Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10

1 Tuesday, 18 November 2003

2 [Appeals Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.02 a.m.

6 JUDGE MERON: Please be seated.

7 Madam Registrar, would you please call the case on the

8 Appeal Chambers' agenda.

9 THE REGISTRAR: Case number IT-98-32-A, the Prosecutor versus

10 Mitar Vasiljevic.

11 JUDGE MERON: Thank you.

12 I want to make sure that the interpreters are here and that they

13 can hear me.

14 THE INTERPRETER: Yes, Your Honour, the English booth.

15 JUDGE MERON: Interpretation?

16 THE INTERPRETER: The English booth, yes.

17 JUDGE MERON: The appellant is in the courtroom.

18 Appellant, can you hear me?

19 THE APPELLANT: [Interpretation] Yes, Your Honour.

20 JUDGE MERON: [Microphone not activated] The Defence and

21 Prosecution, can you hear me?

22 MS. BRADY: Yes, Your Honour.

23 JUDGE MERON: I would now like to ask for the record --

24 THE INTERPRETER: Microphone, please, Your Honour. Microphone,

25 please.

Page 11

1 JUDGE MERON: Thank you so much.

2 I would now like to ask for the record, for the appearances of

3 the parties.

4 Could we have first the appearance of the Defence.

5 MR. DOMAZET: Yes, Your Honours. Vladimir Domazet, lead counsel

6 for the appellant; and Mr. Knoops is my co-counsel in this case.

7 JUDGE MERON: Thank you very much.

8 Could we have the appearances for the Prosecution, please.

9 MS. BRADY: Good morning, Your Honour. Helen Brady, appearing on

10 behalf of the Prosecution, in responding to this matter. And with me

11 today are my colleagues, Ms. Michelle Jarvis and Mr. Steffen Wirth, and

12 our case manager today is Ms. Louie Galicia.

13 JUDGE MERON: Thank you, Ms. Brady.

14 As the Registrar announced, the case we are hearing today is the

15 Prosecutor against Mr. Mitar Vasiljevic. Mr. Vasiljevic is appearing

16 against the judgement issued by Trial Chamber II of this Tribunal on the

17 29th of November, 2002. The Trial Chamber convicted Mr. Vasiljevic on two

18 of the ten counts charged by the Prosecution: First, on Count 3 of the

19 indictment, for persecution as a crime against humanity; for the murder of

20 five Muslim men and the inhumane acts inflicted on two other Muslim men

21 during the Drina River incident. This conviction was entered under

22 Article 5 of the Tribunal's Statute.

23 Second, the Trial Chamber convicted Mr. Vasiljevic on Count 5,

24 for murder as a violation of the laws or customs of war for the murder of

25 five Muslim men during the Drina River incident. This conviction is

Page 12

1 pursuant to Article 3 of the Statute.

2 The Trial Chamber acquitted Mitar Vasiljevic on the remaining

3 charges. Mr. Vasiljevic was sentenced to a single sentence of

4 imprisonment for 20 years. The Prosecutor did not appeal against the

5 trial judgement.

6 Before hearing the parties' arguments, I will summarise the

7 grounds of appeal presented by Mr. Vasiljevic in his written submissions.

8 The appellant's written submissions were not always well

9 structured and several arguments were repeated under more than one ground

10 of appeal. This makes it difficult for the Appeals Chamber to identify

11 all the arguments supporting the appeal.

12 THE INTERPRETER: The interpreters could kindly ask Your Honour

13 to slow down.

14 JUDGE MERON: [Previous Translation Continues] ... Emphasise as

15 possible in their oral arguments.

16 The first ground of appeal is entitled "The Drina River

17 incident."

18 [Appeals Chamber and registrar confer]

19 JUDGE MERON: The first ground of appeal is entitled "The Drina

20 River incident. The appellant alleges that the Trial Chamber committed an

21 error of fact by concluding that the appellant intended that the seven of

22 this incident be killed. Although neither the notice of appeal nor the

23 appeal brief divides this ground into subsections, I have identified three

24 subsidiary grounds among the alleged errors. These are: One, that the

25 appellant was armed on 7 June 1992; two, that when he was at the hotel

Page 13

1 Vilina Vlas he knew that the seven Muslim men were to be killed and did

2 not try to stop Milan Lukic; and three, that contrarily to the

3 Trial Chamber's findings, he stopped 10 to 15 metres away from the river.

4 The appellant does not appear, however, to address the issue of the impact

5 of the alleged errors on the Trial Chamber's conclusions. I hope that the

6 arguments we hear today will clarify the appellant's position on this

7 issue.

8 The second ground of appeal concerns the appellant's relationship

9 with the paramilitary group led by Milan Lukic. From the written

10 submissions of the appellant, the Appeals Chamber understands that he

11 alleges that the Trial Chamber committed five errors of fact when arriving

12 at the following conclusions: One, the period during which the Lukic

13 group committed crimes; two, that the appellant acted as an informant to

14 the group and did so with full awareness of the -- that the intent of the

15 group was to persecute the local Muslim population of Visegrad; three,

16 that the appellant did not cooperate with the Tribunal; four, that he did

17 not stop all relations with Milan Lukic after the events in question; and

18 five, that he participated in the Musici house search.

19 It appears that under this ground of appeal, the errors and

20 questions are alleged only insofar as they had an impact on sentencing.

21 The third ground of appeal relates to the general requirements of

22 Articles 3 and 5 of the Statute and alleges a series of factual errors in

23 paragraph 46 of the trial judgement; one, that the appellant knew Milan

24 Lukic well; two, that the appellant also knew the other men who were

25 associated with Milan Lukic; three, that the appellant knew that

Page 14

1 Milan Lukic and his men committed serious crimes; and four, that the

2 appellant, despite that knowledge, was seen together with those men on

3 several occasions during the period relevant to the indictment.

4 In addition, the appellant argues that the Trial Chamber committed

5 errors of fact in paragraphs 48, 51, 54, 57, 58, and 60 of its judgement,

6 by finding that: One, the appellant was standing guard while money and

7 valuables disappeared during the search of Musici; two, non-Serb citizens

8 of Visegrad began disappearing in early April 1992; three, a burnt Muslim

9 woman was denied medical treatment; four, the acts of the appellant were

10 closely related to the armed conflict; and five, the appellant's acts were

11 part of a widespread and systematic attack of which he was aware. The

12 appellant does not appear to address the issue of the impact of these

13 alleged errors on the Trial Chamber's conclusions with respect to this

14 ground of appeal. Again, I hope that in its argument the Defence counsel

15 will clarify this issue.

16 The first ground of appeal relates to the murder of the five

17 Muslims and alleges -- alleges errors in both law and fact. The appellant

18 argues that the Trial Chamber erred in concluding that he shared the

19 intent to kill the seven Muslim men in the Drina River incident. In

20 support of his argument, he states that he was not armed that day and did

21 not point a gun at the seven men in the Vilina Vlas Hotel. He also argues

22 that the intention of Milan Lukic at the time the group was in the hotel

23 was not to kill these seven men but to imprison them. The appellant also

24 points to differences between the testimonies of Witness VG14 and VG32,

25 and argues that their testimonies do not support a finding that the

Page 15

1 appellant pointed a gun at the seven Muslim men and thereby prevented

2 their escape. The appellant also argues that he was standing 10 to 15

3 metres behind Milan Lukic and the other two men when the shooting

4 occurred. Some of these arguments overlap with the appellant's

5 submissions under the first ground of appeal.

6 The appellant also raised certain arguments which seemed to be

7 repetitive of arguments raised under the seventh ground of appeal, which

8 concerns a joint criminal enterprise regarding whether there was an

9 agreement among the appellant, Milan Lukic, and the two unknown men, and

10 whether participants in a joint enterprise are equally guilty. Also,

11 under the first ground the appellant alleges an error of law concerning

12 the cumulative convictions.

13 The fifth ground of appeal relates to inhumane acts. The

14 appellant asserts that the Trial Chamber erred by finding, one, that there

15 was an understanding amounting to an agreement by Milan Lukic, the

16 appellant, and two other men to kill the seven Muslim men; and two, that

17 the appellant personally participated in this joint criminal enterprise

18 with the intent to cause VG14 and VG32 serious mental and physical -- or

19 physical suffering.

20 The sixth ground of appeal concerns persecution. First, the

21 appellant submits that the Trial Chamber made an error of law by

22 convicting him for persecutions on the basis of a single incident.

23 Second, the appellant argues that the Trial Chamber erred in finding that

24 he knew that some evil would befall the Koritnik group and that the

25 appellant acted with the intent to discriminate on religious or political

Page 16

1 grounds. Third, that appellant argues that he did not possess the

2 necessary mens rea for the crime of persecution. The appellant further

3 submits that there was no chain of command between the appellant and the

4 Lukic group and that the discriminatory intent of the members of this

5 group cannot be attributed to the accused without further proof to

6 compensate for this lack of a chain of command. This particular argument,

7 developed at paragraphs 18 and 19 of the Defence additional appeal brief,

8 is not clear and could benefit from clarification by the counsel during

9 the argument.

10 The appellant also raises several arguments under this ground of

11 appeal which overlap with arguments under other grounds, that the Trial

12 Chamber erred in finding that he acted as an informant to the Milan Lukic

13 group, that there is no evidence to support a finding that he intended to

14 kill the seven Muslim men, that there was no agreement between him and

15 other participants to persecute the Muslim population, that the Trial

16 Chamber erred in finding that the appellant was aware of previous illegal

17 acts committed by the Lukic group.

18 The seventh ground of appeal relates to the form of criminal

19 responsibility. The appellant argues that the Trial Chamber committed an

20 error of law, first regarding the requirements necessary required to prove

21 the existence of a joint criminal enterprise. In particular, the

22 appellant submits, and I quote, that "The Trial Chamber fails to

23 explicitly indicate what exact criteria it applies to assess the presence

24 of a joint criminal enterprise." I hope the counsel will clarify this

25 argument and what exact error is alleged.

Page 17

1 The second alleged error of law regards the conclusion that the

2 participants in a joint criminal enterprise are all equally guilty.

3 The appellant's third sub-ground set out in the additional appeal

4 brief is that the Trial Chamber erred in determining that the appellant

5 shared the intent of the other perpetrators of the joint enterprise.

6 Seven arguments are raised in support of the ground, of which

7 several overlap with arguments asserted elsewhere, especially in the

8 fourth ground of appeal.

9 In his final sub-ground, the appellant argues that the

10 requirements for proving liability as an aider and abettor were not

11 considered but that, in any event, these requirements would not have been

12 satisfied in this case.

13 The eighth ground of appeal relates to sentencing. The appellant

14 argues a general error as to the length of the sentence. Additionally, he

15 raises several alleged errors in relation to the Trial Chamber's

16 consideration of the aggravating factors: One, the method of killing;

17 two, verbal abuse of the victims; three, the trauma suffered by the

18 victims, which is an element of the crime; and four, the discriminatory

19 state of mind, which is also an element of the crime.

20 With regard to mitigating factors, the appellant argues that the

21 Trial Chamber did not consider: One, the appellant's diminished mental

22 responsibility; two, the appellant's remorse; three, the fact that the

23 appellant could not have timely surrendered to the Tribunal because his

24 indictment was confidential; four, the appellant's cooperation with the

25 Prosecution; five, the appellant's relatively minor role in the broader

Page 18

1 context of the conflict; six, the appellant's lack of involvement in the

2 planning of the offence; and seven, the appellant's conduct while in

3 detention.

4 I would now ask the parties to pay attention to the criteria

5 applicable to errors of fact or law alleged on appeal. As the Appeals

6 Chamber has pointed out on many occasions, the appeal is not an occasion

7 for the parties to re-plead their case. This is not a de novo trial. On

8 appeal, the parties must limit their arguments to the questions which fall

9 within the framework of Article 25 of the Tribunal's Statute. In general,

10 the Appeals Chamber does not hear any arguments but those founded on

11 errors of law which allegedly would invalidate the judgement. Only

12 exceptionally may a party raise a question of general interest for the

13 case law of the Tribunal.

14 As to errors of fact, only those which have caused a miscarriage

15 of justice will be considered. In this case, the great majority of the

16 grounds raised by the appellant deal with alleged errors of fact. As the

17 parties should be well aware, the Appeal Chambers requires the appellant

18 who alleged errors of fact to demonstrate that no reasonable trier of fact

19 could have reached the conclusion being challenged and that the error of

20 fact is of such a gravity as to produce a miscarriage of justice.

21 I would again remind the parties to be very precise and clear in

22 their presentations of the grounds of appeal and their responses and

23 replies.

24 Let me explain our precise schedule for today. As it was set out

25 in our scheduling order of 22 October 2003, the Defence will present its

Page 19

1 arguments for 2 hours and 30 minutes. We will have a 30-minute break

2 during that presentation. At the end of the Defence presentation, we will

3 have an hour and 30 minutes' break for lunch. After that, the Prosecution

4 will have 2 hours to respond. During that presentation, we will also have

5 a break of 30 minutes. We will then hear the Defence's reply for 30

6 minutes and then the floor will be given to Mitar Vasiljevic for a brief

7 personal address.

8 I will now give the floor to the Defence -- counsel for the

9 Defence. I call on the counsel for the Defence.

10 MR. DOMAZET: Thank you, Your Honours. As lead counsel of the

11 appellant, I will speak in the language of the appellant, the Serbian

12 language, on the B/C/S channel.

13 [Interpretation] The Defence in its appeal has sought to indicate

14 errors of fact which led to a miscarriage of justice in relation to the

15 appellant. In this part of my submissions, I will refer to the facts or,

16 rather, to those errors of fact as the Defence sees them. And my learned

17 colleague, Mr. Knoops, will address the errors of law and present

18 arguments of law.

19 It is my submission that the critical factual errors which have

20 been made and which led to a miscarriage of justice in relation to the

21 appellant were whether there was any intent in his mind to kill the seven

22 men brought to the Vilina Vlas Hotel, whether he knew or could have known

23 in the hotel itself or, rather, before Milan Lukic took them away by car

24 from the hotel.

25 Secondly, a very important issue is whether or not the appellant

Page 20

1 had a weapon on him on that day, the 7th of June, 1992, because that is an

2 issue that is in dispute yet one of substantive importance.

3 And thirdly, what his role was in the Drina River incident on that

4 day.

5 The other facts that were referred to in the appeal and which

6 indeed are repeated, in view of the paragraphs in which the appeal was

7 written, that is, following the paragraphs and points in the judgement.

8 So there is indeed repetition. But as the President himself indicated

9 today, they have to do with the existence or not of the appellant's link

10 with the Lukic group. Also the periods as to whether he was some sort of

11 an informer, as the Trial Chamber concluded in its judgement, and the

12 Defence will seek, without repeating what has already been said in the

13 appeals brief, to submit its arguments with respect to these very

14 important facts that I mentioned at the beginning.

15 I should just like for the sake of explanation of the general

16 situation that the appellant was in in this period of time, to say a few

17 words with respect to the personality of the accused, and what he was

18 doing in Visegrad in the indictment period. According to what was

19 established during the trial and according to the appellant's submission,

20 the appellant immediately after the Uzice Corps left Visegrad - a period

21 which according to the appeal brief was a rather peaceful and stable

22 period, followed by one that was quite different - the appellant was

23 mobilised and found himself some 10 kilometres or so from Visegrad, in the

24 village of Prelovo, working in the canteen of the Territorial Defence for

25 Visegrad. At that time, he did have a weapon and he was issued with a

Page 21

1 weapon. This is a period beginning with the end of May 1992, which didn't

2 last long because on the last day of the month of May, sometime around the

3 1st of June, he refused to carry and distribute food on the front line.

4 He clashed with his superiors in the Territorial Defence command. His

5 rifle was seized from him, and he was sent to a prison, which was set up

6 in the former barracks of the Yugoslav People's Army in Uzamnica, close to

7 Visegrad. This is a fact that according to the Defence the Trial Chamber

8 does accept in its judgement, and it is a fact that the appellant spent

9 several days under such circumstances - according to what he says, three

10 to four days - in prison, from where he was released, in his opinion,

11 because he was given permission to attend the funeral of his cousin.

12 After that he was not sent back to prison but he was also not sent

13 back to his earlier position in Prelovo but was given so-called work

14 assignment to be in charge of the cleaning in town.

15 It is important at this point, in the opinion of the Defence, that

16 during the trial, with reference to these circumstances, his role in

17 street-sweeping, from the first days of June until the 14th of June, 1992,

18 the appellant was seen during his work obligation. He was seen to be in

19 the town of Visegrad. But none of those witnesses who testified to this

20 fact before the Trial Chamber, including several Muslim witnesses, were

21 quoted by the Defence in the appeals brief, quoting the transcripts of

22 their testimony, and none of these witnesses testified that during those

23 two weeks the appellant ever carried a weapon.

24 In the submission of the Defence, this is important precisely

25 because it is asserted that only on the 7th of June, 1992, on the critical

Page 22

1 day of the Drina River incident, he did carry a weapon. The arguments

2 presented by the Prosecution in their response is correct; namely, that it

3 is possible for him to have had a weapon on that day, whereas he did not

4 have one at any time before or after; and still on the 7th of June, 1992,

5 he could have had a weapon. But it is close to impossible or very, very

6 unlikely that something like that did happen. Since he had given his

7 weapon back to supplies before being sent to prison and did not carry a

8 weapon for more than two weeks, until the 14th of June, 1992, the date

9 when he left Visegrad, it is really extremely unlikely that he would have

10 a weapon on one single occasion, that is, on the 7thof June.

11 In our appeal brief, the Defence analysed precisely that part of

12 the testimony which served as a basis for the finding of the Trial

13 Chamber, that the appellant had a weapon on that critical day; namely, the

14 testimony of VG14 and VG32. However, what is crucial in the opinion of

15 the Defence, when deciding whether the Chamber should accept witness

16 testimony regarding such an essential fact, when testimony is

17 contradictory and the witnesses providing that testimony are people who

18 had suffered mental trauma because of attempts on their own life and

19 murders of their own family, could be motivated perhaps to lay it on the

20 door of the appellant, even though they may not be quite sure that it was

21 something that he had done. It has been established before this Trial

22 Chamber and in the opinion of the Defence it was detrimental to the

23 appellant, because the witnesses who appeared here had only him to blame

24 and he was a very marginal person in Visegrad, as the Defence sought to

25 prove throughout the trial.

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12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 24

1 In the submission of the Defence, the fact that these two

2 witnesses, who arrived together from Bikavac, where Milan Lukic, together

3 with two of his soldiers detained them in the Vilina Vlas Hotel, saw the

4 appellant there standing right next to the entrance - and on this point

5 their testimony converges completely - it is impossible that one witness,

6 VG32, pays great attention to the appearance of the appellant, noticing

7 even smaller stains on his shirt and markings and many other details, says

8 that he did not have a weapon at that moment, that he was not moving or

9 saying anything; whereas, the other witness, VG14, referring to the same

10 point in time claims that the appellant carried a weapon and held it in

11 his right hand. During his testimony at trial, the witness said it was an

12 automatic rifle, only to say later when cautioned about his own prior

13 statement, by the Prosecution, that it was a different rifle, not an

14 automatic one; whereas before the Trial Chamber he claimed it was an

15 automatic rifle. Both witnesses asserted that as they were leaving the

16 Vilina Vlas Hotel, the appellant had a rifle. It remains completely

17 unclear how if the appellant did not have a rifle at that time he could

18 procure one precisely for that moment, if he had not been mobilised, if he

19 had not been issued with the weapon, and in the opinion of the Defence

20 this very claim, that he had a rifle at that time, is not accurate and is

21 not true because both the witnesses were aware that the accused could not

22 be found responsible unless he is found to have had a rifle at the time,

23 and it was necessary for them to help somebody get convicted for the crime

24 that was committed against them. And unfortunately for Mitar Vasiljevic,

25 he was the only possibility, the only candidate.

Page 25

1 Regarding this fact, it is unfortunate that the Trial Chamber

2 committed an error on this point, although this testimony was given many,

3 many years after the incident, and precisely in this case Mitar Vasiljevic

4 demonstrated that such an error was possible because we had more than ten

5 witnesses of the Prosecution who said very emphatically that they used to

6 see the appellant in all sorts of circumstances and situations after the

7 14th of June, 1992, and they were much more categoric and much more

8 emphatic than the two witnesses who testified that he did have a weapon.

9 But the Trial Chamber did not accept the testimony of the majority of the

10 witnesses in finding that the appellant at that time was in a completely

11 different location from the 14th to the 28th of June, 1992, that is, the

12 Uzice Hospital.

13 In our appeals brief, in addition to this fact concerning the

14 weapon, the Defence pointed out to many other controversies in the

15 testimony of the two witnesses concerned; namely, they either described

16 the events differently, or their testimony was different to the first

17 statements they had given to the investigators of the OTP in the first

18 years after the incidents. Sometimes the differences are minor, such as

19 whether they went towards the Drina River in a file or in a line next to

20 each other or, for instance, who was standing right or left. However,

21 these minor details point to their inability to remember the events

22 exactly in detail and the possibility that they may have been wrong about

23 more important facts, such as whether the appellant had a weapon or not,

24 either unintentionally or intentionally. This seems to be corroborated by

25 the attempt of one of the witnesses to speak during trial about hearing

Page 26

1 three clicks of a weapon, although he had never mentioned it before. I

2 will not speak about this, because the Trial Chamber did not accept this

3 part of the testimony, even though they had complete trust in the honesty

4 and sincerity of this witness and did not find that this was a

5 fabrication. However, this particular statement, this particular claim was

6 not accepted. However, it still may have led the Trial Chamber to find

7 that the appellant did certainly shoot at the seven people who found their

8 death at the Drina River, despite the fact that none of the two witnesses

9 actually saw it.

10 The Trial Chamber, however, did not accept this and - this is

11 something that I find very important in this case - did not find that the

12 Prosecution had proven beyond a reasonable doubt that the appellant had

13 shot at anyone on that occasion or killed any of these people. It remains

14 contested, of course, and controversial whether he had a weapon and

15 whether intent was present on his part to kill those seven people from the

16 Vilina Vlas Hotel.

17 Speaking about this fact, in the testimony of these witnesses that

18 I mentioned and in the decision of the Trial Chamber itself, it was

19 established that Milan Lukic brought these seven people to the Vilina Vlas

20 Hotel and that in conversations that were confirmed by the witnesses,

21 between Milan Lukic and the person named Susnjar, who was some sort of

22 guard and turnkey in this hotel, he asked for the keys and learned on that

23 occasion that this man, Susnjar, had already released some of the people

24 who had been detained there, with the explanation that he was not able to

25 keep them there any longer because Milan Lukic had not been coming there

Page 27

1 for several days and he had nothing to feed them with, so he released

2 them. This fact, in the submission of the Defence, is very important

3 because it shows that the appellant, who found himself there by chance and

4 found what that was all about and learnt that the people who had been

5 detained there previously were released and that those seven people had

6 been brought there and detained -- the appellant, as was found by the

7 Trial Chamber, must have brought them there with the intent to detain them

8 and to keep them and use them for some sort of exchange that were frequent

9 at that time between Serbs and Muslims. The fact that he insisted on the

10 keys so much and that he wanted to detain, to lock up these people, and

11 the fact that not a single word was said about possible execution, as well

12 as the fact that since he was not able to keep them there, he said they

13 were going back, is tale-telling. Even those two witnesses who were heard

14 by the Trial Chamber did not suspect that something else would occur, and

15 the soldier who was part of the escort also testified.

16 We know that there was another prison in Uzamnica on the other

17 side of Visegrad, and we know that none of the witnesses, VG14 and 32

18 included, or the appellant, suspected that what happened would happen;

19 namely, that after crossing 2 or 3 kilometres and reaching the bank of the

20 Drina River, Milan Lukic would order these people to go towards the Drina,

21 where within a few minutes a tragedy would occur, wherein these people

22 would be executed.

23 As to the role of the appellant, the Trial Chamber proceeded on

24 the assumption that the appellant had the intent and the wish to have

25 these people executed and that was why the reason -- that was the reason

Page 28

1 why he accompanied those seven people, whose arrest he had not previously

2 known about, and that he somehow participated in this. The Defence tried,

3 both during the trial and in its appeals brief to present its arguments to

4 the contrary, both regarding knowledge that these people would be killed

5 and the point when it actually happened on the bank of the Drina River,

6 that Milan Lukic would shoot these people dead when he was unable to do

7 anything about it.

8 And the last point is: What could the appellant have done to

9 help those three people? It is the submission of the Defence that it is

10 very important to point out that no role or assistance of the appellant

11 was needed by these three, either at that moment or otherwise, because as

12 it has been established beyond any doubt, if these three could have on the

13 Bikavac hill, several hours before this, searching houses they arrested

14 not these seven but many more people, according to the testimony, at least

15 twice as many people -- if in doing so they didn't need the assistance of

16 anyone - and there was a possibility for the attack to be resisted,

17 because this was an entire settlement that was in question, and they could

18 have put up resistance - if in that -- on that occasion they hadn't needed

19 any aid, they needed aid still less at this point in time, when they were

20 bringing them back from the Vilina Vlas Hotel. Regrettably the Trial

21 Chamber did not accept the testimony of the appellant about this, nor his

22 assertion that he could do nothing, and that when he saw what was about to

23 happen he never approached the site of the crime or the banks of the

24 Drina, that he remained among the trees that was some distance away from

25 the river bank. This was not accepted by the Trial Chamber, and in the

Page 29

1 submission of the Defence it is an error of fact which is of extreme

2 importance and which leads to a miscarriage of justice in this case, in

3 relation to the appellant.

4 In the submission of the Defence, the Trial Chamber Judges

5 completely neglected the testimony of a very important witness, though

6 they did trust him and they did not challenge his testimony. But in the

7 opinion of the Defence, it was wrongly interpreted to the detriment of the

8 appellant, rather than in his favour.

9 In my opinion, an exhaustive explanation is given of this point

10 in the appeals brief, and I shall now just highlight a few of the most

11 important points which I consider to be important for this Chamber and

12 your ruling today.

13 This witness, unlike two other eyewitnesses, apart from being

14 Muslim, was in no way motivated to testify prejudicially because though he

15 recognised two among the victims, in the opinion of the Defence, he

16 testified truthfully of what he saw and what he could have seen from the

17 other bank of the Drina River through his binoculars. It is very

18 important to point out that he was very familiar with Mitar Vasiljevic

19 personally. He knew him extremely well. He knew him and recognised him

20 in other situations as well. And this is important because during his

21 testimony about what had happened, he did not see Mitar Vasiljevic, that

22 is, the appellant, on the Drina river bank. Even in his statement for the

23 investigators, given a year prior to this trial, he drew a sketch of what

24 he had seen, and this is Defence Exhibit D1, which I would kindly ask this

25 Chamber to pay special attention to, which he recognised as his and as

Page 30

1 being authentic, and he drew the positions of the seven unarmed men along

2 the Drina, among whom he recognised two of -- who were his friends, and he

3 recognised and identified them accurately. And after that, he marked the

4 position of three soldiers who were standing behind and who shot at these

5 seven, which he saw and heard. He did not see a fourth man in that

6 position, that is, the appellant in this case.

7 It is true that at the hearing itself, during his testimony, and

8 also when examined by the Prosecution, he said that he saw a group stop,

9 two vehicles, and seven civilians walking in front, and three or four

10 soldiers going behind them; that is, a total of 10 or 11 persons. In view

11 of the fact that in his written statement, which he recognised, he was

12 talking about three plus seven, that is a total of ten persons, when he

13 spoke to the investigator. When I asked him about it, he said that this

14 fourth or eleventh person was one that he didn't see very well and that he

15 wasn't even sure that he -- that it existed, that he thought he saw 10 or

16 11 or 3 or 4 when approaching the river but not at the river itself and

17 that probably if such a fourth or eleventh person did exist, this person

18 was left behind among the trees, and that is why he didn't see him.

19 It is a well-founded assumption of the Defence that this fourth

20 man, who could not be seen and who was among the trees is the appellant,

21 and we do so -- we believe so for the following reasons: On the one hand,

22 the witness himself said that he knew the appellant very well and that in

23 view of the fact that among the seven he was able to recognise two of his

24 acquaintances, he would have certainly recognised among three soldiers the

25 appellant if he had been there, especially as with regard to one of the

Page 31

1 three he said that he even noticed that he had rather light-coloured hair

2 and that on that basis he later concluded that it was Milan Lukic, who had

3 such hair.

4 And another important fact, which this witness noticed, and that

5 is that all three were wearing uniforms of the same colour. He claimed

6 that he saw that as being a dark colour, a black -- or rather, black.

7 Other witnesses about this uniform describe it as being a blue camouflage

8 uniform that was worn by members of the police. So in any case, it was

9 certainly a dark uniform, and it is beyond dispute, even according to the

10 statements of the witnesses, the appellant on that occasion was wearing a

11 light-coloured, old so-called SMB olive-green/grey uniform on him, which

12 was quite different from that worn by the others. This, in the opinion of

13 the Defence, is a very important fact, and it indicates that the appellant

14 was not among those standing behind the victims, that is, Milan Lukic and

15 his two soldiers, and that he did not participate in shooting these men,

16 and that these three who did shoot and the way in which they shot led to

17 two survivors.

18 This witness confirmed what the appellant was saying, and I must

19 recall, as this was referred to in the closing statement of the

20 Prosecution, that the appellant adjusted his defence to the statement of

21 this witness, which is not correct, because when the appellant first made

22 his statement to the Prosecution, it was on the 16th and 17th of November,

23 2000, when he described the situation in the same manner, the situation on

24 the Drina River, and Witness VG79 was heard and found by the Prosecution

25 for the first time and interviewed in 2001 and the appellant was not aware

Page 32

1 of his statement at the time. So I believe that these facts are of great

2 importance indeed and that the Trial Chamber erred in its findings with

3 regard to these facts. And this is of key importance for the Drina River

4 incident for which Mitar Vasiljevic was found guilty.

5 These facts are, therefore, very important, because all other

6 facts that are in dispute, that is, those referred to by the President of

7 the Tribunal and discussed in the appeal brief relations with Lukic,

8 relations between Lukic and this group, and all the other matters, whether

9 he was or not some sort of an informer, this may have an impact on

10 something else, on the sentencing if found guilty for this Drina River

11 incident, that is, the killing on the Drina River which led to a guilty

12 sentence cumulatively for several crimes, though it is a single event that

13 is in question. And it is our submission that it is essential to

14 establish, first of all, whether the appellant was armed, whether he

15 wanted the death of these people, and whether he was a participant in any

16 way in their execution, which I think is more important than all the

17 others, which, of course, I will refer to but much less so, as they were

18 addressed in detail in the appeal briefs.

19 Naturally, taking into account everything that was done at the

20 time, the Trial Chamber focussed in particular, using as the main argument

21 for the intent of the appellant to participate in this killing, the Trial

22 Chamber stated that the appellant was aware that at that time Milan Lukic

23 and his group had committed a series of terrible crimes and that this was

24 the grounds on which they found that he knew and should have known that

25 such a thing would happen on the Drina river bank. In the appeal brief,

Page 33

1 the Defence denied this fact and challenged it, indicating specific parts

2 of the transcript regarding the statements of the accused, saying that the

3 opposite was true, that is, the crimes of Milan Lukic which may have been

4 known to the accused occurred later and that he learnt about them much

5 later and that he personally was not aware of any crime committed by

6 Milan Lukic before the 7th or June, nor could he have known about it.

7 I think this is corroborated to some extent by the indictment of

8 the Prosecution in this case. In the indictment itself, the first

9 specific incident that Milan Lukic is charged with was the 7th of June,

10 that is, the Drina River incident. And then come the following events,

11 the factory, the Pionirska Street on the 14th of June and then the other

12 incidents. So if it is true, as claimed by the Prosecution, that Milan

13 Lukic, before the 7th of June, had committed some grave crimes that they

14 have knowledge about, in the opinion of the Defence they would have been

15 part of the indictment and included in the indictment as specific

16 incidents. However, this is lacking. Whereas, the accused -- or rather,

17 the appellant is charged with those very crimes.

18 On the other hand, as I said at the very beginning, the appellant

19 in those days was mobilised; that is, he was in the Territorial Defence in

20 Prelovo, and it is true that he frequently came home to spend the night

21 because he wasn't a soldier in the strict sense of the word but he was

22 working in supplies and in cooking in the canteen, because he was by

23 profession a waiter anyway, so he was able to notice certain things. And

24 on one occasion, which was referred to at some length in the judgement -

25 and I will refer to it too - the village of Musici, when from Prelovo, as

Page 34

1 he was wont, as he found a means of transport to spend the night at home,

2 on one of those last days in May he was driven by Milan Lukic himself who

3 stopped in Musici on that occasion. And the Trial Chamber analysed that

4 event and devoted quite considerable attention to it when discussing the

5 relationship between Milan Lukic and the appellant.

6 With respect to that incident, which was not specifically part of

7 the indictment but which is of significance in this opinion of the Trial

8 Chamber, because it is claimed that on that occasion the appellant was

9 standing guard while Milan Lukic was searching a house in Musici and that

10 some valuables disappeared from some houses on that occasion. Very

11 briefly, I should like to comment on this because I think it was

12 elaborated in detail in the appeals brief. I would say that this was a

13 period that preceded his arrest, a period when he was part of the

14 Territorial Defence and when he himself said that on that occasion he was

15 travelling with a weapon from Prelovo to his home, that he was armed, and

16 that a group of three vehicles arrived, one -- in one of which Milan Lukic

17 was, and that they took him in the direction of Visegrad, and that 2 or 3

18 kilometres later, passing through the village of Musici on that route, the

19 vehicle was stopped and Milan Lukic entered the house. I think that the

20 explanation and testimony of the appellant is accurate and trustworthy.

21 He showed how embarrassed he felt because Milan Lukic went into a house on

22 that occasion, that is, the house of VG55's father, asking whether they

23 had weapons, because it was asserted that the police had been shot at from

24 that house.

25 The role of the appellant in this event, who didn't even wish to

Page 35

1 enter the house - he stood at the open door - was to show that he knew

2 these people, that they were good people, and that there was no reason for

3 anyone to have any suspicions about them, including Milan Lukic. Nothing

4 happened on that occasion. The witnesses who testified about this, VG55

5 and 79, said that there was no mistreatment or anything like that, that

6 there was a discussion of weapons; and that Milan Lukic asked the people

7 from the other houses to come out, for him to tell them that, that the

8 other people did come, that he gave them a speech, and after that they

9 left. It is true that after that, according to the testimony of these

10 witnesses, that in these houses, not the house in front of which the

11 appellant was standing and into which Milan Lukic went, that from these

12 other houses that the other soldiers of Milan Lukic went into, that some

13 valuables disappeared, some money and other things, but that truly cannot

14 have anything to do with the appellant, who didn't even know about it and

15 heard about it for the first time here in court, when it was testified

16 about. But he was never again in the company of these people and he

17 explained why on that night he was in Milan Lukic's vehicle.

18 However, that event, in the submission of the Defence, is very

19 important precisely for another reason, because of another thing that we

20 heard testimony about. Those witnesses, VG55 -- in fact both sons of the

21 man whose house was searched and who came here to testify, were members of

22 the reserve force of the police for a while before the war began. Both

23 were Muslims. The appellant knew this and testified to this, and he

24 testified precisely about the fact that he had certain misgivings that

25 Milan Lukic might find weapons in their houses because reserve policemen

Page 36

1 did keep weapons at home.

2 On that occasion, he wanted the whole thing to end as soon as

3 possible and to get to Visegrad as soon as possible, and he was trying to

4 stop Milan Lukic and to hurry him on, and in doing so he did not mention

5 this fact to Milan Lukic. This is also important because of another

6 thing. Although the Trial Chamber did not find that by providing any

7 information the appellant helped Milan Lukic in any way and did not charge

8 him with it, it -- it still says in the judgement "some kind of informant"

9 and this finding is based on one fact alone, namely that one of these

10 witnesses asked by Milan Lukic said that a house on the Drina River

11 belonged to Muslims. In fact, the appellant said that one of these houses

12 belonged to Muslims. And the Defence agrees, that Milan Lukic did ask

13 this question and the appellant said that it belonged to Muslims. But it

14 has no importance. This house is still standing. A group of witnesses

15 identified this whole location, this whole area, and that is referred to

16 in Exhibit P18.

17 However, this whole incident is made up, according to the

18 appellant, because he says he never said such a thing. The house belonged

19 to a man named Kosoric and there was no reason for this. And to find that

20 somebody was an informant for a criminal group based on such flimsy

21 ground, is very important in the submission of the Defence. At the same

22 time, the appellant had opportunity to become an informant and did not do

23 so, nor did he provide any important information.

24 On the other hand, Milan Lukic's group had no need to use him as

25 an informant, because they had informants of their own. For a couple of

Page 37

1 years before the war began, Milan Lukic was a resident of Visegrad

2 himself. He knew the area quite well, and he knew people in Visegrad.

3 And even the people he had brought from Obrenovac were locals -- were

4 originally from Visegrad. In view of the testimony of witnesses who say

5 that they wore police uniforms and were stationed in police quarters, it

6 seems unlikely to me that he required any assistance, in terms of

7 information regarding the residents of Visegrad. The only evidence

8 underlying this finding is precisely this one, that happened on the bank

9 of the Drina and the stopping of the car. I am pointing out this fact and

10 important contradictions between the testimony of two witnesses, in light

11 of the fact that the appellant did not utter a single word, either at the

12 Vilina Vlas Hotel or during the whole incident, which lasted for over ten

13 minutes. Therefore, his relationship with the Lukic group, in light of

14 this event in Musici and the claim that he was some sort of informant with

15 full knowledge, as it is asserted, is an error, is an erroneous finding of

16 the Trial Chamber, in the submission of the Defence, and we corroborate

17 our submission with the arguments I have just stated, testimony of his

18 utterances at that house and the incident in Musici and the fact that he

19 knew that those people were reserve policemen, which he kept to himself,

20 is much more important in the submission of the Defence, because it shows

21 he was not willing to assist Milan Lukic.

22 There are other several things that the Trial Chamber found

23 important in finding whether he indeed had a relationship with the Lukic

24 group. The Trial Chamber did not accept the claim of the Prosecution that

25 the appellant was a member of that group, and we believe this is really

Page 38












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 39

1 important. However, the finding of the Trial Chamber, with respect to the

2 Drina River incident, contributed largely to his conviction and his very

3 harsh sentence.

4 In the opinion of the Defence, the main reason and the main

5 argument against his being an informant is the incident in Musici, because

6 what he is charged with is that he was seen on several occasions in the

7 company of Milan Lukic. In the appeals brief, the Defence stated that

8 this was not accurate because in reality there were only two occasions;

9 namely, the Musici incident and the Drina River incident. There was no

10 other contact, no other meeting between the appellant and Milan Lukic

11 throughout that period. And the whole event should not have been treated

12 in this way and interpreted as his being in the company of Milan Lukic on

13 several occasions.

14 Another issue on which -- to which I believe the Trial Chamber

15 attributed great importance is whether the appellant could have done

16 anything to prevent Milan Lukic from committing that crime on the 7th of

17 June, 1992 on the Drina River. Could he have dissuaded him? During

18 examination of Witnesses VG14 and VG32, the Defence asked them directly to

19 give their assessment of what happened on the bank of the Drina River and

20 to describe their experience and to say whether any of those present could

21 have exerted any influence on Milan Lukic or prevented what happened.

22 Both witnesses, VG14 and VG32, said without thinking and certainly without

23 taking into account whether it could be of assistance to the appellant,

24 said as one that such a person did not exist. In our appeals brief, we

25 quoted that from the transcript of the testimony of these two witnesses.

Page 40

1 In its judgement, the Trial Chamber cited that despite this

2 statement of those witnesses, the appellant could have done something, and

3 here they refer to the fact that during the incident in Musici he

4 intervened successfully. The Trial Chamber did not provide any clearer

5 explanation as to what they found the appellant to have done that was of

6 such great importance in Musici, especially in light of the fact that we

7 know of another situation, which I described, in a completely different

8 atmosphere, where there was no arrest going on, no attempt of murder, when

9 the only issue was whether a house needed to be searched or not. And the

10 Trial Chamber accepted it seems that the appellant did say to Milan Lukic

11 that the people who lived in that house were good and they -- their house

12 needed not to be searched, but it does not mean that he could have

13 dissuaded Milan Lukic from detaining those people or keeping them as

14 hostages. So the Musici event does not demonstrate that the appellant

15 could have intervened in the other incident, and the testimony of the two

16 witnesses we heard corroborates this.

17 What remains to be established is whether the appellant uttered

18 anything at the moment of the shooting, whether any of the victims was

19 asking for something and whether the appellant said anything at that

20 moment. Witness testimony differs on this point. Some say that victims

21 were pleading and that the appellant did say something; another witness

22 says that Mitar Vasiljevic did not say anything. And Meho Dzavic stated

23 that Mitar Vasiljevic said he did not know the man. And another witness

24 says that immediately after the utterances of Meho Dzavic, shooting

25 occurred. And from the position where we believe the appellant was, he

Page 41

1 could not have said anything.

2 As for Article 3.5, about the perfect awareness of the appellant

3 of the crimes, there is one finding which I believe is detrimental to the

4 appellant, and it had nothing to do with the criminal activity of Milan

5 Lukic and his group; namely, the relationship between the families of

6 Vasiljevic and Lukic, which dates back to 100 years ago. A lot has been

7 said before the Trial Chamber about the best-man relationship, which

8 considerably damaged the case of the appellant. This relationship is not

9 a personal one between the two men; it is a relationship between families.

10 And I emphasise this because it concerns not the family of Mitar

11 Vasiljevic, his wife, and children, and the family of Milan Lukic, but

12 about a dozen families that have continued this relationship for a long

13 time through their marriages, baptisms, ceremonies, et cetera. So there

14 was no direct best-man relationship between the two men. It was a

15 relationship between the two families. And I believe the Trial Chamber

16 did not pay enough attention to this, because it found that at that time

17 they had a close relationship and that this somehow affected the knowledge

18 he could have had about the activities of Milan Lukic.

19 Thirty years before that, when Milan Lukic set up his family,

20 Mitar Vasiljevic was a child, and then he went to Belgrade and Switzerland

21 and came back to Visegrad just before the war. So there was no direct

22 relationship between them. There was only acquaintance, which to his

23 great misfortune led him to ask for a lift on that occasion on the road,

24 on that unfortunate day, and which he explained when speaking about that

25 time near the Vilina Vlas Hotel, when Milan Lukic had already brought that

Page 42

1 group of people.

2 What he said about the fact that Milan Lukic had not been in that

3 hotel for many days shows that Mitar Vasiljevic found himself there on

4 that day by chance. And if what Susnjar says is correct, that the Lukic

5 group had not visited for several days and that was the reason why he

6 released some prisoners, then Mitar Vasiljevic says accurately that he

7 could not have known that they would show up precisely on that day.

8 There is another point; namely, the appellant's own testimony

9 before the Trial Chamber and his statements to the Prosecution, which were

10 not taken into account either as a mitigating circumstance and -- or as

11 cooperation with the Prosecution. On the contrary, the Prosecution

12 attempted to place it in a quite different context; namely, that whatever

13 he testified from direct knowledge or from hearsay, referring to events

14 after the 7th of June about Milan Lukic and the people who kept company

15 with him, was interpreted by the Prosecution as his membership in that

16 group. It was even argued that Defence witnesses did not refer to such

17 similar knowledge, that among the names shown to them they only recognised

18 Sredoje Lukic, that is, one of the also accused here, and that they didn't

19 testify about that.

20 In the submission of the Defence - and it is true that those

21 witnesses did not confirm that, most probably because they were personally

22 afraid of talking about people who were still alive and at large somewhere

23 in the territories of the former Yugoslavia, and that is why those

24 witnesses were not willing to testify about that, and they mostly said

25 that they didn't remember or didn't know those people.

Page 43

1 The appellant, in the submission of the Defence, had the courage

2 and the wish to act in an opposite manner, and he provided a great deal of

3 information about many of those people in his testimony, regardless of the

4 fact that his family is still living there and they are at considerable

5 risk, and the Defence really regrets not only that this was not accepted

6 as being cooperation or in mitigation of his acts but in fact was even

7 used against him to some extent.

8 I wouldn't specifically refer to VGD3 and VGD4's identification,

9 because of the public nature of this hearing, but this can be found in the

10 transcript and in the response, in the confidential version of the

11 response to the Prosecution brief, which was left out from the public

12 version, and I think that this is very important for disproving what is

13 stated in the position of the Prosecution and partially also in the Trial

14 Chamber findings, that there was no real cooperation by the appellant.

15 In the opinion of the Defence, these are our submissions with

16 regard to the facts that we consider to be important for establishing the

17 criminal liability of the appellant, with regard to the Drina River

18 incident for which he was found to be guilty and for establishing whether

19 he had any intent or any wish, whether he was armed at all, and his

20 general participation in this entire incident. I have sought to refer to

21 the most important grounds of appeal contained in the appeal brief, and

22 after hearing the Prosecution's submissions, I may have some additional

23 remarks to make. But for the present, that would be my -- those would be

24 my submissions regarding errors of fact. And I would now give the floor

25 to my learned friend, who would refer to this other segment, and that is,

Page 44

1 errors of law, of course, on condition that there are no questions by

2 honoured members of the Appeals Chamber.

3 JUDGE MERON: So Mr. Knoops will now take over?

4 [Appeals Chamber and legal officer confer]

5 JUDGE MERON: Excuse the learned counsel. I understand that the

6 interpreters would prefer if we would take our break now, because they

7 have been working very hard this morning.

8 So we would now break, and it's 10.30. And we would resume at

9 11.00.

10 MR. KNOOPS: Thank you, Your Honours.

11 JUDGE MERON: Thank you very much.

12 The Court will rise.

13 --- Recess taken at 10.34 a.m.

14 --- On resuming at 11.01 a.m.

15 JUDGE MERON: Please be seated.

16 As we were about to adjourn, Mr. Knoops just began his argument, I

17 believe, on errors of law or alleged errors of law, and I give him the

18 floor.

19 MR. KNOOPS: Thank you, Your Honours.

20 By the way, my submissions and authorities are available in

21 written form with some additions, so I could present them to your Court if

22 you wish it so.

23 In addition to Mr. Domazet's pleadings, the Defence intends to

24 further elaborate on five major legal issues pertaining to this case,

25 which invalidate the Trial Chamber's decision due to several errors of

Page 45

1 law, which are for some part intertwined with errors of fact, amounting to

2 a miscarriage of justice as no reasonable trier of fact could have reached

3 these conclusions. I will also point on which way these errors seriously

4 impacted on the Trial Chamber conclusions.

5 In my submissions, I will first address the error of law, both

6 with respect to actus reus and mens rea with regard to the joint criminal

7 enterprise, and I will address also the remark of Your Honours with

8 respect to the stipulation as to what exactly were the errors of law in

9 view of the Defence.

10 Secondly, I will address the errors of law with regard to the

11 crime of persecution and their impacts on the Trial Chamber conclusions.

12 My further -- my third chapter deals with the crime of murder,

13 specifically appeal grounds number 4.

14 Fourth, I will discuss the existence of an error of law with

15 regard to the aggravating factors, as mentioned in the appeal grounds

16 number 8.

17 Fifthly and lastly, my last chapter of the submissions is

18 dedicated to the fact -- fact which recently emerged, and the Defence will

19 point out to the Appeals Chamber a potential new sentencing consideration,

20 namely the recent conviction of Mr. Lukic by a Belgrade district criminal

21 court on 29 September 2003 for similar acts as those which took place on

22 the 7th June 1992 and which facts could be taken into consideration by the

23 Appeals Chamber pursuant Rule 94, which provides that a Trial Chamber

24 shall not require proof of facts of common knowledge, which shall take

25 judicial notice thereof.

Page 46

1 In conjunction with Rule 170, the Appeals Chamber is, in view of

2 the Defence, empowered to take notice of this fact, to which I return

3 later.

4 The aforementioned errors of law, Your Honours, relate to several

5 errors of substantive law and are of such nature that they should in

6 itself or in conjunction with the errors of law and fact lead to a

7 reversal of the Trial Chamber judgement.

8 Your Honours, these submissions will start with addressing several

9 errors of law as to the concept of joint criminal enterprise and their

10 impact on the Trial Chamber's conclusions. First of all, before assessing

11 the requisite mens rea as to this concept, the requisite actus reus as to

12 this doctrine is examined from the perspective of error of law in this

13 particular case.

14 An important argument to revise the decision taken by the Trial

15 Chamber as to the latter criterion may be found in a recent judgement of

16 Trial Chamber II, in which case several similarities arise with respect to

17 the position of the appellant. In its judgement of October 17 of this

18 year, the ICTY Trial Chamber II and Prosecutor versus Simic et al.

19 Contemplated in the paragraphs 998 and 999 with respect to the accused

20 Miroslav Tadic the following:

21 While there was evidence in this case, according to the Chamber,

22 that he was present at the detention facilities and had knowledge of their

23 existence and conditions and visited these sites, this could not lead to

24 the conclusion that his actions had a substantial effect on the

25 perpetration of the offence of unlawful arrest and detention and,

Page 47

1 accordingly, to several other actions.

2 The Trial Chamber was in that case not beyond reasonable doubt

3 satisfied that that accused shared the discriminatory intent of the joint

4 criminal enterprise to persecute non-Serb civilians through their unlawful

5 arrest and detention, his continued participation in conducting exchanges

6 and transferring detainees, his attendance at meetings of the Crisis Staff

7 and with some of the other direct participants in the joint criminal

8 enterprise in Belgrade, where the role of the paramilitaries were

9 discussed. And despite the fact that the Trial Chamber ruled that

10 Mr. Tadic had knowledge of the discriminatory intent of the joint criminal

11 enterprise, it nevertheless acquitted him due to the fact that he was not

12 in a position with power to prevent the work of the joint criminal

13 enterprise and the corresponding criminal activity.

14 Mr. President, Your Honours, from this recent decision, three

15 major legal arguments may be deduced which are equally applicable to the

16 present case of the appellant:

17 First, equally to Mr. Tadic in the Simic case, no evidence exists

18 as to the extent that Mr. Vasiljevic was contacted to make any decisions

19 on the arrest or detention of non-Serbs. Furthermore, no conclusive facts

20 exist which justify the conclusion that it was established beyond

21 reasonable doubt, that the appellant shared the discriminatory intent of

22 the joint criminal enterprise to persecute non-Serb civilians through -

23 and I quote the Trial Chamber's decision in the Simic case - "a continued

24 participation in conducting exchanges and transferring detainees, his

25 attendance at meetings," et cetera.

Page 48

1 Notably, Mr. President, this accused, Mr. Tadic, was accused of

2 being implicated in a joint criminal enterprise through a continued

3 participation. Therefore, in contrast to the appellant, the actions of

4 that accused, according to said judgement, were of a more permanent.

5 Nature, as the conviction of the appellant is, however, merely based on

6 one particular and exceptional situation - I will return to this argument

7 later - during which the appellant was present, the judgement of the Trial

8 Chamber cannot be upheld.

9 Second, the Trial Chamber held that despite of the knowledge of

10 this discriminatory intent towards non-Serbs and knowledge of said intent

11 of the joint criminal enterprise in the Simic case, "the actions or

12 missions of that particular accused, Tadic, could not be considered to

13 have had a substantial effect on the perpetration of the offence."

14 Your Honours, the element of a substantial effect is clearly

15 absent in the case of the appellant. At least, no conclusive facts arise

16 which justify the conclusion that his, Mr. Vasiljevic's, actions or

17 omissions have had such an effect on the perpetration of the crimes

18 committed at the Drina River on the 7th of June.

19 Your Honours, I especially point you to paragraph 252 of the

20 judgement, where it is said - I quote - "There is no basis in the evidence

21 for finding beyond reasonable doubt what specific crimes were committed by

22 Milan Lukic group which resulted from the assistance given by the accused

23 or that the accused was sufficiently aware of the circumstances in which

24 Milan Lukic group would use the information he gave them so as to

25 constitute him as an aider and abettor of the crimes which they

Page 49

1 committed."

2 Your Honours, this conclusion of the Trial Chamber itself indeed

3 reviewed the acceptance of the elements of substantial effect and should

4 be led to a review of that acceptance. Reference may be made to the case

5 of Prosecutor versus Kvocka, in which the Trial Chamber indeed held that

6 the degree of participation required must be significant; that is to say,

7 it must make the enterprise efficient or effective. It is said that, in

8 that case, "The level of participation attributed to the accused and

9 whether the participation is deemed significant will depend on a variety

10 of factors, including the size of the enterprise, the functions performed,

11 the position of the accused, the amount of time spent participating after

12 acquiring knowledge of the criminality of the system, efforts made to

13 prevent activity or to impede the efficient functioning of the system," et

14 cetera.

15 As these criterion clearly are not met with respect to the

16 appellant, the appeal should be granted already based on --

17 THE INTERPRETER: Would you please slow down for the

18 interpreters. Would counsel please be asked to slow down.

19 [Appeals Chamber and registrar confer]

20 MR. KNOOPS: Thirdly, similar --

21 JUDGE MERON: Counsel, may I ask you for the -- in the interest

22 of all of us and the interpreter to slow down a little bit.

23 MR. KNOOPS: I'm sorry, Your Honour.

24 JUDGE MERON: And to the extent that you have a text, that you

25 could share with the interpreters, I am sure it would help their work

Page 50

1 immensely.

2 MR. KNOOPS: One copy was, by the way, already provided to one of

3 the interpreters. I'm not sure who it is, but ...

4 JUDGE MERON: Before you continue, just a brief question of

5 clarification. Paragraph 252, which you -- to which you drew our

6 attention, was not in the context of the Drina River incident, was it?

7 MR. KNOOPS: That's correct.

8 JUDGE MERON: It was under quite a different count.

9 MR. KNOOPS: That's correct.

10 JUDGE MERON: Thank you.

11 MR. KNOOPS: For the interpreters, I am -- I've arrived at page

12 7, under number 3.

13 Thirdly, similar to the ruling of the Trial Chamber in the Simic

14 case, it may be said that the appellant was not to -- "in a position with

15 power to prevent the work of the joint criminal enterprise and the

16 corresponding criminal activity." Also to this element, I return later.

17 Mr. Vasiljevic himself witnessed on October 26, 2001, before the

18 Trial Chamber, and there he stressed that he was not in a position to stop

19 Mr. Lukic and his men from committing their crimes. His witness statement

20 of that date reveals very interesting and important elements. He is

21 questioned at that time by Mr. Groome of the Prosecutor. And there

22 Mr. Vasiljevic inter alia emphasises - I quote - Mr. Groome asked, "What

23 did you do?" Mr. Vasiljevic: "I begged him. I said, 'Milan, please

24 don't. These people haven't done any harm to you. Leave them alone.'

25 But it was to no avail. He couldn't be persuaded. He was so angry. And

Page 51

1 I was trying to reason with him, to explain to him that I had known Meho

2 for years," et cetera.

3 Mr. President, given these statements, it was clear that the

4 appellant was not in a position to influence the decision made by

5 Milan Lukic and that group, and this conclusion is supported by the only

6 two witnesses in this tragic incident, VG32 and VG14. Their statements

7 are cited by the Trial Chamber in paragraph 107, saying that the

8 impression was that nobody around Milan Lukic could have prevented him

9 from acting.

10 In conclusion, based on the findings of the Trial Chamber in

11 Prosecutor versus Simic, it is justified to say that no reasonable

12 Tribunal could have held the appellant criminally liable, based on the

13 concept of joint criminal enterprise, due to presence at the crime scene,

14 even if one were to accept that the appellant had a weapon - which is

15 refuted already by the pleadings of Mr. Domazet. I will return for the

16 specific element of presence at the crime scene in another section of my

17 submissions.

18 But more arguments arise which merit this specific conclusion

19 that no reasonable Trial Chamber could have reached the conclusion that

20 the appellant participated in a joint criminal enterprise.

21 From the case law of the ICTY, with respect to this form of

22 individual criminal responsibility, several important criteria emerge.

23 And I will examine them shortly, especially their impact on the Trial

24 Chamber's conclusions in this case.

25 An individual who himself did not physically commit these crimes

Page 52












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Page 53

1 may nonetheless be held criminally responsible for an act which went

2 beyond the agreed object of that crime. The main requirement of joint

3 criminal enterprise is that the intent is shared with the principal

4 offender, thus embracing actions perpetrated by collectivity of persons in

5 furtherance of a common criminal design.

6 In the case of the appellant, according to the Trial Chamber,

7 this shared or common intent was deemed to be present on the part of the

8 appellant. Accordingly, as stated by the Prosecution in paragraph 8.5 of

9 its respondent's brief, it found the first category of joint criminal

10 enterprise applicable, as it held that the accused was present at the time

11 of the commission of the crime with knowledge that the crime is to be or

12 is being committed, by intentionally assisting or encouraging another

13 participant in this joint criminal enterprise. However, the Trial Chamber

14 unjustly accepted and applied the requisite criteria for the first

15 category of joint criminal enterprise.

16 In the Tadic appeals judgement, also referred to in the Simic

17 case, the Appeals Chamber held that for joint criminal enterprise to be

18 constituted, the following elements need to be fulfilled: A polarity of

19 persons, a common plan, a participation of the accused in the common plan,

20 a shared intent between all the participants. And the intent on part of

21 the accused that the result is affected.

22 In the case of persecution, there is an additional element which

23 needs to be fulfilled; namely, that all participants in the common plan

24 had a discriminatory intent.

25 JUDGE MERON: Sorry, counsel, you are going too fast again.

Page 54

1 MR. KNOOPS: I see it. Sorry.

2 Your Honours, for this subject, reference is made to paragraphs

3 63 of the judgement, where the Trial Chamber accepts that the extended

4 form of joint criminal enterprise is not relied on and that only the first

5 and second category should be considered. This was also the position

6 taken by the Prosecution in the paragraphs 8.5, 8.9, and 8.14 of its

7 respondent's brief.

8 Now, this observation is quite important for this appeal.

9 Let us face now the element of common purpose and its impact on

10 the Trial Chamber observations, as endorsed by the Tadic Appeals Chamber

11 judgement, in which judgement this doctrine was developed in the

12 paragraphs 185, 192.

13 The first category of this doctrine was identified as follows:

14 In cases of co-perpetration, all participants in the common design must

15 possess the same criminal intent to commit a crime and one or more of them

16 actually should perpetrate the crime with intent.

17 However, in the case of the appellant, no facts arise according

18 to which a reasonable Tribunal could conclude that the appellant was

19 involved in a common design to pursue one course of conduct, in terms of

20 this first category.

21 In paragraph 204 of the Tadic appeals judgement, an example is

22 mentioned; namely, the situation of a common shared intention on part of a

23 group to forcibly remove members of one ethnicity from their town with the

24 consequence that, in the course of doing so, one of the victims is shot

25 and killed. In such a situation, murder or another crime may nevertheless

Page 55

1 be foreseeable as a result of the removal.

2 In the case of the appellant, however, the facts do not indicate

3 the presence of such a shared common intention, as envisioned by the first

4 category regarding the appellant. To the contrary; the following

5 paragraphs of the Trial Chamber judgement make the opposite plausible. In

6 paragraph 75 of the judgement, the Trial Chamber holds that it - I

7 quote - "is not satisfied that the association" -- with -- the alleged

8 association of Mr. Lukic -- "is a sufficient basis by itself for any

9 finding that the accused shared the general homicidal intentions of their

10 group."

11 Your Honours, this observation by the Trial Chamber is repeated in

12 two other paragraphs, namely 79 and 95. So on three different locations

13 in the judgement, the Trial Chamber accepts that the accused -- the

14 appellant did not share the general homicidal intentions of the group of

15 Milan Lukic.

16 Paragraph 252, already mentioned. And Your Honours are right that

17 it's being referred to in the context of another incident, but the Defence

18 holds that the observations of the Trial Chamber have also some merit with

19 respect to the Drina River incident.

20 Paragraph 305: The non-taking part of the appellant in the

21 planning of the execution of the five Muslim men and the element of

22 becoming only involved in view of the Trial Chamber at the time when these

23 men were brought to the hotel a short time before they were killed. This

24 seems to the Defence a circumstance which also refutes the alleged

25 implication with respect to singling out of these men and the alleged

Page 56

1 involvement of the accused with respect to singling out. I will return to

2 this topic later.

3 In conclusion, based on the very findings of the Trial Chamber

4 itself, it unjustly accepted liability based on the first category of

5 joint criminal enterprise, in terms of attribution of the perpetration of

6 crimes by a collectivity of persons, in furtherance of a common criminal

7 design, to the appellant.

8 In the event the Appeals Chamber would negate the first category

9 of joint criminal enterprise and judge upon the third category, the

10 Defence refers to the decisions of the Trial Chamber in Prosecutor

11 Krnojelac, where it held that it is not allowed to charge someone with the

12 basic form of joint criminal enterprise and consequently outside the scope

13 of the indictment or amended indictment hold the accused responsible based

14 upon the extended form thereof. Therefore, the Defence prays that the

15 Appeals Chamber primarily will only look into the first category of joint

16 criminal enterprise.

17 However, alternatively, in the event the Appeals Chamber were to

18 look also to the third category, the Defence points your Chamber to the

19 decision on the form of the further amended indictment and Prosecution

20 application to amend in Prosecutor versus Brdjanin and Talic, in which

21 decision further details were provided as to determining the element of

22 foreseeability as to the third category. It may be concluded that

23 foreseeability, as envisioned by the jurisprudence of the ICTY, is far

24 from conclusively reached in this case and does not follow from the facts

25 of the case.

Page 57

1 In this context, the question arises whether the accused's mere

2 presence at the Drina River can constitute the alleged participation to

3 the joint criminal enterprise or, alternatively, can determine the charge

4 of aiding and abetting. I will briefly assess this element and its impact

5 on the Trial Chamber observations.

6 Your Honours, in the Tadic opinion and judgement of 7 May 1997,

7 the Trial Chamber contemplated, in paragraph 689, that presence alone is

8 not sufficient if it is an ignorant or unwilling presence. However, if

9 the presence can be shown to be knowing and communatively [sic] to have a

10 direct and substantial effect on the commission of the illegal act, it

11 could lead to criminal culpability. Therefore, mere presence alone cannot

12 amount to criminal liability, also not in the realm of joint criminal

13 enterprise, unless this presence would have an encouraging effect or

14 support. This notion follows also from paragraph 690 of said Tadic

15 judgement and also from the Furundzija trial judgement where the Trial

16 Chamber stated that presence, "when combined with authority, can

17 constitute assistance in the form of moral support; that is, the actus

18 reus of the offence."

19 Your Honours, such a combination with authority may certainly not

20 be derived from the facts of this case. To the contrary, the Trial

21 Chamber accepted that the appellant was not even part of the paramilitary

22 group of Milan Lukic - see paragraph 95 of the judgement, in which it is

23 also held that there is no basis for any finding, according to the Trial

24 Chamber, that the accused shared the general homicidal intentions of the

25 group - repeated, as I mentioned, in paragraphs 75 and 79.

Page 58

1 The Furundzija decision is for this case also relevant with

2 respect to another argument. The supporter must be of a certain status for

3 this, to constitute any assistance when present at the crime scene, must

4 therefore have a certain status to be sufficient for criminal

5 responsibility. This argument was reinforced by the Aleksovski Trial

6 Chamber judgement, where the Trial Chamber similarly held that it should

7 be ascertained whether presence had a significant effect on the

8 perpetration of the crime and that only presence, when coupled with a

9 position of authority occupied by the accused, can establish criminal

10 liability under Article 7, Section 1 of the Statute. The Foca trial

11 judgement, Your Honours, confirmed this requisite element, stating that -

12 I quote - "Presence alone at the scene of the crime is not conclusive of

13 aiding and abetting, unless it is shown to have a significant legitimising

14 effect on the principal." And as noticed, such position of authority was

15 not occupied by the appellant, even not in view of the Trial Chamber

16 itself.

17 Your Honours, in this context, a final and decisive argument

18 arises. In paragraph 95, the Trial Chamber seems to infer the alleged

19 participation of the appellant from the fact that he had some association

20 with the Lukic group, and then it says, "In that he willingly acted has an

21 informant to that group." Now, this observation is in clear contravention

22 to paragraph 302 of the judgement, where the Trial Chamber contemplates

23 that the accused was not a commander, his crimes were geographically very

24 limited, and - and that's the bottom line, quote - "There is no evidence

25 that his acts encouraged other offenders other than as found in relation

Page 59

1 to the Drina River incident."

2 Mr. President, this implies that the alleged participation of the

3 appellant cannot be found upon prior alleged contacts between the

4 appellant, on the one hand, and said group, on the other hand, so that the

5 weighing of the evidence is and should solely be confined to the date of 7

6 June 1992. And may I point you to paragraph 75 of the judgement, saying

7 that the accused was a ready source of local information for that group

8 about the location of Muslims in the area.

9 This argument of the Trial Chamber, apparently launched to

10 establish alleged participation in a joint criminal enterprise, is also

11 not consistent with the mentioned paragraph, 302 of the judgement. And

12 this inconsistency may be seen as an error of law or fact.

13 Consequently, in conjunction with the mentioned arguments, the

14 absence of encouraging acts prior to 7 June 1992 on the part of the

15 appellant, refutes, therefore, the alleged participation which the Trial

16 Chamber found on the elements in paragraph 75.

17 Now, this section of the submissions, the assessment of

18 participation of joint criminal enterprise, arrives at this conclusion:

19 The Defence holds that the Trial Chamber erred in law, intertwined

20 with factual errors, by accepting individual criminal responsibility of

21 the appellant, based on the concept of joint criminal enterprise, and

22 seeks thus for an acquittal by your Appeals Chamber due to five

23 observations, which are justified based upon my examination, observations

24 which seriously impact the validity of the Trial Chamber observations.

25 First, the absence of a permanent situation of alleged

Page 60

1 participation. I refer to inter alia the Simic decision. Second, the

2 absence of evidence beyond reasonable doubt that the appellant shared the

3 discriminatory intent of the joint criminal enterprise, as well as the

4 absence of sharing a common intention; and also, alternatively - it only

5 relates to the third category - the absence of foreseeability. Three, the

6 absence of a direct, substantial, and significant effect on the

7 perpetration of the charged crimes, persecution of murder, on the part of

8 the appellant. Four, the absence of a position with power to prevent the

9 work of the joint criminal enterprise and corresponding criminal activity,

10 an element derived from permanent case law of the ICTY. Fifth, the

11 absence of the requisite authority or status on the part of the appellant,

12 in order to elevate mere presence at the crime scene into the level of

13 individual criminal responsibility, as enshrined by Article 7, Section (1)

14 of the Statute.

15 Accordingly, the actus reus element required for joint criminal

16 enterprise, related to the charged two offences, is not fulfilled and no

17 reasonable Tribunal could have reached another conclusion, so that the

18 appellant should be acquitted.

19 Now, these submissions arrive at the element of mens rea required

20 for proof of participation in a joint criminal enterprise and I will

21 assess their -- its impact on the Trial Chamber observations.

22 In view of the Defence, Your Honours, this mens rea element should

23 be distinguished from the special intent which is conditional for

24 persecution. Only after the former mens rea in relation to joint criminal

25 enterprise is proven, the issue of special intent required for persecution

Page 61

1 comes into view. Therefore, in the event your Chamber would accept that

2 either the Trial Chamber erred in law or proof as to the former mens rea

3 could not have been reached by any reasonable Court, it is no longer

4 necessary to legally assess the issue of special intent as to persecution.

5 In the event the Trial Chamber judgement should be read as

6 referring indeed to the first category of joint criminal enterprise, it

7 needs -- it needs to be proven that all members of that enterprise possess

8 the same criminal intention. This is also the assumption of the

9 Prosecutor, as envision by its respondent's brief, in paragraph 88 of its

10 brief it is submitted that "this is a straightforward incident of that

11 category of cases," the first category.

12 Now, close reading of the Trial Chamber judgement learns that the

13 requisite mens rea as to participation of this first category of joint

14 criminal enterprise is based on paragraph 105 of the judgement, where the

15 Trial Chamber states that it is satisfied that when the appellant left the

16 hotel he knew that the men were not to be exchanged but were to be killed.

17 Yet this assumption cannot be reached by a reasonable trier of facts and

18 should therefore be dismissed for the following reasons.

19 First, in paragraph 105, the Trial Chamber elucidates on an

20 incident whereby Muslim employees were taken out of the Varda factory.

21 The Trial Chamber situates this incident to have been taken place before

22 the afternoon of June 7, 1992; therefore, before the Drina River incident.

23 However, Your Honours, the events at the Varda factory took place only on

24 the 10th of June, 1992; therefore, after the Drina River incident. And

25 that you may find in paragraph 15 of the amended indictment of the

Page 62

1 Prosecution.

2 As a consequence, the Trial Chamber misinterpreted this event and

3 could not have accepted that the appellant knew that the particular men

4 were to be killed based on the Varda factory incident. This

5 misinterpretation, Your Honours, also seriously affects the further

6 assessments by the Trial Chamber with respect to the alleged participation

7 of the appellant. In particular, it should also disqualify the Trial

8 Chamber's rejection in paragraph 105, the same paragraph, that it was only

9 when Milan Lukic stopped the cars nearby the Drina River incident that the

10 appellant understood that these men were not to be exchanged.

11 Second, paragraph 105 of the judgement is in contradiction with

12 paragraph 252, already mentioned, where in another context it is mentioned

13 that "there is no basis in the evidence for finding beyond reasonable

14 doubt what specific crimes were committed by the Milan Lukic group which

15 resulted from the assistance ..."

16 The absence of mens rea on the part of the appellant with respect

17 to the element of "a common criminal purpose and joint criminal

18 enterprise" is also clearly envisioned by the testimony of the accused

19 himself, where he in detail tells us what happened at the Drina River

20 incident. I already referred to this citation earlier.

21 Your Honours, in this respect, the Trial Chamber, in paragraph

22 106, rejects this evidence presented by the accused, referring to the

23 evidence of VG32, namely that the appellant allegedly would have said

24 nothing in response to the pleas by the men. Yet the Trial Chamber is

25 willing to accept, in paragraph 107, the evidence of VG32 and VG14, that

Page 63

1 nobody was able to stop Milan Lukic. Therefore, even when the appellant

2 was not to be believed on this point - let us take the position of the

3 Trial Chamber in this respect - this leaves untouched the argument that no

4 reasonable Court could have accepted participation in a joint criminal

5 enterprise on the part of the appellant, when considering the evidence

6 given by VG32 and VG14.

7 In conclusion, these citations from the Trial Chamber judgement

8 itself indicate that it erred in facts with respect to the acceptance of

9 mens rea on the part of the appellant and especially with respect to

10 paragraphs 105, as well as paragraphs 107, where it is rejected that the

11 appellant was powerless to stop Milan Lukic from killing the Muslim men.

12 This conclusion is reinforced by the testimonies given by both the two

13 survivors, and that of the accused himself, which were overlooked by the

14 Trial Chamber. Importantly, paragraph 107 of that judgement is a clear

15 acknowledgment by the Trial Chamber of the fact that these witnesses gave

16 evidence of their impression that throughout the entire incident there was

17 nobody around Milan Lukic who could have affected him or his decisions and

18 orders in any meaningful way. That's the citation literally from the

19 Trial Chamber decision. This observation was, therefore, clearly

20 undisputed by the Trial Chamber, yet totally negated.

21 Therefore, no reasonable Trial Chamber could have accepted

22 mens rea on that part of the appellant when reading his statement before

23 the Chamber delivered on 23 October 2001, especially the circumstance

24 described by the appellant himself, that he tried to prevent Milan Lukic

25 at the Drina River from killing of the particular persons, indicates that

Page 64

1 no mens rea existed with respect to the alleged common purpose.

2 Furthermore, this statement indicates that the stop at the Drina

3 River emerged unexpectedly for the appellant. The observation of the

4 Trial Chamber in paragraph 107, last sentence, namely that it was

5 satisfied that the appellant willingly accompanied Milan Lukic and his

6 group, leaves untouched the earlier observation that the two key witnesses

7 stressed that no one around Lukic could have prevented him from pursuing

8 his actions. The Defence holds that this fact, this observation, amounts

9 to an error of fact as well as to a misinterpretation of the requisite

10 element of mens rea for joint criminal enterprise.

11 Let me turn shortly to the elaboration by the Appeals Chamber

12 judgement in the Tadic case, with respect to the formulation of mens rea

13 in the context of the first category. In paragraph 228, the Appeals

14 Chamber contemplates as follows: "By contrast, the mens rea element

15 differs according to the category of common design under consideration.

16 With regard to the first category, what is required is the intent to

17 perpetrate a certain crime, this being the shared intent on part of all

18 co-perpetrators."

19 Your Honours, in view of the Prosecutor's evidentiary foundation,

20 namely the first category of joint criminal enterprise and the acceptance

21 of that category by the Trial Chamber, no reasonable Trial Chamber could

22 have accepted mens rea on the part of the appellant in terms of its shared

23 intent, as emphasised by the Tadic appeals judgement. Moreover, in

24 paragraph 105 of the Trial Chamber judgement in this case, it deduces this

25 mental element of shared intent on the part of the appellant from "the

Page 65

1 evidence of the accused himself ... that he knew that Milan Lukic had

2 committed serious crimes ... in the area of Visegrad." However, prior

3 knowledge of alleged crimes as such cannot justify the acceptance of a

4 shared intent. Furthermore, I already indicated in paragraph 30 of my

5 submissions that on this particular point the Trial Chamber erred in law

6 with respect to the Varda factory incident, which took place after 7 June

7 1992.

8 In the Simic judgement, already referred to, the Trial Chamber

9 took the comparison between participation in joint criminal enterprise and

10 the requisite mens rea for aiding and abetting. In paragraph 160 of that

11 judgement, the Trial Chamber holds, in delineating this difference, that

12 "The participant in the basic form of joint criminal enterprise must

13 share with the person who physically carries out the crime the state of

14 mind required for that crime; whereas, the person who merely aids and

15 abets must be aware of the essential elements of the crime committed ...

16 but he need not share are that same state of mind."

17 Now, turning to the case of the appellant, it can nowhere be

18 deduced that he shared exactly the same intent as to Mr. Lukic and his

19 group, in terms of the Simic judgement. This conclusion is reinforced by

20 the Ojdanic decision on joint criminal enterprise, in paragraph 26, where

21 it is stressed that this concept, concept of joint criminal enterprise,

22 pertains to the participation in the commission. Mere membership of such

23 an enterprise is not sufficient for liability, according to the Ojdanic

24 decision. Similarly, no reasonable tribunal could have held the appellant

25 liable for the mere act of accompanying the members of the particular

Page 66












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Page 67

1 criminal enterprise from the hotel to the river on the 7th June 1992.

2 In the event the Appeals Chamber were to accept aiding and

3 abetting, this should lead to a substantial mitigation of the sentence, to

4 which I will return later. But for now it's sufficient to say, in

5 conclusion, that from the perspective of the first category of joint

6 criminal enterprise no reasonable Court could have accepted the existence

7 of mens rea on the part of the appellant, especially not when considering

8 the paragraphs 75, 76, 95, and 305 of the judgement I elaborated on.

9 I turn now to the next issue of error of law and its impact on

10 the Trial Chamber observations, namely the intent -- special intent

11 provided for with respect to the crime of persecution. Here, in addition

12 to the intent necessary for the commission of an ordinary crime,

13 discriminatory intent is required; namely, the will to discriminate

14 against members of a particular national, ethnic, religious, racial or

15 other group.

16 Your Honours, the ICTY Trial Chamber, in both Kupreskic et al.

17 And Kordic and Cerkez et al. ruled that the acts of the accused must be

18 seen as "aimed at singling out and attacking certain individuals on

19 discriminatory grounds" with the ultimate aim of "removal of those persons

20 from the society in which they live alongside the perpetrator, or

21 eventually from humanity itself."

22 In the Blaskic Trial Chamber decision, this specific intent was

23 worded as follows: "The specific intent to cause injury to a human being

24 because he belongs to a particular community or group." Now, two reasons

25 emerge as to error of law regarding this issue, and these are also the

Page 68

1 implications of these observations on the Trial Chamber conclusions.

2 First of all, the aforementioned legal criteria --

3 [Appeals Chamber and legal officer confer]

4 JUDGE MERON: Counsel, I -- we are -- we have to look at the

5 watch from time to time. I realise this is difficult. I think that we

6 can give you until 12.15, but no longer. So please plan your time

7 accordingly.

8 MR. KNOOPS: Thank you, Your Honours.

9 The first reason, the acceptance by the Trial Chamber that the

10 appellant was not a member of the Milan Lukic group nor that he shared the

11 general homicidal intentions of the group, paragraph 95; second, the

12 acceptance by the Trial Chamber that the seven Muslim men were apparently

13 already singled out on the 7th June, before the appearance of the

14 appellant in the Vilina Vlas Hotel, paragraphs 99 and 100 of the

15 judgement; and third, the acceptance by the Trial Chamber in paragraph 305

16 that the appellant did not take part in the planning of the execution of

17 the five Muslim men "but only became involved at the time when these men

18 were brought to that hotel a short time before they were killed."

19 Your Honours, the use of the term "a short time" in this paragraph 305

20 already illustrates the improbability of the existence of special intent,

21 as envisioned by the mentioned case law of the ICTY required for the crime

22 of persecution.

23 In sum, these facts derived from the judgement of this case

24 itself justify the conclusion that no reasonable Court could have accepted

25 special intent on the part of the appellant. In this sense, contrary to

Page 69

1 the argument of the Prosecutor in paragraph 1.9 of the Prosecution

2 respondent's brief, particular findings of facts are established by the

3 Defence for the conclusion that these could not reasonably have been

4 reached by any reasonable Court. And I just mentioned all the paragraphs

5 from the judgement itself.

6 In the Kupreskic trial judgement, the higher threshold of and for

7 mens rea, regarding persecution, compared to other crimes against

8 humanity, was defined as follows: "The mens rea requirement for

9 persecution is higher than for ordinary crimes against humanity, although

10 lower than for genocide." Nowhere in this evidence we find objective

11 arguments of facts for the conclusion that the appellant did not

12 "initially target the individual but, rather, as required for

13 persecution, membership in a specific racial, religious, or political

14 group." This may be derived from paragraph 235 of the Blaskic trial

15 judgement. So it should be established that not only an accused targets

16 an individual but also, and moreover, membership itself of a specific

17 group.

18 Your Honours, this conclusion is reinforced by the following

19 argument: In the Tadic judgement, paragraphs 694, 781, the Trial Chamber

20 held Mr. Dusko Tadic criminally liable for the crime of persecution based

21 on his role in numerous attacks on and forced removal of civilians.

22 Contrary to the Prosecution respondent's brief under paragraph 714 and

23 this reference to the Kupreskic Trial Chamber judgement, the Defence

24 disputes the notion that in general the crime of persecution may consist

25 of a single act. This conclusion finds support in the decision on Defence

Page 70

1 motion on form of indictment rendered in the Tadic case in 1995, where

2 Trial Chamber II contemplated that "The very nature of criminal acts in

3 respect of which competence is conferred upon, by Article 5, ensures that

4 what is to be alleged will not be one particular act but instead a course

5 of conduct."

6 Secondly, this refutal finds support in the mentioned Kupreskic

7 trial judgement itself, where it is said in paragraph 636 that, in the

8 case of persecution, the discriminatory intent can take multifarious human

9 forms and manifest itself in a plurality of actions, including murder.

10 Therefore, an isolated act as such cannot be subsumed under persecution.

11 In paragraphs 616 and 627 of the Kupreskic decision of 14 January

12 2000, the Trial Chamber went even further by saying that "Acts of

13 persecution must be evaluated not in isolation but in context by looking

14 at their cumulative effect." The Trial Chamber explicitly refers to the

15 overall consequences on humanity in order to be qualified as persecution.

16 These elements are absent in this specific case, and therefore

17 the Trial Chamber overlooked these criteria. These arguments already

18 denote for reversal of the judgement, and should your Chamber nonetheless

19 accept the notion that the crime of persecution may be confined to one

20 single act, the Defence holds the opinion that this may be only justified

21 in the event of special circumstances; in other words, in case of a rather

22 isolated event from this perspective of the accused, such as the charged

23 Drina River incident with respect to the appellant, the special intent may

24 only be inferred from unequivocal and clear circumstances which leave no

25 doubt whatsoever about the mental state of the accused. Therefore, the

Page 71

1 Trial Chamber erred by accepting evidence on this only by way of

2 inferences.

3 The criterion of clear evidence of discriminatory intent, in the

4 case of a single act, was also the position taken by the Trial Chamber in

5 the Kupreskic case. In arriving at the conclusion that special intent

6 existed as to the appellant, the Trial Chamber virtually based this

7 finding, indeed, on one isolated incident, which apparently took place

8 within ten minutes after arrive -- after leaving the hotel on June the

9 7th.

10 Your Honours, the establishment of mens rea becomes more complex

11 with respect to such a short period of time without any clear and

12 unequivocal inferences. May I draw the attention of your Chamber to

13 paragraph 78 of the judgement, where it is said that the Trial Chamber "is

14 not satisfied that the Prosecution has sufficiently established any of the

15 other incidents relied upon," incidents in which the appellant was alleged

16 to have been involved.

17 I also draw your attention to paragraph 79 of the judgement, where

18 the Trial Chamber, confronted with evidence adduced by the Prosecution,

19 held that it did not accept that evidence.

20 I arrive now at your remark, at your reference to the paragraphs

21 18 and 19 of the additional Defence brief, with respect to the aspect of

22 command responsibility. The reference to the final report of commissions

23 of experts referred to on that particular point was merely meant as

24 showing that when an evidentiary value in criminal matters is to be

25 attached to the absence of a so-called modus operandi of similar illegal

Page 72

1 acts, it can be held by way of inference or analogy that its value may be

2 attributed to paragraph 79, in terms of an exculpatory observation. This

3 was also explained in the paragraphs 15 and 16 of the additional Defence

4 reply in appeal.

5 Second, the Trial Chamber erred in law due to the following: In

6 paragraph 254 of the judgement, the Trial Chamber finds that the only

7 reasonable inference available on the evidence is that the victims were

8 singled out for religious or political reasons. On this point, the

9 judgement bears serious inconsistency. Whereas in this paragraph the

10 Trial Chamber connects the appellant with the singling out of the seven

11 men, the paragraphs 99, 100, and 305 assume the non-presence or

12 non-involvement of the appellant with respect to this singling out.

13 Clearly, this may be derived from paragraph 305, where it is accepted by

14 the Court that the appellant did not appear to take part in the planning

15 and execution but only became involved at the time when these men were

16 brought to the hotel.

17 In conclusion, the Defence respectfully prays that the Appeals

18 Chamber reverses the judgement in that the appellant is acquitted for the

19 crime of persecution.

20 For the sake of time, I briefly will touch the mens rea of the

21 crime of murder. The arguments put forward with respect to persecution

22 also count for the refusal of mens rea for the crime of murder.

23 JUDGE MERON: Counsel, may I draw your attention. You have only

24 five minutes.

25 MR. KNOOPS: Yes.

Page 73

1 JUDGE MERON: And just make sure that if there are some really

2 important issues to which you would like to draw our attention that, you

3 use the time wisely for that.

4 MR. KNOOPS: Yes. Thank you.

5 I briefly will illuminate appeal ground number 8, as my last

6 point. Apparently the Prosecution in paragraph 9.8 seems to accept that

7 the invoked argument, special intent as aggravating factor for Count 5,

8 amounting to a violation of non bis in idem, would have been valid in the

9 event of a concurrent conviction for persecution and war crimes.

10 In the mentioned Simic judgement of October 17, the Trial Chamber

11 acknowledged in paragraph 1058, that in addition the persecution charge

12 requires a distinct element, namely discriminatory intent. Accordingly,

13 the Chamber only entered a conviction for persecution and not for

14 deportation concerning the relevant conduct found to constitute the

15 persecutions charge. By way of analogy or reasoning a contrario, it

16 amounts to an error of law when such an materially distinct element as

17 that of special intent is being implemented as an aggravating factor for

18 murder as a violation of the laws or customs of war and/or a crime against

19 humanity. This especially counts as the appellant was found criminally

20 liable as a participant in a joint criminal enterprise to persecute seven

21 men at the Drina River.

22 Your Honours, these submissions arrive at the announced new

23 sentencing circumstance. I draw your attention to Article 24, Section 1

24 of the Statute and Rule 101(B) under (iii), requiring the Chamber to take

25 into account the general practice regarding prison sentences in the courts

Page 74

1 of the former Yugoslavia. In this respect, a report was published by

2 Amnesty International on the 1st of October, 2003, indicating that

3 Mr. Lukic was convicted on 29 September of this year to 20 years'

4 imprisonment by a Serbian national court for implication in the killing of

5 16 men, 16 Muslim men, in October 1992. The Defence is able to submit

6 this report, if Your Honours so wish it.

7 It should therefore be observed that Mr. Vasiljevic was de facto

8 imposed the same prison sentence as Mr. Milan Lukic, in the words of the

9 Trial Chamber in this case, the leader of a paramilitary organisation and

10 instigator of many crimes. This qualification was not only adjusted by

11 the Prosecution in this case but also by the Court verdict against Mr.

12 Lukic in Serbia. This observation, therefore, seems undisputed and a fact

13 of common knowledge in terms of Rule 94 and 107 of the Rules of Procedure.

14 Alternatively, in the event the convictions were to be upheld, the

15 Defence respectfully prays the Appeals Chamber to substantially mitigate

16 the imposed sentence due to the disproportionality between this sentence

17 and that imposed on Mr. Lukic, bearing in mind the latter's responsibility

18 and role in several alleged crimes.

19 Thank you very much.

20 JUDGE MERON: I thank you, Mr. Knoops.

21 What I would suggest is that we spend a few minutes now to ask

22 questions of the counsel for the defendant, and I will invite my

23 colleagues in a moment to start that. But I just have a tiny question of

24 terminology, which either of you might clarify.

25 MR. DOMAZET: [Interpretation] Yes.

Page 75

1 Questioned by the Court:

2 JUDGE MERON: The names Varda and Partizan, do they refer to the

3 same company or factory or to different ones?

4 MR. DOMAZET: [Interpretation] Your Honour, as far as I know, those

5 are two different companies, companies that were not privately owned.

6 Varda was a socially or state-owned enterprise in Visegrad.

7 I remember a question asked by Mr. Groome of Mr. Mitar Vasiljevic,

8 whether the Pecikoza enterprise was under Varda or Partizan. But neither

9 is true. Pecikoza was a privately-owned enterprise. These two companies

10 were located in Visegrad and employed a large number of workers.

11 JUDGE MERON: Thank you. Thank you.

12 Now I will turn to my colleagues and invite them to ask questions.

13 I call on my colleague Judge Schomburg.

14 JUDGE SCHOMBURG: I would have a number of questions emanating from

15 your contribution, but I want to limit myself to one special -- and maybe

16 it can be clarified or maybe it's a misunderstanding from my side. You

17 mentioned in the context of the question whether or not there was a

18 substantial contribution on the part of the appellant, paragraph 302 of

19 the judgement as -- in support of your submission. But isn't it true that

20 it reads there: "This accused was not a commander, his crimes were --

21 geographically were limited, and there is no evidence that his acts

22 encouraged other offenders (other than as found in relation to the Drina

23 River incident) or affected other victims of such crimes within the

24 broader context of the conflict"?

25 So if you please could elaborate what the impact of this paragraph

Page 76

1 is on your submission as to the contribution of the accused. Thank you.

2 MR. KNOOPS: Thank you, Your Honour, for this question. The

3 Defence holds that indeed paragraph 302 should be read in a broader

4 context, but apparently the Court accepts the notion that Mr. Vasiljevic

5 did not encourage other offenders, in view of the Court, other than on

6 this particular day, the 7th June 1992. Yet, when reading the paragraphs

7 72 to 79, the Trial Chamber seems to deduce from the previous context

8 between the appellant and the group of Milan Lukic an argument for his

9 alleged participation in a joint criminal enterprise, an inculpatory

10 argument. And it is the view of the Defence that once you accept in

11 paragraph 302 that he did not encourage other offenders before the Drina

12 River incident, it's not logical that you nonetheless extract from the

13 previous context between the appellant and Mr. Lukic an inculpatory

14 argument. I hope the question is answered by this.

15 JUDGE MERON: Could I invite my other colleagues to ask questions

16 should they want -- Judge Guney.

17 THE INTERPRETER: Microphone, please.

18 JUDGE GUNEY: [Interpretation] Thank you. Mr. Domazet, during

19 your submissions, you said that the appellant was not an informer at an

20 important moment of Milan Lukic or his group. On the other hand,

21 Mr. Knoops also during his submissions contested the participation -- the

22 continued participation of the appellant to an important extent in the

23 joint criminal enterprise. What exactly do you mean when you refer to

24 "important moments in the course of the events and in this particular

25 case"? Would you be kind enough to elaborate and clarify your submissions

Page 77

1 in that regard.

2 MR. DOMAZET: [Interpretation] Yes, Your Honour. When I said that

3 there was no evidence that the appellant was some sort of an informer of

4 this group, I provided all the evidence in support of such a submission

5 but there is one thing that speaks for itself and that is that the -- and

6 that is reflected in the sentence is that the appellant was convicted for

7 the Drina River incident of the 7th of June. I should like in any event

8 to try to prove that everything that happened after that, the most gravest

9 crimes occurred after the 7th of June, committed by Milan Lukic's group or

10 others, and I think that this cannot be put as part of the responsibility

11 of Mr. Vasiljevic, especially as after the 14th of June he wasn't

12 physically in Visegrad any longer.

13 On the other hand, I noticed in one of the questions put by

14 His Honour, the President, regarding a Muslim woman who was denied medical

15 treatment. That is a doctor that couldn't or didn't want to assist her.

16 That fact does exist, but this was an event that occurred after the 14th,

17 after the crime in Pionirska Street, and that really has nothing at all to

18 do with Vasiljevic. And I think we have to observe the period up to the

19 6th of June when dealing with the Vasiljevic case.

20 I don't know whether I have answered your question, Your Honour.

21 JUDGE MERON: I will now call on my colleague, Judge

22 Shahabuddeen, to ask a question.

23 JUDGE SHAHABUDDEEN: Thank you, Mr. President.

24 Mr. Knoops, I'm obliged to you for an interesting argument. I

25 wonder, however, whether I may put to you a question concerning the

Page 78

1 factual aspects of a matter. At page 50 of the transcript, line 13 you

2 are recorded as having said something to the effect that it was only when

3 Milan Lukic stopped the car near the Drina River that the appellant

4 understood that these men were not to be exchanged. Could -- could you

5 indicate very roughly what is the distance between where the car stopped

6 and the river bank where the men were -- were shot.

7 MR. KNOOPS: Your Honour, thank you for this question. I myself

8 was not personally at the scene or have ever envisioned the scene.

9 Mr. Domazet, as I understood, he went to see there, so perhaps if you

10 allow, I can ask my learned colleague what exactly the distance --

11 JUDGE SHAHABUDDEEN: Mr. Domazet, are you in a position to help?

12 MR. DOMAZET: Yes, Your Honour. In my opinion, it's about 100,

13 150 or -- 150 metres between a road and the bank of river.

14 You have in evidence - I think that is Prosecution evidence 18 -

15 a picture from this, but it's my opinion -- I was there. Maybe 50 metres

16 more or less, but it's a distance.

17 JUDGE SHAHABUDDEEN: And what proportion of that distance did the

18 appellant walk?

19 MR. DOMAZET: This distance, except just a place where they were

20 shooting, 10 or 15 metres, yes, he was with them.

21 JUDGE SHAHABUDDEEN: That is my impression also.

22 Would you say, then, that he walked towards the river bank after

23 it became clear to him that the men were not to be exchanged?

24 MR. DOMAZET: Yes. Yes, Your Honour. Yes.

25 JUDGE SHAHABUDDEEN: Yes. Now, could you help me on another

Page 79

1 point. This arises from Mr. Knoops's submission, that -- at page 52,

2 line 3 of the transcript. I think the statement there is that the

3 appellant said that he tried to prevent Milan Lukic at the Drina River

4 from killing -- from the killing of a particular person. Would you say

5 that a reasonable implication of that evidence is that the appellant

6 agreed to the killing of the other persons?

7 MR. DOMAZET: No, Your Honour. I didn't understand this. I

8 think that Mr. Vasiljevic pleaded for all the victims, but he knew very

9 well one of them, Mr. Meho Dzavic, his colleague.


11 MR. DOMAZET: And this is an explanation.


13 MR. DOMAZET: But you know, a Trial Chamber in that station said

14 that he didn't tell nothing to Milan Lukic.

15 JUDGE SHAHABUDDEEN: I thank you. I thank you very much.

16 MR. DOMAZET: It's no problem.

17 JUDGE MERON: I thank my distinguished colleague

18 Judge Shahabuddeen, and I would now like to ask a question or two.

19 The first one is this: The first one pertains to the question

20 whether there can be some kind of a reasonable inference available on the

21 evidence that in fact Mitar Vasiljevic by his actions intended that the

22 seven men be killed. The appellant, as we all know, denies having had

23 knowledge that the men were to be killed when he left the hotel, but he

24 admits in paragraph 81 of the Defence appeal brief that he had such

25 knowledge after the car stopped and the seven men were ordered to move

Page 80












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 81

1 towards the Drina River. Could Mr. Knoops perhaps explain to the Court

2 why it would be unreasonable to infer from Mr. Mitar Vasiljevic's actions

3 of walking with a rifle and standing, say, 10, 15 metres from the place of

4 the execution, that he intended the seven Muslim men to be killed. I will

5 then have another question after you have answered this one. Please.

6 MR. KNOOPS: Thank you, Mr. President, for this question.

7 First of all - and that also relates to the question of

8 Judge Shahabuddeen - I think that distinction should be made between, on

9 the one hand, the moment when the appellant knew what was going to happen

10 and, on the other hand, his intention. According to the case law, both of

11 the ICTY Trial Chamber but also the ICTR - I refer to the case -- the

12 judgement of 21 May 1999 in the Kayishema and Ruzindana case - the Trial

13 Chamber found that the standard of mens rea required for murder is

14 intentional and premeditated killing. Now, the Defence holds that indeed

15 when the car -- the car stopped, apparently the appellant became aware

16 what was really going to happen there, but that does not conclusively lead

17 to the observation, not even by way of inference, that his mens rea

18 fulfilled the requirement of intentional and premeditated killing. So the

19 Defence holds that the Trial Chamber overlooked the distinction between,

20 on the one hand, the awareness on the part of the appellant from the

21 moment the car stopped - on the one hand - and on the other hand, the

22 requirements for murder. So even, in other words, to put it otherwise --

23 even when your Chamber were to accept that Mr. Vasiljevic, the appellant,

24 knew that the men were to be killed, that is not sufficient to conclude

25 that he participated in the crime of murder, due to the absence of

Page 82

1 conclusive evidence for the element of intentional and premeditated

2 killing and that the mere fact that he knew from that moment -- only on

3 that moment what was going to happen may be seen as an inference for the

4 Trial Chamber but without additional inferences or evidence, no reasonable

5 Court could have reached the conclusion that the criteria for murder were

6 fulfilled.

7 JUDGE MERON: Thank you, Counsel.

8 I would like now to ask you a question which draws on your

9 argument today, on the question of aiding and abetting. If I understood

10 your argument - and you invoked the Tadic appeals decision - you spoke of

11 the requirement of a substantial effect on the commission of a crime. And

12 what I would like to ask you is this: If a person who is armed stands 10

13 or 15 metres from a place of an execution which is carried out by three

14 persons, does this not suggest some substantial assistance to the

15 perpetration of the crime by the very fact that victims would be

16 discouraged or prevented from escaping? Could you elaborate on that a

17 bit?

18 MR. KNOOPS: Thank you, Mr. President, for this question.

19 In general, I agree with your observation, but I would like to

20 make two remarks. First of all, the appellant denies that he was in the

21 possession of a gun, and only if the Appeals Chamber were to accept the

22 testimony of the two witnesses to that extent, of course your observation

23 bears merit. However, the Defence holds the opinion that the evidence

24 provided to that extent is not conclusive.

25 But secondly, if your Appeals Chamber were to accept, despite the

Page 83

1 arguments of the Defence, that the appellant was in the possession of a

2 weapon at the Drina river bank and were to believe the witness to that

3 point, you should also believe the two witnesses saying that nobody was

4 able to prevent Mr. Lukic from doing what he did.

5 Now, the Defence already referred in the appeal briefs that it is

6 very difficult and quite improbable to split the two witness statements

7 like the Trial Chamber did. They believed for some part the statements of

8 the witnesses; of another part they accepted the fact that these witnesses

9 were mistaken. Now, even if your Trial Chamber were to accept that a

10 witness statement is to be split and to be selected into the evidence for

11 a certain part, with this particular argument the Defence holds the

12 opinion that even if your Court were to accept -- were to accept that

13 Mr. Vasiljevic was in the possession of a gun at the Drina River, he did

14 not substantially contribute the events which happened there, due to the

15 statements of the two witnesses.

16 I hope I have addressed the question.

17 JUDGE MERON: Thank you.

18 I understand that Judge Shahabuddeen has another question, and I

19 call upon him.

20 JUDGE SHAHABUDDEEN: Just another question, Mr. President. This

21 is a follow-up from something suggested by the question asked by our

22 distinguished President.

23 Mr. Knoops, my impression is that your thesis is -- that proof of

24 a substantial fact has to be made in the case of a charge for aiding and

25 abetting. What I'm not clear about is whether that is absolutely correct.

Page 84

1 Is it perhaps the case that proof of a substantial effect has to be made

2 in the case of a charge relating to the full events, the position being

3 this: That in the case of the full offence, the Prosecution must prove

4 intent; the Prosecution in the case of a charge for aiding and abetting

5 has only to prove knowledge but not intent. However, it must fill the

6 vacuum, as it were, by proving in the case of aiding and abetting that

7 there was a substantial effect of the actions of the accused in relation

8 to the accomplishment of the ultimate objective.

9 MR. KNOOPS: Thank you, Your Honour, for asking me this question.

10 It is indeed the opinion of the Defence that proof of a

11 substantial fact should be made both with respect to participation in a

12 joint criminal enterprise but also with respect to the charge for aiding

13 and abetting while acknowledging that the latter form may be conducted by

14 way of omission.

15 May I point you to paragraph 160 of the Simic trial judgement,

16 which recently was rendered, in October 2002 [sic], where the Trial

17 Chamber explained the difference between participation in a joint criminal

18 enterprise and participation by way of aiding and abetting and by

19 stressing that the person who merely aids and abets must be aware of the

20 essential elements of the crime committed but need not share the same

21 state of mind. It may be inferred that the contribution, with respect to

22 aiding and abetting, should equally be substantial, in line with -- with

23 being aware of all the essential elements of the crime committed. Thank

24 you.

25 JUDGE SHAHABUDDEEN: Thank you, Mr. Knoops.

Page 85

1 Mr. President.

2 JUDGE MERON: Thank you, Judge Shahabuddeen. Thank you,

3 Mr. Knoops.

4 If there are no further questions - and this is my

5 understanding - the Court will now rise, and we will sit again at 2.00

6 p.m. This afternoon to hear the argument of the Prosecution.

7 So I thank the counsel for their help to the Court this morning.

8 The session is adjourned.

9 --- Luncheon recess taken at 12.41 p.m.

10 --- On resuming at 2.06 p.m.

11 JUDGE MERON: Please be seated.

12 [Microphone not activated] We will now move on to hear the

13 response by the Prosecution, and I will come --

14 MS. BRADY: Thank you very much, Your Honour.

15 Before I get started, I'd like to give a brief outline of how we

16 intend to proceed in our response this afternoon. We've handed up a

17 Prosecution order of appearance and our arguments in response. I

18 understand Your Honours have a copy of that. Good.

19 You'll see from that that I'll be addressing you on the first

20 five grounds of appeal. I'm taking them in a slightly different order in

21 which they were presented in argument this morning, and that's for twofold

22 reasons: Firstly, because we feel that we can present our arguments more

23 efficiently and effectively in response in this order; and secondly, in

24 doing so we hope to address specifically the areas which Your Honour,

25 President Judge Meron, has identified as the ones truly forming the basis

Page 86

1 for this appeal. I'll be dealing in the following order: Ground 2,

2 Vasiljevic's relationship with the Milan Lukic paramilitary group; ground

3 3, general requirements for Articles 3 and 5; then I'll be turning to the

4 crux of the case, concerning Drina River incident, ground 1; and in the

5 application of the load of the facts for murder and inhumane acts, that

6 is, grounds 4 and 5.

7 At that juncture, Your Honours, I'll will turning to my

8 colleague, Ms. Michelle Jarvis, who will be addressing you on the

9 arguments in response on ground 6, persecution, and ground 7, individual

10 criminal responsibility. And she'll be dealing mainly with the errors of

11 law which were highlighted this morning by the appellants.

12 And finally, my colleague, Mr. Steffen Wirth, will address you on

13 ground 8, sentence.

14 Turning first to the appellant's second ground of appeal, and

15 this is essentially that the Trial Chamber erred in its assessment of

16 Vasiljevic's relationship with the Milan Lukic group, the paramilitary

17 group led by Milan Lukic. In our submission he's not shown that these

18 findings were unreasonable, and we ask you to dismiss this ground because

19 no appealable error of facts or fact have been established.

20 In fact, in our submission, far from being unreasonable, the

21 Trial Chamber's findings on the relationship were more than reasonable.

22 Indeed, you could describe them as circumspect.

23 How did the Trial Chamber characterise that relationship? Not

24 that he was a member of the Milan Lukic group, nor, except as otherwise

25 found in the judgement, that he participated in the group's crimes in

Page 87

1 Visegrad, but rather - and I'm quoting now from the judgement at

2 paragraphs 75 and 95 - that he had "some association with the group." He

3 was "a ready source of local information for the group about the location

4 of Muslims in the area of Visegrad and he gave that information to the

5 group with the full realisation that it would be used to persecute

6 Muslims."

7 And finally, that he willingly acted as an informant to that

8 group.

9 Now, in his second ground - and as we heard this morning from

10 Mr. Domazet, he challenges these findings. But before I deal with his

11 challenges to the reasonableness or, as he -- as he puts it, he says "the

12 unreasonableness of these findings", I need to stress at the outset that

13 the Trial Chamber was very careful about how it used these findings

14 regarding his relationship with the Milan Lukic group when it came to

15 examine his criminal responsibility for the Drina River incident. And the

16 reason I say this is because at times when I heard the submissions this

17 morning, it seemed that the appellant had not fully appreciated the

18 Trial Chamber's very careful probative or forensic use of these findings.

19 And in particular, in highlighting this alleged inconsistency in the Trial

20 Chamber's findings of -- in paragraph 72 to 79, vis-a-vis paragraphs 302,

21 it seems to us that he's not fully comprehended or recognised how the

22 Trial Chamber used these findings in the Drina River incident.

23 Critically, the Trial Chamber drew no inference that that

24 association on its own was sufficient to find that he shared the general

25 homicidal intentions of the group, nor on its own was it sufficient to

Page 88

1 establish his discriminatory, his persecutory mental state during the

2 Drina River; and nor, and despite the contrary submission to the

3 appellant, did it appear to have an impact on the sentencing of the Trial

4 Chamber. Rather, the Trial Chamber inferred his intention to kill on the

5 day of the Drina River incident, based on the circumstances of that

6 incident. And I'll delve more into this when we come to ground 4.

7 Likewise, the Trial Chamber treated his association with the

8 group, including that he gave information to the group about the location

9 of local Muslims, as not on its own sufficient to establish that he had

10 discriminatory state of mind during the Drina River incident. Albeit, it

11 was one factor in the whole factual matrix from which the Trial Chamber

12 found he had discriminatory intent that day. And my colleague,

13 Ms. Jarvis, will deal more specifically with this point when we turn to

14 ground 6 on persecution.

15 The Trial Chamber's main probative use of the findings about this

16 relationship was to establish his connection to the armed conflict and the

17 wider attack against the civilian population. And when I come to address

18 you more specifically on ground 3, I'll show that the use in this

19 regard cannot have been said to have been unreasonable.

20 Now, I'd like to turn to the findings themselves and the arguments

21 especially that he raised this morning. He argues essentially that the

22 assessment by the Trial Chamber of the relationship was wrong, and he does

23 this by attacking in a sort of piecemeal fashion each of the bodies of

24 evidence, each of the strands of evidence upon which the Trial Chamber

25 relied. Essentially he says, "Well, this strand, this piece of evidence

Page 89

1 can't prove the relationship with the group or that piece of evidence

2 can't show it either." And in our submission, this is an artificial

3 approach because it fails to recognise that the Trial Chamber's findings

4 on the relationship were based on a combination of several bodies of

5 evidence that led it to make search different but related findings about

6 the relationship. It was really a package of evidence and findings.

7 I should also stress one thing in light of his submissions this

8 morning that the Trial Chamber did not base its findings about his

9 association with the Milan Lukic group and especially his being a ready

10 and willing source of information for it about local Muslims, knowing it

11 would be used to persecute them. It didn't base it solely on his prior

12 acquaintance, him having known Milan Lukic and the other men before.

13 That's not the basis for the finding. Rather, it was four things, four

14 main bodies of evidence that the Trial Chamber relied on in order to infer

15 and conclude about the relationship.

16 Firstly, his detailed trial testimony. He gave very detailed

17 testimony regarding his knowledge of the group, the members, the

18 structure, the activities, and the like; the second aspect, his prior kum

19 relationship with Milan Lukic, aspects of what we could call his post-1992

20 relationship with Milan Lukic, and his acquaintance with the other men in

21 the group; the third body of evidence comes from his participation with

22 Milan Lukic and the other men in the search of the Muslim house in Musici

23 one week prior to the Drina incident; and the fourth piece of evidence

24 upon which the Trial Chamber made a clear factual finding, the comment

25 overheard by VG14, when the car stopped at Sase near the Drina River and

Page 90

1 at that point Vasiljevic pointed to a house and told Lukic it was a Muslim

2 house. And in our submission, it was not unreasonable for the Trial

3 Chamber to rely on and draw inferences from the combination of these four

4 strands of evidence in order to find his association with the group and to

5 reach the factual findings that it did about his relationship with that

6 group.

7 In our response brief, we've made extensive arguments in response

8 to his various challenges to each of these facts, so this afternoon I can

9 be quite short form in my response to the various challenges that he makes

10 to each of these findings, but I would like to make some brief points on

11 each one.

12 On the first matter, about his detailed testimony of the group and

13 the activities, he tries now to put a very positive complexion on

14 Vasiljevic's detailed trial testimony, and he basically says, "Well, this

15 shouldn't be seen -- this should be seen as a sign of cooperation with the

16 Court, not interpreted against him or held against him."

17 In our submission, there was nothing unreasonable in the Trial

18 Chamber regarding his detailed level of knowledge, especially the detail

19 he gave about all the members and the structure of the group, as

20 indicating that he had a closer form of relationship with the group than

21 merely being someone who picked up this information as a local citizen of

22 Visegrad, either during or even after the relevant time.

23 This morning, Mr. Domazet said that the reason why other witnesses

24 didn't testify about these details is because they were scared to and they

25 had other reasons not to provide as much information to the Court;

Page 91

1 whereas, Vasiljevic was really trying to provide as much as he could. In

2 our submission, this -- his submission about the witnesses is entirely

3 speculative.

4 Well may Vasiljevic have told the Court a lot, but it what he was

5 able to tell the Court which speaks volumes. And in this respect, the

6 Court was not -- the Trial Chamber was not unreasonable to rely on it in

7 the way that it did.

8 Nor, in our submission, was it unreasonable for the Trial Chamber

9 to have treated his prior kum relationship with Milan Lukic and his

10 acquaintance with the other men in the group as a further strand of

11 evidence, a further body of evidence from which to make findings about his

12 relationship with the Milan Lukic group. A lot of evidence was heard from

13 both sides during the trial about the strength of this kum relationship in

14 Serbian culture, and indeed Vasiljevic agreed he had a close relationship

15 with Milan Lukic in his interview of 16 November 2000, at page 33, and in

16 the admissions of the parties at paragraph 3(Y). As he did in the trial,

17 he now on appeal has tried to diminish the strength of that relationship.

18 He's saying, "Well, it was with the Lukic family and he was not

19 personally close with Lukic and there was this age difference and Lukic

20 had got --had left Visegrad after school. These matters were all before

21 the Trial Chamber and considered, and it certainly doesn't show that the

22 Trial Chamber was unreasonable in its findings in this respect.

23 Nor, in our submission, was it unreasonable for the Trial Chamber

24 and despite Vasiljevic's assertions to the contrary, to the effect that he

25 tried to avoid Milan Lukic after the Drina River, to consider the fact

Page 92

1 that he was best man to Lukic and then godfather to his daughter some

2 three or four or five years after Drina River incident, was indicative of

3 some closer relationship between he and Milan Lukic at the relevant time.

4 And Mr. Domazet said this morning that he -- that this fact considerably

5 damaged his case. In actuality, this was really one piece -- one strand

6 of evidence from which the Trial Chamber drew this final conclusions about

7 his relationship. But also in relation to this particular finding, the

8 Trial Chamber was very careful about how it used this particular evidence

9 of his, what we could call, post-1992 association with Milan Lukic. The

10 Trial Chamber at paragraph 75 said that it "raised a suspicion of a closer

11 relationship with Milan Lukic and the group and then only because he

12 allowed it to continue despite his knowledge of Milan Lukic's very serious

13 criminal activity." So in other words, the fact that he didn't break the

14 relationship says something about the strength of the relationship before.

15 And this is not unreasonable.

16 Finally -- excuse me, thirdly, the third strand of evidence that

17 the appellant attacked this morning and which, in our submission, were

18 quite reasonable for the Trial Chamber to have drawn, concern the Trial

19 Chamber's findings about the search in Musici. The appellant has not

20 shown that it was unreasonable for the Trial Chamber to find that during

21 the search in -- of the Muslim house in Musici in late May that Vasiljevic

22 stood guard outside the house armed with an automatic rifle while Lukic

23 and seven to ten armed men searched it. The differences that he pointed

24 out in his appellant's brief between the two witnesses' evidence do not

25 establish that the Trial Chamber erred in regarding them as reliable and

Page 93

1 credible, and we note even that Vasiljevic himself at trial, at transcript

2 2060, agreed that they were quite correct in their testimony and he was

3 glad that they hadn't embellished or exaggerated his role in it. The

4 discrepancies that he alluded to are hardly surprising after the lapse of

5 9 years from the incident to when the witnesses gave evidence.

6 And the fourth and most important point, what is most important,

7 shows that the Trial Chamber did not err is that both witnesses agreed on

8 the central point, and that is that he stood guard outside the house with

9 his rifle to prevent the occupants from leaving. He says this is just the

10 impression of the witnesses, and the Prosecution asks: How can any other

11 interpretation be gained when this was the evidence?

12 This morning he also said -- in his submissions, Mr. Domazet said

13 that the most telling feature about why he couldn't have been an informant

14 for the group was because he knew that VG59 and his brother were reserve

15 policemen and he didn't tell Lukic this at the time. Your Honours, there

16 may be many reasons why he would not tell on this particular occasion, on

17 this particular family -- he'd been to school with -- he and his wife had

18 been to school with VG59 and 55 and he himself said he was quite

19 embarrassed to be there. Well, there could be many reasons why he would

20 not inform on this family. It does not show that he was not otherwise an

21 informant or acted as an informant to the group on other occasions, with

22 other people.

23 Finally, the final body of evidence which the Trial Chamber

24 relied upon to make its ultimate findings about the relationship with the

25 Milan Lukic group was this conversation between Vasiljevic and Milan Lukic

Page 94












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Page 95

1 which VG14 overheard in the car when it stopped at Sase near the

2 Drina River. In our submission, the Trial Chamber was not unreasonable to

3 find that he was a ready source of information to assist the group to

4 locate Muslims in Visegrad - they called it an informant status - based on

5 his comment to Milan Lukic that when they arrived at the Drina River, that

6 "that house was a Muslim house," especially given the timing of this

7 comment, when it was made, and the context in which it was made,

8 especially his close relationship with Milan Lukic.

9 In conclusion on this ground, Your Honours, in our submission the

10 appellant has not shown that the Trial Chamber made errors of fact as to

11 his relationship with the Milan Lukic group, and we ask that this ground

12 be dismissed.

13 I'll turn now to his third ground, in which he challenges the

14 findings on threshold elements of Articles 3 and 5. This morning he was

15 rather brief in dealing with his arguments on this particular ground, and

16 he more or less interwove many of his arguments on ground 3 into ground 2,

17 so what I propose to do is address very shortly on this ground and in

18 particular to focus on some of the issues -- the issues that the President

19 pointed out in opening this morning concerning the various areas that he

20 raised in his brief.

21 Essentially, as we see it, on this ground he has three lines of

22 argument. Firstly, he challenges some of the Trial Chamber's factual

23 findings, and in this respect mostly in paragraphs 46 and 48, as to his

24 relationship with the Milan Lukic -- with Milan Lukic and the men in his

25 group, and especially his knowledge at the time of the Drina River

Page 96

1 incident of their criminal activities, as well as his role in the search

2 at Musici. Because most of these arguments actually overlap and repeat on

3 ground 2, I can be brief. I've already gone into some detail when dealing

4 with ground 2 on most of these arguments.

5 The second line of argument that he makes in ground 3 is that in

6 his appellant's brief he appears to have taken issue with certain of the

7 Trial Chamber's findings as to the existence of the widespread and

8 systematic attack against the civilian population of Visegrad.

9 Finally, in his brief he challenges the Trial Chamber's

10 conclusions under Articles 3 and 5, that he had the necessary nexus or

11 connection to the armed conflict and the wider attack against the civilian

12 population for Articles 3 and 5 convictions. So I'll deal with them quite

13 briefly in that order.

14 I've already argued that it was not unreasonable for the Trial

15 Chamber to have found that Vasiljevic knew Milan Lukic well. In our

16 submission, he also cannot succeed in showing the unreasonableness of the

17 Trial Chamber's finding that he knew the other men associated with

18 Milan Lukic. And I invite Your Honours to look at the transcript at pages

19 1985 to 1998. And it's clear from his testimony at trial that he knew all

20 the men in the group before 1992 except VGD4, whom he began to know when

21 the group came to town in 1992. He names various ones who were all

22 originally from Visegrad, VG3, 5, 6, 7, 8, and 9. He mentions that he was

23 the kum of VGD10, and that he was distantly related to VGD5 and 6, and so

24 on and so forth. And in light of this very solid evidence, in our

25 submission there's no error.

Page 97

1 He also argues - and he spent some time this morning developing

2 this argument - that the Trial Chamber erred in paragraph 46 when it found

3 that Vasiljevic knew that Milan Lukic and his group had committed serious

4 crimes. I'll return to this point later, because it comes to the fore

5 again when I come to the Drina River ground, ground 1, and it's related to

6 the finding that Vasiljevic knew on the 7th of June 1992 when he left the

7 hotel that the seven men were to be taken out and killed.

8 But for his third ground, the issue is relevant to whether his

9 acts had the requisite nexus with the armed conflict for the purposes of

10 Article 3 and that he knew his acts formed part of the wider attack for

11 the purposes of Article 5.

12 Now, this morning he said -- or emphasised that the appellant

13 didn't know at the time of the Drina River incident that Milan Lukic had

14 committed crimes, that he learnt this only later. We agree that the

15 relevant time to assess his knowledge about this issue, that is, to

16 establish his awareness of the wider context of his actions, is indeed the

17 7th of June, 1992, but in our submission the Trial Chamber was not

18 unreasonable to find when he took part in the Drina River incident he knew

19 by then that Milan Lukic and his men had committed serious crimes. And I

20 invite you to look at the transcript, references 1979 to 1998.

21 In brief, firstly, he was present and he'd seen what Milan Lukic

22 and some of his men had done in Musici a week before the incident. But

23 secondly, he was told by Stanko Pecikoza about Milan Lukic's serious

24 criminal activity in the car trip to the hotel just half an hour before he

25 joined Lukic and the two other men in taking the seven Muslim men at

Page 98

1 gunpoint to the banks of the Drina River. In addition to the reference --

2 the transcript reference, I think it's transcript 2105, I also invite Your

3 Honours to look at Exhibit 15.1, page 87, which is his interview on

4 this -- on this issue.

5 On this evidence, the Trial Chamber made no error in finding that

6 Vasiljevic knew by the 7th of June that Milan Lukic and his group had

7 committed serious crimes.

8 As for his arguments -- challenges to the Trial Chamber's

9 findings about mistreatment of non-Serbs in Visegrad, I won't dwell long

10 on this, because he -- he hasn't developed it much in his argument this

11 morning, and we in fact noticed that it's not part -- it was not a part of

12 his Notice of Appeal. And indeed, he never sought leave to -- to add

13 these as grounds of appeal. We would suggest that this would be enough to

14 reject these arguments in limine. But even if you were to entertain these

15 arguments that he's made against the Trial Chamber's finding of the

16 widespread and systematic attack against the non-Serb civilian population

17 of Visegrad, in our submission his arguments have not established that the

18 Trial Chamber was unreasonable to find, based on extensive evidence before

19 it of the attack against the -- excuse me, the attack against and the

20 mistreatment of the non-Serb Muslim population of Visegrad. And we ask

21 you to dismiss these arguments.

22 The final line of challenge raised by the appellant on this

23 ground concerning Articles 3 and 5 concern the Trial Chamber's findings

24 that his act had sufficient nexus to the armed conflict and the wider

25 attack. And again, he hasn't gone into great detail on this this morning.

Page 99

1 So briefly, just to state our position in response, the appellant has not

2 established it was unreasonable of the Trial Chamber to have found for

3 Article 3 that his acts were closely related to the armed conflict.

4 Indeed, in this respect, it was not unreasonable for the Trial Chamber to

5 have relied on its earlier findings as to his relationship with the Milan

6 Lukic group, as establishing his close association with the Serb

7 paramilitaries and thus providing the relevant nexus to the armed conflict

8 and accordingly finding that its acts were committed in furtherance of and

9 under the guise of the armed conflict.

10 Likewise, the appellant has not established that it was

11 unreasonable for the Trial Chamber to find for the purposes of Article 5

12 that his acts comprised part of the widespread and systematic attack

13 against the civilian population of Visegrad and that he knew of the attack

14 and that his actions formed part of it. At trial he agreed knowing

15 generally about crimes against and the mistreatment of Muslims in

16 Visegrad. He agreed he was present the week before Musici and Stanko had

17 told him about Lukic's involvement in some very serious crimes during the

18 drive to the Vilina Vlas Hotel.

19 In summary on this ground, Your Honours, in our submission, the

20 Trial Chamber's findings under Articles 3 and 5, that his acts were

21 sufficiently closely related to the armed conflict and formed part of the

22 wider context of the attack against the civilian population and that he

23 had knowledge that his acts formed part thereof cannot have been said to

24 have been unreasonable, and we ask you to dismiss this ground.

25 I'd like to turn now to the crux of the case, the Drina River

Page 100

1 incident. In his first ground of appeal, he's challenged the Trial

2 Chamber's factual findings about the Drina River incident. And I'll be

3 addressing those in just a moment.

4 In grounds 4 and 5, he challenges the Trial Chamber's application

5 of the law on murder and inhumane acts to the facts found by the Trial

6 Chamber, and I'll get to that after I've finished on ground 1. And then

7 as I said in my opening, Ms. Jarvis will address the application of the

8 law on persecution to the Trial Chamber's factual findings about the Drina

9 River incident.

10 At the outset, his arguments are really conclusions which he says

11 the Trial Chamber should have drawn from the evidence, not that no

12 reasonable Trial Chamber on the evidence before it could have reached

13 those factual findings as to his criminal participation in the Drina River

14 incident. And in our submission, since he's not met the standard of

15 review for errors of fact, we ask you to dismiss ground 1.

16 He's raised four main arguments on ground 1, and I'll address

17 them in the order that he addressed them this morning: Firstly, the Trial

18 Chamber's finding that he was armed; secondly, the Trial Chamber's

19 findings on some other points concerning the Drina River incident and some

20 discrepancies he points out between Witnesses 14 and 32; thirdly, the

21 Trial Chamber's findings as to Vasiljevic's mens rea; and fourthly, the

22 Trial Chamber's treatment of the evidence of VG79, which shows that he

23 stopped some 10 to 15 metres from the river.

24 Turning first to the finding that Vasiljevic was armed. In our

25 submission, the Trial Chamber was not unreasonable to find, on the basis

Page 101

1 of VG14 and VG32, that Vasiljevic was armed with an automatic rifle at

2 both the hotel and at the Drina River. This morning he's highlighted the

3 inconsistencies between the evidence of VG14 and 32, especially that VG14

4 saw Vasiljevic with an automatic rifle in the hotel lobby while VG32 only

5 saw Vasiljevic had a gun when he left the hotel, was getting in the car,

6 and he looked back up at the entrance of the hotel and he saw Vasiljevic

7 coming down with the gun. He also points out that in an earlier statement

8 VG14 had called the gun a semi-automatic.

9 Now, Mr. Domazet said this morning that it was -- it's impossible

10 for one witness not to notice the gun and the other one to have noticed

11 the gun, and he says that the inconsistencies between the witnesses on the

12 gun, whether Vasiljevic had a gun in the lobby or not, as well as their

13 evidence of hearing three clicks down by the riverside at the Drina River,

14 demonstrate that they were, I think he said, motivated to give false

15 evidence, that somehow they were deliberately trying to strengthen the

16 evidence against Vasiljevic, and they fabricated seeing Vasiljevic with a

17 gun at the hotel and the river. These submissions are totally

18 speculative.

19 The finding that he was armed when he left the hotel and at the

20 river were not unreasonable. It's of no consequence that VG32 did not

21 notice Vasiljevic had a gun in the lobby, especially since VG14 described

22 the gun in evidence as having the gun "right next to him," and he motioned

23 to his side. And I invite Your Honours to look at the transcript, page

24 457, and to even view the court video of the witness's evidence in this

25 regard on the 13th of September, 2000. The critical point is that both

Page 102

1 witnesses saw him with an automatic rifle by the time he left the hotel.

2 I also would like to turn briefly to his argument that it's

3 unlikely -- to the effect that it's unlikely that he had a gun on this

4 occasion, when witnesses didn't see him with a gun at other times in June,

5 and he sort of piggybacks an argument onto that and he highlighted it this

6 morning, that

7 it's beyond doubt that he didn't get his gun back following his arrest

8 during that short time in 29 May to 1 June, and he says especially since

9 he's no longer in the TO.

10 In our submission, even -- even if he gave up his gun when he was

11 arrested during this period in late May for three days, it is quite

12 possible that he got it back on his release. We only have his word on

13 that. It's also not correct to say that he wouldn't have got his gun back

14 because he was no longer in the TO, for that reason. Because if we see

15 the transcript -- the cross-examination of Mr. Groome on this point was

16 basically that his cleaning job, which he'd got after he was released from

17 that three days in jail, was basically like a -- a commuted -- a commuted

18 sentence. So it was really TO duties in another form. Besides, he could

19 have got access to a gun from a number of places or even at the Vilina

20 Vlas Hotel that day. The point is that he could have got a gun from a

21 number of places. In this respect, his argument does not show that the

22 Trial Chamber was unreasonable to find that he was armed at the hotel and

23 during the Drina River incident based on the evidence of the two

24 eyewitnesses.

25 In terms of the other discrepancies that he's highlighted this

Page 103

1 morning, between VG14 and 32 - I plan only to address one of them, because

2 we've dealt with most of them in our brief, and that's the one where VG32

3 did not recall Vasiljevic saying anything as the men were marched from the

4 car and pleading for their lives, nor when the men were at the river bank,

5 when they were lined up at the bank; whereas, on the other hand, VG14

6 heard in the moments -- in the seconds before the shots Meho Dzavic plead

7 with Vasiljevic not to shoot his old colleague and Vasiljevic replied that

8 he didn't know him. In our submission, this alleged inconsistency, as

9 they call it, doesn't show the Trial Chamber was unable to rely on these

10 two witnesses as to Vasiljevic's role in the whole incident. It's little

11 wonder that in the moment that they believed that they would be executed

12 that their memories don't exactly accord, and it certainly doesn't show,

13 as he said, that VG14 was lying.

14 I want to turn now to a very important issue in this case, and

15 that is the Trial Chamber's findings on Vasiljevic's mens rea and to deal

16 specifically with the arguments that he's made this morning and his brief

17 on that. In our submission, the Trial Chamber was not unreasonable to

18 find at paragraph 105, from all the circumstances, from all the facts that

19 when they left the hotel that Vasiljevic knew the men would be killed and

20 not exchanged. The evidence for that: Based on his relationship with

21 Milan Lukic and the other men in the group, he knew by then that they'd

22 engaged in some serious criminal activity. He himself had taken part with

23 Lukic and his men in the search at Musici a week before. And in the car

24 journey to the Vilina Vlas Hotel that day, just half an hour before,

25 Stanko Pecikoza had told him that Lukic had taken people out of Stanko's

Page 104

1 factory and mistreated them and from the Varda factory and killed them.

2 Indeed, that was why Stanko was looking for Lukic, according to

3 Vasiljevic, because he wanted to have a word with him about the serious

4 criminal activity that Lukic was engaging in.

5 And I invite Your Honours to look at transcript page 2103 to 2105

6 and the interview, Prosecution Exhibit 15.1, page 87, for this

7 conversation that Stanko had had -- the information that Stanko had told

8 Vasiljevic.

9 Now, there is another fact by the Trial Chamber, a fact found by

10 the Trial Chamber, which confirms Vasiljevic's knowledge at the time he

11 left the hotel as to the fate of these men, and it's this: It was not

12 disputed that Lukic, as he drove the car from the Vilina Vlas Hotel, he

13 turned right at the crossroads as Sase and after travelling 500 to 600

14 metres down the road, he stopped the car. The Trial Chamber accepted and

15 found as a fact, based on VG14's evidence, that when the car stopped at

16 that point, the conversation between Vasiljevic and Lukic was this. He

17 pointed to a Muslim -- to a house and said, "That's a Muslim house."

18 This morning, as Mr. Domazet confirmed, and as can be seen from

19 the trial transcript, the appellant didn't utter a single word at the

20 Vilina Vlas Hotel or, as he says, according to him, during the whole

21 incident. So nothing was said except, "That's a Muslim house." In

22 our -- in our submission, this comment, which the Trial Chamber accepted

23 Vasiljevic made, confirms the Trial Chamber's finding that back at the

24 hotel Vasiljevic knew what was going to happen to these men. Although his

25 testimony was that he -- he said that he -- when he left the hotel, he

Page 105

1 thought he was going to go and assist in an exchange or to provide moral

2 support to his friend Meho and/or to get a lift home. His story was

3 somewhat equivocal on that point. But essentially it was to assist in the

4 exchange.

5 In light of that, Vasiljevic's comment, when the car stopped at

6 the Drina River is of someone who had no need to question what was going

7 on, why they were not going to the exchange. Why? Because he already

8 knew right back from the hotel that this was the plan, this was to be the

9 fate of the men.

10 Just to clarify a point made this morning by, I think, both

11 Mr. Knoops and Mr. Domazet, or at least Mr. Knoops, the argument was that

12 if he'd -- he was mistaken about the contents of the conversation that

13 Stanko and he had in the car that day because the -- he says the Varda

14 factory incident hadn't yet occurred. And we'd just like to clarify that

15 while the incident on the 10th of June in which Lukic took men from the

16 Varda factory and killed them hadn't occurred, according to Stanko, as

17 related to Vasiljevic and as he told the Court, and as the Trial Chamber

18 found at paragraph 105, Lukic took men out of the Varda factory on several

19 occasions to mistreat or to kill them.

20 In our submission, therefore, the Trial Chamber was not

21 unreasonable in its findings as to his knowledge when Vasiljevic left the

22 hotel, but even if the Trial Chamber erred in this finding that when he

23 left the hotel he knew they'd be killed, what is crystal clear is that

24 when the car stopped and the men were ordered to walk to the Drina River

25 Vasiljevic knew then that they would be killed. This is in no doubt. He

Page 106

1 says it himself.

2 And then let's see what he did. And this relates to the question

3 asked this morning by His Honour Judge Shahabuddeen. It is not, as

4 Mr. Knoops referred to, mere presence or merely accompanying the group.

5 This is what he did. He walked the seven Muslim men at gunpoint with

6 Lukic and the two others; he walked some 100 metres over the meadow

7 through what were potato fields. It was no easy path. There was no set

8 path through this field. Some three or four minutes of walking, until

9 they got to the bushy area of the -- of the willow-trees, all the while

10 with their guns pointed at the seven men and their safety catches off,

11 guarding them to prevent their escape. He and the other men then pushed

12 through this foliage, this curtain of willow-trees, until they got to that

13 lonely spot which was obscured from the road, which was to be the

14 execution site. The seven men were lined up on the river bank and he

15 stood with the other three behind the seven men lined up, and then after a

16 brief conversation the shots began and five were killed and two managed to

17 survive.

18 In our submission, there can be only one reasonable inference open

19 on the evidence, and that he intended to kill the men.

20 Addressing the argument about -- from which we heard both from Mr.

21 Domazet and Mr. Knoops this morning, about the fact that he couldn't have

22 stopped Lukic and he couldn't -- no one could influence him, I should

23 point out that the Trial Chamber did not accept his evidence in this

24 respect. And the issue for the Trial Chamber, if you look at paragraph

25 107, is whether he could or he could not stop Lukic is really beside the

Page 107

1 point because it doesn't explain his very active steps in this criminal

2 enterprise, this significant contribution that he's making to the

3 enterprise to move them down to the river so that they could be killed.

4 I'll just turn to the final argument on ground 1 on the Drina

5 River incident, and that is the Trial Chamber's treatment of VG79's

6 evidence. And in his submission, in the appellant's submission, he says

7 this showed that he stopped 10 to 15 metres from the river.

8 His argument is that the Trial Chamber was wrong to treat VG79's

9 evidence as, as I said, not inconsistent with VG14 and 32 but, rather,

10 that it should have been seen as supporting his defence that once the

11 group got to the immediate place of execution, that is, the strip of land

12 between the willow-trees and the bank of the river, that he turned away

13 and stood about 10 to 15 metres away in amongst the trees. And it's

14 important to deal with this evidence. And in our submission, the Trial

15 Chamber made no error in how it did treat VG79's evidence.

16 To do so, it has to be borne in mind that VG79 was across the

17 river from the whole event on a hill, some 400, 500 metres away, and he

18 was watching this incident through binoculars, which he was sharing with

19 his friend. And he saw seven civilian men, including two friends he

20 recognised among that group, marched from the cars by three and at times

21 four men in uniform. And from where he was, his vantage point he saw

22 seven men lined up on the bank and three people behind them who shot them.

23 And as Mr. Domazet pointed out, when asked in cross-examination why he

24 didn't draw in the fourth person in his sketch, D1, he said, "The fourth

25 individual, he was near a tree, and we couldn't see properly from that

Page 108












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Page 109

1 angle, because on the left-hand side he was probably partly covered by the

2 tree as you go towards the Drina River."

3 Now, if I understand the appellant's argument correctly, he says

4 that VG79 and the sketch, D1, shows conclusively that the fourth man, who

5 he assumes to be Vasiljevic, stopped 10 to 15 metres away from the river

6 in between the trees. However, in our submission, his arguments,

7 especially the distances he gives in his reply brief, do not match the

8 evidence. Firstly, VG79 did not either in his testimony or in his sketch

9 give distances. If you look at the sketch, one glance at it will tell you

10 the sketch is not drawn to scale, because the meadow is made into a very

11 small part; whereas, in fact, it is about 100 metres. What he did say was

12 that seven civilian men were lined up on the bank and the shooters were

13 behind them. But from his angle and distance he couldn't estimate how far

14 the shooters were from the civilian men. Secondly, and critically, he

15 said that from his position, that is, on a hill across the river - so he's

16 looking down and at an angle - his vision of the fourth man was obstructed

17 by trees. It's important to look at VG79 and see out it relates to VG14

18 and 32 in this respect. In our submission, the Trial Chamber was not

19 unreasonable to see VG79's evidence as being in tandem with VG14 and 32.

20 You'll recall that VG32 estimated the distance between the strip

21 of land -- excuse me, estimated the distance of the strip of land between

22 the willow trees and the bank as, he said, 7 to 8 to 10 metres, and you'll

23 recall a very poignant time when he was walking what he thought were those

24 last metres of his life. VG14 estimated that the shooters were about 5 to

25 6 metres away from the men standing at the bank. So even

Page 110

1 if Vasiljevic was partially obscured from VG79's view by this -- by a

2 tree, or part of if tree, foliage, Vasiljevic could not have been more

3 than a couple of metres away from the other shooters. And in view of

4 this, the Trial Chamber was not unreasonable to find that Vasiljevic was

5 standing with the other shooters. It certainly does not reveal he tried

6 at any stage to disengage from the process and it cannot in any way take

7 away from his active participation in the whole event.

8 In conclusion on ground 1, the Drina River incident, in our

9 submission no errors of fact have been established and this ground should

10 be dismissed.

11 I'll turn finally to grounds 4 and 5, and I can deal with those

12 two together, mainly because that's how the appellant has dealt with it in

13 his arguments, the arguments on inhumane acts ride on the arguments of

14 the -- of the murder. And I'll also at the outset say that I'm dealing

15 mainly with the factual findings -- the Trial Chamber's factual findings,

16 and generally speaking the Trial Chamber's application of the law on JCE

17 and murder and inhumane acts to the facts. And my colleague, Ms. Jarvis,

18 will address you more specifically on the legal errors identified by the

19 appellant, especially Mr. Knoops this morning.

20 On grounds 4 and 5: In our submission, the appellant has not

21 established that the Trial Chamber erred in finding that the only

22 inference available on the evidence was that he intended the seven men be

23 killed and that he participated with the others in a joint criminal

24 enterprise to kill them, sharing the intent that they would be killed.

25 Now, in ground 4, he raises two main arguments: Firstly, he

Page 111

1 challenges the Trial Chamber's findings as to the existence of what they

2 called an understanding amounting to an agreement among Lukic -- among

3 Vasiljevic, Lukic, and the two others to kill the seven Muslim men. And

4 his second major argument is that the Trial Chamber was incorrect to find

5 that the only reasonable inference available on the evidence was that he

6 by his actions intended the seven men to be killed.

7 Coming firstly to the agreement, the understanding amounting to

8 an agreement. If I understand his arguments correctly, they appear to be

9 premised or to assume that the agreement for the purposes of a joint

10 criminal enterprise can't arise extemporaneously or it has to be some sort

11 of express verbal or at least overt one. Ms. Jarvis will deal

12 specifically with the legal arguments, but in short the Tribunal law

13 requires neither a preformulated agreement nor express words in order to

14 find an agreement for a joint criminal enterprise.

15 Now, I briefly want to touch on his argument that he put forward

16 this morning that while the men were detained in the hotel lobby, Lukic

17 was looking for keys, and he says that this proves that Lukic had planned

18 to lock these men into a room and there was no time later to form an

19 agreement. And I want to say two main points about this: Firstly, the

20 evidence about the keys or Lukic's search for keys is equivocal. It does

21 not show that Lukic intended to detain them at the hotel. Indeed, VG32

22 did recall Lukic asking and looking for some keys and then storming out

23 and saying, "Right, we're going back." But VG14 said that Lukic did find

24 some keys and tried without success to get into the manager's office, so

25 this cannot prove exactly what Lukic had in mind.

Page 112

1 But more to the point, the most important point is even if

2 Lukic's original plan had been to put them in a room, what's clear is that

3 the plan changed. And in our submission, the Trial Chamber did not err in

4 finding from all the surrounding circumstances that by the time they left

5 the hotel, Lukic, Vasiljevic, and the two others understood and agreed on

6 what to do with these men.

7 And in any event, as I explained when I dealt with ground 1,

8 there can be no doubt that at least by the time the men were ordered from

9 the car and marched to the river by the four of them that the agreement

10 had fully solidified.

11 He has argued that if there had been an agreement before they got

12 in the car or in the car, between Lukic and Vasiljevic, then one or the

13 other witnesses would have -- would have heard it. Again, we need only

14 stress that the agreement does not need to be express, and in fact -- the

15 fact that there was no conversation in the car or when they stopped about

16 what would happen to the men in fact suggests that everyone already knew

17 what was going to happen.

18 The second and last main argument that he makes in ground 4 is

19 that the Trial Chamber was unreasonable to infer his intention to kill and

20 being part of the joint criminal enterprise to kill. And in our

21 submission, he's not established that the Trial Chamber erred in relying

22 on Vasiljevic's acts of participation as signalling his intention to be

23 part of the joint criminal enterprise to kill. And again, I would

24 emphasise - and it relates to a question asked by His Honour Judge Meron

25 earlier this morning to the Defence - I would emphasise that there are

Page 113

1 three major acts of participation here that he's -- that he's engaged in,

2 and it's not what the appellant said as mere presence. Firstly,

3 preventing the seven Muslim men from fleeing while they were detained at

4 the Vilina Vlas Hotel; secondly, escorting them to the bank of the river

5 and pointing a gun at them in order to prevent escape; and thirdly,

6 standing behind the seven Muslim men who were lined up at the bank with

7 his gun together with the other three offenders shortly before the

8 shooting started.

9 Now, in terms of the -- what happened at the Vilina Vlas Hotel,

10 as we conceded in our response brief, it's true that neither witness

11 actually said he pointed -- Vasiljevic pointed a gun at them. So in this

12 respect, we conceded that the finding in paragraph 209 of the trial

13 judgement that he pointed a gun is inaccurate.

14 You'll recall that Witness 32 recalled that another man was --

15 was actually pointing the gun at them while they were in the lobby. And

16 Witness 14, he simply said that Vasiljevic had a gun. But in our

17 submission, this error was -- is inconsequential and it certainly doesn't

18 cause any miscarriage of justice. Why? Because the substance of the

19 Trial Chamber's finding was that his presence in the hotel with a gun

20 contributed to prevent the seven men from fleeing the hotel, and there can

21 be no error by the Trial Chamber in this respect.

22 In terms of the second act of participation, if we call it that,

23 escorting them to the bank of the river and pointing the gun at them to

24 prevent escape, the Trial Chamber was not unreasonable to see this as a

25 very significant act of assistance to the criminal enterprise. Despite

Page 114

1 some minor differences between VG14 and 32 about the formation of the

2 group, was it in a column or was it sort of more bunched up as they moved

3 towards the river, they are both clear about his role that day.

4 Vasiljevic, together with Lukic and the two others, walked the seven men

5 at gunpoint with safeties off, thereby preventing the seven men from

6 escaping.

7 And dealing with his argument this morning that Well, Lukic and

8 the two others were already doing this, so he wasn't really needed. Well,

9 in our submission, this can't be sustained and we have to remember this

10 was a group of seven men that was being basically moved down to the river

11 to their point of execution by four men.

12 Finally, the standing behind the seven Muslim men who were lined

13 up with his gun, together with the other three offenders just before the

14 shooting. In our submission, the Trial Chamber was not unreasonable to

15 view that this standing with the others with his gun, just before the

16 shooting began, to see it as a significant act of assistance to the joint

17 criminal enterprise to kill them.

18 So in summary, with these acts, in our submission it was not

19 unreasonable to find that he participated in the joint criminal enterprise

20 by assisting the three others to commit the agreed crime and by

21 undertaking acts that facilitated the commission of the offence by those

22 three.

23 Dealing with his argument -- I want to get back to his argument

24 that the three men hadn't earlier that day needed his help in arresting

25 the seven men or in getting them to the hotel or indeed, he says, getting

Page 115

1 them down to the river. Firstly, as I said before, it's difficult to

2 accept this factually, given that there is -- we're talking about four men

3 moving seven men to the -- to the point of their execution. But in any

4 event, in our submission, it's not a question of needing Vasiljevic's

5 assistance in terms of him being an integral, you know, absolutely

6 necessary vital key component of the enterprise but, rather, that he

7 willingly did perform such significant acts of assistance. In other

8 words, he bought into the plan and he was subscribing to the plan. And I

9 don't need to remind Your Honours that obviously for a joint criminal

10 enterprise, the participant doesn't have to play an integral role. So

11 long as it's a -- well, it's a contribution to the JCE. And here we have

12 not just contribution but we have a significant contribution at that.

13 As the appellant, he must show that no reasonable Trial Chamber

14 could have concluded on these facts that he shared the intention of the

15 joint criminal enterprise to kill the men, that is, that another

16 reasonable inference was available. And he has not. In our submission,

17 the only reasonable inference available was that by his actions he

18 intended the seven Muslim men be killed.

19 This morning Mr. Knoops for the appellant pointed out that -- that

20 this is in some way inconsistent, he says, with the finding in paragraph

21 75, whereby the Trial Chamber found that his association with the Milan

22 Lukic group was not sufficient by itself to find that he shared the

23 general homicidal intentions of the group. And that's exactly right. But

24 on the evidence in relation to this crime, for this day and what he did

25 then, the Trial Chamber did find that he shared the intention of the group

Page 116

1 to kill. And on the evidence before it, it was not unreasonable for it to

2 have done so.

3 Likewise, the Trial Chamber was not unreasonable to classify him

4 as a participant in a joint criminal enterprise, not merely an aider and

5 abettor. And I don't -- I won't go into this in great detail because

6 Ms. Jarvis will address this more specifically. But in short, his actions

7 can speak only to his having and sharing the intention to kill, not only

8 of someone who -- who knows and assists or, as I think the submission was

9 today, sort of a moral support, mere-presence person.

10 In conclusion, Your Honours, his fourth ground should be

11 dismissed.

12 Finally, as I've mentioned before, since his arguments on the

13 fifth ground, which is inhumane acts committed on the survivors, VG14 and

14 32, since they piggyback on the arguments in his fourth ground, we ask

15 that the fifth ground should also be dismissed.

16 That completes my submissions on grounds 1 through 5, and of

17 course I'm happy to answer questions now or later.

18 JUDGE MERON: Ms. Brady, thank you very much for your argument. I

19 am not sure that you have fully answered the argument made by the Defence

20 about the apparent contradiction between the date of the 7th of June and

21 the date of 10 June and the matter is of some importance. Let me

22 recapitulate where we stand on that.

23 The appellant, Mr. Vasiljevic, as you know, challenged the

24 conclusion of the Trial Chamber reading that when the accused left the

25 Vilina Vlas Hotel he knew that the men were not to be exchanged but were

Page 117

1 to be killed. Now, what is the factual premise of this conclusion? The

2 Trial Chamber found - and I read again - "On the afternoon of 7 June 1992,

3 during the drive from Visegrad to the Vilina Vlas Hotel, he had been told

4 by the men who had driven him there that Milan Lukic had on several

5 occasions taken out Muslim employees from the Varda factory in order to

6 mistreat or kill them."

7 Now, the appellant states that the incident of the Varda factory,

8 at which people would have been killed, could not have been the subject of

9 the conversation on 7th of June with Stanko Pecikoza because -- the man

10 who drove him, as you know, to the Vilina Vlas Hotel -- because the events

11 in question took place three days later, on the 10th of June, namely after

12 the Drina River incident. And I have in front of me the amended

13 indictment, which was cited this morning, Counts 8 and 9, about the

14 murder, killing of seven Bosnian Muslim men at the Varda factory, and here

15 the date of on-- I quote, "On or about 10 June 1992," is mentioned. So we

16 have this discrepancy, which has some considerable bearing on the state of

17 knowledge of Vasiljevic before the Drina River shootings about crimes that

18 had been committed by -- by Lukic and, therefore -- Milan Lukic. And I

19 would really be grateful if you could help the Court in shedding some more

20 light on that.

21 MS. BRADY: Yes, Your Honour.

22 In paragraph 105, the Trial Chamber does footnote the evidence, as

23 you've said, to support its finding for knowledge being the conversation

24 that Milan Lukic -- that Vasiljevic had had with Stanko Pecikoza, just in

25 the car half an hour before. In my submissions, what I also referred to

Page 118

1 were other factual findings of the Trial Chamber which, of course, the

2 Trial Chamber was more than entitled to also rely on to find this

3 knowledge. But it's agreed that the only thing that is referred to Stanko

4 Pecikoza.

5 The first submission, I would say, is that the Trial Chamber is

6 not -- does not have to delineate every single piece of evidence for its

7 findings, albeit this is an important one, so it's -- we acknowledge that

8 it only mentioned this Stanko Pecikoza conversation in support.

9 But on this, in our submission, the evidence about this

10 conversation is rally quite clear. And I don't want the -- you've heard

11 me for the last hour and fifteen minutes. I certainly don't want to read

12 through another three pages of transcript of evidence.

13 But if Your Honours look through at actual conversation and the

14 cross-examination by Mr. Groome on this point. It starts at around 2103

15 and it goes to 2105. And the reading of it, if -- and as the Trial

16 Chamber obviously also read it -- is that Stanko told him that workers

17 from both his factory and Varda were being taken out and mistreated. Now,

18 if you look at the last question that Mr. Groome asks him, at page 2105 --

19 the question from Mr. Groome is, "Mr. Vasiljevic, did he tell you what

20 Milan Lukic was doing with these men that he took from these various

21 places?" They have just had the conversation about Varda and his own

22 factory, which I think was the Partizan factory. And he says in answer,

23 "Killing them, I don't know. I think they found the body of that young

24 man, Velagic, somewhere in the vicinity of the village."

25 Your Honour, the Prosecution notes -- knows that the indictment,

Page 119

1 indeed, charged Lukic with this incident on the 10th of June, but in our

2 submission that -- that should not be taken to mean that there were not

3 other occasions when Lukic took out men from the Varda factory and indeed

4 other factories in Visegrad. You'll note that we didn't charge him for

5 taking out anyone from Stanko Pecikoza factory him -- itself. So that in

6 itself and how the Prosecution indicted and charged for one incident on

7 the 10th of June should not be taken to mean that other incidents were not

8 occurring.

9 And in our submission, the Trial Chamber was more than reasonable

10 to find that listening to Vasiljevic's free testimony on that day when he

11 gave evidence at trial, that he was recounting to the best of his ability

12 what Stanko had told him. And this is what Stanko told him. He told him

13 that people were being taken out, mistreated, and he knew that they were

14 being killed. Thank you.

15 JUDGE MERON: Thank you.

16 Would my colleagues wish to ask questions at this stage?

17 Judge Schomburg? No, later.

18 We can now proceed, Ms. Jarvis. Ms. Jarvis.

19 MS. JARVIS: Thank you, Mr. President, Your Honours.

20 Essentially, the arguments that the appellant raises in his sixth

21 ground of appeal, concerning persecution as a crime against humanity, and

22 his seventh ground of appeal relating to his individual criminal

23 responsibility reflect one cross-cutting theme, that is, how can a Trial

24 Chamber infer on the evidence adduced before it that an accused person has

25 the requisite mens rea to be found guilty as a participant in a joint

Page 120

1 criminal enterprise to persecute?

2 The permissible parameters for inferring criminal intent have

3 been, and of course will be, a prominent feature of many of the appeals

4 that come before this Chamber.

5 In the absence of a confession or declaratory statement the

6 accused's state of mind in the time in question when the acts were

7 committed can only be inferred from the surrounding circumstances. This

8 principle applies equally to proof of specific intent crimes, such as

9 persecution.

10 Inferring intent from circumstantial evidence in no way

11 diminishes the Prosecution's obligation to prove the mental state required

12 for the specified crime. It simply recognises that in most cases the

13 Prosecution must necessarily resort to objective factors in order to prove

14 the subjective state of mind of the accused.

15 As Your Honour Judge Shahabuddeen has recently stated in the

16 Krnojelac appeal judgement, the task of the Prosecution is rightly heavy.

17 It should not be made unmanageably so. Recognising the heavy burden on

18 the Prosecution, the Trial Chamber in the present case acknowledged at

19 paragraph 68 of the trial judgement that where the Prosecution relies on

20 proof of state of mind by inference, that inference must be the only

21 reasonable inference available on the evidence. In this case, the Trial

22 Chamber was satisfied that the only reasonable inference was that Mr.

23 Vasiljevic was a participant in a joint criminal enterprise to commit

24 persecution.

25 On appeal, the appellant bears the burden of demonstrating that

Page 121

1 the Trial Chamber erroneously disregarded another reasonable inference

2 that was available on the evidence.

3 In order to assess the Trial Chamber's conclusion that

4 Mr. Vasiljevic was guilty of persecution, Your Honours will need to

5 consider three primary questions: First, what is the requisite mens rea

6 for participation in a joint criminal enterprise to persecute? Second:

7 Has the appellant demonstrated any error in the Trial Chamber's conclusion

8 that he was a participant in a joint criminal enterprise to murder? And

9 third: Has the appellant demonstrated any error in the Trial Chamber's

10 conclusion that he shared the discriminatory intent of the other three

11 perpetrators in the joint criminal enterprise?

12 THE INTERPRETER: Kindly slow down for the interpreters, please.

13 MS. JARVIS: [Previous Translation Continues] ... Raises in a bit

14 to demonstrate errors on the Trial Chamber's part are --

15 JUDGE MERON: Ms. Jarvis, would you kindly slow down a bit.

16 MS. JARVIS: Certainly, Your Honour. My apologies.

17 Overwhelmingly, the arguments the appellant raises in a bid to

18 demonstrate errors on the Trial Chamber's part are based on a

19 misapprehension of the trial judgement, are contrary to the existing

20 jurisprudence, or are simply unsustainable.

21 Turning then to the first key question: What is the requisite

22 mens rea for participation in a joint criminal enterprise to persecute?

23 The facts of this case raise in the parlance of the Tadic Appeals Chamber

24 a category 1 joint criminal enterprise, as Mr. Knoops has also

25 acknowledged today. Indeed, it's difficult to imagine a more classic or

Page 122












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13 English transcripts.













Page 123

1 straightforward scenario than the present case for the application of this

2 doctrine of responsibility. The relevant mens rea requirement is

3 uncontroversial. According to the Tadic Appeals Chamber, at paragraph

4 228, to establish responsibility in a category 1 joint criminal enterprise

5 the Prosecution must prove that the accused shared with the other

6 participants the intent to commit the agreed crime. In this case, the

7 agreed crime was murder or more precisely murder on religious or political

8 grounds. Consequently, it was necessary for the Trial Chamber to

9 determine not only whether Mr. Vasiljevic shared the intent of the other

10 three perpetrators to kill but also whether he shared their intent to

11 commit their crimes on political or religious grounds.

12 As recently confirmed in the Krnojelac appeal judgement, at

13 paragraph 185, in order to satisfy the mens rea requirement for

14 persecution, the Prosecution must prove that the violation of the victim's

15 rights was carried out deliberately with the intention to discriminate on

16 one of the listed grounds in Article 5(h) of the Statute, specifically

17 race, religion, or politics.

18 Turning then to the second key question: Has the appellant

19 demonstrated an error in the Trial Chamber's conclusion that he was a

20 participant in a joint criminal enterprise to murder? As Your Honours

21 have rightly noted, in his sixth and seventh grounds of appeal the

22 appellant has raised a number of arguments that overlap with the issues

23 he's raised in his fourth and fifth grounds of appeal and which have been

24 dealt with by my colleague, Ms. Brady. I won't repeat the comprehensive

25 analysis of the Trial Chamber's findings that she has presented. I'll

Page 124

1 simply just refer to them and focus specifically on the additional

2 arguments that the appellant raises in his sixth and seventh grounds of

3 appeal.

4 I refer in particular to the factors that led the Trial Chamber

5 to the inescapable conclusion that Mr. Vasiljevic shared the intention of

6 the other three perpetrators to murder the men at the Drina River. Most

7 important amongst these factors was, of course, the very nature of his

8 participation on the 7th of June, 1992. Given the facts as found by the

9 Trial Chamber, what possible inference is available other than that the

10 accused intended the murder of the seven Muslim men? Certainly those

11 facts are entirely inconsistent with Mr. Vasiljevic's claim that he was

12 simply an unwilling Witness to this unfolding violation of human life.

13 None of the arguments the appellant raises in his sixth or

14 seventh ground of appeal undermine the Trial Chamber's conclusion that he

15 did share the intent of the other three perpetrators to kill. The

16 Prosecution emphasises that contrary to the argument raised in the

17 appellant's brief, the Trial Chamber did not infer his intent to murder

18 solely on the basis that he did nothing to stop Milan Lukic or any of the

19 other perpetrators. Certainly this was one relevant factor to consider.

20 In combination with all of the other factors, most notably,

21 Mr. Vasiljevic's positive actions in providing assistance to guard at

22 gunpoint the Muslim captives en route to their deaths.

23 The appellant has also argued that it was just a ten-minute drive

24 from the Vilina Vlas Hotel down to the point at Sase where the cars

25 stopped and that the short duration of the events precludes any

Page 125

1 possibility of inferring he shared the intent of the other perpetrators.

2 In fact, as Your Honour Judge Shahabuddeen has rightly elucidated,

3 Mr. Vasiljevic's participation in the events also consisted of the three-

4 to four-minute walk during which the appeallant escorted the victims at

5 gunpoint through difficult terrain right down to the brink of the river.

6 Even on his own version of events, he knew throughout that entire walk

7 that the men were to be killed. Whether the time involved was five

8 minutes or five hours, the inference to be drawn from his unequivocal

9 participation in the murder plan is the same; he intended that the men

10 would be killed.

11 The appellant has also argued that the Trial Chamber erred in

12 finding the requisite common plan for a joint criminal enterprise. This

13 argument is contrary to the existing jurisprudence of this Tribunal. As

14 the Tadic Appeals Chamber has noted at paragraph 227, the common plan or

15 purpose may of course be inferred from the very fact that a plurality of

16 persons acts in unison to put into effect a particular crime. That is

17 exactly what the Trial Chamber found in the present case.

18 The way the events unfolded leads to the inescapable inference

19 that there was an understanding amounting to an agreement that these men

20 would be killed. As the Appeals Chamber has stated in the Furundzija

21 case, where the act of one accused contributes to the purpose of the other

22 and both acted simultaneously in the same place and within full view of

23 each other over a prolonged period of time, the argument that there was no

24 common purpose is plainly unsustainable. That's at paragraph 37 of the

25 Furundzija appeal judgement.

Page 126

1 Insofar as the appellant relies on analogies with the recent

2 Simic trial judgement to sustain his claim that he was not a participant

3 in a joint criminal enterprise, the analogy in the Prosecution's

4 submission is simply inapposite. The Simic case that the findings

5 referred to in the particular by the appellant referred to Mr. Simic's

6 alleged involvement in crimes of unlawful arrest and detention. The Trial

7 Chamber noted that there was no evidence of his participation in these

8 crimes, that the most that could be said was that he was at times present

9 at the sites where the victims were being unlawfully detained. This is

10 entirely different to the present case, where the Trial Chamber

11 specifically found that Mr. Vasiljevic actually participated in the

12 criminal conduct in three ways, as my colleague Ms. Brady has outlined.

13 It is not a case as might be suggested in the submissions for the

14 appellant of guilt on the basis of mere presence at the scene of the

15 crime. He was actively participating and was found guilty on that basis.

16 The appellant has also argued this morning on the basis of the

17 Kvocka trial judgement, and in particular has indicated that this case

18 stands for the proposition that a substantial contribution is required to

19 a joint criminal enterprise.

20 Your Honours, the Prosecution points out that the comments made

21 in the Kvocka trial judgement were of course dealing specifically with a

22 category 2 joint criminal enterprise, a category that is not directly

23 raised on the facts of this case. And in particular, the Kvocka Trial

24 Chamber was concerned to delineate the limits at which somebody who has an

25 association with a system of ill-treatment could be brought within the net

Page 127

1 of criminal responsibility. The Trial Chamber was specifically

2 considering at what point could someone employed, for example, as a

3 cleaner in a concentration camp incur responsibility pursuant to joint

4 criminal enterprise theory. Once again, Your Honours, that scenario is

5 entirely different to the case that we have here, where Mr. Vasiljevic

6 consciously and willingly made a decision to participate and contribute to

7 the deaths of these seven Muslim men.

8 A question has also been raised as to whether the appropriate

9 classification for Mr. Vasiljevic's responsibility was as a participant in

10 a joint criminal enterprise or whether an aider and abettor would not be a

11 more appropriate label to attach to him. Your Honours, the answer to this

12 question is simple and is directly reflected in the jurisprudence of the

13 Appeals Chamber in the Ojdanic joint criminal enterprise decision. Once

14 the Trial Chamber was satisfied that he shared the intent of the other

15 three perpetrators to kill, it is appropriate for him to be classified as

16 a participant in a joint criminal enterprise and not as an aider and

17 abettor where mere knowledge of the crimes being committed by the others

18 would be sufficient.

19 Your Honours, moving, then, to the third key question for your

20 consideration: How did the Trial Chamber infer that the appellant was

21 acting with the requisite discriminatory intent and has the appellant

22 demonstrated an error in the Trial Chamber's reasoning in this regard?

23 JUDGE MERON: Sorry, I don't want to stop you, but when you come

24 to a convenient point where we could have a break --

25 MS. JARVIS: Your Honour, if this is a convenient point, I'm just

Page 128

1 about to start the third and final strain of my analysis --

2 JUDGE MERON: So this is a convenient point then.

3 MS. JARVIS: It may be a good opportunity.

4 JUDGE MERON: It will be so decided.

5 We will have half an hour break.

6 --- Recess taken at 3.37 p.m.

7 --- On resuming at 4.05 p.m.

8 JUDGE MERON: Please be seated.

9 Ms. Jarvis, please continue.

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

11 Your Honours, I was just about to move to the third key question

12 that I'd proposed for your consideration, and that concerns the proof of

13 discriminatory intent required for persecution.

14 The Krnojelac Appeals Chamber has recently provided specific

15 guidance as to the permissible parameters for inferring discriminatory

16 intent for persecution. The Appeals Chamber in particular emphasised that

17 the discriminatory nature of an attack characterised as a widespread or

18 systematic attack for the purposes of a crime against humanity generally

19 is not for itself a sufficient basis upon which to infer that a particular

20 act carried out in the course of that attack was also committed with

21 discriminatory intent. Nonetheless, the general context is a relevant

22 factor provided, in the Appeals Chamber's words, "circumstances

23 surrounding the commission of the alleged acts substantiate the existence

24 of such intent." That's at paragraph 184 of the Krnojelac appeal

25 judgement.

Page 129

1 So while the general discriminatory nature of an attack

2 characterised as a widespread or systematic attack is not of itself

3 sufficient proof of discriminatory intent, it nevertheless provides an

4 important lens through which to view and assess the particular acts

5 alleged against the accused.

6 The Appeals Chamber also emphasised as paragraph 186 of the

7 Krnojelac judgement that if the acts in issue were clearly related to the

8 discriminatory widespread and systematic attack, then it may be inferred

9 that the treatment meted out was a consequence of that policy.

10 In the present case, the Trial Chamber's approach conforms in all

11 material respects with the methodology laid down by the Krnojelac Appeals

12 Chamber. The Trial Chamber specifically emphasised that it had to be

13 satisfied that Mr. Vasiljevic was acting in discriminatory intent during

14 the Drina River incident and that it wasn't sufficient that these crimes

15 simply occurred within the context of the broader discriminatory attack in

16 Visegrad. That's at paragraph 249 of the trial judgement.

17 Nonetheless, the link between the Drina River incident and the

18 wider attack and particularly Mr. Vasiljevic's role in that wider attack

19 was a relevant factor to consider in assessing his mental state on the 7th

20 of June, 1992. The Trial Chamber was satisfied that in providing

21 information to the group led by Milan Lukic, the accused shared the

22 intention of that group to persecute the local Muslim civilians on

23 religious or political grounds. That's at paragraph 251 of the trial

24 judgement. In coming to this conclusion, the Trial Chamber specifically

25 relied on Mr. Vasiljevic's comment at Sase on the 7th of June, 1992 when

Page 130

1 he pointed out to Milan Lukic a nearby house belonging to a Muslim family.

2 That's at footnote 148 of the trial judgement.

3 This finding is particularly important because it starkly

4 illustrates the connection between the broader discriminatory attack in

5 Visegrad, Mr. Vasiljevic's role within that broader attack, and the events

6 of 7 June 1992.

7 The Trial Chamber then looked specifically at the circumstances

8 surrounding the Drina River crimes and concluded that the only reasonable

9 inference was that the seven Muslim men were argued on political or

10 religious grounds.

11 As the Prosecution noted at paragraph 7.9 of its response brief,

12 in this case there was a widespread and systematic attack being carried

13 out on a discriminatory basis against the non-Serb population of Visegrad.

14 The appellant was a participant in that widespread and systematic attack,

15 and the Drina River crimes were committed in the course of that attack.

16 The seven victims of the crime fell within the group targeted by the

17 widespread and systematic attack, and the crime was an act of the type

18 being committed in furtherance of the widespread and systematic attack.

19 In addition to the obvious links between the Drina River events

20 and the broader discriminatory context, there was other evidence on the

21 trial record that supports the Trial Chamber's finding of discriminatory

22 intent. In particular, the Trial Chamber accepted that the seven Muslim

23 men were taunted with ethnic slurs just before they were shot. That's at

24 paragraph 276 of the trial judgement. This fact aptly conveys the

25 discriminatory context in which these crimes took place.

Page 131

1 Against the backdrop of the prevailing circumstances in which the

2 perpetrators and the victims found themselves on the banks of the Drina

3 River on the 7th of June, 1992, the notion that it was simply a

4 coincidence that all of the victims were Muslim and that all of the

5 perpetrators were Bosnian Serbs cannot be sustained. What other

6 reasonable inference could be drawn than that the only reason for the

7 appellant's participation in violating the rights of these seven men was

8 their membership of a political or religious group?

9 The appellant suggests that discriminatory intent on his part is

10 negated by the fact that he was not personally involved in selecting the

11 seven Muslim men initially. In presenting these arguments, the

12 Prosecution submits that the appellant adopts an overly literal

13 interpretation of what it means to single out the men. It does not mean

14 only the initial capture of the men from their homes, but also the

15 decision to subject them to crimes, and this decision can obviously be

16 made on an ongoing basis well after the men were initially removed from

17 their homes.

18 The argument presented by the appellant is tantamount to saying

19 that if the contribution rendered by a participant in a joint criminal

20 enterprise to persecute occurs partway through the execution of the crimes

21 or the criminal plan, the accused must be exonerated. Well, this would

22 undermine the very essence of joint criminal enterprise responsibility,

23 which is based on the concept that liability is incurred notwithstanding

24 that the accused may not have participated in every single aspect of

25 crime.

Page 132

1 The position advanced by the appellant also suggests that the only

2 basis on which discriminatory intent can be inferred is the participation

3 of the accused in the process of initially selecting the victims. This is

4 clearly not correct. Discriminatory intent can also be inferred, as in

5 this case, from the ongoing participation of the accused in a crime in

6 full knowledge of the discriminatory grounds on which it's being

7 committed.

8 The permissibility of inferring discriminatory intent from the

9 accused's knowing participation was addressed by the Trial Chamber in the

10 Kvocka case. There the Trial Chamber noted at paragraph 201 that Trial

11 Chambers have repeatedly inferred discriminatory intent from the

12 perpetrator's willful or knowing participation in a campaign of systematic

13 abuse against a specific group. And the Kvocka Trial Chamber referred no

14 particular to the Kupreskic and Kordic cases as examples. To that could

15 be added the Krstic trial judgement at paragraph 618, and the Simic Trial

16 Chamber, at paragraph 51, has more recently endorsed this same approach.

17 The appellant has also argued that he was convicted on the basis

18 of a single incident and that it is impermissible to attach the label of

19 persecution to a single incident. I'll be very brief on this point, Your

20 Honours. It is contrary to the existing jurisprudence of the Tribunal

21 which clearly recognises that persecution can be constituted by reference

22 to one single underlying act. Indeed, the Kupreskic trial judgement, at

23 paragraph 624, which endorses this principle, specifically gave the

24 example of the murder of a single Muslim person in the former Yugoslavia

25 occurring as part of the widespread or systematic persecutory attack

Page 133

1 provided the intent was clearly to kill the victim because he was a

2 Muslim. The Prosecution submits that is precisely the case that we have

3 here.

4 It also must be said that while Mr. Vasiljevic was convicted of a

5 single incident, it certainly was not an isolated incident when viewed in

6 the proper context of his role in the broader attack.

7 In conclusion, Your Honours, many scenarios could be envisaged

8 where proof of the specific intent required for joint criminal enterprise

9 responsibility to persecute would be a complicated question. In the

10 Prosecution's respectful submission, this case is not among them. There

11 are clear links between the Drina River crimes and the broader

12 discriminatory attack against the non-Serbs in Visegrad, an attack so

13 successful, that as the Trial Chamber noted at paragraph 56 of the

14 judgement, the changes in ethnic composition in Visegrad municipality

15 after these events are second only to the changes that occurred in

16 Srebrenica.

17 The Trial Chamber, having heard all of the evidence, had no doubt

18 that the only reasonable inference was that Mr. Vasiljevic was a

19 participant in a joint criminal enterprise to persecute. The appellant

20 has raised no argument on appeal that challenges the validity of the Trial

21 Chamber's conclusion in that regard.

22 Your Honours, that completes my submissions. If you have any

23 questions, I'd be happy to assist you now, or if you prefer to wait, we

24 can deal with them at the end.

25 JUDGE MERON: We will now proceed to your colleague, who still, I

Page 134

1 believe -- Mr. Wirth.

2 Oh, let me just before that check with my colleagues, whether they

3 would have questions at this stage.

4 So Mr. Wirth, you will have to be patient another moment. I'm

5 sorry.

6 [Appeals Chamber confers]

7 JUDGE MERON: Judge Shahabuddeen.

8 Questioned by the Court:

9 JUDGE SHAHABUDDEEN: Ms. Jarvis, you were dealing with evidence of

10 discrimination related to the charge of persecution. You referred to

11 paragraph 276 of the trial judgement. This is a -- the place is at

12 transcript 113, line 15. You said the people had been taunted with ethnic

13 slurs before being killed, and the reference was to this paragraph of the

14 trial judgement. Well, I've dutifully consulted that paragraph, and what

15 I see there is a reference to the fact that victims were verbally abused

16 before being killed, fairly neutral language, certainly not the same as a

17 reference to the victims having been taunted with ethnic slurs. But there

18 is a footnote which carries one to Prosecution final trial brief,

19 paragraphs 476 to 478. Maybe the evidence is cited there about the

20 victims having been taunted with ethnic slurs?

21 MS. JARVIS: Yes, Your Honour. That's exactly correct. If you go

22 to the reference as cited --

23 JUDGE SHAHABUDDEEN: I will look it up in a moment. Yes, thank

24 you.

25 MS. JARVIS: Yes.

Page 135

1 JUDGE MERON: Thank you, Judge Shahabuddeen.

2 I see no further questions. So Mr. Wirth, if you would kindly

3 start now.

4 How long is your presentation roughly, Mr. Wirth?

5 MR. WIRTH: I hope to conclude in under 15 minutes.

6 JUDGE MERON: Thank you very much.

7 MR. WIRTH: Good afternoon, Your Honours. I will address you on he

8 appellant's arguments regarding sentencing.

9 Your Honours, the appellant raises a variety of arguments with

10 regard to sentencing. Most of these arguments have been comprehensively

11 addressed in our response brief, and for the purposes of this hearing we

12 just wish to address those mentioned by you or by the appellant this

13 morning.

14 Your Honours, with regard to the appellant's argument about the

15 issues of verbal abuse and the double use of trauma, we would like to

16 refer you to the Prosecution trial brief in order to save time. The first

17 argument which the Prosecution would like to address in more detail

18 concerns the appellant's allegation that the Trial Chamber used

19 discriminatory intent twice; once to find the elements of persecution and

20 then a second time in order to aggravate the global sentence.

21 The Prosecution states that this argument was not raised in the

22 appellant's Notice of Appeal and that the appellant has not applied for

23 leave to amend this Notice of Appeal. The argument should be dismissed on

24 this basis. Alternatively, the Prosecution submits that the appellant's

25 arguments are without merit. In that regard, the Prosecution agrees that

Page 136












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Page 137

1 it would constitute an error had the Trial Chamber used discriminatory

2 intent as an aggravating circumstance to increase the global sentence.

3 The Prosecution is, however, of the view that the Trial Chamber

4 did not commit this error. In fact, the Trial Chamber explicitly stated

5 that it considered discriminatory intent as an aggravating factor only

6 with regard to the war crime of murder but not for the crime against

7 humanity of persecution based upon acts of murder. Moreover, the Trial

8 Chamber itself made clear that an accused must not be punished for the

9 same conduct twice. To assume that the Trial Chamber used discriminatory

10 intent twice would be tantamount to assuming that the Trial Chamber

11 disregarded the very principle it just established.

12 The Prosecution submits that there is a sound reason why the Trial

13 Chamber mentioned discriminatory intent as an aggravating factor for the

14 war crime of murder despite the fact that it cannot aggravate the global

15 sentence. The reason is that every conviction should stand on its own.

16 Consequently aggravating circumstances must be considered for every crime

17 separately. As discriminatory intent is an aggravating circumstance for

18 the war crime of murder, the Trial Chamber had to regard this fact.

19 In conclusion, the Prosecution submits that the Trial Chamber did

20 not use discriminatory intent twice and therefore did not commit an error.

21 The next argument we would like to address regards the method of

22 killing. In this regard, the appellant's argument is not entirely clear.

23 However, the Prosecution assumes that one of the appellant's arguments is

24 that the Trial Chamber used the cold-bloodedness of the crime

25 impermissibly cumulative with a factor that had been considered earlier,

Page 138

1 namely that the crime was executed in a very efficient manner. The

2 appellant appears to consider that both the efficiency and the

3 cold-bloodedness in the end concern the same thing, namely the method of

4 killing. The appellant therefore seems to argue that the Trial Chamber,

5 by using efficiency and cold-bloodedness, used the method of killing twice

6 against the appellant.

7 The Prosecution is of the view that the appellant's assumption is

8 incorrect. Although it may be not entirely clear from the response brief,

9 it is our position that efficiency and cold-bloodedness are not the same.

10 The Trial Chamber based its consideration of aggravating circumstances on

11 different findings. The efficiency of the crime was based upon the fact

12 that the crime was planned so as to require as little effort as possible.

13 Victims were shot at the banks of the Drina River in order to save the

14 effort to have to bury them.

15 In contrast, the Chamber based its consideration regarding the

16 cold-bloodedness of its finding -- excuse me.

17 In contrast, the Chamber based its consideration regarding the

18 cold-bloodedness on its finding that the perpetrators discussed whether to

19 shoot individually or in bursts where the victims could actually hear

20 them. This shows the utter lack of empathy of the perpetrators.

21 Because the Trial Chamber based its consideration of

22 cold-bloodedness and the efficiency on different factual findings, the

23 Prosecution submits that efficiency and cold-bloodedness are not the same

24 that and the Trial Chamber therefore did not err.

25 The next issue we would like to address very shortly is the

Page 139

1 appellant's claim that at the time of the Drina River incident his

2 responsibility was diminished; in other words, that he did not know wrong

3 from right.

4 The Prosecution would first like to note that none of the

5 appellant's arguments regarding his responsibility are new. The Trial

6 Chamber was aware of them and it dismissed them. In fact, the Prosecution

7 submits there is no evidence to prove on the balance of probabilities that

8 the appellant's responsibility was diminished at the time of the Drina

9 River killings. Moreover, the appellant himself stated at page 2131 of

10 the transcript that he -- that even his alcohol problem did not prevent

11 him from recognising the wrongfulness of the events. The Prosecution

12 submits that the appellant at trial did not establish that his

13 responsibility was diminished and that the Trial Chamber therefore was not

14 unreasonable to find accordingly.

15 As regards the arguments that the Trial Chamber erred in finding

16 that the appellant did not show any remorse and the argument that the

17 appellant had no opportunity to surrender, and that the Trial Chamber

18 somehow should have taken this into consideration, we would as well like

19 to refer Your Honours to our response.

20 An issue we would like to address a little more in detail is the

21 appellant's claim that he was not given sufficient credit for cooperation.

22 In that regard, the Trial Chamber found that the appellant's statements

23 revealed nothing or very little that was not already known. The Trial

24 Chamber also found that it is the content of the statement that is

25 relevant for the mitigation.

Page 140

1 The appellant does not assert that he gave useful information to

2 the Prosecution. He merely states that he made efforts to do so.

3 The [Microphone not activated] The Prosecution submits that the

4 Trial Chamber --

5 THE INTERPRETER: Microphone, please.

6 Microphone, please.

7 MR. WIRTH: -- To cooperate is either irrelevant or of very little

8 weight. In the present case, the Trial Chamber has given some but not

9 very much weight to the -- thank you.

10 The Trial Chamber has given some but not very much weight to the

11 appellant's limited efforts to assist the Prosecution. The appellant has

12 advanced no argument that the Trial Chamber was unreasonable in exercising

13 its discretion in this manner.

14 The Prosecution will now turn very shortly to the appellant's

15 argument that his low position in hierarchy and his role in the crime was

16 not given sufficient weight by the Trial Chamber.

17 The Prosecution submits that the Trial Chamber did take into

18 consideration that the appellant was low in hierarchy and that he did not

19 part -- take part in the planning of the crime. The appellant in that

20 regard merely claims that the Trial Chamber should have given more weight

21 to these factors. However, as stated in the response brief, the

22 Prosecution is of the view that the appellant did not show any discernible

23 error in the Trial Chamber's exercise of its sentencing discretion.

24 The penultimate issue we would like to address is the appellant's

25 argument that he should have been given credit because he behaved very

Page 141

1 well and indeed was a model detainee in the Detention Unit. In support of

2 this argument, the appellant wishes to forward a letter from the Detention

3 Unit to the Registrar of this Tribunal. The appellant mentions this

4 letter for the first time in his reply. The Prosecution submits that the

5 letter is not admissible in the present proceedings. The Prosecution will

6 not expand upon the problem that the issue has been raised for the first

7 time in the reply or that the appellant failed to file a motion under Rule

8 115 regarding this evidence. Rather, the Prosecution submits that even

9 had the appellant filed a 115 motion, the admission of the -- excuse me,

10 for the admission of the letter, the Appeals Chamber would have denied

11 this motion. The Appeals Chamber has denied very similar requests at

12 least twice: First, in Jelisic, in the decision on request to admit

13 additional evidence of 15 November 2000; and then for a second time very

14 recently, in Celebici, in paragraph 11 of the judgement on sentence appeal

15 of 8 April 2003. The reason why such evidence was refused is explained in

16 Jelisic in a two-step approach: First, as regards the appellant's

17 behaviour before sentencing. This evidence was available during trial and

18 therefore cannot be admitted under Rule 115. Second, as regards

19 post-sentencing behaviour, the Appeals Chamber reasoned that the Trial

20 Chamber could not possibly have erred in disregarding this behaviour. The

21 reason is that this behaviour was not capable of being considered by the

22 Trial Chamber at this point in time.

23 The Appeals Chamber in Celebici has therefore concluded that

24 evidence of post-sentence behaviour is irrelevant to whether the Trial

25 Chamber erred in the exercise of its sentencing discretion. The

Page 142

1 Prosecution submits that the rationale behind the Appeals Chamber's

2 decision is that the relevant point in time to determine the sentence is

3 the time of the sentencing. Any subsequent events may be relevant to the

4 execution of the sentence but not to sentencing itself.

5 The Prosecution therefore submits that the appellant's argument

6 cannot succeed.

7 Your Honours, the last argument we will address is the report from

8 Amnesty International, mentioned by Mr. Knoops this morning. The

9 appellant stated that the -- that this report informs that Milan Lukic was

10 sentenced in Belgrade to 20 years imprisonment for killing and abducting

11 seven --excuse me, 16 Muslims. The Prosecution submits that this document

12 is irrelevant to the present proceedings. Counsel for the appellant has

13 correctly submitted that the legal context in which the Belgrade judgement

14 must be assessed is Rule 101(B)(iii). According to this Rule, the Trial

15 Chamber when sentencing an accused must consider the sentencing practice

16 in the former Yugoslavia. The Prosecution submits that the Trial Chamber

17 has taken this practice into consideration and the appellant has not

18 argued that the Trial Chamber committed an error in this regard.

19 The judgement mentioned in the report is a single decision. As

20 such, it cannot possibly affect the sentencing practice in the whole of

21 Yugoslavia in such a radical manner as to render the Trial Chamber's

22 considerations erroneous. The Prosecution assumes that the appellant,

23 when selecting the decision, was guided by the name of the accused. This

24 name, however, is irrelevant for the sentencing practice in the former

25 Yugoslavia. Therefore, as already stated, the Prosecution submits that

Page 143

1 the Amnesty report is irrelevant to the present proceedings.

2 Your Honours, this ends the Prosecution's submissions with regard

3 to sentencing, and we will be happy to answer any questions that you may

4 have.

5 JUDGE MERON: Thank you, Mr. Wirth. Would any of my colleagues

6 wish to ask questions?

7 Judge Shahabuddeen, please.

8 Questioned by the Court:

9 JUDGE SHAHABUDDEEN: Mr. Wirth, I really need a little help on

10 this, and the question also goes to counsel for the appellant. I

11 understand that the jurisprudence lies this way, that if a matter is an

12 element of the crime charged, that matter cannot be considered to be an

13 aggravating circumstance for the purpose of sentencing. Well, if that is

14 right, can -- can it be accommodated with the view that a matter, though

15 an element of the crime charged, could be of various gradations and these

16 gradations could well be taken into account for the purposes of

17 sentencing? Take persecution under Article 5(h) of the Statute. It

18 requires proof of discrimination on certain grounds. But can that

19 discrimination take varying forms such as to entitle a Court to say,

20 "Well, this particular discrimination was of a certain grossness and

21 therefore that grossness could betaken into account as an aggravating

22 circumstance"? I throw that out also for counsel for the appellant when

23 his turn comes.

24 MR. WIRTH: Should I go first?

25 Your Honour, I think you're right. Probably discriminatory

Page 144

1 intent, when it is beyond a certain level, could constitute an aggravating

2 circumstance, even for the crime of persecution. However, this is not the

3 submission that we wish to make in this case. Our submission is that the

4 Trial Chamber did not use discriminatory intent as an aggravating

5 circumstance in this case. Okay.

6 JUDGE SHAHABUDDEEN: I appreciate that. I appreciate that,

7 Counsel. I was asking you what may be well termed an academic question.

8 JUDGE MERON: Judge Schomburg.

9 JUDGE SCHOMBURG: It goes not to sentencing. It's more a general

10 question. Therefore, if anybody has another question before to

11 sentencing. Okay.

12 JUDGE MERON: Please go ahead.

13 JUDGE SCHOMBURG: Thank you.

14 Having before me the Statute, I can see in Article 7 that

15 punishable is a person who committed or otherwise aided and abetted in a

16 crime. I think to put the arguments of both parties in the nutshell with

17 the caveat that we take it that the findings of the Trial Chamber stand as

18 they are, the question is how exactly to identify the borderline between

19 committing and aiding and abetting. Of course, related to the mens rea

20 element we have the distinction sharing the intent and knowledge about his

21 intent. But I recall that recently in the Krnojelac appeal it was the

22 Prosecution itself that drew our attention to the question that maybe even

23 in addition to the definition of commission under Article 7(1) and the

24 three categories, one can take into account also other definitions, being

25 maybe in a case like the one before us more helpful. And they draw -- the

Page 145

1 Prosecution draw our attention to the principle of perpetration and --

2 perpetration and control over the act. If this indeed should be the

3 dividing line, then my question - it also would go to both parties - would

4 be: Is it your submission that the appellant had the control over the act?

5 Thank you.

6 [Prosecution counsel confer]

7 MS. BRADY: Your Honours, Ms. Jarvis will respond to that question.

8 MS. JARVIS: Your Honour, thank you very much for your question,

9 which of course does raise one of the -- the key issues in the present

10 case, that being the distinction between being convicted as a participant

11 in a joint criminal enterprise or some other form of co-perpetration and

12 aiding and abetting.

13 Your Honours, the Prosecution submits that in this case there is

14 no need to look beyond the principle of joint criminal enterprise

15 responsibility because it fits precisely the circumstances of the present

16 case. And in the theory of joint criminal enterprise responsibility, as

17 elucidated in the jurisprudence of this Tribunal, in particular the Tadic

18 appeal judgement, there is no requirement that the accused must provide

19 any form of integral or causative assistance to the perpetration of the

20 crime. It is enough that the participant intends the crime and shares

21 that intent with the other participants and that he or she makes a

22 contribution towards the execution of that crime. So our primary

23 submission is that in this case we have a theory recognised as part of

24 customary international law and applied in other cases before this

25 Tribunal that absolutely leads to a satisfactory result in this case, and

Page 146

1 there is no reason not to apply or uphold the application of the Trial

2 Chamber of that theory.

3 As to the question of whether Mr. Vasiljevic in this case did in

4 fact have some sort of control over the act in question, the Prosecution

5 submits that it is not simply a question of looking at whether the crime

6 could have occurred had it not been for Mr. Vasiljevic's participation

7 but, rather, of analysing whether the crime could have taken place in

8 precisely the same way as it did. We've already pointed out, Your

9 Honours, that in this case there were four perpetrators guarding seven

10 Muslim men en route down to the Drina River. Perhaps scenarios could be

11 envisaged where this same crime could -- or whether a similar result could

12 have been achieved, even without Mr. Vasiljevic's participation. But it

13 would have been -- it would have looked like a different crime. Different

14 arrangements may have had to have been made to guard the men, given that

15 each other participant would have then been responsible for guarding more

16 than two men.

17 In sum, Your Honours, the Prosecution submits that this is an

18 appropriate case for the accused to be convicted as a perpetrator, as

19 someone who has actually committed the crime, rather than aiding and

20 abetting it. Perhaps an example might help to illustrate the

21 Prosecution's point.

22 Had Mr. Vasiljevic simply provided assistance, such as, for

23 example, lending a vehicle to the perpetrators of the Drina River crimes,

24 perhaps at that point it might have been impossible to infer that he

25 shared the intent, that he bought into the criminal plan and took it as

Page 147

1 his own. But given the acts of participation that we do have in the

2 present case, where he guarded at gunpoint the men all the way down to the

3 Drina River, the facts clearly disclose that he did adopt the plan as his

4 own and he followed it through right to the very end.

5 Thank you, Your Honours.

6 JUDGE MERON: Thank you, Ms. Jarvis. We will now go back to the

7 Defence, which will have 30 minutes to respond.

8 MR. DOMAZET: [Interpretation] Your Honours, we shall do our best

9 in the 30 minutes available to us, both of us - myself and my learned

10 colleague, Mr. Knoops - to respond; though it is very hard, as many points

11 have been made, though some of them have already been covered by our own

12 submissions and explanations, but some certainly deserve additional

13 attention, so I shall do my best to refer to those that I consider to be

14 of the greatest importance.

15 Perhaps let me start with the last point that was raised. When

16 talking about very important matters, such as whether the appellant had

17 any control over the situation and wished the events to happen in the way

18 they did, I will just recall something that I don't think the Prosecution

19 denied itself, because it referred to that evidence, and that is that

20 Pecikoza put Lukic in his car and took him to find Lukic that afternoon so

21 as to see why he was harassing his workers, not killing them or committing

22 crimes. There are transcripts where this can be verified. And in our

23 submissions, there is clear reference to those transcripts. So it was --

24 it is out of the question that there was any reference to crimes or

25 murders, but simply that Pecikoza wanted to discuss this matter with

Page 148

1 Lukic, this matter of harassment.

2 The appellant accepted this. He stayed in the Vilina Vlas Hotel

3 while Pecikoza went further to see whether Lukic was in Prelovo. And then

4 this group of three men arrived with the other seven. And now, however,

5 instead of this course of events, it appears that Mitar Vasiljevic came

6 there to kill those seven people, one of whom was a colleague and friend

7 of his throughout his employment as a waiter, and we are led to believe

8 that he wanted them dead. It is certainly not logical.

9 And I would like to go a bit further and explain when there is

10 constant reference that he was escorting these men at gunpoint. VG14 did

11 not mention any weapons at gunpoint, and especially not held by

12 Vasiljevic. And this can be verified from the transcript too. VG32 said

13 that when the vehicle stopped on the road, that the soldier who was in his

14 car started to behave differently when they came out and that he pointed a

15 gun and started to behave brutally, as he said it.

16 In answer to a question by Mr. Groome whether the others behaved

17 in a similar fashion, the witness said, "Yes, the others behaved

18 similarly." VG14 did not make such confirmation. I think that in this

19 case too there is exaggeration to say the least and fabrication by Witness

20 32 in relation to what Witness 14 said. It is probable, judging by their

21 own statements and what Vasiljevic himself said, that that -- at that

22 point in time it was clear to everyone that Lukic wanted to do something

23 to them and that he took them to the Drina certainly without any good

24 intentions in mind. But the fact that Vasiljevic went with them was not

25 to guard them, not to point a gun at them - and he claims he didn't even

Page 149

1 have a gun - and ten witnesses say that they never saw him armed during

2 that period. But he's still hoping that no such killing will occur and

3 that Lukic will do something else, because the witnesses themselves said

4 that along the way he asked them whether they could swim, which was indeed

5 a strange question. However, everyone expected the worst, which indeed

6 happened.

7 The Trial Chamber did not believe Vasiljevic, that he verbally

8 tried to influence Milan Lukic, but it trusted the witnesses and their

9 statement that he didn't say a word. However, when he went down to the

10 river, that doesn't mean that he had accepted the killing of those men,

11 among whom was one of his colleagues from work, but this can only mean

12 that he was hoping that this would not happen after all and that the fact

13 that he didn't come up close, that he stayed behind in the bushes, was

14 when he saw Lukic lining them up and that the three of them were taking up

15 positions like a firing squad and that they were going to kill them and

16 there was nothing more that he could do. Even if he had a rifle or if he

17 didn't have a rifle, in my submission, the situation remains the same; he

18 could not have played any role in that, nor did these three men need any

19 assistance, because - I will repeat - if at Bikavac, where there were just

20 the three of them going from one house to the next and taking out some 15

21 men, capturing them, arresting them, separated seven of them, singled them

22 out, and brought them over themselves in two cars, then no additional aid

23 did they need in this incident when it occurred.

24 With respect to the Drina incident and VG79, if I understood

25 correctly the representative of the Prosecution, she accepts that the

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Page 151

1 three soldiers, or Lukic plus two, according to VG79's drawing were behind

2 the seven and fired at them but that the fourth - in this case the

3 appellant here present - was among the trees and that is why he did not

4 draw him on the sketch.

5 And I would just like to recall that both witnesses, both 14 and

6 32, on their sketches indicated all four standing behind them, claiming

7 that the four of them were together. And this, in my opinion, points to

8 their ill intentions with respect to the appellant, that is, for them

9 to -- for him to be convicted on those grounds as well, because it is

10 quite clear that he wasn't the fourth person in that empty space that

11 could be observed from the other side of the river. Between the sandy

12 bank where the seven men were standing, until they fell into the river,

13 there was again a part of the sand, then a grassy area, and only then the

14 woods and the willows, where the appellant stayed behind, and that is why

15 VG79 couldn't see him, and the situation indicated by these other two

16 witnesses on their drawings and in their testimonies does not coincide

17 with this, and this is an indication of their ill intent, as the Defence

18 admits, for the reasons we have explained today, they incorrectly

19 testified that he was armed on that day.

20 The Prosecution came out today with the assumption that even

21 though he was in prison because he refused to act as a soldier of the TO

22 and to take up positions, when he left and when he was given labour

23 assignments, that is, to clean the town rather than going to the front,

24 that he may have been issued a weapon. However, exactly ten witnesses

25 that we have cited denied this, and it would be absolutely hard to believe

Page 152

1 that no one, not even some of the Muslim witnesses, saw him with a weapon

2 if he had had one.

3 Unfortunately, I don't have much time, because I would like to

4 leave some time for my learned friend for some additional explanations,

5 but when talking about the relationship with Milan Lukic I would like to

6 repeat again that the kum relationship after 1992, five or six years

7 later, cannot be used as evidence to corroborate something that happened

8 in 1992 and that that relationship, as I noted here, was not one of a best

9 friend. Truly that cannot be found anywhere in the record that they were

10 ever -- that they ever socialised and especially not that they were best

11 friends. On the contrary, if it is true that in 1995 or 1996 - and he

12 couldn't even recollect exactly the year - if he was a witness at the

13 wedding and that his family, neither his wife nor children attended the

14 ceremony; there was no formal luncheon, as is customary - best indicates

15 how much he wanted to participate or whether that was mere form that

16 emanates from customs, rather than a wish to act in that capacity. But I

17 really they it is not relevant in these proceedings for us to dwell on it.

18 As for his detailed testimony, I should like to refer to

19 transcripts that I referred to in my appeals brief, which shows that they

20 spoke -- that he spoke in detail about persons he was asked to identify

21 from various situations. These are all people from Visegrad or who

22 originated in Visegrad. And it is indeed not strange that he knew those

23 persons, especially as he testified much later, that is, many years after

24 the events, when he also had knowledge of what he had seen or heard later

25 on and not in June 1992. But it is a fact that he was not aware of their

Page 153

1 organisation, that he made a statement that they were in police uniforms

2 and that they were probably working for the police; whereas, he was a

3 member of the Territorial Defence, and he knew nothing more about their

4 organisation. Therefore, why would that knowledge of his be seen to be

5 such that the Prosecution is using this against him?

6 Regarding him pointing out a Muslim house, this was in response to

7 a question from Lukic. We'll come back to that.

8 As for the TO -- these are the transcripts that the Prosecution

9 refers to, and I appeal to you to review those transcripts because they do

10 not confirm what has been said but, rather, confirm the submissions of the

11 Defence.

12 As for taunts on an ethnic -- insults on an ethnic basis, he is

13 being accused of not saying anything and still less of taunting or using

14 ethnic slurs, and he couldn't influence anyone because he simply couldn't.

15 As for being on guard in Musici when others were stealing. The

16 house in front of which he was, only Lukic went inside and nothing went

17 missing from that house. Lukic asked the people to inform the others in

18 the village to come out, and while he was telling them what they should

19 do -- that is, rather, what they should not do, that they should not

20 provoke others and that they should surrender the weapons -- then the

21 others were probably robbed, and Vasiljevic did not take part in it nor

22 could he know about it. How can we talk about him guarding the house when

23 people were coming in and out of that house?

24 In my submission, some insignificant facts have been gathered to

25 form four fundamental bodies of evidence, which cannot prove what is

Page 154

1 important, and that is the existence of an intent, which the Prosecution

2 failed to prove. If a silent agreement is valid, then it could apply to

3 these two soldiers who worked with Lukic before that and after the event,

4 but it certainly cannot be said of Mitar Vasiljevic, who in those days for

5 quite different reasons wanted to meet with Lukic and found himself in

6 this situation.

7 I leave colleague Knoops unfortunately very little time, but I

8 would like him to make his contribution. And since it is not possible to

9 respond to all these points that have been made, I wish to emphasise that

10 in our submissions and motions, with respect to the facts and the law and

11 the sentencing, we have made our position clear and I abide by them. If

12 there are any questions, I will be glad to respond, but I appeal to the

13 Chamber to really take into consideration all the arguments that we have

14 presented and to pass a fair judgement.

15 JUDGE MERON: Mr. Knoops.

16 MR. KNOOPS: Thank you, Mr. President, Your Honours.

17 First of all, I thank the Prosecution for their submissions. And

18 before addressing these submissions on seven points shortly, I have to

19 note that within the totality of errors, two undisputed errors seems to

20 exist now which seriously invalidate, in the opinion of the Defence, the

21 mens rea for both joint criminal enterprise and persecution; namely, the

22 paragraphs 209, the matter of pointing a gun in the hotel lobby; and

23 secondly, paragraph 105, the reversal of the Varda factory incident.

24 With respect to the joint criminal enterprise, the topic addressed

25 by Ms. Brady, I would like to stress that according to paragraph 999 of

Page 155

1 the mentioned Simic decision, the Trial Chamber makes a causal link

2 between the requirement of substantial effect on the perpetration within

3 joint criminal enterprise, on the one hand, and the position or status

4 with power to prevent the work of the enterprise, on the other hand. It

5 is fair to say, Your Honours, that this argument or causal link,

6 especially may be required when the facts of a case reveal the inability

7 to stop the main perpetrator from committing its offence.

8 With respect to the arguments of Ms. Jarvis, I would like to point

9 you again to the Simic decision. The analogy with the Simic decision was

10 not made and based on this main defendant, but the Defence relied on the

11 position of the co-defendant; in that case, Mr. Miroslav Tadic. And from

12 the facts of that case, specifically the paragraphs 998, 999, it may be

13 deduced that similarities arise with respect to this accused, especially

14 while that accused, Mr. Tadic, was prosecuted for prosecution in a joint

15 criminal enterprise with respect to persecution.

16 Again, may I draw your attention to a distinction made by the

17 Trial Chamber there. On the one hand, knowledge of special intent with

18 respect to joint criminal enterprise also; and on the other hand, its

19 effects on the perpetration of the crimes. So the Trial Chamber clearly

20 distinguished these two elements and said that knowledge of special intent

21 of the joint criminal enterprise as such does not mean that a

22 participation has been proven.

23 The Prosecution, with respect to the comparison with the Kvocka

24 case, launched the argument that this is only a category 2 case. This is

25 correct. However, four decisions emerge, and they are set out by the

Page 156

1 Defence, which clearly indicate that within the ambit of Article 7 under

2 (1) of the Statute, liability may only emerge in case of a direct and

3 substantial effect. The Tadic opinion judgement, paragraph 689; the

4 Furundzija decision, paragraph 209; the Aleksovski trial decision,

5 paragraphs 63, 65; and lastly, the Foca Trial Chamber decision, paragraph

6 393.

7 Although these decisions were not focussed and based on liability

8 with respect to joint criminal enterprise, they are focussed on liability

9 within Article 7, under (1), and the Defence holds the opinion that these

10 arguments of these four decisions could be applied also with respect to

11 participation via joint criminal enterprise.

12 Lastly, the Defence holds that another inconsistency is

13 overlooked. It is addressed by the Prosecution; namely, the paragraphs

14 254 versus paragraphs 99 and 100. The crux of the special intent,

15 according to these paragraphs, should be founded in the singling out of

16 the Muslim men. Yet it is undisputed, according to the paragraphs 99 and

17 100, that these men were already singled out at the time the accused came

18 into view. The Prosecution says that this interpretation by the Defence

19 represents an overly literally adoption of the term "singling out." Yet,

20 according to the paragraphs 616 and 627 of the Kupreskic Trial Chamber

21 decision, within the confines of persecution, one should satisfy the

22 principle of legality; therefore, one should avoid, according to the Trial

23 Chamber, an overly broad interpretation of specific intent required for

24 persecution, to respect the principle of nullum crimen sine lege, because,

25 as the Trial Chamber says, persecution remains the least precise of the

Page 157

1 crimes enumerated. Therefore, the Defence holds that our interpretation

2 is not representing an overly literally adoption of this term but an

3 interpretation with respect to the principle of legality.

4 Finally, the arguments of Mr. Wirth: The report of Amnesty

5 International is launched on the 1st of October, 2003. It may be not

6 exemplary for the general practice as such, but it is surely indicative

7 for the existence of a general practice, because that decision is not a

8 single decision but amounts to four accused. And in view of the Defence,

9 Rule 101(B) surely allows for the interpretation as envisioned by the

10 Defence in this respect.

11 Lastly, I would be honoured to address the question of the

12 Honourable Judge Shahabuddeen addressed to the Prosecutor asking where

13 certain grossnesses in deed could determine the height of the sentence

14 with respect to persecution, the crime of persecution in which could be

15 addressed to the sentence -- with respect to persecution, the crime of

16 persecution. I agree with his view, but I have to say that, doctrinally,

17 this argument cannot be determined via the legal construction as employed

18 by the Trial Chamber in the paragraphs 276 and 279, because such a

19 construction goes beyond the framework of both the intra- and

20 inter-article cumulative convictions. Therefore, with respect to this

21 particular argument, the Defence holds the view that this was indeed a

22 violation of the principle of non bis in idem.

23 Finally, and lastly, I draw the attention of your Trial Chamber --

24 your Appeals Chamber to the sentencing considerations. In the Simic case

25 of 17 October 2003, where the three defendants were convicted to eight,

Page 158

1 six, and seventeen years, were not only the facts but also the sentencing

2 consideration to a considerable extent similar with that of the appellant.

3 More specifically, the sentencing of the accused in that case,

4 Mr. Miroslav Tadic.

5 I thank you very much for your attention.

6 JUDGE MERON: Thank you very much.

7 Judge Schomburg has a question and Judge Guney has a question.

8 Judge Schomburg.

9 Questioned by the Court:

10 JUDGE SCHOMBURG: For the purpose of the record and in order to

11 give a judicial hint to the parties, I want to raise an issue proprio

12 motu, which is, of course, possible under our Rules, and this is a

13 fundamental question that when we look in our Statute we find that the

14 attempt of a crime is in principle not punishable at all. It's only in

15 Article 4, para (2)-- para (3)(d) that the attempt to commit genocide is

16 punishable.

17 In the judgement, paragraph 304, the Trial Chamber speaks about

18 attempted murder. One can call it an elegant solution, as it was found in

19 paragraph 268 of the judgement, to call this instead of, as it was later

20 phrased, attempted murder, inhumane acts, with the problem that inhumane

21 acts are rather weak -- is rather weak in the light of the principle of

22 nullum crimen sine lege scriptum and especially not a very specific law.

23 Therefore, I want to draw your attention that it might - and the question

24 is - could this behaviour not be seen in case we take the findings -- the

25 factual findings as they stand, that this behaviour constitutes torture

Page 159

1 through the affliction of severe mental suffering in order to discriminate

2 the victims by leading them to the Drina River and then the final end of

3 this crime? Thank you.

4 JUDGE MERON: Ms. Brady, I see that you are volunteering to be the

5 first to answer.

6 MS. BRADY: Well, I'm not so sure if I'm -- I seem to be the first

7 on my feet, anyway.

8 Your Honour, your question is -- has many parts, and at the outset

9 the first part of it seems to be your concern that inhumane acts as such

10 had not fully crystallised under customary international law in that it

11 was not definable at the time of these incidents, and therefore there's a

12 problem vis-a-vis nullum crimen sine lege. Just dealing with that, with

13 respect, our position is that this crime of inhumane acts is a residual

14 crime, but as the elements which have been set out clearly by the Trial

15 Chamber itself in paragraph 234 are set out and are delineated, this crime

16 was firmly established, in our position, in our submission, under

17 customary international law at the relevant time and in this respect we

18 follow the Kupreskic case on this. And indeed we would even draw Your

19 Honours' attention to the fact that the Appeals Chamber itself has upheld

20 convictions on a number of cases; recently in Krnojelac, also in Delalic,

21 if my memory serves me correctly, that the Kunarac case was also inhumane

22 acts. And in that respect we say there is no doubt that the charge --

23 that the conviction for inhumane acts is fully established in customary

24 international law and there's no violation of the principle nullum crimen

25 sine lege. And I think -- yes, Your Honour is quite correct that of

Page 160

1 course one could look at this conduct and call it many things; you could

2 call it attempted murder. Yes, you could probably call it, as you said,

3 torture by causing severe mental harm. You could classify it as a number

4 of things. But I think that the most important thing - and if we get

5 back, right back to the position of why we have this principle of nullum

6 crimen sine lege it's so that people know what is against the law, so they

7 knew at the time that this crime is something which is prescribed and it

8 is the type of conduct which is legal -- illegal. Everyone knows that.

9 So that if we adopt the principle of nullum crime sine lege, so that an

10 accused person can, to take a libertarian view, order his life in a way

11 such that he knows what he can and cannot do with it so he does not

12 violate the criminal law.

13 And the most important point is that as of 1992, in our

14 submission, this conduct - and whether you call it attempted murder or

15 something else - was clearly against all norms around the world. And

16 there's no way -- no issue could arise that he would not have known in

17 1992 that this amounts to a crime.

18 So in the -- in summary, our position is that it is -- inhumane

19 acts was a crime. And in the instant case this was clearly prescribed

20 conduct in any jurisdiction of the world, and most particularly under

21 international law. Thank you.

22 JUDGE MERON: Judge Guney, I believe.

23 JUDGE GUNEY: [Interpretation] The Prosecution, and especially

24 Ms. Brady, have endeavoured to indicate that the appellant with Milan

25 Lukic and his group reached an agreement with a view to participating in a

Page 161

1 common criminal -- a joint criminal enterprise. The Prosecution has not

2 specified what kind of an agreement it was, whether it was a verbal

3 agreement or a formal agreement or an implicit agreement. One could

4 always specify that. But this point deserves some response on the part of

5 the Defence, so if Ms. Brady could be more specific as to the kind of

6 agreement it was, and I would also like to hear the reaction of the

7 Defence on this point, that is, the existence of an agreement regarding

8 participation in a joint criminal enterprise. Thank you.

9 JUDGE MERON: Thank you, Judge Guney.

10 Ms. Brady, and then the Defence.

11 MS. BRADY: Thank you. Yes. I'm just reading the end of the

12 question, because unfortunately my translation from the French cut out.

13 But I've read it out, and our position is that the agreement, in

14 our submission, was one that arose on a -- I think the best way of putting

15 it is how the Trial Chamber put it, and that is that it was an

16 understanding amounting to an agreement.

17 Now, we have no evidence that there were words, and we can't now

18 speculate about whether there were words or not, but for us what's the

19 most important feature is that whether there were words or whether it was

20 implied, whether it was implicit, the agreement was clear. And by the

21 time they left the Vilina Vlas Hotel and then clearly when they got back

22 down to the -- to the river, the agreement was fully solidified. I think

23 that's -- that's where I'll leave the question. Thank you.

24 JUDGE MERON: Thank you.

25 Would the Defence want to react to Judge Guney's question also?

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Page 163

1 MR. KNOOPS: Thank you, Your Honour, for this question.

2 If the Defence understands the Prosecution correctly, then no

3 explicit agreement is required for joint criminal enterprise. To that

4 point we can agree. Yet according to the Blaskic trial judgement, in

5 paragraph 235, the agreement allegedly entered should not only initially

6 target the individual or aims to target the individual but, rather,

7 membership in a specific racial, religious, or political group as such.

8 And the Defence holds that the mere fact that the arguments which were put

9 forward by the Prosecution were to be followed does not conclusively lead

10 to the observation that Mr. Vasiljevic beyond allegedly targeting an

11 individual was supposed to target the membership in a specific racial,

12 religious, or political group. Anyway, that no such agreement was entered

13 nor implicitly nor explicitly. Thank you.

14 JUDGE MERON: Thank you.

15 Judge Shahabuddeen.

16 JUDGE SHAHABUDDEEN: Just a small question, Mr. President.

17 Mr. Domazet, when the victims were shot, I imagine that they fell

18 into the Drina River and that the two survivors would have had to swim for

19 it. So that takes me to your statement. In the transcript at page 130,

20 Line 21, which records you as submitting as follows: "The witnesses

21 themselves said that along the way he" - and I understand by that

22 Milan Lukic - "asked them whether they could swim," which was indeed a

23 strange question.

24 Now, do you have any material, Mr. Domazet, which would enable us

25 to appreciate how the appellant may have understood the reference by Milan

Page 164

1 Lukic to swimming? Would he have meant could you swim generally or could

2 you swim in a specific place?

3 MR. DOMAZET: [Interpretation] Your Honour, the witnesses were

4 correct in confirming that Lukic had asked the survivors whether they were

5 able to swim, and on this point Mr. Vasiljevic did not make any

6 observations, as far as I remember the transcripts. And it was I who said

7 that it was a strange question that could be understood in a variety of

8 ways. It could be understood as Lukic was asking them whether they could

9 swim, in case they had to cross the river. It was just an indication that

10 the witnesses were wary of his intentions. But he said clearly that when

11 they were lined up and that the men were told to shoot individually,

12 Vasiljevic turned away and did not look at them falling, but it is a fact

13 nevertheless that they fell into the river and the two of them, who were

14 not shot, pretended that they were shot and remained motionless in order

15 to be carried by the river, in order to continue swimming from a point

16 further on. I hope I have answered your question.

17 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Domazet.

18 JUDGE MERON: Thank you, Counsel.

19 Thank you, Judge Shahabuddeen.

20 We will now turn to Mr. Mitar Vasiljevic and invite him to make a

21 brief personal statement.

22 THE APPELLANT: [Interpretation] Thank you, Your Honour, for

23 giving me this opportunity to address you.

24 My Defence presented the main facts. I should only like to

25 address this Honourable Court in order to say the following: I am

Page 165

1 sincerely very sorry about all the crimes that happened in Visegrad and

2 especially the crime at Sase on the bank of the Drina River, where I was

3 present. I wish to tell this Honourable Court the following: On that

4 day, I really did not have a rifle. I regret deeply what happened, but I

5 did not contribute in any way - in any way - to what happened. I'm sorry

6 for the families of the victims. But the situation was such that nobody

7 was able to influence Milan Lukic. If it had been possible, that would

8 have changed everything.

9 I have nothing further to say, Your Honour. I believe in

10 justice, and I believe in this Honourable Court. And I beg you to pass a

11 fairer judgement. Thank you once again.

12 JUDGE MERON: Thank you, Mr. Vasiljevic.

13 Thank you, Counsel for the Defence, Counsel for the Prosecution,

14 and, of course, I thank my colleagues, the Judges.

15 And the session of the court is now adjourned.

16 --- Whereupon the hearing adjourned at 5.29 p.m.