nicaragua case from the facts of this

23 case. The reason for such heroic efforts was, of

24 course, a recognition, in our submission, that if no

25 distinction in truth exists, then that is also

Page 523

1 authority for the effective control test.

2 Third, of persuasive force, the Encyclopaedia

3 of Public International Law also asserts that that is

4 the appropriate test.

5 So our starting point is that there is a

6 complete absence of authority to support the

7 proposition advanced by the Prosecution --


9 transcript would have a precise reference to

10 the Encyclopaedia of Public International Law to which

11 you're referring?

12 MR. CLEGG: It does. It's at page 461 of the

13 transcript.

14 JUDGE SHAHABUDDEEN: All right. We'll find

15 it.

16 MR. CLEGG: Line 15.

17 The first proposition is that there is

18 conceded to be a complete absence of authority to

19 support the Prosecution's assertion that a demonstrable

20 link is all that is necessary. We submit that there is

21 clear authority, including authority from this Appeals

22 Chamber, supporting the effective control test.

23 The second approach embraces the concept of

24 state responsibility. The grave breach provisions of

25 the Geneva Convention also embrace state

Page 524

1 responsibility. We would submit that a state can only

2 be responsible as a consequence of a human being or

3 human beings acting as the agent of the state. The

4 state isn't capable of acting independently of the

5 people who control it. If the effective control test

6 were to be applied, then it is easy to see how the

7 concept of state responsibility can be catered for

8 under the same test, because if the state is in

9 effective control of the grave breach provisions, then

10 it is clearly right that the state should be

11 responsible for those actions. Therefore, the

12 principle of state responsibility would, we would

13 submit, in equity be legitimate to be dealt with under

14 the convention.

15 However, if you were to adopt the test

16 propounded by the Prosecution and adopt the

17 demonstrable link test, that would, in our submission,

18 be a wholly inappropriate test to embrace the concept

19 of state responsibility. Demonstrable link obviously

20 falls significantly short of effective control, and the

21 result would be that states would be liable to be held

22 responsible for the actions of other states or entities

23 over which they did not have any effective control.

24 That would, in our submission, result in an unjust

25 conclusion for the states.

Page 525

1 Third, we would submit that the demonstrable

2 link test will introduce an element of uncertainty into

3 an area of international law which ought to be capable

4 of clear and precise definition. The effective control

5 test is one that it is capable to apply in any

6 situation. By having regard to the evidence in the

7 case, one can answer the question "Is there effective

8 control being exercised by an outside entity or state

9 over the forces engaged in this conflict?" That is a

10 question that is capable of being answered by reference

11 to the evidence in any situation one cares to imagine.

12 It is a question that will be answered on the evidence

13 and it can be applied equally to all situations.

14 It is, to some extent, the mirror of what one

15 might have in most of the criminal jurisdictions of the

16 world, namely, the agency principle whereby if you

17 instruct someone or employ somebody to carry out a

18 contract killing, then you are as much guilty of murder

19 as if you had pulled the trigger yourself. It's a

20 concept of agency that, expressed differently, is

21 elevated and adapted to the international arena. But

22 as a legal concept, it is no stranger, we would submit,

23 to the lawyers of most jurisdictions.

24 The demonstrable link test, in our

25 submission, has the following frailties: First, how

Page 526

1 much of a link, how much of a connection is necessary

2 in order to elevate the crimes to grave breaches? The

3 Prosecution in the course of their submission said, in

4 terms, "Well, of course, not just any financial or

5 logistical support would be sufficient," although

6 financial and logistical support is, in English, a

7 demonstrable link. So if that's not sufficient, what

8 is and where do you draw the line?

9 Applying the Prosecution's test, there will

10 inevitably be a substantial grey area. Applying the

11 effective control test, there is a no grey area. A

12 simple decision of fact has to be made: Is there or is

13 there not effective control?

14 The Prosecution sought to draw an analogy

15 with the lend/lease scheme between the United States of

16 America and the United Kingdom during the Second World

17 War. The effect of that scheme was that the United

18 States of America, in reality, were financing the war

19 against Germany. They gave the United Kingdom not just

20 the money to pay our troops; they made the bullets that

21 we could fire and the bombs that we could drop. I ask

22 the question rhetorically: If one applied a

23 demonstrable link, is somebody who finances and arms a

24 side to a conflict not demonstrably linked to the party

25 engaged in the conflict?

Page 527

1 JUDGE SHAHABUDDEEN: Mr. Clegg, we must

2 remember that scholars will be reading the transcripts

3 50 years hence, so when you identify the lend/lease

4 arrangements with the United Kingdom, that could lend,

5 I believe, itself to some degree of confusion. When

6 you speak of "we" in that connection, perhaps there

7 would be some prudence in remembering that you're

8 appearing for Mr. Tadic.

9 MR. CLEGG: Indeed, yes. I apologise.

10 In addressing the first question, namely,

11 what is the appropriate test to be applied, in our

12 submission, the appropriate test is the effective

13 control test. It has the support of authority, it

14 provides the international arena with a clear and

15 easy-to-apply statement of the law, and the alternative

16 is uncertain, unsupported by authority and, we would

17 submit, for those reasons, undesirable.

18 May I move to consider the second question,

19 namely: Can you have an international conflict and an

20 internal conflict at the same time?

21 In our submission, it is perfectly possible,

22 in the region of the former Yugoslavia, namely Bosnia,

23 to have an international conflict in the south between,

24 for example, the Croats and the Muslims, where there

25 has been proved to be direct involvement of Croatian

Page 528

1 troops, making it an international conflict, and, at

2 the same time, in a wholly separate region in the north

3 of Bosnia, a separate but internal conflict between the

4 indigenous Serb population against the indigenous

5 Muslim population.

6 Indeed, in our submission, it would be absurd

7 to alter the categorisation of the conflict in the

8 north, in the example that I have just given, from a

9 national to an international conflict as a consequence

10 of the outbreak of a wholly separate and distinct

11 international conflict between separate parties in a

12 separate region. It would render the classification of

13 conflict to chance as to whether a separate conflict

14 occurred in a different part of the country of a

15 different category.

16 Perhaps, if I could, one reference, both from

17 the transcript yesterday and from the earlier judgement

18 to illustrate this point.

19 It is our submission that, with respect, the

20 approach of the Prosecution was, in part, contradictory

21 so far as this aspect of their submission was

22 concerned.

23 At page 134, the Prosecution submitted, by

24 reference to the Celebici decision, the following

25 quotation:

Page 529

1 "Should the conflict in Bosnia and

2 Herzegovina be international, the relevant norms of

3 international humanitarian law apply throughout its

4 territory until the general cessation of hostilities

5 unless it can be shown that the conflicts in some areas

6 were separate internal conflicts unrelated to the

7 larger international conflict."

8 So that is a quotation clearly supporting the

9 proposition that I have just made to the Court. That

10 quotation is adopted by the Prosecution at page 134.

11 But by page 147, you have a slightly

12 differently-phrased approach, where the Prosecution

13 submit:

14 "'Well, you can have an international armed

15 conflict going on in this little corner of Bosnia, but

16 up here at this end, here you still don't have the

17 umbrella "international armed conflict" applying.' To

18 me, the law applies to -- once you have an

19 international armed conflict, it applies to the whole

20 territory."

21 Well, that, if it was intended to be a

22 proposition contrary to the one advanced in the

23 Celebici decision, is, in our submission, one that is

24 without the benefit of authority. It is also, we would

25 submit, contrary to the view expressed by the Appeals

Page 530

1 Chamber in the Tadic interlocutory appeal at paragraph

2 72 on page 39, where the Court held:

3 "To the extent that the conflicts had been

4 limited to clashes between Bosnian Government forces

5 and Bosnian Serb rebel forces in Bosnia-Herzegovina, as

6 well as between the Croatian Government and Croatian

7 Serb rebel forces in ... Croatia, they have been

8 internal (unless direct involvement of the Federal

9 Republic of Yugoslavia ... could be proven) --"

10 I'm sorry, I have read the wrong highlighted

11 passage. I am very grateful to Mr. Livingston. It is,

12 in fact, slightly earlier in the passage, where the

13 judgement refers to:

14 " ... conflicts in the former Yugoslavia

15 could have been characterised as both internal and

16 international, or alternatively, as an internal

17 conflict alongside an international one."

18 So there is clearly there the recognition by

19 the Appeals Chamber that you can have both at the same

20 time when they use the words "an internal conflict

21 alongside an international one."

22 The other quotation, not without interest,

23 because that is another reference to the direct

24 involvement that would be necessary to be proven.

25 JUDGE SHAHABUDDEEN: The Celebici passage

Page 531

1 which you read use the words, I think, "unless it can

2 be shown." Would it be your contention that the

3 showing has to be by the Prosecution?

4 MR. CLEGG: Yes.

5 JUDGE SHAHABUDDEEN: Did Celebici go on to

6 explain by whom the showing had to be done?

7 MR. CLEGG: It didn't say so explicitly, no.

8 We would submit that the establishment that the

9 conflict is international is one of the fundamental

10 ingredients of the offence alleging grave breaches, and

11 therefore, it is incumbent upon the Prosecution to

12 place before the Trial Chamber evidence that would

13 enable the Trial Chamber to draw the conclusion of fact

14 that the evidence was international from evidence that

15 it presents normally through the mouths of expert

16 witnesses, but it must be something -- in our

17 submission, it must be proved through evidence in the

18 absence of some admission or concession.

19 If one reflects on the Rajic case, there

20 there was an international conflict because it was

21 proved that there was direct involvement of Croatian

22 soldiers in the fighting, so the basis upon which the

23 Trial Chamber in that case came to the conclusion that

24 there was an international conflict is founded on the

25 facts presented by the Prosecution in the trial

Page 532

1 process, and the contradistinction between that and

2 this case is that, in our submission, when applying the

3 appropriate test to the facts, the Prosecution were not

4 able to establish that effective control was being

5 exercised in this case over the forces that were

6 engaged in the conflict.

7 JUDGE SHAHABUDDEEN: What do you make of the

8 principle to which you invited attention, as flowing

9 from the jurisprudence of this Chamber, that if there

10 is proof of external armed intervention in a state, the

11 presumption is that there is an international conflict

12 throughout the territory of that state without any

13 temporal or geographical limitations?

14 MR. CLEGG: There are two parts, I think, to

15 the question posed. If there is proof of external

16 armed intervention, I think one could assume from the

17 use of those words that that would have embraced

18 effective control because you couldn't have external

19 armed intervention without effective control.

20 Difficult to imagine.

21 So you would have there, clearly, an

22 international conflict in relation to the conflict that

23 the external armed forces were engaged in, but we would

24 not accept that there is any jurisprudence to support

25 the assertion that that international conflict extends

Page 533

1 throughout the territory of that state without any

2 geographical limitation. Indeed, we would submit that

3 the jurisprudence suggests to the contrary.

4 In the Appeals Chamber decision in the Tadic

5 case, it was recognised in terms that, paragraph 72:

6 "... the conflicts in the former Yugoslavia

7 could have been ... an internal conflict alongside an

8 international (conflict)."

9 So that statement of principle is, we would

10 submit, directly contrary to the proposition

11 just adumbrated by the Court.

12 JUDGE SHAHABUDDEEN: Yes, I adumbrated it

13 without reference to the documentation which I

14 lamentably do not have before me, but it was my

15 impression that somewhere in the decision of this

16 Chamber in the Tadic jurisdiction case, the Trial

17 Chamber might have said, so I think, that if there is

18 proof of external armed intervention in the territory

19 of a state, the implication was that that led to an

20 international armed conflict without any temporal or

21 geographical limitations. So that the juridical

22 problem which that presented was how to reconcile that

23 with these other dicta to the effect that there could

24 be an international armed conflict alongside an

25 internal one. I have no doubt that there can be that.

Page 534

1 But I wanted to know how you might want to reconcile

2 the two propositions if I was right in recalling what

3 was said in the Tadic jurisdiction case.

4 MR. CLEGG: I think the way that we would

5 advance our submission is that if there were external

6 armed intervention, then there would clearly be an

7 international conflict, and that international conflict

8 would embrace all of the conflict that was connected

9 with or embraced by the external armed intervention,

10 and that would cover the whole of the area, and there

11 may well be a presumption that the fighting in the area

12 was clearly a part of that international conflict.

13 I am not seeking to advance a submission that

14 one should examine the war skirmish by skirmish in

15 order to determine whether there is an international

16 armed conflict. That would be an absurd approach.

17 Clearly once there is an international -- let me just

18 rephrase that.

19 Certainly where there is external

20 intervention, then that will render all of the conflict

21 international unless there is a wholly distinct and

22 separate conflict that is internal in its nature.

23 JUDGE SHAHABUDDEEN: What I would have

24 welcomed your assistance on is on this problem: If

25 there is a principle of law, as I believe there is,

Page 535

1 that given there is proof of external armed

2 intervention, the implication is that the conflict is

3 international with respect to the whole of the

4 territory, without geographical or temporal

5 limitations, then on whom is the burden of proof to

6 establish that nevertheless the conflict was

7 compartmentalised in the sense that alongside with the

8 international conflict there was an internal conflict?

9 MR. CLEGG: We would submit that once the

10 issue was raised, then the burden would be on the

11 Prosecution. If one drew an analogy in domestic

12 criminal jurisdiction, certainly in the common law, if

13 the Defence raised the defence of self-defence, by way

14 of illustration, then the burden is then on the

15 Prosecution to disprove it. We would submit that once

16 the Defence have raised the issue of the conflict being

17 internal, there would have to be some evidential basis

18 to raise it, it couldn't be raised in a vacuum, but

19 once raised, then the Prosecution would have the burden

20 of proving that that part of the conflict was not a

21 separate internal conflict.

22 JUDGE SHAHABUDDEEN: Thank you, Mr. Clegg. I

23 understand your position now.

24 MR. CLEGG: Can I move then to consider

25 applying the correct test: Was the conflict with which

Page 536

1 the Appeals Chamber was seized national or

2 international?

3 Obviously, the answer to the question depends

4 upon the test. If any demonstrable link were

5 sufficient to alter the category of conflict from

6 internal to international, then I would have to concede

7 the evidence disclosed that there was a link existing

8 between the Federal Republic of Yugoslavia and the

9 Bosnian Serbs. However, we would submit that if you

10 applied the correct test, namely, that of effective

11 control, then the conclusion of the majority of the

12 Trial Chamber was correct and that the Prosecution have

13 not proved to the necessary standard that effective

14 control existed, and we submit that that is a decision

15 that they made based on the evidence that they heard

16 and it is a decision that they could reasonably have

17 come to.

18 JUDGE SHAHABUDDEEN: Mr. Clegg, should I

19 understand you could mean this, that you concede that

20 there was a link between Yugoslavia and the VRS and

21 that, accordingly, you also concede that if the

22 applicable test is, as contended by the Prosecution, a

23 demonstrable link, then the conflict would be

24 international?

25 MR. CLEGG: I do make that concession with

Page 537

1 the only caveat on the assumption that any demonstrable

2 link is sufficient.


4 MR. CLEGG: Yes.

5 In our submission, the decision of the Trial

6 Chamber does not, in any sense, bind any other Trial

7 Chamber. All that the Trial Chamber has done in the

8 Tadic case is to conclude that the Prosecution has not

9 presented sufficient evidence to discharge the burden

10 on them to prove that in this case there was effective

11 control exercised by the Federal Republic of

12 Yugoslavia. It does not mean that in a different case

13 with better evidence they might not be able to prove

14 that. All it's saying is that in this case, on this

15 evidence, they didn't prove it.

16 In our submission, it is not right to seek to

17 elevate the trial decision in this case to some binding

18 authority that is going to operate hereafter in every

19 other case. It's a matter of proof, and the evidence

20 may vary in different cases.

21 Here we submit that the Prosecution did not

22 prove to the necessary standard that effective control

23 existed. Even Judge McDonald, in her dissenting

24 judgement, conceded at paragraph 8 that there was little

25 evidence that the VRS was formally under the command of

Page 538

1 Belgrade after the 19th of May, 1992.

2 At page 227 in the main judgement, the

3 majority -- at page 227, not paragraph 227, paragraph

4 607, the majority formed the view that:

5 "... after the 19 May 1992 the armed forces

6 of Republika Srpska could not be considered as the de

7 facto organs or agents of the Government of the Federal

8 Republic of Yugoslavia (Serbia and Montenegro) either

9 in opstina Prijedor or more generally."

10 That is a conclusion they formed on the

11 facts, and it was, in our submission, entirely open to

12 them to have formed that conclusion when you study the

13 evidence of Colonel Selak who was the expert whom the

14 Prosecution called to deal with the matter by way of

15 expert evidence. It is entirely consistent, in our

16 submission, with a critical analysis of his evidence

17 for the majority of the Trial Chamber to have formed

18 that view. By using those words, "organs or agents of

19 the government," they are echoing the very words of the

20 Appeals Chamber in the interlocutory appeal.

21 JUDGE SHAHABUDDEEN: May I ask you this

22 question: The majority held that the VRS was not under

23 the control of the Federal Republic of Yugoslavia. In

24 coming to that conclusion, to what extent did the

25 majority rely on the proposition that there could not

Page 539

1 be effective control unless it was proved that the VRS

2 was under the command and control of what was left of

3 the JNA in the Federal Republic?

4 MR. CLEGG: My understanding of the judgement

5 is that reliance was placed on that by the majority.

6 JUDGE SHAHABUDDEEN: Do you consider that

7 that was an applicable criterion?

8 MR. CLEGG: It was one of the applicable

9 criterion, not the only one. The distinction, in our

10 submission, is between allies who are cooperating,

11 maybe providing financial assistance to each other and

12 maybe sharing the same objective, and effective

13 control. The mere fact that you have an ally who is

14 with whom you share a common objective, not saying that

15 that's necessary, but let's assume that it was, that

16 you are sharing a common objective and you are allies,

17 that would not mean that one was exercising effective

18 control over the other, even if one were to provide the

19 other financial support or logistical support or

20 perhaps information. The crucial difference, in our

21 submission, is whether one side is effectively

22 controlling the other so that it is operating as if it

23 were an organ of the other entity.

24 JUDGE SHAHABUDDEEN: Mr. Clegg, in that

25 model, assuming that one ally does not have control

Page 540

1 over the other ally but assuming that they are allies

2 and that they are prosecuting an integrated battle

3 plan, would the use of armed force by one ally be

4 attributable to the other ally?

5 MR. CLEGG: "No" would be my instinctive

6 answer. There would be no control, and in the absence

7 of control, there can't be responsibility. You might

8 agree with what your ally is doing, but you're not

9 responsible for their actions unless you join in with

10 the action yourself.

11 JUDGE SHAHABUDDEEN: Are you proposing to

12 address the problem raised by Mr. Fenrick as to there

13 being a distinction between the attribution of

14 international responsibility to a state and the

15 allocation of individual criminal responsibility?

16 MR. CLEGG: I was hoping to embrace part of

17 that argument when dealing with a later ground, but it

18 causes me no difficulty to touch on it now.

19 JUDGE SHAHABUDDEEN: Then please proceed.

20 MR. CLEGG: It's perhaps important just to

21 remind ourselves that, of course, the fact that

22 somebody is not a protected person under Article 2 does

23 not mean that those responsible for war crimes against

24 those people go unpunished, and, indeed, no one

25 suggests that that is the position. So individual

Page 541

1 responsibility remains. One's merely looking at

2 whether it falls under Article 2, which embraces an

3 element of state responsibility as well and, for that

4 reason, amongst others, must be limited to situations

5 where the state has effective control over the actions

6 of the individuals responsible for perpetrating the war

7 crimes.

8 In part, I think that deals with the question

9 that Mr. Fenrick was raising yesterday, and I will deal

10 with his argument or his response really to questions

11 from the bench as to whether somebody acting for purely

12 personal motives would still be caught by the

13 provisions and whether there's a need for

14 discriminatory intent a little later.

15 If you could just give me one moment, please,

16 Your Honours.

17 May I turn to ground 3?

18 JUDGE SHAHABUDDEEN: Mr. Clegg, the voices

19 have indicated that the judgement of the bench is that

20 it may be a convenient time for the coffee break.

21 MR. CLEGG: You would have to be a braver

22 advocate than I to disagree with that suggestion.

23 JUDGE SHAHABUDDEEN: The Court will stand

24 adjourned until, let us say, 11.35.

25 --- Recess taken at 11.08 a.m.

Page 542

1 --- On resuming at 11.34 a.m.


3 MR. CLEGG: Can I begin by giving the full

4 reference to the encyclopaedia quotation? I'm grateful

5 to Mr. Fenrick for providing me with the answer. It's

6 the Encyclopaedia of Public International Law, 1982,

7 volume 4 at page 294 to 298.

8 May I now turn to ground 3 and begin by

9 responding to the question posed by the bench as to

10 whether the matter falls for determination at all in

11 light of the acknowledged position that it does not

12 come under Article 25(1)(a) of the Tribunal's Statute.

13 In our submission, this cannot be a ground of

14 appeal as such. There's no provision in the Statute

15 for the Appeals Chamber to make a declaratory judgement

16 of the relevant law for the assistance of future Trial

17 Chambers. There is, however, a route whereby this

18 Appellate Chamber could express an opinion either in

19 favour or against the statement of law decided by the

20 Trial Chamber.

21 In our submission, in giving judgement, this

22 Appeals Chamber is entitled to comment on any related

23 aspect of law, and it would be a curious appellate

24 jurisdiction that had to be constrained to the

25 pleadings of the parties. The comments may well

Page 543

1 strictly be described as obiter dictum, but they would

2 nonetheless have the force of obiter from the Appeals

3 Chamber. They would not form part of the ratio

4 decidendi of the decision but would be persuasive

5 authority for the future.

6 We would have no objection to the Appeals

7 Chamber approaching the matter in that way. It has

8 perhaps conveniently been labelled a ground of appeal

9 because there was nothing else to call it in the

10 drafting stage prior to the hearing of the appeal.

11 Strictly, we submit, it's not a ground of appeal but it

12 raises a matter upon which the Court is invited to

13 express an opinion, and we don't wish to discourage the

14 Court from taking that course.

15 JUDGE SHAHABUDDEEN: Mr. Clegg, we're

16 grateful to you for your assistance on the point. I

17 think that in paragraph 139, as I remember it, of the

18 Tadic jurisdiction matter, you will find that what

19 happened there was that a party withdrew a point of

20 argument but that notwithstanding the withdrawal, the

21 Court proceeded to pronounce upon the point because of

22 its importance. Would that be a similar situation?

23 MR. CLEGG: It would.


25 MR. CLEGG: The same proposition, of course,

Page 544

1 applies to ground 5.

2 Dealing now with the merits of the third

3 ground of appeal, as I shall continue to call it for

4 convenience sake, we submit that the Trial Chamber was

5 correct in holding that crimes against humanity cannot

6 be committed purely for personal motives.

7 As I understood the submissions of

8 Mr. Fenrick in the heat of questioning from the bench,

9 it seems that he was forced back to a proposition

10 which, when analysed, would result in the following

11 conclusion: In the area of Bosnia, with which we are

12 concerned, if a Bosnian Serb wife murdered her Bosnian

13 Muslim husband, she would be guilty of a crime against

14 humanity if her motives were purely personal. If the

15 lady had been more selective with the ethnic origin of

16 her husband, then she would not have committed any

17 crime against humanity at all. That appeared to be the

18 logical conclusion of the proposition being advanced by

19 Mr. Fenrick.

20 In our submission, reflecting on that as a

21 result would render the proposition absurd. We don't

22 suggest, of course, that where a crime contains an

23 element of personal motive it is sufficient to escape

24 liability. The important words are "purely personal

25 motive." In other words, it must be the exclusive

Page 545

1 motive.

2 Many cases will have mixed motives, and the

3 perpetrators of crimes may exploit the political

4 situation and use that as an opportunity to exact

5 revenge where, without the conflict, no opportunity

6 would have existed. In such a case, the perpetrator

7 would embrace the conflict, and his motives would

8 become mixed because he would then be committing his

9 crime not for purely personal reasons but also because,

10 taking the example from some of the authorities, the

11 victim was a Jew and he knew that because of his Jewish

12 race, he would be able to adopt, as his own, the motive

13 of those engaged in the conflict to exploit and take

14 advantage of the situation in such a way as to enable

15 him to achieve an end that he would not otherwise have

16 been able to do.

17 I'm not suggesting for a moment that the

18 existence of an element of personal animosity between

19 the perpetrator of a crime and its victim will excuse

20 his guilt as somebody responsible for a crime against

21 humanity. The vast majority of cases, in reality, will

22 have a mixed motive. They will be partly personal and

23 partly embracing the motives of the conflict. But

24 where there is crime, and there inevitably will be,

25 that is purely personal - and I chose the analogy of

Page 546

1 what some may describe in shorthand as a domestic

2 murder - it would be absurd if the classification of

3 the action of the killing spouse was dependent upon the

4 religion of his or her partner.

5 The authorities, in our submission, do not

6 assist the Prosecution when properly analysed. We

7 would submit that the cases from the Second World War

8 do not advance the proposition that a crime against

9 humanity cannot occur if the criminal is motivated by

10 purely personal motives because, in those cases, the

11 criminals adopted and made their own the motives of

12 national socialism in seeking to achieve the final

13 solution in order to admittedly achieve some personal

14 benefit, at times financial, at times it may be

15 revenge. So they are, in our submission, illustrations

16 of cases that were correctly and rightly treated as

17 crimes against humanity, but they were so treated

18 because they were examples of a criminal having mixed

19 motives, his own motive for personal enrichment and the

20 motives of national socialism which he adopted and made

21 his own in order to achieve his other end.

22 There is, in our submission, a distinction

23 between such an example and one that I have given this

24 morning of the wife killing her husband, where the

25 motives, in my example, would be purely personal. In

Page 547

1 those circumstances, we submit, there is no reason in

2 the application of law as to why the offence ought to

3 be treated as a crime against humanity, there is

4 nothing that ought to elevate it above the ordinary

5 jurisdiction that it would otherwise fall to be

6 determined under, and we would submit that the Trial

7 Chamber came to the right conclusion on that issue.

8 Insofar as other cases, such as The United

9 States v. Altstoetter and the Attorney General v.

10 Eichmann are concerned, by way of illustration, it is

11 true that there no mention was there made about the

12 necessity for a crime against humanity not to involve

13 purely personal motives. That is because everybody

14 accepted that if the crimes were committed by the

15 people accused in those cases, then nobody could

16 conceivably suggest that they were for purely personal

17 motives. So the absence of such commentary, in our

18 submission, is irrelevant.

19 Those are our submissions on ground 3.

20 JUDGE SHAHABUDDEEN: Thank you, Mr. Clegg.

21 You have concluded your response. Do be seated.

22 MR. CLEGG: I'm afraid I'm not finished yet.

23 There is ground 4 next. I was only pausing because

24 normally, at that point in one's submissions, one

25 receives a very probing and occasionally unwelcome

Page 548

1 question from the Bench.

2 JUDGE SHAHABUDDEEN: Let me see if my

3 colleagues wish to probe you.

4 MR. CLEGG: I am not encouraging such a

5 response.

6 JUDGE SHAHABUDDEEN: I think it is a good

7 opportunity for me to say to you something which I

8 believe is well understood, that any statements made by

9 members of the Bench are of a purely provisional

10 nature; they are not expressive of any firm

11 conclusions. That is understood, I believe, is it?

12 MR. CLEGG: Certainly it has been understood,

13 I am sure, by all of the advocates in this appeal.

14 Ground 4, briefly.

15 Do all crimes against humanity require a

16 discriminatory intent? Article 5 makes no mention of

17 it. The Court, this Court, is, in reality, a beast of

18 statute. It has been established by the Security

19 Council of the United Nations. It deprives all of its

20 jurisdiction and all of its power from that source. It

21 has no independent existence.

22 The inclusion of the requirement in the

23 Statute of the Rwanda Tribunal does not indicate, in

24 our submission, that there was no intention to apply

25 the requirement in the former Yugoslavia. The Rwanda

Page 549

1 Tribunal Statute is supportive of the view that the

2 Security Council does intend to embrace the requirement

3 for discriminatory intent when considering crimes

4 against humanity. The fact of its inclusion in that

5 Statute is no more an advantage to the Prosecution

6 than, in our submission, it is to the Defence. The

7 fact is that Article 5 is silent on the matter, but you

8 have the Secretary-General's report and three

9 interpretative declarations. What status do they

10 have?

11 In our submission, they make it clear that

12 the United Nations intend, as an element of the crime,

13 discriminatory intent. Indeed, I don't think it is

14 suggested that the Secretary-General's report and the

15 three interpretative declarations could be interpreted

16 in any other way. What I think is being suggested is

17 that the Court ought to close its eyes to the

18 assistance that those documents and declarations

19 provide and adopt a blinkered approach to the

20 interpretation of the Statute by confining itself to

21 the actual words of Article 5 and to conclude from that

22 that the absence of the words that are to be found in

23 the Statute of the Rwanda Tribunal is decisive of the

24 point and that no further inquiry is necessary.

25 In our submission, it is not only perfectly

Page 550

1 permissible to look at the guidance of the

2 Secretary-General's report and the three interpretative

3 decisions, the Appeals Chamber ought to have recourse

4 to those reports and decisions in order to see what

5 mischief the United Nations had in mind when

6 establishing the Statute that brought into existence

7 this court.

8 I appreciate that there is no direct

9 authority in relation to the interpretation of

10 multi-national statutes of this type. However, in

11 national jurisdictions where the interpretation of

12 statutes is more common, one can find an increasing

13 willingness to look at the record of the legislators in

14 order to see what the legislature intended by a

15 statute.

16 Under the English common law, The House of

17 Lords, in the decision of Pepper v. Hart, have said

18 that in the case of any uncertainty or ambiguity, then

19 the Court can have recourse to the transcripts of

20 Parliament, called Hansard, in order to determine what

21 Parliament intended when it passed an Act of

22 Parliament.

23 Such an approach is a sensible and realistic

24 approach in the modern age to the interpretation of

25 statutes.

Page 551

1 It would, in our submission, be absurd for

2 this Appeals Chamber, in seeking to resolve the full

3 impact and effect of Article 5, to close its eyes to

4 the clearest indication of what the United Nations

5 actually intended. It would be like adopting the

6 approach of Admiral Nelson at the Battle of Trafalgar

7 by putting the telescope to your blind eye. We would

8 encourage you to keep both eyes open to receive all the

9 information that is legitimately available, and I don't

10 think it is suggested that if you do that, then the

11 information contained in the report and decisions

12 clearly indicates that the legislature, the United

13 Nations, clearly intends that there should be a

14 requirement for discriminatory intent.

15 JUDGE SHAHABUDDEEN: Mr. Clegg, would you

16 take some questions from my colleague?

17 MR. CLEGG: Of course.

18 JUDGE CASSESE: Mr. Clegg, how would you

19 react to the proposition whereby the statements in the

20 Security Council by France, the U.S., and the Russian

21 delegates could be equated with preparatory work in a

22 treaty, could be treated as similar to the preparatory

23 work when a treaty is drafted and agreed upon, with the

24 consequence that, as you know, if the text of the

25 treaty is clear, no need exists to resort to

Page 552

1 preparatory work; the consequence being that, of

2 course, the actual text, the literal text of Article 5,

3 would prevail over those three declarations made by

4 those three representatives in the Security Council.

5 MR. CLEGG: In my submission, Article 5 is

6 not clear because it is silent on the topic, and one

7 can't treat silence as ...

8 Article 5, as drafted, is completely silent

9 upon whether there is or is not a requirement for

10 discriminatory intent. Obviously, if it were to say

11 there is no requirement for discriminatory intent, then

12 the Statute would be clear and I couldn't advance the

13 proposition that I do.

14 In our submission, the absence of any

15 indication either way creates uncertainty as to what

16 the drafters of the treaty actually intended, and it is

17 because of the existence of the uncertainty that you

18 are entitled to look at the preparatory work.

19 In our submission, the fact that it was, in

20 fact, inserted in the Statute for the Rwanda Tribunal

21 only increases the uncertainty as to what was intended

22 in this treaty which, of course, was first in time. If

23 uncertainty does exist, then you can look at the

24 preparatory work.

25 JUDGE CASSESE: Why do you feel that there is

Page 553

1 some uncertainty? Actually, Article 5 does not include

2 any requirement concerning discriminatory intent, and

3 you know the Latin maxim, which I will express in my

4 Italian Latin, "ubi lex non distinguit, nec nos

5 distinguere debemus," wherever the law does not make

6 any distinction, the interpreter is not allowed to make

7 similar distinctions.

8 First of all, Article 5 simply does not

9 address the issue of whether or not discriminatory

10 intent is required, and, of course, by implication,

11 that means that such an intent is not required.

12 Then, as for the Statute of the Rwanda

13 Tribunal, of course, Mr. Fenrick I think yesterday

14 pointed out that you can resort to argumentum a

15 contrario, a contrary argument, since there the idea is

16 spelled out, whereas the idea is not to be found in

17 Article 5 of our Statute. The logical conclusion to be

18 drawn is that Article 5 does not intend to embrace or

19 to cover or to include such intent.

20 MR. CLEGG: I can obviously see the force of

21 that submission. I am not suggesting Article 5 is

22 ambiguous. It is not. It is perfectly clear. I am

23 suggesting that it creates an uncertainty by its

24 silence, and it is equally consistent with the

25 insertion of the provision in the Rwanda treaty, that

Page 554

1 the draftsmen, in the light of questions as to whether

2 or not it was a necessary ingredient under this treaty,

3 thought they had better make it absolutely clear once

4 and for all.

5 I can't do any more than put the matter in

6 that way. It is not clear, in our submission, under

7 international law, whether discriminatory intent is a

8 requirement or not. International law, like all areas

9 of law, will evolve and develop in time, and this is an

10 area that has been evolving and developing in recent

11 years.

12 In our submission, although there is no

13 ambiguity here, if silence does create uncertainty as

14 to what the legislation intended, then you are entitled

15 to look at preparatory work. If you came to the

16 conclusion there is no uncertainty at all and it is

17 absolutely clear, then I concede, I've lost. You can't

18 have recourse to it.

19 But in our submission, the court, because it

20 is a creature of statute and one statute, must be alert

21 to the fact that it doesn't have the advantage of a

22 history of appellate decisions to draw upon in forming

23 the guidance for the Trial Chambers in approaching the

24 work that they have to do. The Appeals Chamber, and

25 indeed the court, the trial court in the Tadic case, to

Page 555

1 an extent are coming to the whole concept of the

2 Tribunal cold, with no precedent, and in our

3 submission, in a situation like that, one should be

4 more ready to look at the preparatory documents in

5 order to be confident that the Tribunal was putting

6 into effect the intention of the legislation than you

7 would in a domestic jurisdiction where the legislation

8 will inevitably have had a history of previous

9 legislation and one can look back through how previous

10 legislation was interpreted and how that has been

11 applied by the courts, and the draftsmen, of course, in

12 drafting legislation in a domestic field, would have

13 known how earlier legislation was interpreted, they

14 would have known how the courts had considered it.

15 Here the draftsmen are coming to it completely cold and

16 the Court is coming to it completely cold, and in those

17 circumstances, one ought to take a more relaxed view at

18 seeking to obtain guidance from this material which you

19 perhaps would not do in a domestic jurisdiction because

20 you would have help from other sources as would the

21 legislators and the draftsmen in creating the treaty in

22 the first place.

23 A slightly circular argument but, of course,

24 the fact that the Trial Chamber thought that it was a

25 requirement and the Prosecution think that it isn't at

Page 556

1 least demonstrates uncertainty in some minds as to what

2 was intended by the legislation. But there is a

3 certain circularity to that argument that I appreciate.

4 I don't think that I can really advance that

5 submission any further.


7 MR. CLEGG: Can I move --

8 JUDGE SHAHABUDDEEN: Before you move, I have

9 to say that my mind was exercised by the same issues

10 opened by my brother Judge Cassese. I think I should

11 say that I have, as it were, a philosophical problem

12 about the position which you have put forward to the

13 effect that the language of Article 5 is clear, there

14 is no ambiguity; nevertheless, you feel that the

15 silence, a certain silence in Article 5, creates

16 uncertainty. Isn't that another way of saying there is

17 ambiguity?

18 MR. CLEGG: I was using the word "ambiguity"

19 to describe the situation where the words of the

20 Statute themselves are unclear and are capable of two

21 different interpretations. Here the Statute is

22 completely silent, and it is that situation that I

23 suggest creates uncertainty. So I was using the words

24 in that way.

25 JUDGE SHAHABUDDEEN: Why do you say Article 5

Page 557

1 is silent, a point on which my colleague asked you some

2 questions? Isn't the position this, that a draftsman

3 drafts on the basis that the words he uses are going to

4 be interpreted in accordance with the law as the law

5 stands?

6 Now, there seems to be no difficulty about

7 this, that received customary international law at this

8 time distinguishes between two branches of crimes

9 against humanity: (1) the murder-type crimes; (2) the

10 persecution-type crimes. Discrimination is required in

11 relation to the latter but not the former.

12 Wouldn't the draftsman have intended that the

13 words he used in Article 5 would be accordingly

14 construed? If that is so, is there any silence?

15 MR. CLEGG: Well, again, I can see the force

16 of what Your Honour says. All I can say by way of

17 response is that the article does not expressly aver to

18 the need or otherwise of a requirement for

19 discriminatory intent. It is, in fact, silent in the

20 sense that it doesn't expressly say one way or the

21 other. I, of course, accept the force of what Your

22 Honour says, namely, well, there's no need to say it

23 because if you don't say it, everybody knows the

24 answer, which is, I think, the effect of what Your

25 Honour has just posed to me.

Page 558

1 JUDGE SHAHABUDDEEN: Let me explain to you.

2 Words indicative of a specific requirement will be used

3 only where the draftsman intends to vary from the

4 received meaning of the words he uses.

5 Take the reference to armed conflict. He

6 deliberately inserted in Article 5 a reference to armed

7 conflict because he wished to make it clear that the

8 jurisdiction of the Tribunal was to be accordingly

9 limited in that way, which limitation is not apparent

10 on the basis of received customary international law.

11 When he came to drafting the Rwanda Statute, he omitted

12 those words, whereupon the language used in the case of

13 Rwanda would fall to be received in accordance with the

14 meaning to be ascribed to them by customary

15 international law. Isn't that the position?

16 Additional words, an additional requirement are

17 introduced by the draftsman only where he intends to

18 vary from the meaning which his words would have under

19 received law.

20 MR. CLEGG: Well, I must accept that that is

21 the perceived wisdom of statutory interpretation, and

22 it would be quite absurd for me to suggest otherwise.

23 Of course, I must accept that.

24 JUDGE SHAHABUDDEEN: Let me take you back to

25 a second branch of your interesting submissions on this

Page 559

1 matter, and this concerns the three declaratory

2 statements.

3 Are you inviting the Court to say that those

4 statements are themselves clear or is there an

5 ambiguity in those statements themselves? Take the

6 Russian statement; this is what it says:

7 "While believing that the text of this

8 Statute addresses the tasks that face the Tribunal and

9 for that reason supporting it, we deem it appropriate

10 to note that according to our understanding, Article 5

11 of the Statute encompasses criminal acts committed on

12 the territory of the former Yugoslavia during an armed

13 conflict, acts which were widespread or systematic,

14 were aimed against the civilian population, and were

15 motivated by that population's national, political,

16 ethnic, religious, or other affiliation."

17 If you focus on the word "encompasses," all

18 that he's saying there is that, as a matter of fact,

19 murder-type offences may be offences which are, in

20 fact, motivated in these ways. He didn't say that that

21 kind of motivation is essential to all kinds of

22 murder-type offences. The word he used was

23 "encompasses."

24 MR. CLEGG: I accept that. The way that we

25 would put the matter is that if the Appeals Chamber

Page 560

1 were persuaded to look at the Secretary-General's

2 report and the interpretative declarations, then they

3 should all be read together. We would invite the Court

4 to conclude that if read together, they make clear that

5 such an intention was intended. But I do accept that

6 when analysed individually that some of them are less

7 clear than others.

8 JUDGE SHAHABUDDEEN: Let's go back to the

9 Secretary-General's report. Again, how --

10 JUDGE CASSESE: Do you mind if I interrupt

11 just at this point?

12 JUDGE SHAHABUDDEEN: My colleague would like

13 to say something.

14 JUDGE CASSESE: May I draw your attention to

15 the statement by one of the three representatives,

16 which is by far the most exhaustive and clear, the one

17 by Mrs. Albright as the U.S. representative. She

18 said: "We understand that other members of the

19 Security Council share a view regarding the following

20 clarifications related to the Statute," and then there

21 are various sentences about other provisions.

22 Then she comes to Article 5:

23 "It is understood that Article 5 applies to

24 all acts listed in that article when committed contrary

25 to law during a period of armed conflict in the

Page 561

1 territory of the former Yugoslavia as part of a

2 widespread or systematic attack against any civilian

3 population on national, political, ethnic, racial,

4 gender, or religious grounds."

5 So this statement is clearly different from

6 the statement of the Russian representative where you

7 find the ambiguous word "encompasses." How would you

8 comment on this statement?

9 MR. CLEGG: I prefer Madeleine Albright's

10 statement to that of the Russian delegate but, in our

11 submission, they must be read together.

12 JUDGE CASSESE: Which one would prevail

13 then? Because, clearly, they are totally different.

14 Madeleine Albright said, "This is our view," the U.S.'s

15 view, "and the view of the other members of the

16 Security Council, and we take it that Article 5 only

17 covers crimes against humanity committed on national,

18 political, ethnic grounds," whereas the Russian

19 representative, according to a possible interpretation,

20 was more flexible. How would you reconcile the two

21 statements?

22 MR. CLEGG: Well, they can't be reconciled

23 because they are different. How do you approach the

24 differences between the two? One could say that if the

25 Russian delegate intended that the discriminatory

Page 562

1 element that we say in truth exists did not exist, then

2 there was no point in him saying anything about it at

3 all. Because if it embraced all crimes, irrespective

4 of discriminatory intent, there's no need for him to

5 say a word about it. The very fact that he's addressed

6 it, unfortunately for me, using the word "encompass"

7 rather than a more restrictive word, the very fact that

8 he addresses the question at all indicates the fact

9 that discriminatory intent was clearly in his mind when

10 he spoke. There is greater clarity to be found, we

11 would say, in the words of Madeleine Albright.

12 JUDGE CASSESE: Thank you.

13 JUDGE SHAHABUDDEEN: Well, I'm grateful to my

14 brother Judge Cassese for his question.

15 May I ask you this: Take Madam Albright's

16 statement. Of course, one supposition is that it is

17 exhaustive. It requires discrimination in all cases.

18 But could there be an argument that it is not

19 exhaustive; it is only saying what is factually

20 obvious, that there can be some murder-type offences

21 which are, in fact, based on discriminatory grounds?

22 Would that mean that she was saying that it applies

23 only where there are discriminatory grounds? All she

24 says was that it applies to all acts listed in the

25 article. Did she say it applies only to those acts

Page 563

1 when discriminatory grounds can be established? Do you

2 think such a contention could be raised?

3 MR. CLEGG: Well, she certainly didn't say

4 that it could only, but she didn't say that it applied

5 to anything else either.

6 JUDGE SHAHABUDDEEN: No, she didn't.

7 Therefore, my brother is right; there's an ambiguity in

8 the statements.

9 All I'm saying is that leaving aside the

10 apparent conflict between her statement and the Russian

11 statement, I'm not so sure that it cannot be contended

12 that there is an ambiguity even in her own statement.

13 Let's go to the Secretary-General's report.

14 He used the words, I think -- you see it in paragraph

15 48 of his report, and he says there:

16 "Crimes against humanity refer to inhumane

17 acts of a very serious nature such as wilful killing,

18 torture, or rape, et cetera."

19 Now mark the words "such as." Would you say

20 that he was merely instancing the possibility that some

21 murder-type offences might, in fact, be committed on

22 discriminatory grounds without going on to say that

23 what was intended were only offences which were based

24 on discriminatory grounds?

25 MR. CLEGG: It depends how you read it. I

Page 564

1 mean, I must confess until -- you've asked me to

2 address it. I would have said that the qualification

3 was limited to the list of offences such as wilful

4 killing, torture, rape, but the "such as" was giving

5 illustrations of the crimes, not the discriminatory

6 intent and reflected the fact that it didn't go on to

7 include imprisonment, deportation, enslavement, and

8 extermination, the other crimes under the article.

9 I would submit that on the ordinary reading

10 of that, the qualification does not relate to

11 discriminatory intent but it was a reference to "such

12 as" and selecting three crimes from the list in the

13 article.

14 JUDGE SHAHABUDDEEN: Would you say that the

15 text of the Secretary-General's report and of the three

16 statements are so absolutely clear and free of

17 ambiguity as to require the Court to move away from the

18 meaning which received international law would

19 attribute to the text of Article 5?

20 MR. CLEGG: I would submit that they were

21 clear enough when viewed collectively.

22 JUDGE SHAHABUDDEEN: I understand you. Thank

23 you.

24 MR. CLEGG: May I move finally, so far as I'm

25 concerned, to ground 2? Thereafter, Mr. Livingston

Page 565

1 will address the Court on ground 5.

2 I draw initial comfort from the fact that

3 this is now a unanimous decision of the Trial Chamber;

4 Judge McDonald is back with the majority of the Court.

5 There is, in our submission, a distinction

6 between this and the appellate's third ground of

7 appeal. Insofar as the assessment of the evidence in

8 relation to that ground and the witness Nihad

9 Seferovic, we are submitting to the Court that the

10 Trial Chamber didn't have the relevant information

11 contained in the document referred to as Defence

12 Exhibit 14 before them when they made their decision,

13 and the absence of a translated version of that

14 document led them into error that, we submit, this

15 Court could not be satisfied they would have made had

16 they had that document.

17 The position is quite different in relation

18 to ground 2. It is not suggested that the Court didn't

19 pay regard to all the evidence that there was before

20 it. It is submitted on two bases that they came to the

21 wrong conclusion. The first basis, when analysed, in

22 our submission, proceeds on what, on reflection, is an

23 extraordinary proposition. It, when analysed, seems to

24 depend upon the proposition that the three Judges of

25 the distinction and experience of those sitting in the

Page 566

1 Trial Chamber in this case did not know what was meant

2 by "reasonable doubt" and were unable to apply the test

3 correctly to the facts of this case.

4 We invite the Appeals Chamber to reject the

5 proposition that the Trial Chamber didn't know what is

6 meant by the words "reasonable doubt" and to proceed

7 confidently on the basis that you could be satisfied

8 that they fully understood what those words mean.

9 Furthermore, we would invite the Court to conclude that

10 they applied the correct principles to the facts of the

11 case.

12 It is perfectly true that in paragraph 373 of

13 the judgement reference was made, I think, to the words

14 "bare possibility." Those words, "the bare

15 possibility," viewed in isolation may be curious words

16 for a Trial Chamber to use, but the paragraph which

17 contains those words begins with the words, "This Trial

18 Chamber is satisfied beyond reasonable doubt," and

19 immediately before the reference to "bare possibility,"

20 the judgement reads, "However, this Trial Chamber

21 cannot, on the evidence before it, be satisfied beyond

22 reasonable doubt that the accused had any part in the

23 killing of the five men or any of them."

24 Immediately after the use of the words "the

25 bare possibility," the Court used these words: "It is

Page 567

1 accordingly a distinct possibility that it may have

2 been the act of a quite distinct group of armed men or

3 the unauthorised and unforeseen act of one of the force

4 that entered Sivci for which the accused cannot be held

5 responsible that caused their deaths."

6 At three points in the same paragraph where

7 the word "bare" was used before the word "possibility,"

8 there is, in our submission, a correct expression of

9 the appropriate standard of proof required by the

10 Appeals Chamber. In our submission, in a judgement that

11 extends to hundreds of pages, individual words in the

12 judgement ought not to be subject to the same scrutiny

13 as a Jesuit scholar would apply when interpreting an

14 ancient manuscript.

15 One must look at not just the whole of the

16 paragraph but the whole of the judgement in order to ask

17 oneself, can it be tenably contended that this Trial

18 Chamber didn't know what a reasonable doubt meant? In

19 our submission, it is absolutely clear that they fully

20 understood what those words meant and that they applied

21 them to the facts as they found them. The use of the

22 word "bare" before the word "possibility" in one

23 paragraph that twice refers to the correct standard of

24 proof and then uses the word "distinct" before the same

25 word "possibility" four lines further on ought not to

Page 568

1 be the basis for overturning a verdict of acquittal and

2 convicting this appellant of effectively the five

3 murders -- not charged as counts of murder, I

4 appreciate, but that's the effect of it -- the five

5 killings that were the subject of this part of the

6 judgement.

7 The facts, in our submission, are entirely

8 consistent with the interpretation of the unanimous

9 Trial Chamber. Here no one witnessed the killings. No

10 one knew who was physically present at that particular

11 spot when the men were killed or any of them. No one

12 was able to confirm or deny that the murderer or

13 murderers was or was not with the group earlier in the

14 other village, Sivci. No witness was able to confirm

15 that the same men who arrived were the same men that

16 left without addition or subtraction.

17 In the absence of such evidence, it is a

18 perfectly reasonable conclusion for the Trial Chamber

19 to come to for them not to be satisfied beyond a

20 reasonable doubt that the group remained intact. They

21 had the advantage of hearing from the witnesses who

22 were actually in the village, and they heard the

23 limited opportunities that they had to view events that

24 were happening in the village from the windows and

25 other places that allowed them, of necessity, a very

Page 569

1 restricted view of events that day.

2 Furthermore, we submit, the Appeals Chamber

3 has correctly applied the principles of joint

4 enterprise. The conclusion that they made was that the

5 killings may have been the unauthorised and unforeseen

6 act of one of the force that entered Sivci for which

7 the accused cannot be held responsible that caused

8 their deaths.

9 In applying the principle of joint

10 enterprise, the Trial Chamber set out a statement of

11 the law -- one moment. I am afraid I have the wrong

12 reference. It's at page 260.

13 The Trial Chamber, in our view, correctly

14 sets out there and in the paragraphs that flow, up to

15 page 268, an analysis of the law of joint enterprise

16 that is accurate and which, as I understand it, is not

17 the subject of criticism. The Trial Chamber correctly

18 came to the conclusion that in order to be criminally

19 culpable on the principles of joint enterprise, then

20 the person accused must have joined a criminal

21 agreement which he knew at the time could have had the

22 consequences of killing.

23 The Trial Chamber heard the evidence and they

24 concluded that they could not be so satisfied so far as

25 this action was concerned, and they were entitled, in

Page 570

1 coming to that conclusion, to take account of the fact

2 that in the far larger action at the village of Sivci

3 [real-time transcript read "Jaskici" in error], the

4 action had not involved any killing at all, and the

5 Trial Chamber were quite entitled to conclude that the

6 Prosecution had not been able to discharge the burden

7 on them to prove that on that day the appellant had

8 joined a criminal enterprise which he knew might result

9 in the consequences of killing as opposed to the

10 forcible removal of people to camps.

11 In our submission, the submissions of the

12 Prosecution fell into error so far as the consideration

13 of this aspect of the law is concerned. The

14 proposition advanced was that "We have intent" -- I am

15 looking at page 179 of the transcript, line 4:

16 "We have intent, we have participation, and

17 now in Jaskici itself with this small group of men, we

18 have participation in a common criminal enterprise.

19 This common criminal enterprise was not an unforeseen

20 or an unauthorised enterprise because the enterprise in

21 Jaskici was the same as the enterprise in Sivci, was

22 the same as the enterprise throughout all of opstina

23 Prijedor, and that enterprise was to rid opstina

24 Prijedor of non-Serbs, to rid them of all or at least

25 most of the non-Serbs in that area and to do it by a

Page 571

1 variety of means, including killings."

2 In our submission, that is not the correct

3 approach. The correct approach is the approach adopted

4 by the Trial Chamber who addressed this question: Has

5 it been proved that this defendant, or appellant as he

6 is now, on that day joined a joint enterprise that he

7 knew that day may have the consequence of killing? It

8 is not enough to say that there may have been some

9 other enterprise involving other people on a wider

10 scale that did embrace in others an appreciation that

11 killing would be caused, it must, before he can be

12 found guilty, be proved that he personally also

13 embraced that knowledge, and that is something that the

14 Trial Chamber, on the facts of this day, could not be

15 satisfied of on the evidence that was presented.

16 The position is that his individual state of

17 mind and his individual knowledge needs to be proved,

18 and it is that which, on the facts of this case, the

19 Prosecution, in the judgement of the Trial Chamber, were

20 unable to do.

21 So on both of the bases advanced, in our

22 submission, the Trial Chamber came to the correct

23 conclusion in acquitting the appellant of

24 responsibility for the deaths of those five.

25 JUDGE SHAHABUDDEEN: My colleague wishes to

Page 572

1 put a question to you.

2 JUDGE CASSESE: Are you through, Mr. Clegg?

3 MR. CLEGG: I am.

4 JUDGE CASSESE: The question with regards to

5 the notion of common criminal enterprise, I understand

6 the Trial Chamber and the Prosecutor have propounded

7 this notion, within the ambit of it, with reference to

8 Article 7(1).

9 Now, as you know, Article 7(1) of our Statute

10 enumerates five categories: planning, instigating,

11 ordering, committing, or aiding and abetting. So in

12 your view, the notion of common criminal enterprise,

13 under what category does the notion of common criminal

14 enterprise fall: commission or aiding and abetting?

15 Because I understand in some books I read on British

16 criminal law, sometimes the notion of common criminal

17 enterprise is also dealt with in combination with the

18 notion of aiding and abetting, so what is your

19 position?

20 MR. CLEGG: It does embrace aiding and

21 abetting. It can also involve commission as well. But

22 I am using it in the aiding and abetting sense, and you

23 can only aid and abet a criminal enterprise if you know

24 and foresee the possible consequences. So under the

25 English criminal law -- you need, of course, to have a

Page 573

1 mental element as well. Obviously, you are not guilty

2 of a criminal enterprise if you drive somebody,

3 perfectly innocently, to a site and they kill

4 somebody. It doesn't make you guilty of murder if you

5 merely happen to be the taxi driver who took him

6 there. But if you took him there knowing that he was

7 going to kill, then you would be aiding and abetting

8 the killing by driving him to the scene knowing that he

9 was there and taking his weapon and he to the scene so

10 that he could commit the crime.

11 JUDGE CASSESE: But you don't rule out the

12 possibility of this notion coming only within the

13 purview of commission, perpetration, regardless of any

14 aiding and abetting, leaving aside, simply as a

15 sub-category of perpetration?

16 MR. CLEGG: I don't.

17 JUDGE CASSESE: You think it is only aiding

18 and abetting -- sorry, you don't rule out, you don't

19 exclude.

20 MR. CLEGG: I don't exclude it.

21 JUDGE CASSESE: Thank you.

22 MR. CLEGG: That concludes my submissions.

23 Mr. Livingston will now address the Court on ground 5.

24 JUDGE SHAHABUDDEEN: Thank you, Mr. Clegg.

25 The notation supplied to me by the secretariat

Page 574

1 indicates that you have spent two hours, a little more

2 than two hours, but the Bench acknowledges that the

3 excess has been attributable to questions from the

4 Bench, and so we would be disposed to hear

5 Mr. Livingston ...

6 Would it be all right, Mr. Livingston, if we

7 allocated to you half an hour?

8 MR. LIVINGSTON: Yes. Can I just say, I was

9 going to start by making an application for extra time

10 for good behaviour, which is a somewhat unusual

11 request, but certainly everybody so far has kept more

12 than within the schedule, and I think, frankly, we are

13 about two days ahead of where we originally expected to

14 be on Monday morning. So I hope that there is no

15 serious problem.


17 Mr. Livingston. You have half an hour.

18 MR. LIVINGSTON: Yes. Can I just, before I

19 start, it may be convenient just to mention one

20 possibly quite serious transcription error which may

21 arise out of Mr. Clegg's pronunciation of the village

22 Sivci, because it came out, on the transcript that I

23 saw, as Jaskici, which is, of course, the other village

24 completely, and it must be missed since, of course,

25 Jaskici is an actual place. It was page 56, line 20,

Page 575

1 if that assists, of today's transcript, obviously.

2 JUDGE SHAHABUDDEEN: That is correct. Please

3 proceed. Would you like to open for a few minutes? I

4 think we have 15 minutes more. You could usefully

5 employ that time.



8 MR. LIVINGSTON: May it please Your Honours,

9 let me start by going to what I hope is the heart of

10 the matter and also start by taking up something which

11 I hope is agreed between the parties, and that is the

12 very simple point that, rightly or wrongly, and it was

13 decided a long time ago, the Tribunal adopted an

14 adversarial system, and whatever elements of the civil

15 law have been imported into it along the way, it is

16 still, in essence, an adversarial system, and that is

17 crucial in the context of this issue of disclosure of

18 Defence witness statements, and it is really perhaps

19 dealt with by the Supreme Court of Canada in the case

20 of Stinchcombe which His Honour Judge Stephen was

21 referred to and in the passage which he referred to.

22 All a defendant is required to do in an adversarial

23 system, and it may be unattractive to some, but this is

24 all he is required to do, is to adopt an adversarial

25 role.

Page 576

1 Judges in England, and I'm sure in every

2 other adversarial jurisdiction, regularly tell juries

3 -- and for present purposes, I don't think there is

4 any distinction between a court of judges and a jury --

5 that the prosecution bring the case, the onus of

6 proving it is on them and of proving it beyond

7 reasonable doubt is on them. The defendant doesn't

8 have to prove his innocence; indeed, he doesn't have to

9 prove anything.

10 In my submission, it is an easy step from

11 there, from acknowledging that the defendant doesn't

12 have to prove anything, he can say silent, if he wants,

13 for him to say, and I put the question, of course,

14 rhetorically, "Why should I help the Prosecution?" It

15 is an adversarial system. And one cannot get away from

16 the fact that requiring the Defence to disclose witness

17 statements will help the Prosecution. I can't argue

18 with that because it gives them a statement and it

19 gives them the basis to cross-examine that witness on

20 the basis of what might be a prior inconsistency. So

21 it certainly helps the Prosecution. And the defendant

22 would say, "Look, this is a gladiatorial contest. Why

23 should I help my opponent?" In no other adversarial

24 sort of contest is one opponent required to help the

25 other.

Page 577

1 So in my submission, the starting point is

2 that the very nature of the adversarial process is

3 actually repugnant to the idea the Defence should be

4 required to disclose their hand to help the

5 Prosecution. It is contrary to the whole concept of

6 the adversarial role.

7 In various adversarial situations, one can

8 have a situation where one adversary is clearly

9 stronger than the other, and again, the whole idea of

10 adversarial contests, whether it is in the legal

11 context or in a sporting context, is to have a fair and

12 even contest insofar as one can. One sees it --

13 perhaps I can use an analogy which won't be perceived

14 as frivolous -- but if you look at the sport of horse

15 racing on the flat, as it is operated in most Western

16 European countries and in America, if you have horses

17 of one age generation racing against horses from

18 another older generation, the common system is to have

19 a weight-for-age allowance because the older horses are

20 stronger, more experienced, more physically developed,

21 and the idea is that one should equalise their chances,

22 the younger horse with the older one.

23 So it is here that there is an undoubted

24 inequality of arms between Prosecution and Defence, and

25 I do accept the point that Ms. Hollis makes that the

Page 578

1 inequality is not the same as one sees in a national

2 jurisdiction because, most obviously, the Prosecution

3 does not have the assistance of a national police

4 force. But it is, frankly, naive to plead that the

5 Prosecution does not have great advantages in this

6 jurisdiction as well. The Tribunal has acknowledged

7 it, and just to name but two provisions in -- Article

8 21 is all about giving a defendant a right in equal

9 terms -- I will come back to that in a minute -- and

10 there is Rule 68 which is the Rule which requires the

11 Prosecution to disclose any evidence of an exculpatory

12 nature which they come across in the course of their

13 investigations.

14 Those are implicit acknowledgements by the

15 draftsmen of the Statute and the Rules that there is an

16 inequality, and of course there is, because they have

17 much, much greater financial resources, and partly as a

18 consequence of that, they can afford to use many

19 investigators in many different countries to gather

20 their evidence. That is not available to the Defence.

21 The other inequality which, of course, is

22 perhaps more particular to this case but it may be more

23 wide-ranging as the jurisdiction of this Tribunal

24 progresses, is, of course, the point that the Trial

25 Chamber raise briefly in paragraph 530, I think it is,

Page 579

1 of the judgement, that the witnesses called by the

2 Prosecution -- I think I am right in saying -- came

3 exclusively from countries outside Bosnia. If that is

4 wrong, it is only a minimal overstatement.

5 The witnesses called by the Defence, such as

6 they were, came almost exclusively from Republika

7 Srpska, and therein lies a significant inequality. One

8 cannot escape this. The Prosecution, I am sure, are

9 quite right in saying that they have had their

10 difficulties with Republika Srpska. I am not going to

11 deny that because I think it is a well-known fact in

12 this Tribunal that Republika Srpska has proved a

13 recalcitrant state which has not given a great deal of

14 cooperation to anybody in this Tribunal, but it

15 inevitably affects the defendant more than it affects

16 the Prosecution because they don't need witnesses, they

17 didn't need witnesses from Republika Srpska, they could

18 get them from elsewhere, from safe Western European and

19 United States abodes. So the disparity did not affect

20 them anything like as much.

21 Let me turn to the specific provision I

22 mentioned earlier because Ms. Hollis closed, really,

23 her remarks yesterday by saying to you, "Well, look,

24 the matter is dealt with in the Statute. Look at

25 Article 21." I'm not sure if I saw a hint of a blush

Page 580

1 as she said that because the reality is that that is

2 not what Article 21 is designed to do. Article 21 is

3 designed to give a defendant rights; it is not designed

4 to give the Prosecution any rights at all. It is an

5 acknowledgement that a defendant, as I have indicated

6 already, is not on an equal footing with the

7 Prosecution, and his position requires to be equalised,

8 so he is given these express rights. It is not a

9 question of saying, "Well, the Prosecution's position

10 should be equalised with that of the Defence"; it is a

11 matter of trying to equalise the Defence's position

12 with that of the Prosecution.

13 So in my submission, it is contrary to the

14 whole spirit of that provision for Ms. Hollis to invoke

15 it in her favour as something giving her a right. It

16 is plainly not designed at all to give her any rights

17 whatsoever. In my submission, even if one reads

18 Article 21(4) in terms -- and I am looking particularly

19 at (e) because that was the subparagraph that was

20 invoked yesterday -- it says:

21 "(e) to examine, or have examined, the

22 witnesses against him and to obtain the attendance and

23 examination of witnesses on his behalf ..."

24 It doesn't say anything about the

25 cross-examination of those witnesses of his own that

Page 581

1 attend and are examined on his behalf or the

2 circumstances under which those witnesses should be

3 examined.

4 So it is not even as though this specific

5 problem is covered expressly in Article 21 at all, but

6 the main point, the really significant point is, that

7 is an Article dealing with the rights of the accused,

8 giving him rights, giving him privileges; it is not

9 intended to give the Prosecution anything; and it

10 shouldn't be invoked to give the Prosecution any such

11 right.

12 JUDGE SHAHABUDDEEN: This will be a

13 convenient point, Mr. Livingston?


15 JUDGE SHAHABUDDEEN: Then we adjourn until

16 2.30.

17 --- Luncheon recess taken at 12.58 p.m.









Page 582

1 --- On resuming at 2.30 p.m.


3 MR. LIVINGSTON: May it please Your Honours.

4 Just before lunch, I was dealing with the

5 inequality of arms aspect of this question concerning

6 the disclosure of Defence witness statements. It was

7 the English writer, George Orwell, who wrote in his

8 book Animal Farm, "All men are equal but some men are

9 more equal than others." In relation to this

10 particular situation, what it comes to is that the

11 Prosecution are more equal than the Defence, and one

12 shouldn't make orders for the defence to disclose

13 witness statements which are likely to have the

14 consequence of increasing the disparity between the

15 parties rather than equalising their respective

16 positions.

17 Let me pass on to the various Rules because

18 that deals, I hope, with the statutory provision in

19 Article 21. The Rule that I think is still relied on,

20 despite Ms. Hollis's very proper concession this

21 morning about the Dokmanovic case, is Rule 54. That's

22 the Rule which says:

23 "At the request of either party or proprio

24 motu, a Judge or a Trial Chamber may issue such orders,

25 summonses, subpoenas, warrants and transfer orders as

Page 583

1 may be necessary for the purposes of an investigation

2 or for the preparation or conduct of the trial."

3 Now, there are two points that arise out of

4 that as to why that provision should not be used to

5 make the Defence disclose witness statements. The

6 first is this, and it's essentially a point I've made

7 already, that included in that Rule is the word

8 "necessary." In other words, the Trial Chamber should

9 not do any of those things, issue any of the orders or

10 subpoenas or warrants or whatever, unless it is

11 necessary for the purposes of an investigation or for

12 the preparation or conduct of the trial.

13 Now, bearing in mind the adversarial nature

14 of the trial and that the defendant doesn't have to

15 prove his innocence or anything doesn't have to assist

16 the Prosecution -- in other words, it can take up a

17 wholly adversarial role. It cannot, in my submission,

18 be said that it is necessary for the preparation or

19 conduct of the trial that the defendant or his lawyers

20 are made to disclose those documents. It's inherent in

21 the concept of an adversarial system. It's not

22 necessary, so the Rule doesn't apply.

23 In any event, I would submit that that Rule

24 must be looked at in its context. It's the first Rule

25 in a section headed "Orders & Warrants." The other

Page 584

1 Rules in that section deal with execution of arrest

2 warrants, cooperation of states, procedure after

3 arrest, national extradition proceedings, failure to

4 execute a warrant or transfer order, transmission of

5 arrest warrants, advertisement of indictment, et

6 cetera. They are all matters which are intimately

7 connected with the investigation and to enable the

8 trial to proceed smoothly. You issue warrants for

9 people's arrests. You issue summonses for them to

10 attend court, subpoenas if they are reluctant, transfer

11 orders to get people from another jurisdiction to this

12 jurisdiction. In my submission, the word "orders"

13 should be construed ejusdem generis with those other

14 words, and it would be to strain the language of the

15 Rule to say that the word "orders" should bear no

16 relation to what everything else in the section is

17 dealing with. It might, for example, cover things like

18 orders to protect sensitive information. It might

19 cover orders such as binding orders which are, of

20 course, invoked to assist investigation and

21 preparation. But in my submission, it's stretching the

22 language of the Rule in its context and where it lies

23 within the Rules to say that it covers something like

24 disclosure by the Defence of witness statements.

25 I'm fortified in that view by the fact that,

Page 585

1 of course, the issues arising out of disclosure are

2 dealt with specifically later in the Rules,

3 particularly of importance, Rules 66 and 67. It's Rule

4 66 which obliges the Prosecution to supply copies of

5 statements of witnesses, so that is specifically dealt

6 with. That is their obligation, as well as, of course,

7 the indictment and supporting material. No obligation

8 is specified for the Defence to do anything.

9 Following the googly, if I may use

10 a cricketing metaphor, that His Honour Judge Cassese

11 bowled at Mr. Clegg earlier this morning about silence,

12 there is significant silence here about Defence witness

13 statements. There is no order there or no obligation,

14 and it's quite clear, there is no ambiguity, however

15 you interpret that word, no uncertainty, no obligation

16 to disclose witness statements in that Rule or, indeed,

17 in any other Rule in the Rules of Procedure and

18 Evidence.

19 It goes even further than that because Rule

20 67, which is dealing specifically with reciprocal

21 disclosure, one might think, would set out,

22 comprehensively, exactly what the Defence have to

23 disclose, and it's confined to matters in Rule

24 67(A)(ii), defence of alibi and, secondly, any special

25 defence like diminished or lack of mental

Page 586

1 responsibility.

2 Those are the two things that the Defence

3 must notify the Prosecutor of. Nothing else is

4 mentioned. Silence, unambiguous silence. In my

5 submission, one shouldn't try and fill that gap with

6 something that isn't there.

7 The other Rule, of course, which perhaps I

8 can just mention in passing, I don't think there's a

9 great deal of dispute between Prosecution and Defence

10 on this, is Rule 70, which, of course, is what Judge

11 McDonald relied upon. I think the Prosecution and

12 Defence are at one, that with the greatest respect to

13 her, she's wrong about the applicability of that Rule

14 because she was of the view that -- we're looking at

15 capital A, it says:

16 "Notwithstanding the provisions of Rules of

17 66 and 67, reports, memoranda, or other internal

18 documents prepared by a party, its assistants or

19 representatives ... are not subject to disclosure or

20 notification under the Rules."

21 She thought that that covered witness

22 statements but, of course, the problem with that would

23 be that it would be in flagrant contradiction, as far

24 as the Prosecution are concerned, with the express

25 words of Rule 66. On the basis that what is source for

Page 587

1 the goose is source for the gander, one shouldn't say

2 that witness statements are covered for the Defence in

3 Rule 70 but not the Prosecution. It's got to be

4 consistent. In my submission, it is an error, with the

5 greatest respect to the learned Judge, to have thought

6 that the words in Rule 70 could cover witness

7 statements by either party.

8 I pass on to Rule 89 which, of course, is

9 much discussed by Judge Stephen, and I think I can

10 adopt respectfully what he says about that, but in

11 essence, what one's looking at here is Rule 89(B) which

12 says that:

13 "In cases not otherwise provided for in this

14 Section, a Chamber shall apply rules of evidence which

15 will best favour a fair determination of the matter

16 before it and a consonant with the spirit of the

17 Statute and the general principles of law."

18 Now, I've already made the submission and, I

19 think, as clearly as I can that the spirit of the

20 Statute, and it's Article 21 that seems to be the

21 relevant one as far as the Prosecution are concerned,

22 the spirit of the Statute is against the disclosure by

23 the Defence of witness statements.

24 The question is about general principles of

25 law, and again, I would respectfully suggest that what

Page 588

1 Judge Stephen said about that is almost common sense,

2 that where one is dealing with an adversarial system of

3 justice, as we are here, that you shouldn't go and look

4 at the general principles of law in some other type of

5 system with some other basis which might explain why it

6 develops different rules of evidence and procedure.

7 One should, in my submission, find highly persuasive,

8 as Judge Stephen states, the practice, the general

9 practice in countries which adopt an adversarial

10 system.

11 Again, I say this with the greatest respect

12 to the American lawyers in the court, so I don't mean

13 any disrespect to them at all, because every lawyer, I

14 suspect, tends to think that his own country's system

15 is the best, but it seems that on this issue and

16 according to the research as done by counsel and,

17 indeed, by the Judges of the Trial Chamber, it seems

18 that the American system, based on the case of the

19 United States v. Nobels is frankly unique amongst

20 adversarial systems in making provision, in fact, in

21 imposing an obligation on the Defence to disclose

22 witness statements. In my submission, one cannot

23 interpret the phrase "general principles of law" from

24 the practice in one jurisdiction amongst the quite

25 numerous which adopt this type of system of justice.

Page 589

1 In my submission, one should be looking to

2 see what the general practice is of all the countries

3 which adopt this type of system. In my submission,

4 it's quite clear, as Judge Stephen makes obvious in his

5 opinion, what it perhaps boils down to at the end of

6 the day is this issue of privilege. You have the

7 documentary material or at least some of it which Judge

8 Stephen refers to in the bundle of authorities which

9 the Defence or the appellant has submitted.

10 In particular, it's divider 14 where I've

11 extracted various pages from Cross and Tapper on

12 Evidence. I would, first of all, refer you to page 484

13 which refers to the case of Anderson v. The Bank of

14 British Columbia. It's an old case basically saying

15 that you have no right to see your adversary's brief,

16 and if you have no right to see that, then you can't

17 see the materials in his brief either. That's an old

18 case. As Tapper points out, things have moved on,

19 things have changed, but it's quite apparent if you

20 read the rest of the section on a legal advisor's work

21 in Cross and Tapper on Evidence, one thing that comes

22 out is that there's no change to the principle that

23 communications between a legal advisor and third

24 parties are privileged where there is a definite

25 prospect of litigation in contemplation by the client.

Page 590

1 So whatever the position might be in other

2 circumstances, that is the rule that applies here,

3 manifestly so, because the issue arose in connection

4 with the witness statement of Witness W, as he was

5 known. That was a witness statement that had been

6 obtained after Mr. Tadic had been indicted and, indeed,

7 I think after he had been transferred to this court.

8 But in any event, it could not possibly be said that

9 criminal prosecution against him was not clearly about

10 to happen.

11 So the circumstances in which that witness

12 statement was taken were very definitely in the

13 contemplation of litigation, and if one reads what the

14 editor of Cross and Tapper says, it is quite apparent

15 that whatever other radical changes there may have been

16 since the early case of Anderson v. The Bank of British

17 Columbia, that rule has not changed, and in my

18 submission, the Defence witness statements for those

19 reasons are quite clearly, on the practice which is

20 summarised in that book, privileged, and Judge Stephen

21 reviews the various authorities in other jurisdictions,

22 the Australian authorities, Baker v. Campbell, Grant v.

23 Downs, the Canadian authorities, R. v. Peruta, amongst

24 others, R. v. Stinchcombe. He also looks -- well, in

25 fact, he quotes what Mr. Wladimiroff told him, and the

Page 591

1 Trial Chamber accepted, that neither in the courts of

2 the Netherlands nor in other European courts with which

3 he was familiar could production be obtained by

4 the prosecution of -- statements of Defence witnesses.

5 So even in civil law systems, Mr. Wladimiroff is right,

6 which I expect he is, it wouldn't happen. There is

7 also even a reference to the opinion of Sir Gordon

8 Slynn in the European Court of Justice, again upholding

9 this same principle.

10 So in my submission, the adversarial system

11 points to these type of documents clearly being the

12 subject of privilege, that privilege has not been

13 waived by Mr. Tadic, and the only remaining issue,

14 therefore, is whether it is waived after the witness

15 has given his evidence; in other words, after he has

16 given his evidence in chief, as English lawyers would

17 say, or I think as Americans would say, after his

18 evidence, his direct evidence, before he is

19 cross-examined.

20 Again, I come back to this central point, in

21 closing, which I started with, that to hold that that

22 privilege has been waived would involve again adopting

23 a stance which would be quite contrary to that in an

24 adversarial system, it would be quite contrary to the

25 concept that a defendant is, in an adversarial system,

Page 592

1 entitled to take up an adversarial role in that system,

2 to say to the Prosecution, "You prove your case. I

3 don't have to help you. You have chosen to prosecute

4 me. You've got the evidence. You prove it."

5 In my submission, not only is there no

6 authority but it is -- again I repeat; I hope not to

7 the infinite boredom of the Court -- repugnant to the

8 idea of the adversarial system that such a privilege

9 should be held to be waived merely because the witness

10 has given his evidence in chief and simply as an aid to

11 the Prosecution to try and demolish him, if they can,

12 with the assistance of a witness statement.

13 So, Your Honour, there it is. The objections

14 to this line of the appeal, the cross-appeal, are: (1)

15 in the adversarial nature of the system; (2) because of

16 the inequality of arms which it would increase, there

17 would be a greater disparity if one allowed it; and (3)

18 because of the issue of privilege which, according to

19 general principles which seem to apply in most

20 adversarial jurisdictions -- in fact, all but one --

21 would enable these documents to be privileged, and in

22 my submission, remain privileged to the end.

23 Unless there are any other matters that you'd

24 wish me to deal with, those are my submissions.

25 JUDGE SHAHABUDDEEN: If I may ask you a

Page 593

1 question or two. You spoke of the question of equality

2 of arms. I understand you to be saying that the

3 principle of equality of arms requires compensation to

4 be given to the Defence for, shall I say, its natural

5 inequalities in gathering evidence. That translates

6 into a principle of a right to silence. He has a right

7 to put the Prosecution to proof of the charge which the

8 Prosecution has brought against him. But if he decides

9 to break his silence by offering proof, should the

10 Court take the position that to evaluate that proof,

11 the Court must apply to the proof the same tests, the

12 same machinery, as it would apply to the proof advanced

13 by the Prosecution?

14 MR. LIVINGSTON: Well, Your Honour, I'm

15 afraid I can't really answer that question in any other

16 way than I already have, and I don't wish to repeat

17 myself, but in my submission, to require him to do that

18 would be contrary to the nature of his adversarial role

19 in the trial.

20 I appreciate that in some ways it can be

21 said, yes, it would be very nice to be able to evaluate

22 statements, it may well be -- the Prosecution would

23 love it because they would be able to at least carry

24 out some check on what the witness has said, but that's

25 not the way the adversarial system works and it is not

Page 594

1 in keeping with the adversarial concept that the

2 defendant should offer that help. He can give evidence

3 on his own account or put forward evidence to protect

4 himself to put forward his defence, but he is not

5 obliged to offer any further assistance. In fact,

6 there is, in my submission, a distinction between

7 putting forward evidence to defend himself and actually

8 offering assistance, which is what the requirement,

9 that he disclose witness statements, would do. I hope

10 that answers the point.

11 JUDGE SHAHABUDDEEN: Yes. I will take due

12 note of what you have said.

13 You accept that the common law system has

14 been evolving and has been evolving in different

15 directions in different law areas within the common law

16 system. Does that, do you think, present the Tribunal,

17 the Appeals Chamber, with a problem of selection?

18 MR. LIVINGSTON: Well, I think that may

19 depend on the particular issue of the common law that

20 you are dealing with. It is, with respect, quite a

21 wide question, but applying -- I'll try to answer the

22 question as it is plainly intended in relation to this

23 issue.

24 I hope my references to Cross and Tapper are

25 perhaps helpful, being much more learned in the law

Page 595

1 than I am, but the editor, the current editor, reviews

2 the way the privilege issue has developed since the

3 Anderson case, which is -- I am just looking for the

4 date of it, it's a very early case -- 1876, and he

5 points out how matters have changed radically; but

6 whatever else has changed in the field of privilege,

7 and maybe, at the end of the day, it boils down to

8 that, the one thing that has not changed is that

9 privilege can be claimed for communications with the

10 client or, indeed, third parties when litigation is

11 ongoing.

12 JUDGE SHAHABUDDEEN: You refer to Rule 66.


14 JUDGE SHAHABUDDEEN: That deals with the

15 subject of supplying to the Defence advance copies of

16 witness statements.


18 JUDGE SHAHABUDDEEN: Am I right that what is

19 involved here is a claim by the Prosecution to see a

20 Defence witness statement after the witness has given

21 his evidence in chief?

22 MR. LIVINGSTON: Well, I think that's the

23 very least they would ask for. I think, frankly, they

24 would probably like to have it pre-trial, if they

25 possibly could.

Page 596

1 The answer to your question, I suppose, is

2 "Yes," that is the Prosecution contention.

3 JUDGE SHAHABUDDEEN: That, in fact, is what

4 they are asking for. Whatever else, whatever larger

5 request they might have had in mind, that is, in fact,

6 what they are asking for.

7 MR. LIVINGSTON: Yes, I think that is now --

8 I think it is now conceded that the Dokmanovic

9 situation is rather different. I think that was

10 pre-trial. Ms. Hollis would probably know that better

11 than me. But, yes.

12 JUDGE SHAHABUDDEEN: If you ignore the

13 question of privilege, what is there to stop counsel,

14 when cross-examining a witness, from asking the witness

15 if the witness had made a previous statement?

16 MR. LIVINGSTON: Well, let me say, first of

17 all, I think it is rather difficult just to shut away

18 the area of privilege because if a prosecuting advocate

19 did that in my country or, indeed, I suspect, most

20 others, his opponent would immediately jump up and say,

21 "That is privileged information. You can't have it."

22 That would be the objection which would be raised

23 because that's the first thing that comes to mind.

24 Leaving aside the issue of privilege, I think

25 the only other answers I can give are those which I

Page 597

1 have referred to already in the other two arguments:

2 (1) that it is contrary to this concept of the

3 adversarial system and the adversarial role that

4 somebody is being required to assist the Prosecution or

5 the Court in some other way than simply giving his

6 evidence and being cross-examined on what he says and

7 volunteers himself; and (2) because, in my submission,

8 it does offend against this principle of equality of

9 arms which, while different in its nature from that

10 which would normally arise in a national court, is

11 still very much there here and should not be forgotten

12 about.

13 JUDGE SHAHABUDDEEN: On the three categories

14 which you presented, that is, the adversarial system,

15 equality of arms, and privilege, would you care to

16 prioritise them to say which of them you rely on most

17 strongly?

18 MR. LIVINGSTON: I have to say that I think

19 they are all very strong grounds and I think it would

20 be invidious to pick on them. I have divided it up,

21 really, because this issue is what I might call a basic

22 principles issue, and it is, for that reason, terribly

23 important to the development of the jurisprudence of

24 this Tribunal, I appreciate, but I suspect that,

25 answering the question at very short notice, I suspect

Page 598

1 the answer is probably that privilege is the single

2 most important point. But I would urge the Chamber to

3 accept them all as being, frankly, equally important.

4 JUDGE SHAHABUDDEEN: I understand you,

5 Mr. Livingston. I also understand the stress which you

6 seem to lay on the third category --


8 JUDGE SHAHABUDDEEN: -- if for no other

9 reason than that coincides with my own impressions of

10 the strength of your argument.

11 MR. LIVINGSTON: I take some comfort from

12 that.

13 JUDGE SHAHABUDDEEN: Thank you. That ends

14 the response?

15 MR. LIVINGSTON: Yes, it does. Can I just,

16 with respect, raise one completely different matter in

17 relation to something yesterday? Again, it may be a

18 matter of correction of the record. I hope it is maybe

19 just convenient for me to do it now.

20 You may have noticed in the transcript of

21 yesterday that there was a reference -- and I'm not

22 sure exactly where it was -- but to a mysterious

23 advocate who is not here, Mr. Abell ...

24 Has it? Well, I'm grateful. If it has been

25 altered, so be it, but the Chamber will hear from him

Page 599

1 clearly next week and not this week.

2 JUDGE SHAHABUDDEEN: That then concludes the

3 response?

4 MR. LIVINGSTON: Yes, it does.

5 JUDGE SHAHABUDDEEN: So I turn the matter

6 over to Ms. Hollis for a reply.

7 MS. HOLLIS: Your Honour, perhaps it would be

8 easier to take it in reverse order and let me begin our

9 reply and then have Mr. Fenrick complete it.

10 I have very few comments regarding the

11 response to ground 2, Your Honour.

12 First of all, we would suggest that contrary

13 to the appellant's position, individual words are

14 important when these individual words are used to

15 explain why the Trial Chamber believed that the

16 Prosecution's burden had not been met and where the

17 words indicate the standard that the Trial Chamber is

18 using to determine what constituted a reasonable

19 doubt. So in that context, we suggest that the words

20 in the paragraph, paragraph 373, were significant.

21 The Prosecution does agree that the Trial

22 Chamber correctly set out the law relating to joint

23 enterprise. We suggest that they misapplied it, and we

24 suggest that this misapplication is apparent when we

25 consider their findings under paragraph 6 as to Counts

Page 600

1 10 and 11 because there the Trial Chamber applied this

2 concept of joint enterprise and found the accused

3 guilty even though, in those facts, they found that

4 earlier, in the events culminating in the sexual

5 mutilation, that the accused, at that time the accused,

6 had actively directly participated in tortures and

7 beatings. They held him criminally liable for that and

8 found him guilty.

9 However, they also found him guilty for acts

10 where he did not directly participate. In fact, the

11 sexual mutilation of Fikret Harambasic, they found that

12 the accused did not directly participate, but that his

13 continued presence rendered him culpable as part of the

14 joint criminal enterprise. We suggest that same

15 interpretation would lead to culpability here in

16 Jaskici.

17 We certainly agree that you must look to the

18 entire judgement in assessing whether the Trial Chamber

19 here correctly applied the standard of proof beyond a

20 reasonable doubt and you must look to the entire

21 judgement in order to put this idea of joint criminal

22 enterprise in its proper context, and the concept here

23 is that the joint criminal enterprise was much broader

24 than the Trial Chamber envisioned for the counts in

25 question and that indeed this joint criminal enterprise

Page 601

1 encompassed acts of extreme brutality and killings and

2 that the accused had participated throughout in this

3 joint criminal enterprise of ethnic cleansing and so

4 the accused was proven not just at Jaskici to have a

5 conscious determination to commit acts that

6 deliberately and substantially and directly contributed

7 to the commission of the crimes in Jaskici but that we

8 can show that not just by the facts there but by the

9 other facts of record, the other evidence showing his

10 participation, and that also, because of these other

11 facts, he would have foreseen that this was a possible

12 outcome of this violent behaviour on that date. He

13 certainly would have known it was authorised.

14 Therefore, by his participation, he meets the

15 requirements for joint enterprise liability. That is

16 where we believe that the Trial Chamber misapplied the

17 law.

18 If there are no questions on ground 2, I will

19 move on to ground 5.

20 JUDGE SHAHABUDDEEN: Please proceed,

21 Ms. Hollis.

22 MS. HOLLIS: Thank you, Your Honours. As to

23 ground 5, the appellant has referred to many Rules,

24 including 89(B), which we believe is an appropriate

25 Rule here because there is no Rule that specifically

Page 602

1 addresses what the Prosecution was requesting.

2 89(B), you will note, indicates that, first

3 of all, where there is no such Rule, the Trial Chamber

4 should rule in a way that is most consistent with the

5 fair determination of the matter and, secondly, most

6 consistent with the Statute. It is only after that

7 that we get to general principles of law.

8 The Prosecution certainly agrees that there

9 were no existing Rules so that 89(B) would apply.

10 However, in determining what is most consistent with a

11 fair determination of the matter, we suggest you look

12 at the real purpose for the Rule of disclosure of

13 witness statements. It is not to assist either side,

14 it is not to try to create a balance where there was

15 none, it is to assist the triers of fact by allowing

16 the opposing party to bring inconsistencies to the

17 attention of the fact-finder so the fact-finder is

18 fully informed before the fact-finder makes

19 determinations about what evidence is credible and what

20 evidence is not. So that, indeed, the Prosecution

21 request was most consistent with a fair determination

22 of the matter before the Trial Chamber.

23 We further suggest that the Prosecution

24 request was consistent with the Statute, and here we

25 will turn to Article 21, which has been discussed by

Page 603

1 the appellant, and yesterday there was no blush when

2 the Prosecution referred to Article 21 because indeed

3 the Prosecution very seriously takes the plain language

4 and the plain meaning of the language in that Article,

5 and inherent in that language is equality, and when we

6 look specifically at sub-part 4 and sub-part (e) of

7 sub-part 4, it indicates equality in the sense that the

8 Defence may obtain and examine witnesses under the same

9 conditions as the Prosecution, and it is not fanciful

10 to say that the condition imposed upon the Prosecution

11 is that, for witnesses the Prosecution calls, if

12 statements exist, those statements will be turned

13 over. That is equality and that is what we take the

14 plain word to mean: parity. Not that the Prosecution

15 must but that the Defence need not. That is not an

16 argument of equality, that is an argument of

17 inequality.

18 We have also heard mentioned several times

19 that this submission should be rejected because of this

20 inequality in other areas, for example, the fact that

21 the Prosecution has many more resources. We suggest to

22 you that is totally irrelevant to this issue. But

23 since it has been raised, let's at least, in passing,

24 refer to that argument.

25 The Prosecution has a mandate in this

Page 604

1 Tribunal that is very expansive. The mandate is to

2 investigate serious violations of international

3 humanitarian law throughout the entire former

4 Yugoslavia and, where sufficient evidence exists, to

5 bring forth indictments and to prosecute. That mandate

6 is much broader than the mandate that an individual

7 accused or Defence counsel has in a case that involves

8 one accused and specific charges. So this argument

9 about resources that the Prosecution has we suggest is

10 a misdirected argument.

11 That position aside, however, Your Honours,

12 of course Defence counsel and the appellant are totally

13 free to come to the registry and to the Trial Chamber

14 and to the Appellate Chamber and request such

15 additional resources as they need to be able to fully

16 carry forth their case, and we believe that has been

17 done, in fact, in the Tadic case.

18 So again, this issue of resources has no

19 impact on ground number 5.

20 If we really look at ground number 5 here,

21 what do we come down to? Now, the appellant has argued

22 to you that an accused has an absolute right to put on

23 no evidence, to remain silent, and to force the

24 Prosecution to prove its case beyond reasonable doubt,

25 and the Prosecution totally accepts that and submits it

Page 605

1 is totally irrelevant to the issue before you.

2 The issue here has gone well beyond that.

3 The issue here is, where an accused chooses not to

4 remain silent, chooses to present evidence, and that

5 evidence is put forward to the fact-finder for

6 evaluation, the issue here is: Once the appellant

7 decides to put forward evidence, should that evidence

8 be tested? We suggest, yes, indeed, it should. And

9 once an appellant chooses to put forward evidence, what

10 right prevents the testing of that evidence? Is it the

11 right to put on evidence that may not be tested, that

12 must simply be accepted? No such right exists. Is it

13 the right to put on evidence that is contradicted by

14 earlier statements of a witness and to hide that from

15 the Trial Chamber? No such right exists. Is it the

16 right to put on evidence that is, in fact, untruthful

17 and is contradicted and shown to be untruthful by

18 earlier statements? No such right exists.

19 So we are not dealing with deprivation of a

20 right of the accused. What we are dealing with is a

21 way to assist the fact-finder, not the Prosecution, the

22 fact-finder, in carrying out their mandate of

23 determining what is reliable evidence. That is what we

24 are talking about here. It is not barred by the Rules,

25 it is not barred by the Statute, it, in fact, promotes

Page 606

1 the interests of justice, it promotes the truth-seeking

2 process, but it in no way requires the accused to take

3 that first step and come forward and put on evidence.

4 It only applies once that first step is taken.

5 We suggest that it would promote the mandate

6 of this Tribunal, the interests of justice, the

7 truth-seeking process to indeed rule that once the

8 Defence puts forward a case and puts on witnesses, if

9 there are statements in existence, those statements

10 must be disclosed to the Prosecution so that the

11 witness's evidence can be fully tested.

12 Those are my comments. Thank you.


14 Mr. Livingston relied on three categories in making his

15 submission on ground 5. As I understood him, he

16 regarded all three categories as equal but he regarded

17 the third category, if I may say so, as a little more

18 equal than number 1 and number 2; that is, the

19 client-counsel privilege. Have you dealt with that?

20 MS. HOLLIS: Yes, Your Honour. I would be

21 happy to make a further response.


23 MS. HOLLIS: There is in this Tribunal, by

24 virtue of the Rules that the Judges of this Tribunal

25 have adopted, there is a very strict attorney-client

Page 607

1 privilege. It is between the attorney and the client.

2 Defence witnesses are not clients of the attorneys.

3 They are witnesses coming to a court to give evidence.

4 In fact, in some of the trials before this

5 Court, Judges have made statements that all witnesses

6 coming before this Court are not a witness of the

7 party; they are, in fact, a witness of the Court.

8 There has certainly some truth to that. It may not be

9 true in terms of who actually calls the witness and

10 directs them and who can cross-examine them, but in

11 terms of why witnesses are called, that is correct. It

12 is to give evidence to the fact-finders so that the

13 truth may be found.

14 In that regard, we suggest witnesses are not

15 clients of the Defence. In fact, if they were, it

16 could be that there were some conflict of interest that

17 would require the Defence attorney to have to withdraw

18 from that case. They are not witnesses; they are not

19 clients.

20 We believe that the attorney-client

21 privilege, as it is drawn in this Tribunal, is not

22 applicable, and we would urge you not to expand that

23 privilege. We do not believe it is necessary to

24 protect legitimate attorney-client interests. We

25 believe that it would result in protection of

Page 608

1 information that would be detrimental to the

2 truth-seeking process, such as prior statements from

3 Defence witnesses. If you have not adopted that

4 broader privilege, we would ask that you have not do

5 so, and we would submit that that privilege should not

6 have been used here as a basis for the Trial Chamber's

7 decision.

8 JUDGE SHAHABUDDEEN: How would you define the

9 client-counsel privilege then? I know it's a broad

10 question, but would you say that the privilege would

11 encompass a previous statement given by the accused

12 himself to his counsel?

13 MS. HOLLIS: Your Honour, our submission

14 would be that to the extent an accused again foregoes

15 his right to remain silent and comes forward and

16 testifies, to the extent he has made prior statements

17 about that same testimony, by coming forward, he has

18 consciously waived any sort of protection he had for

19 those prior statements. If he has made other

20 statements unrelated to his testimony, we would suggest

21 that is protected.

22 We would further suggest that Judges may be

23 even more protective of an accused than they would be

24 of other Defence evidence, and so Judges may be more

25 inclined to perhaps extend more of a protection for an

Page 609

1 accused who testifies even than for others, because it

2 is the accused who has the absolute right to remain

3 silent and not incriminate himself.

4 JUDGE SHAHABUDDEEN: Ms. Hollis, we thank

5 you.

6 MS. HOLLIS: I will turn it over to my

7 colleague, Mr. Fenrick.

8 JUDGE SHAHABUDDEEN: Now it's Mr. Fenrick.

9 Mr. Fenrick, you have the floor.

10 MR. FENRICK: Your Honours, I believe we've

11 already used up the 15 minutes that were assigned for

12 rebuttal time. If I might request, say, perhaps a

13 maximum of ten minutes to address specifically ground

14 number 1?

15 JUDGE SHAHABUDDEEN: You would like ten

16 minutes for ground number 1. Are there any other

17 grounds that you will be handling?

18 MR. FENRICK: I am prepared to speak to the

19 remaining grounds, which are grounds 3 and 4, but I

20 didn't intend to make any --

21 JUDGE SHAHABUDDEEN: Suppose you gave us a

22 ballpark figure of the total time-span you would

23 require.

24 MR. FENRICK: Ten minutes, Your Honour.


Page 610

1 MR. FENRICK: In totality.


3 undercutting us; we were willing to give you 15

4 minutes.

5 MR. FENRICK: Ten should do, I believe.

6 In connection with ground 1, which is, of

7 course, concerned with the protected person status

8 under Article 2, as Your Honours will recollect in the

9 various briefs that have been filed, there are three

10 separate tests for attribution, which perhaps might be

11 the most appropriate expression, or the linkage between

12 the accused and a side to the international armed

13 conflict. Two of the tests, the effective control test

14 and the agency test, are rooted in the Nicaragua

15 decision. The third test, the demonstrable link test,

16 which was the one which we had suggested was the most

17 appropriate, is both the lowest standard, the easiest

18 one to reach. Presumably, if one reaches effective

19 control or agency, one has also easily, quite

20 comfortably reached the demonstrable link standard.

21 We submit that there is an adequate legal

22 basis for the demonstrable link or what one might more

23 appropriately call an almost web of different ties

24 between the accused and a side to the conflict test

25 implicit in the Geneva Conventions themselves and in

Page 611

1 the existing customary law, specifically post-World War

2 II cases involving individual criminal responsibility.

3 It has been suggested by the Defence that the

4 effective control test and the agency test are both

5 ones which are easy to apply and that we are opening

6 the door to a test which is more difficult to apply.

7 It would be our submission that, in fact, all three

8 tests leave ample scope for interpretation. If one

9 might observe, we appear to have had rather substantial

10 differences between various Judges at the Trial Chamber

11 concerning the application of the effective control

12 test. If it was that simple to apply, perhaps we would

13 not have had as much difficulty at the Trial Chamber

14 level as we have had.

15 It is submitted by the Prosecution --

16 JUDGE SHAHABUDDEEN: Mr. Fenrick, you are

17 referring to the fact that the dissenting Judge

18 considered that on the facts, the control test was

19 satisfied, whereas the majority was of another view?

20 MR. FENRICK: Exactly, Your Honour.

21 It is the submission of the Prosecution that

22 we meet the demonstrable link test. We also meet both

23 of the other tests, if for no other reason than that

24 paragraph 115 of the majority decision, which one might

25 look at almost as the paymaster provision of the

Page 612

1 judgement, clearly indicates that what we have is the

2 FRY paying its servants on an individual basis, and its

3 servants comprise virtually the entire officer cadre of

4 the VRS. This is not a mere provision for the supply

5 of logistical or financial assistance.

6 A second point which we would like to address

7 is one which has been discussed a bit, and that is the

8 overlap or the relationship between state

9 responsibility and individual criminal responsibility.

10 It would be our submission that state responsibility

11 and individual criminal responsibility are not or do

12 not cover at all times the exact same area.

13 If we start with the earliest provision in

14 Article 3 of Hague Convention IV of 1907, we have a

15 provision:

16 "A belligerent party which violates the

17 provisions of the said regulations shall, if the case

18 demands, be liable to pay compensation. It shall be

19 responsible for all acts committed by persons forming

20 part of its armed forces."

21 At the end of the Second World War, we had a

22 number of war crimes cases concerning individual

23 criminal responsibility which clearly assigned

24 individual criminal responsibility to individuals who

25 would not come within the scope of that Hague

Page 613

1 Convention provision, who were not members of the armed

2 forces, who may have degrees or relationships of

3 varying tenuousness with one of the belligerents.

4 We then move on to the Geneva Conventions of

5 1949. It would be our submission that exactly the same

6 structure continued on. We have Article 29 of Geneva

7 Convention IV which certainly talks about the party to

8 the conflict:

9 "In whose hands protected persons may be is

10 responsible for the treatment accorded to them by its

11 agents irrespective of any individual responsibility

12 which may be incurred."

13 It would be our submission that although the

14 party to the conflict may be responsible for the

15 activities of its agents for the purposes of financial

16 compensation, clearly there could be circumstances in

17 which offences occur when a victim is "in the hands of

18 a party" but not -- the fact the offence is not

19 committed by one of its agents.

20 For example, we could have some activity in

21 occupied territory, any range of activity in occupied

22 territory. We could have something occurring in the

23 territory of the high contracting party where the

24 victim is virtually, by definition, in the hands of the

25 high contracting party but the grave breach may be

Page 614

1 committed by somebody who is not an agent of the high

2 contracting party. It could be committed by a citizen;

3 it could be committed by anybody.

4 Somewhat similarly, if we move along to

5 Additional Protocol I where we have Article 85 --

6 excuse me. I've managed to tie myself in knots here.

7 Article 85(5) of Additional Protocol I states:

8 "Without prejudice to the application of the

9 conventions and of this protocol, grave breaches of

10 these instruments," meaning also the grave breaches of

11 the Geneva Conventions, "shall be regarded as war

12 crimes."

13 So we can't distinguish that on the basis

14 that only war crimes can be committed against a wider

15 range of individuals because here all grave breaches

16 are also war crimes.

17 Then, of course, we have Article 91 of

18 Additional Protocol I, and Additional Protocol I, of

19 course, was applicable in the territory of the former

20 Yugoslavia at the time which is the subject of this

21 indictment. Article 91:

22 "A party to the conflict which violates the

23 provisions of the Convention or of this Protocol shall,

24 if the case demands, be liable to pay compensation. It

25 shall be responsible for all acts committed by persons

Page 615

1 forming part of its armed forces."

2 There are a range of things for which the

3 state may be responsible, and there has been a range of

4 things for which the state may be responsible, since we

5 have been talking about individual criminal

6 responsibility and the prosecution of war crimes

7 primarily in the post-World War II area, and there is

8 also a range of things for which individuals may be

9 held criminally responsible. They do not necessarily

10 overlap.

11 The last comment which we would like to make

12 in connection with this particular ground of appeal is

13 that the Prosecution, in fact, concedes that there is

14 no burden on the Defence to show -- when we're talking

15 about armed conflict or armed conflicts, there is no

16 burden on the Defence to show that there is a separate

17 internal conflict unrelated to the international

18 conflict. It is up to the Prosecution to establish

19 that what might be viewed as an internal conflict is,

20 in fact, intimately tied to the international

21 conflict.

22 Having said that, it is the submission of the

23 Prosecution --

24 JUDGE SHAHABUDDEEN: You accept Mr. Clegg's

25 position --

Page 616

1 MR. FENRICK: I accept that part, yes,

2 certainly.

3 JUDGE SHAHABUDDEEN: -- that once an issue

4 has been raised as to whether there was an internal

5 conflict in addition to an international conflict, the

6 burden is on the Prosecution to disprove that?

7 MR. FENRICK: That is correct, Your Honour.

8 It is, however, submitted that we have more than amply

9 established the very close relationship between the

10 so-called conflict involving the Republika Srpska and

11 the VRS with Bosnia and the actual overriding conflict

12 between the FRY and Bosnia. These conflicts were one

13 in the same.

14 Those are all the comments that I have in

15 connection with ground number 1, Your Honours. As I

16 said, the other two grounds -- well, if you wish to

17 pose questions concerning either grounds 1, 3, or 4, we

18 are available.

19 JUDGE SHAHABUDDEEN: Please proceed,

20 Mr. Fenrick.

21 MR. FENRICK: I'm sorry, sir. I've

22 finished. I shall proceed to my seat.

23 JUDGE SHAHABUDDEEN: I will react to that

24 last submission with delight, and congratulations to

25 you for keeping time so well.

Page 617

1 That concludes the Prosecution's cross-appeal

2 on judgement; is that right?

3 MR. CLEGG: Your Honour, yes.

4 JUDGE SHAHABUDDEEN: Then we will turn to the

5 appellant's appeal on sentencing. I know it's a wee

6 bit early, but there seems here to be a natural

7 breakwater in the proceedings, and I wonder whether

8 this might be a time to take our break and to come back

9 exactly in half an hour. If you would like to start

10 now, that's fine. We can start for 15 minutes.

11 MR. CLEGG: I think I'll take the opportunity

12 of the early coffee break.

13 JUDGE SHAHABUDDEEN: I thought so.

14 MR. CLEGG: It's nice to be at one with the

15 Tribunal so consistently.

16 JUDGE SHAHABUDDEEN: Yes. We will, let us

17 say, resume at ten minutes to the hour; is that

18 agreeable?

19 MR. CLEGG: Certainly.

20 JUDGE SHAHABUDDEEN: It's a little less than

21 half an hour.

22 --- Recess taken at 3.29 p.m.

23 --- On resuming at 3.50 p.m.

24 JUDGE SHAHABUDDEEN: This sitting is

25 resumed.

Page 618

1 We come now to the third and final branch of

2 the appeal, that is, the appellant's appeal on

3 sentencing.

4 Mr. Clegg, are you ready?

5 MR. CLEGG: I am. May it please Your

6 Honours.

7 Turning to the question of the appeal against

8 sentence, on one reading of the Statute of the

9 Tribunal, it could be said that no such appeal can lie

10 because there does not appear to be any express

11 provision for an appeal against sentence in terms.

12 Article 25 that deals with appellant

13 proceedings is couched in the following way:

14 "The Appeals Chamber shall hear appeals from

15 persons convicted by the Trial Chambers or from the

16 Prosecutor on the following grounds: An error on a

17 question of law invalidating a decision or an error of

18 fact which has occasioned a miscarriage of justice."

19 Both of those expressions lie more happily

20 within the concept of an appeal against conviction, but

21 we would submit that there should be a generous and an

22 elastic approach to those words, because the drafters

23 of the Statute could not have intended to have

24 precluded an appeal against sentence where such a

25 sentence was right and proper.

Page 619

1 It can be argued, in our submission, that an

2 unfair sentence must be a result of an error -- it may

3 be difficult to identify -- or fact by the Trial

4 Chamber because no Trial Chamber would ever want to

5 pass an unfair sentence, and an unfair sentence is

6 itself a miscarriage of justice.

7 It could also be argued in relation to some

8 aspects of the sentence appeal that they do relate to

9 an error on a question of law, and to that extent, if

10 there be an error in relation to the appropriate law as

11 it applies to sentencing, then that is capable, we

12 would submit, of invalidating the decision of sentence,

13 leaving it open to this Appeals Chamber to revise the

14 decision taken by the Trial Chamber which is one of its

15 powers under Article 25(2). We would submit that the

16 word there "revise" embraces the substitution of a fair

17 sentence for an unfair sentence.

18 We would submit that there cannot have been

19 any intention of the drafters to prevent an appeal

20 against sentence. There is, to my knowledge, no

21 jurisdiction that does not have a power to review

22 sentence following conviction, and here, if the

23 sentence is, in the judgement of the Appeals Chamber,

24 unfair, we would invite a generous interpretation of

25 the words of the Statute to enable that unfairness to

Page 620

1 be remedied.

2 Moving now to the merits of the application,

3 I hope I can encompass the points we raise briefly.

4 First, we submit that a total sentence of 20 years was

5 unfair in that it was longer than the facts of the case

6 required or demanded. The reasons why we say the

7 sentence of 20 years was too long are as follows:

8 First, we submit that particularly in

9 sentencing the very first defendant to have been

10 convicted by a Trial Chamber of crimes in the former

11 Yugoslavia, it was incumbent on the Trial Chamber to

12 have in mind the development of an appropriate tariff

13 of sentences to reflect the varying culpability of

14 different defendants. Such a tariff must inevitably

15 reserve for those most culpable of the highest

16 sentences and reflect in lower sentences those of less

17 culpability.

18 The rank, position of command, activities,

19 and position of power in the region of this appellant

20 were such that ought to have placed him, in the

21 importance of defendants, at the very bottom of the

22 list of culpability. The Trial Chamber here were not

23 dealing with sentencing a decision-maker, somebody who

24 formulated policy, somebody who commanded a body of

25 men; one was dealing with somebody of, on any view, a

Page 621

1 comparatively lowly status. In our submission, that

2 fact has not been reflected in the pitching of the

3 sentence at 20 years because it does not allow

4 sufficient flexibility to impose an appropriate

5 sentence that would demand a higher tariff against

6 somebody who was much more culpable, a decision-maker,

7 somebody who was formulating policy.

8 That is the first submission that we make,

9 that the Appeals Chamber must have regard to the

10 development of a tariff of sentencing that properly

11 distinguishes levels of culpability and levels of

12 responsibility.

13 Secondly, we would submit that, under Article

14 24, the Trial Chamber is enjoined to have recourse to

15 the general practice regarding prison sentences in the

16 courts of former Yugoslavia, Article 24(1).

17 Expert evidence was heard by the Trial

18 Chamber in relation to that issue. I confess, it was

19 not at all times a model of clarity, but doing as best

20 that I can to extract the principle from it, it would

21 appear that in the absence of the death sentence, a

22 sentence of 20 years' imprisonment was the maximum

23 penalty permitted under local law. That factor is a

24 factor that will also be a matter that the Trial

25 Chamber will need to have recourse to when passing

Page 622

1 sentences on others committed who are, we would say,

2 more culpable and higher in the command structure than

3 this defendant.

4 Third, we would submit that insufficient

5 attention was paid to the personal circumstances of

6 this defendant. First, he, and I expect many others,

7 were subjected to a deliberate propaganda campaign in

8 the area in which they lived which clearly encouraged

9 participation in ethnic cleansing. That, of course,

10 does not excuse criminal responsibility, but it is a

11 factor and helps to explain why a man of previously

12 good character, with no question of any previous

13 offending of any kind, behaved in the way that the

14 Trial Chamber found proved.

15 He is a prisoner who has had to serve and

16 will continue to have to serve his sentence in a

17 foreign state to him; he will be, of necessity, away

18 from his wife and young family during the period that

19 he serves his sentence and will be isolated from others

20 of his own nationality. Indeed, for much of the time

21 that he has already served, he was the only prisoner in

22 the U.N. detention centre and has, in effect, been

23 serving as a remand prisoner in solitary confinement.

24 He will, upon release, suffer from the notoriety of

25 being the first war criminal convicted, and for that

Page 623

1 and other reasons, return to his native region will

2 probably be impossible.

3 In our submission, those factors combine to

4 demonstrate that the total sentence of 20 years was an

5 unfair sentence in all the circumstances of this case.

6 May I move to two separate points which we

7 submit reflect an error in the application of

8 sentencing policy by the Trial Chamber that would

9 result in injustice unless this Court were to revise

10 the order.

11 The Trial Chamber sought to direct that the

12 appellant serve a minimum sentence of ten years. I

13 cannot find any power for the Trial Chamber to have

14 imposed that minimum period. Of course, nobody can

15 stop a Trial Chamber imposing a recommendation, and any

16 jurisdiction in which a prisoner is serving would, I

17 anticipate, give due weight to any recommendation of

18 the Trial Chamber. So I am not suggesting that they

19 can't give a recommendation.

20 What I submit is manifestly unfair is that

21 they directed that the period of ten years does not

22 begin to run until after the conclusion of the appeal

23 process. The effect of that is to penalise the

24 appellant for exercising his right of appeal. It also

25 has the effect of penalising the appellant for the

Page 624

1 obstruction of Republika Srpska that has delayed the

2 hearing of this appeal and has the effect of penalising

3 the appellant for the procedural delays that are

4 inevitable in any proceedings of this kind.

5 We submit that that is fundamentally unfair,

6 it imposes a penalty on the right to appeal and is

7 inconsistent with the thrust of the Statute which is

8 designed to give an appellant a right of appeal which

9 ought not to be accompanied by a counterpenalty, and it

10 is, in reality, a penalty because any sentence that is

11 reflected by a minimum recommendation is going to be a

12 sentence that must last, if the recommendation is

13 accepted here, ten years from when that recommendation

14 starts. If it starts today, the appellant will have

15 served 15 years of the 20-year sentence before he could

16 be eligible for release because he has already been in

17 custody some five years. The effect is also, of

18 course, to penalise the appellant for the time taken in

19 preparing the case for trial and penalise him for the

20 difficulties that were occasioned pre-trial, that which

21 we have touched on earlier.

22 We submit that although there is nothing

23 wrong with a minimum recommendation, justice can only

24 be achieved if that minimum recommendation operates

25 from the time the appellant lost his liberty;

Page 625

1 otherwise, it is to go behind the provision to allow

2 credit for time served whilst unconvicted.

3 So we would invite the Appellate Chamber, in

4 relation to whatever sentence you determine is fair, to

5 make a minimum recommendation, if you see fit, and we

6 don't quarrel with the minimum recommendation of half

7 of the appropriate term. So if the term remains at 20

8 years, I don't suggest that a minimum term of ten is

9 unfair. If it were reduced to 15, I would say the

10 period should be seven and a half by way of

11 illustration. I'm content with the percentage, but we

12 do submit, as a matter of fundamental principle and

13 fairness, the time ought to run from when the appellant

14 first lost his liberty because he has, in reality, been

15 a prisoner throughout.

16 Third, another feature that we say is

17 fundamentally unfair, is that from, I believe, February

18 1994 to the 24th of April of 1995, a period of 14

19 months, the appellant was in custody in the Federal

20 Republic of Germany. He was only in custody, as I

21 understand it, in relation to allegations that were

22 embraced in the facts heard by the Trial Chamber. It

23 is set out at paragraph 6 of the judgement:

24 "Dusko Tadic was arrested in February 1994

25 in Germany, where he was then living, on suspicion of

Page 626

1 having committed offences at the Omarska camp in the

2 former Yugoslavia in June 1992, including torture and

3 aiding and abetting the commission of genocide, which

4 constitute crimes under German law."

5 Now, of course I accept that technically he

6 was in the custody of a foreign state but, in reality,

7 he was in custody for these offences because it was the

8 investigation into that very camp that occupied the

9 time of the Trial Chamber, and it is, so far as the

10 appellant is concerned, of course, of little comfort to

11 him that he has spent 14 months in the prison of

12 another state before being transferred here in relation

13 to exactly the same offences.

14 The Trial Chamber found as a fact that both

15 sets of investigations involved the same crimes; and

16 therefore, we submit that in all fairness to him,

17 credit must be given for that period in custody. It

18 has expressly not been given so far. It was time when

19 his liberty had been deprived, it had been deprived for

20 these offences, and this Appeals Chamber has the power

21 to revise the sentence to give him that credit. It

22 amounts to 14 months which, if one equates that with

23 the 50 per cent minimum period, would reduce the

24 minimum recommendation by 28 months and the sentence

25 likewise.

Page 627

1 I hope I have explained that adequately. You

2 have got to factor in the benefit which would otherwise

3 not be given.

4 The Court will, of course, be aware, under

5 Rule 101, it says there that:

6 "Credit shall be given to the convicted

7 person for the period, if any, during which the

8 convicted person was detained in custody pending

9 surrender to the Tribunal or pending trial or appeal."

10 Of course, here he was in custody having been

11 charged with offences in Germany, so he was technically

12 in custody in relation to a wholly separate

13 jurisdiction, and it was only when arrangements were

14 made for the transfer that he was then brought over and

15 placed in the detention of the United Nations. But it

16 is, with respect, rather academic so far as the impact

17 on the prisoner is concerned, it is of no benefit to

18 him to be in prison in Germany as opposed to being in

19 prison in The Hague. He has been in prison throughout,

20 and we would submit that it would be an injustice if he

21 were not to be given credit for that time.

22 Unless I can assist the Chamber any further,

23 those are our submissions on sentence. The Court will,

24 of course, have seen the transcripts and there are

25 reports and psychiatric reports and the like. We rely

Page 628

1 upon all of those, but I don't wish to bring them

2 expressly to the Court's attention.

3 I say nothing, of course, about the possible

4 cooperation. If there is any benefit to be gained from

5 that, it will be gained as a result of submissions in

6 writing.


8 question. My impression is that somewhere in the

9 judgement there is a reference to this provision

10 requiring the Court to have regard to the sentencing

11 practice of Yugoslavia.

12 MR. CLEGG: There is.

13 JUDGE SHAHABUDDEEN: Yes, 24(1). Am I right

14 that the Court below construed that to mean that the

15 Court was required to take account of the sentencing

16 practice in Yugoslavia without being bound by that

17 sentencing practice? Do you have any submissions to

18 make on that point?

19 MR. CLEGG: I don't dissent from that

20 interpretation of the Rules by the Trial Chamber. We

21 would submit they took insufficient account of the

22 sentencing practice, but I don't think I could argue

23 that they were bound by it because it would seem to me

24 to be a conclusion that was contrary to the Rules.

25 JUDGE SHAHABUDDEEN: All right. One last

Page 629

1 question, it arises under Rule 101(D) which you read

2 out to us, and it concerns the period during which the

3 prisoner was held in the Federal Republic of Germany.

4 Would you say that that period was a period when he was

5 detained in custody pending surrender to the Tribunal,

6 that is to say, before a request for deferral had been

7 made?

8 MR. CLEGG: Well, I think technically he

9 probably wasn't. He was actually in custody pending

10 trial in Germany. It wasn't until the request for

11 referral was made that he then was pending surrender.

12 JUDGE SHAHABUDDEEN: Your arguments rest then

13 on the factual situation.

14 MR. CLEGG: Yes. It is October '94 when

15 they ...

16 JUDGE SHAHABUDDEEN: Thank you, Mr. Clegg.

17 Then we would hear from the Prosecution.

18 MS. HOLLIS: Your Honours, the Prosecution

19 position on sentence is that the sentence in this case

20 was in accordance with the law, that it was appropriate

21 to the crimes and to the offender, that it was

22 determined after a consideration of the matters

23 required to be considered by Rule 101 and by Article

24 41(1) of the Criminal Code of the former Yugoslavia,

25 and it should not be disturbed on appeal.

Page 630

1 In terms of this principle of hierarchy of

2 relative criminal culpability, at paragraph 60 and 70

3 of its decision, the Trial Chamber took into account

4 the accused's position within opstina Prijedor compared

5 to others and also took on this general idea about this

6 hierarchy of relative criminal culpability, so it did

7 consider that argument in arriving at its determination

8 of a just sentence. It pointed out, we suggest very

9 appropriately, that you cannot have this strict

10 hierarchy because you would be looking at this

11 speculation about what would be done in other cases

12 that have yet to be tried and yet to be found guilty

13 and yet to be sentenced.

14 We would suggest that a strict hierarchical

15 approach would also be in opposition to this theory

16 that you have to sentence an accused based not just on

17 the crimes but also on the individual circumstances of

18 each accused. Nonetheless, the Trial Chamber took this

19 principle into consideration, applied it to Mr. Tadic,

20 and arrived at a sentence they believed to be

21 appropriate after such consideration. We suggest that

22 that was not at all an inappropriate sentence in light

23 of that principle.

24 First of all, the Trial Chamber had at its

25 disposal the possibility of a maximum sentence of

Page 631

1 imprisonment for the remainder of the accused's life.

2 The Trial Chamber also had at its disposal the

3 possibility of imposition of consecutive sentences.

4 The Trial Chamber chose neither of those options and,

5 indeed, sentenced this accused to 20 years' confinement

6 and sentenced him to serve his sentences concurrently.

7 It did, in fact, look at a much reduced sentence to

8 those options that were available to it. It was not an

9 abuse of discretion for the Trial Chamber to have

10 arrived at this decision on sentencing, and we suggest

11 this is a standard that needs to be applied here.

12 The appellant has conceded that the language

13 "have recourse to" is not binding, and indeed that is

14 consistent with the jurisprudence that has developed in

15 both this Tribunal and the Rwanda Tribunal which has

16 the identical language in regard to penalties.

17 In addition, there was no violation of any

18 law, even in the existing Code in Bosnia-Herzegovina,

19 by an imposition of 20 years. Twenty years was not

20 binding, and at all times relevant to these offences

21 and these proceedings, it was still possible in

22 Bosnia-Herzegovina to, in fact, have imposed the death

23 penalty for crimes similar to that which the accused

24 was convicted of.

25 In addition to that, in the International

Page 632

1 Community, it is accepted that where states are now

2 disallowing the death penalty, they may impose the

3 alternative punishment of life imprisonment. It is

4 also accepted in the International Community that

5 crimes such as this appellant was convicted of,

6 including crimes against humanity, are viewed as to be

7 among the most serious of offences that can be

8 committed. The imposition of the 20-year sentence,

9 therefore, was within the permissible, lawful limits

10 available to the Trial Chamber.

11 The sentence is not excessive either. It is

12 within the discretion of the Trial Chamber to determine

13 what sentence is appropriate to the offender and to the

14 offence. The Trial Chamber considered all the factors

15 that were set forth and required by this Court's Rules

16 and also that were set forth in the Code of the former

17 Yugoslavia. After looking at those factors, the Trial

18 Chamber came up with its decision.

19 The Trial Chamber also noted the purposes of

20 sentencing and that sentence must not only fit the

21 crime but also the offender.

22 In arriving at its decision, the Trial

23 Chamber noted not just the personal circumstances of

24 the accused, including the existence of this propaganda

25 campaign and the impact it may have had on people, it

Page 633

1 also considered that the accused took part in this

2 propaganda campaign. It considered circumstances that

3 were relevant to this particular accused, but it also

4 considered the brutality of the acts that the accused

5 himself engaged in. It considered his willingness to

6 become part of this comprehensive ethnic cleansing in

7 opstina Prijedor. It considered also his conscious

8 desire to contribute to the elimination of non-Serbs in

9 Prijedor and his involvement in beatings that resulted

10 in death and other very severe and brutal crimes.

11 When we look at what the Trial Chamber

12 decided in this case, we suggest to you that this

13 sentence is not excessive because in toto what we have

14 is an accused who willingly and enthusiastically

15 participated in the entire scope of ethnic cleansing in

16 opstina Prijedor impacting the entire opstina, people

17 killed, people brutally tortured and beaten, people

18 forced from their homes, from their relatives, from

19 their livelihoods, from life as they knew it, and to

20 death and exile. Twenty years is not excessive for

21 that. It is not an abuse of discretion.

22 Turning to the additional point that the

23 Defence raised concerning the minimum sentence

24 recommendation, we suggest to you that that was

25 entirely appropriate and helpful.

Page 634

1 First of all, this Trial Chamber determined

2 in its ability to adjudge a sentence that the

3 appropriate sentence for this accused would be to be in

4 gaol for 20 years -- 20 years. However, the Trial

5 Chamber was also properly mindful that when the accused

6 was actually sent to serve his confinement, that the

7 laws of the country where he served that confinement

8 could produce the possibility of parole or other relief

9 from the sentence.

10 The Trial Chamber was exercising its right as

11 the fact-finders who sat through this entire case, who

12 had the benefit of seeing all of the witnesses, who had

13 the benefit of observing this accused, including his

14 testimony, observing his demeanour, evaluating him and

15 his acts. They had the right to recommend how much of

16 the 20-year sentence should be served before grace was

17 given to this accused, and that is what this minimum

18 recommendation is. The Trial Chamber is telling

19 whoever it will be who will act upon a recommendation

20 for grace that, in this Trial Chamber's opinion, based

21 on their observations, the minimum that this accused

22 owes to society for his wrongs, considering his

23 circumstances and his crimes, is ten years plus the

24 time he has been in confinement awaiting his trial and

25 awaiting the appeal. That is not an improper

Page 635

1 recommendation. It is an appropriate recommendation

2 from the most appropriate, impartial body that could

3 provide it, and we recommend that you not disturb that

4 recommendation.

5 In terms of credit for time spent in

6 confinement in Germany, the Trial Chamber, we suggest,

7 complied fully with the requirements of the Rule.

8 Should this Appellate Chamber determine first that the

9 Rule is unjust, certainly the Appellate Chamber has the

10 ability to change it. We would suggest the Rule is not

11 unjust. It is not uncommon in many jurisdictions for

12 an accused to be given credit only for the time that he

13 spent in confinement in that particular jurisdiction or

14 awaiting trial in that particular jurisdiction. So

15 this is not in opposite to existing rules of criminal

16 law.

17 Should this Appellate Chamber determine that

18 the Trial Chamber imposed the wrong date as the

19 beginning of his confinement in Germany awaiting trial

20 here or awaiting transfer, that is for the Appellate

21 Chamber to determine. We submit that the Trial Chamber

22 applied the Rule appropriately, and we request that you

23 not disturb that on appeal.

24 We submit to you, finally, that this sentence

25 is appropriate, that it certainly is not excessive,

Page 636

1 that it is far below the maximum that could have been

2 imposed, that this appellant, by his wilful,

3 enthusiastic actions and choices, deserves this

4 punishment, after taking consideration of his personal

5 circumstances.

6 Thank you.

7 JUDGE SHAHABUDDEEN: Ms. Hollis, one little

8 point. Perhaps I didn't understand you correctly. I

9 heard you to be saying something to this effect, and

10 I'm translating here, that if the Trial Chamber felt

11 that Rule 101 was unjust, the Trial Chamber had the

12 power to change the Rule. Did I hear you correctly on

13 that point?

14 MS. HOLLIS: Your Honour, what I had

15 attempted to say is that on appeal, if the Appellate

16 Chamber believes that this Rule is unfair, would result

17 in an unfair sentence, that the Appellate Chamber has

18 the authority and the power to change the Rule.

19 I would suggest to you that if a Trial

20 Chamber determines that any Rule would deprive an

21 accused of a fair trial or would prevent a fair

22 decision on sentence, that even a Trial Chamber would

23 have the ability to strike down the Rule, because the

24 ultimate requirement, of course, is that there is a

25 fair trial, and we would suggest that that includes a

Page 637

1 fair proceeding and a fair judgement on sentence.

2 The point that I was trying to make is that

3 if, in this Appeals Chamber's determination, this Rule,

4 as it is presently written, would deprive an appellant

5 of a fair determination of sentence and credit towards

6 sentence, of course, this Appellate Chamber has the

7 authority to change that Rule.

8 JUDGE SHAHABUDDEEN: I see. I understand you

9 then to mean that if the Appeals Chamber were to hold

10 that the operation of Rule 101 would collide with the

11 mandate of the Tribunal to ensure fairness under the

12 Statute, then the Appeals Chamber would have the right

13 to strike down the Rule; am I understanding you

14 correctly?

15 MS. HOLLIS: That is correct, Your Honour,

16 but we would suggest that it would have to rise to that

17 level. It would be a deprivation of a fundamental

18 fairness, not that it would be a substitution of

19 judgement.

20 JUDGE SHAHABUDDEEN: Thank you very much.

21 Mr. Clegg, we have you down lastly for a

22 maximum of 15 minutes.

23 MR. CLEGG: I think the Court can be

24 confident that I will not be occupying anything like

25 that long.

Page 638

1 As to the general principle of whether the

2 sentence of 20 years was an unfair sentence or not, I'm

3 not suggesting that the Trial Chamber didn't have drawn

4 to their attention the appropriate factors for them to

5 take into account.

6 The effect of the sentence is, we submit,

7 nonetheless unfair. The Trial Chamber was working in a

8 vacuum in passing sentence in this case. There was no

9 other person that had ever been convicted. It was

10 faced with a formidable task which it, doubtless,

11 strived as hard as it could to conclude in a manner

12 consistent with fairness. It is our submission that,

13 upon analysis, it failed to do so.

14 The question of the tariff and pitching the

15 sentence of the appellant in a bracket that will enable

16 the Tribunal in future to deal fairly with other

17 accused is not a matter, we submit, of speculation.

18 One knows that there are others who have been indicted

19 by this Tribunal who are clearly decision-makers, who

20 have clearly formulated policy, and one has to bear in

21 mind the relative culpability of different people in

22 order to achieve justice.

23 I am not suggesting there was anything wrong

24 in the Trial Chamber specifying a minimum period of ten

25 years. It's a perfectly reasonable recommendation for

Page 639

1 them to have made, pitching it at 50 per cent of the

2 determinate sentence. What I am suggesting is clearly

3 unfair is to leave the starting date wholly uncertain.

4 I venture to suggest that not one of the members of the

5 Trial Chamber would have been as pessimistic enough to

6 imagine that today would be the last day of the appeal

7 hearing before judgement two years after they had

8 delivered their judgement. They effectively issued a

9 minimum recommendation with no idea of when it would

10 start. That must be fundamentally unfair.

11 In our submission, the only fair starting

12 date for a minimum recommendation must be the date when

13 one loses one's liberty. That's when everything runs

14 from. It's when your sentence runs from; likewise, so

15 the minimum recommendation.

16 Finally, can I just deal with the question of

17 credit being given and the impact of Rule 101? I agree

18 with Ms. Hollis's view of the law in relation to that.

19 If she says that she knows of jurisdictions where there

20 is no credit given for time served in another

21 jurisdiction whilst awaiting trial, then I certainly

22 don't dispute her knowledge. It's superior to mine.

23 Certainly, in the field of extradition, it is

24 always the case that credit is given in the country

25 which receives the person who has been extradited for

Page 640

1 time spent in custody awaiting extradition in the state

2 where the application was made, and I feel cautiously

3 optimistic that, under the European Convention, if one

4 of the member states did not give such credit, then I'm

5 cautiously optimistic that the European Court would

6 overturn any such decision. I cannot, I'm afraid, off

7 the top of my head think of a case where that has

8 actually occurred, but certainly throughout Europe, the

9 practice is for credit to be given in extradition

10 cases, and it would seem to me to be in contravention

11 of the European Convention were it not to be.

12 My understanding was that certainly

13 interstate in America, there is always credit given. I

14 don't think if you're arrested in Arizona, you don't

15 get your credit if your trial happens to be in Nevada.

16 I'm not saying that there isn't somewhere a

17 jurisdiction where that doesn't apply, but it certainly

18 isn't a practice that I would recommend, with respect,

19 to the Appeals Chamber.

20 Unless I can assist the Appeals Chamber any

21 further, that is our submission.

22 JUDGE SHAHABUDDEEN: Just one point. I

23 thought you spoke of time spent in custody awaiting

24 extradition, and your argument was that credit was

25 given for such time. Is that position very different

Page 641

1 from the position which I understood Ms. Hollis to be

2 presenting, that if you are, in fact, held in another

3 country -- in fact, held in another country -- pending

4 surrender to the Tribunal, you are eligible for credit

5 for that period. The dispute is whether you are

6 eligible for credit for any prior period in which, as

7 in this case, you were held in custody but not pending

8 surrender to the Tribunal.

9 You see, there was a period when the

10 appellant was held in Germany --

11 MR. CLEGG: Yes.

12 JUDGE SHAHABUDDEEN: -- solely for the

13 purposes of criminal proceedings in Germany itself, and

14 then came the Tribunal with a deferral order.

15 MR. CLEGG: The extradition case is not a

16 perfect analogy. There are certainly cases where a

17 person is arrested in relation to crimes allegedly

18 committed domestically, and, thereafter, an application

19 is made in relation to extradition because those

20 offences embrace crimes of an international character

21 that are more conveniently to be tried in another

22 state. In those circumstances, certainly in England,

23 credit would be given for the time that you were held

24 in custody in relation to the offences then going to be

25 tried in the national courts of the other country.

Page 642

1 Certainly insofar as England is concerned,

2 credit would be given for that. I think the approach

3 would be that the prisoner has been in custody for

4 those offences, and it is really rather academic as to

5 where the trial is going to take place. The important

6 thing to concentrate on is how long has the prisoner

7 lost his liberty for? I am not competent to be able to

8 say whether that would apply throughout the regions

9 covered by the European Convention, I suspect that it

10 probably would, but it may be that others in this room

11 will know that much better than I.

12 JUDGE SHAHABUDDEEN: There are no further

13 questions, Mr. Clegg. Thank you.

14 Does that conclude the hearing in this

15 matter? Are there any other points which have been

16 overlooked?

17 MS. HOLLIS: Not for the Prosecution, Your

18 Honour.


20 MR. CLEGG: Not for us.

21 JUDGE SHAHABUDDEEN: Well then, the position

22 is that I would, on behalf of the Bench, like to thank

23 learned counsel on both sides for the excellent

24 assistance which they have afforded the Bench in this

25 matter.

Page 643

1 We will retire to deliberate. We will

2 reserve our judgement and we will indicate a date in due

3 course when the judgement will be delivered. What I

4 will say is that there is no risk of that happening

5 before the time periods agreed on this morning will

6 have expired, that is, seven days (sic) plus 14 days,

7 that will happen. And if, if, perchance the Court were

8 to agree with the Prosecution in its appeal against

9 acquittal, then there will be a separate sentencing

10 procedure.

11 I think that ends the appeal proper.

12 A request has reached me from Mr. Livingston

13 about a related but separate matter, and it would be

14 appropriate if we were to go into private session so as

15 to enable him to make his request.

16 Mr. Registrar?

17 JUDGE SHAHABUDDEEN: Yes. Let me take the

18 opportunity to correct my mathematics. I said the

19 Prosecution had seven days. Mr. Hocking has just

20 pointed out that I was in grievous error. I

21 short-changed the Prosecution by three days. The

22 Prosecution has ten days and the Defence 14 days.

23 (Private session)

24 (redacted)

25 (redacted)

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8 (redacted)

9 (redacted)

10 (redacted)

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12 (redacted)

13 (redacted)

14 (redacted)

15 --- Whereupon the hearing adjourned at

16 4.45 p.m. to await the decision of the

17 Appeals Chamber