Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27596

 1                           Friday, 1 June 2012

 2                           [Zupljanin Defence Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.03 a.m.

 6             THE REGISTRAR:  Good morning, Your Honours.  Good morning,

 7     everyone in and around the courtroom.

 8             This is case IT-08-91-T, the Prosecutor versus Mico Stanisic and

 9     Stojan Zupljanin.

10             JUDGE HALL:  Thank you, Madam Registrar.

11             Good morning to everyone.  May we have the appearances today,

12     please.

13             MS. KORNER:  Good morning, Your Honours.  Starting, as I say,

14     with the most important person, our Case Manager,

15     Sebastiaan van Hooydonk; Joanna Korner and Matthew Olmsted for this

16     session.

17             MR. ZECEVIC:  Good morning, Your Honours.  Slobodan Zecevic,

18     Eugene O'Sullivan, Ms. Tatjana Savic, and Andreja Zecevic, appearing for

19     Stanisic Defence this morning.  Thank you.

20             MR. KRGOVIC:  Good morning, Your Honours.  Dragan Krgovic,

21     Aleksandar Aleksic, Michelle Butler, Lennart Poulsen, David Martini, and

22     Miroslav Cuskic with Joyce Boekestijn, appearing for Zupljanin Defence

23     today.

24             MS. KORNER:  Your Honours, I'm so sorry, I forgot to mention that

25     our intern, Lucy Eastwood, who is gripped by these proceedings, is back

Page 27597

 1     today.

 2             JUDGE HALL:  Thank you.  I believe that when we took the

 3     adjournment yesterday, Mr. Krgovic was about to hand over to Mr. Aleksic.

 4             Yes.

 5             MR. ALEKSIC: [Interpretation] Good morning.  Thank you,

 6     Your Honours.

 7             In the first part of my presentation, I'm going to deal with the

 8     credibility of some of the Prosecution witnesses.  And since a majority

 9     of them provided their in testimonies in closed sessions or private

10     sessions or they had protective measures granted to them, I would kindly

11     ask the Trial Chamber to move into private session for a moment so that I

12     can proceed talking about those witnesses.

13             JUDGE HALL:  Yes.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

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25   (redacted)

Page 27598











11 Pages 27598-27605 redacted. Private session.















Page 27606

 1   (redacted)

 2   (redacted)

 3                           [Open session]

 4             THE REGISTRAR:  We're in open session, Your Honours.

 5             MR. ALEKSIC: [Interpretation] I would like to say something about

 6     the testimony of Witness Jovicinac briefly.

 7             Witness Jovicinac was, as he himself put it, born in 1949.  He

 8     graduated from textile industry high school and then military high school

 9     and he graduated from the Faculty of Law in 1986, which means when he was

10     37 years old.  Prior to 1992, he did not discharge any duties within the

11     ambit of the military judiciary, i.e., either military courts or military

12     prosecutor's offices; in other words, he had no previous experience

13     whatsoever.

14             As for his testimony, the witness denied ever having seen

15     document P1284.10, namely guide-lines for the work of military

16     prosecutor's offices issued by the prosecutor's office attached to the

17     Main Staff of the Army of Republika Srpska.  These guide-lines, at pages

18     15 of the Serbian version and 9 of the English read, and this is the

19     chapter dealing with crimes against humanity and international law.  And

20     it reads:

21             "In order for the command of the Main Staff to have full insight

22     into the type and number of these crimes, all unit commands shall be

23     duty-bound to work toward uncovering all cases of war crimes against

24     humanity and international law in the areas of their responsibility."

25             Furthermore, on two occasions the witness asked from the

Page 27607

 1     investigating judge to secure the release of suspects who were suspects

 2     of -- of suspect perpetrators of some of the most serious war crimes.

 3     One of them is P1284.38.  This is the case of the killings in Velagici.

 4     So this witness agreed that they be released from mandatory detention and

 5     the crime -- the crime in Velagici is something that Mr. Zupljanin is

 6     charged with.

 7             And, finally, let me speak about the testimony of Mr. -- or

 8     Comrade Dragicevic, as he wanted to be addressed during his testimony.

 9             JUDGE HARHOFF:  Thank you for this, Mr. Aleksic.

10             Before we proceed to the next witness, I'm not sure I fully

11     understood the impact of -- of your presentation regarding this witness.

12     You said that he had never seen the guide-lines for the work of military

13     prosecutor's office and that he had then asked the investigating judge to

14     secure the release of two suspects.

15             What is the implication of that?  Can you just clarify briefly?

16             MR. ALEKSIC: [Interpretation] Your Honours, he performed the duty

17     of the military prosecutor at the time.  And in the context of him never

18     having seen such a document, how was he able to perform the duty of a

19     Military Prosecutor; this being one of the basic documents governing

20     their work under those circumstances?  That was the meaning of my

21     submission.

22             And as for ...

23             JUDGE HARHOFF:  So your point is that -- that this gentleman was

24     incompetent as a Military Prosecutor; is that it?

25             MR. ALEKSIC: [Interpretation] Yes, yes.  Correct.

Page 27608

 1             JUDGE HARHOFF:  Thanks.

 2             MR. ALEKSIC: [Interpretation] Thank you.

 3             As for this other case, he broke the Law on Criminal Procedure.

 4     He even asked that the criminal proceedings against these individuals be

 5     stayed or suspended.  There was a term that, in the B/C/S, does not even

 6     exist in the legislation, and this is quite apart from the fact that he

 7     asked that these individuals be released.

 8             May I proceed?

 9             JUDGE HARHOFF:  Please.  Go ahead.

10             MR. ALEKSIC: [Interpretation] Thank you.

11             As for Witness Radulovic, he testified extensively.  I would ask

12     Their Honours to carefully examine his testimonies, both his answers

13     given on direct examination and cross-examination.  In great many of

14     these answers, he changed his position.  I would also suggest that

15     Their Honours analyse in parallel the testimony of Witness Sajinovic and

16     Witness Radulovic.  Witness Sajinovic on the issue of some of the very

17     important issues, such as the establishment and the method of work of the

18     Milos Working Group, who their sources of information were and when and

19     how they forwarded information to Mr. Zupljanin, the answers differ from

20     the answers provided by Witness Radulovic.

21             I would now like to address the portion of the Prosecution final

22     trial brief where it is stated that Mr. Zupljanin had effective control.

23     Our learned friend Ms. Butler said something about it.  Our position is

24     quite the opposite for a number of reasons; Mr. Zupljanin did not have

25     effective control.  In paragraph 843 of the final trial brief of the

Page 27609

 1     Prosecution, it is stated that one of the ways in which Mr. Zupljanin

 2     exercised his control was by asking to be regularly informed by his

 3     subordinates, and reference is made to document P374.

 4             In our view, the document lends support to our case.  The reason

 5     why the document was sent was due to the fact that there was no thorough

 6     or regular reporting, and that is why at one point Mr. Zupljanin said,

 7     Daily reporting by the SJB to the operations duty officers of the CSB BL

 8     on important events is riddled with shortcomings and faults, and they

 9     consist of the following, and there follows a list of these.

10             In his testimony, Witness SZ-003 stated that standard practice

11     and procedures governing reporting were not always adhered to in terms of

12     the accuracy of information or timeliness, some of the dispatches were

13     incomplete, some of the incidents were not reported on at all or were not

14     reported on in time, and some people were not diligent enough in

15     compiling these reports.  And this can be found at transcript page 24399

16     to 24400.

17             At paragraph 844, the Prosecution say that, in addition the

18     written correspondence, Mr. Zupljanin attended meetings, and mention is

19     made of the 11th of July meeting and his -- his words about the rounding

20     up of the Muslims and their detention in -- in camps.

21             Let's look at what it is exactly that Zupljanin said at this

22     meeting.  Namely, that the army and the Crisis Staffs, or, rather, the

23     War Presidencies were asking that as many Muslims be gathered but they

24     say that the conditions in these camps are poor, there is no food and

25     some individuals do not respect international norms, et cetera.  This

Page 27610

 1     will be discussed further later on.

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11             THE INTERPRETER:  The interpreter didn't catch the pseudonym.

12             MR. ALEKSIC: [Interpretation] -- also confirmed that.  As for

13     these --

14             MS. KORNER:  Sorry to interrupt again.  The witness just

15     mentioned was protected.

16             MR. ALEKSIC:  I just said strike it.

17             MS. KORNER:  You did?

18             MR. ALEKSIC:  Yes.

19             MS. KORNER:  [Microphone not activated]

20             MR. ALEKSIC:  [Interpretation] I apologise.

21             As for the dispatch in document P535 which Zupljanin forwarded to

22     the chiefs of the -- of the SJB in which it is noted that all the

23     employees have to sign the solemn oath, it should be noted that it was

24     forwarded on the basis of a dispatch written by Mr. Mandic, which is

25     P535, which was not intended as a means of discrimination against

Page 27611

 1     non-Serbian population but, rather, the means of implementing the law of

 2     the new state, as the constitution had been declared and the

 3     Law on Internal Affairs had come into force at the time.

 4             The Prosecution witness Tutus confirmed this argument, saying

 5     that the new solemn oath was no different from the previous one which was

 6     in force during the SFRY and which all the police employees were also

 7     obliged to sign.

 8             What is important is that Mr. Zupljanin advocated multi-ethnicity

 9     which can be found in P5353 under item 2 which says:

10             "It is in our interest to preserve the ethnic composition of

11     employees in the SJB in accordance with the ethnic composition of the

12     population in the municipality."

13             Further, it is not correct that Mr. Zupljanin was aware of what

14     was going on in Sanski Most as expressed in this paragraph.  The Defence

15     claims that it was only on the 9th of September, 1992, that in the

16     dispatch which he -- Witness ST-161 sent, Zupljanin learned from this

17     dispatch that the policemen from that SJB were resubordinated to the army

18     in Manjaca.  We will discuss this document later on in further detail.

19             There is no evidence that the chief of the SJB from Kotor Varos,

20     Savo Tepic, ever personally visited Mr. Zupljanin.  ST-167, on the

21     contrary, testified that for Tepic this was just an excuse to leave

22     Kotor Varos for private reasons.  That is T12417.

23             In paragraph 848, it is claimed that Drljaca was a close

24     associate of Mr. Zupljanin who carried out his orders and reported to

25     Mr. Zupljanin.

Page 27612

 1             As for the situation in Prijedor and the role of the

 2     Crisis Staff, the local commanders of the VRS and their influence on the

 3     operation of the SJB, the SJB Prijedor - we will discuss that in more

 4     detail later on - but I may say that because of all this the Prijedor SJB

 5     was completely independent and was acting without any influence from the

 6     Banja Luka CSB.

 7             Prosecution witness Gajic confirmed that during the indictment

 8     period the SJB chiefs often acted beyond the framework of their duties,

 9     that they refused to obey Zupljanin's orders and instead acted in

10     accordance with the orders of the local Crisis Staffs, or, rather, the

11     army which can be found on page 12910.  He especially emphasised that the

12     SJB Prijedor disobeyed.  It was evident that Simo Drljaca was not

13     implementing the decisions of the Banja Luka CSB which is page 12910 and

14     14.

15             Witness Macar, who was a high ranking employee of the Republican

16     Ministry of the Interior at the time, also testified that on the occasion

17     of his visit to Prijedor, Drljaca told him that neither the Banja Luka

18     CSB nor the Ministry of the Interior was superior to him, i.e. to

19     Drljaca, and that his real superiors were the municipal Crisis Staff and

20     the municipal authorities, which can be found on pages 22972 through to

21     79 of the transcript.

22             The fact that testifies to Zupljanin's lack of authority for

23     relieving Drljaca of his post is that the local municipal assembly from

24     Prijedor relieved Drljaca of his duty in 1993 only after Mr. Krajisnik,

25     who was the parliament Speaker at the time, had visited Prijedor.  And

Page 27613

 1     even though our colleagues said yesterday that there is no evidence of

 2     that in the case file, I would like to point out to the Trial Chamber

 3     that Prosecutor witness Miskovic talked about that at transcript

 4     page 15273.

 5             As for the problems relating to the conduct of Mr. Drljaca,

 6     Mr. Zupljanin discussed that with Prosecution witness Radulovic.  He

 7     informed him that it was impossible to remove Drljaca, that there had

 8     been various attempts to do so by some armed groups but that they had all

 9     been unsuccessful because Drljaca was simply too powerful because of his

10     close relations with the local Crisis Staff and the local commanders of

11     the VRS.

12             Radulovic further testified that the removal of Drljaca from his

13     power base in Prijedor would be -- would have a very uncertain outcome

14     and could cause even more problems, which can found on transcript

15     page 11088.

16             As for the situation in Prijedor we should take into account that

17     612 policemen from the SJB Prijedor were resubordinated to the army, the

18     local brigades in combat operations, without any approval of the

19     Banja Luka CSB.  P689 is the reference.

20             In paragraphs 856, 857 and 862, of its final brief, the

21     Prosecution claims that Zupljanin did not take my measures to take

22     disciplinary proceedings against policemen nor did he file criminal

23     reports against them.  The Defence refers to a section of its final brief

24     where we deal with Count 12(g) of the indictment and where we clearly

25     show that what the attitude of Mr. Zupljanin was.

Page 27614

 1             Further, the Prosecution claims that -- that can be found in

 2     paragraphs 864 through to 867, 869 and 870, they claim that Crisis Staff

 3     did not influence Mr. Zupljanin's effective control or reduce it.  We

 4     invite the Trial Chamber to review section 12 B of our final brief, where

 5     we deal with this topic.

 6             Many Prosecution witnesses testified that the municipal

 7     Crisis Staffs frequently, together with the army, usurped Mr. Zupljanin's

 8     ability to issue orders that would be complied with.  It is mentioned

 9     there that Mr. Zupljanin forwarded some decisions of the Crisis Staffs

10     but we claim that in his dispatches, Mr. Zupljanin forwarded the

11     decisions of government organs which were in accordance with the law, as,

12     for example, P594 and P1883 show.

13             In Exhibit P594, this is a decision that no one is allowed to

14     leave the territory of Krajina carrying an amount more than 300

15     Deutschemarks without a certificate from a bank that the money was taken

16     from the bank.  We claim that such a law had already existed in the

17     former Yugoslavia and that the objective was to prevent money being taken

18     out from the country.  Similarly, P1883 was an enactment whose purpose

19     was that able-bodied men, regardless of their ethnicity, should not avoid

20     their legal duty and that they should respond to mobilisation call-ups.

21             Paragraphs 871 to 881 of the Prosecution trial brief once again

22     contains the claim that the VRS did not reduce Mr. Zupljanin's effective

23     control.  We discuss that in detail in our final brief.  And as for

24     resubordination, the position of the Defence is completely clear.

25             During the trial, the evidence showed without any doubt that

Page 27615

 1     resubordination was the factual situation which was caused by the

 2     principle of the singleness of command.  We will discuss this further a

 3     bit later on.

 4             Let me just point out that Expert Kovacevic so discussed that, so

 5     did the Trial Chamber witness Lisica, and we should note that these

 6     positions of the Defence were confirmed by many Prosecution witnesses.

 7     We discuss that in detail in paragraphs 222 through to 228 of our final

 8     brief.

 9             Further on, in paragraph 875 of its final brief, the Prosecution

10     claims that Mr. Zupljanin distinguished between policemen who were

11     resubordinated to the army and were involved in combat activities and

12     those who were not resubordinated.  They give reference to Exhibit P624.

13     Reading this document in detail and analysing it shows clearly that

14     Mr. Zupljanin had in mind, on one hand, the policemen who had been

15     resubordinated to the army in combat operations, and, on the other hand,

16     members of the police who had been permanently assigned to the army; that

17     is to say, they were not members of the police anymore but they had

18     rather become members of the army and had different tasks.

19             As for resubordination, my learned friends from the Prosecution

20     changed their position over the last few days and said that even if this

21     did happen, that is to say, even if police members had been

22     resubordinated to the army, the resubordination only had to do with

23     combat operations on the front line.

24             Prosecution witness Krejic talked about this, and he was the SJB

25     chief in Skender Vakuf.  On pages T14042 and 043, he said that at the

Page 27616

 1     time in August 1992 one of his units was resubordinated to the local VRS

 2     brigade and that the only task of this unit was to secure a certain road.

 3             As for the tasks which the resubordinated policemen had to carry

 4     out, we should pay attention to Exhibit P5613 [as interpreted] dated the

 5     18th of September, 1992, in which Mr. Zupljanin -- I apologise.  We're

 6     talking about the 18th of September, 1992.  And it is a document in which

 7     Mr. Zupljanin says that there are problems and that outside the knowledge

 8     of the chief of the SJB and CSB, policemen are engaged in combat

 9     operations.  In accordance with the agreement with the highest ranking

10     representatives of the army, it was necessary, as he says, and the

11     situation is repeated even in September 1992.

12             As for the communications system and how it operated, this is

13     discussed in paragraphs 881 through to 886 of the Prosecution final

14     brief.  My learned friends touched upon that yesterday.

15             Witness ST-167 who is an expert in this field, when presented

16     with Exhibit P1468 which is one of the reports for the year 1992, the

17     witness testified that the statistics show that there was a sharp drop in

18     the number of sent and received dispatches in the period between the 11th

19     of June and the end of 1992, and that that also refers to the exchange of

20     dispatches between the Banja Luka CSB and the Kotor Varos SJB.

21             Prosecution witness Kezunovic, confirmed that in Exhibits P595

22     and P621 contain precise statistics about the number of dispatches sent

23     during the first six months of 1992 and also the period between the 1st

24     of July and 30th of September, 1992.  My learned friend Mr. Krgovic

25     talked about that yesterday so let me not repeat that.  But I will say

Page 27617

 1     that the significance of these numbers is emphasised in the report in the

 2     number of dispatches sent in the first nine months of 1991.  That report

 3     contains the total number of more than 200.000 dispatches sent and

 4     received.  Even though the Prosecution claims that there is no evidence

 5     for this position, except from the testimony of Witness Kezunovic, we

 6     point to Exhibit 2D52, which is a report on the work of the Banja Luka

 7     CSB for the first nine months of 1991, in which on page 12 - in English

 8     version it's page 11 - it says that the total number of the received

 9     dispatches is 188.168 and those that were sent were 39.858.  It should be

10     noted that this information covers 15 SJBs which belong to the CSB at the

11     time, as opposed to the 26 SJBs which were part of the CSB in 1992.

12             This was also discussed by the Prosecution witness Rakovic who

13     explained the problems which existed in Banja Luka and the entire Krajina

14     area.  There were periods when the electricity was down for two months in

15     Banja Luka and no fuel was available.

16             JUDGE HARHOFF:  Mr. Aleksic, I'm sorry to interrupt to you.  Our

17     legal officer just drew the Chamber's attention to something that you

18     said in relation to -- to an exhibit.  It's page 20, line 8, and the

19     transcript records that you referred to an Exhibit P5613.  I don't think

20     we got that far.  We got far enough, for sure.  But we didn't raise it

21     until -- to the 5.000s.

22             MR. ALEKSIC: [Interpretation] Yes, of course, Your Honours.  It

23     was a mistake.  It is Exhibit P613.

24             JUDGE HARHOFF:  Thank you so much.

25             And, again, please forgive me for interrupting you.

Page 27618

 1             MR. ALEKSIC: [Interpretation] Due to the shortage of time I

 2     cannot go into great detail on the issue of communications, but I would

 3     like to say that Mr. Zupljanin at the collegium meeting which was held on

 4     the 11th of July, 1992, in Belgrade said that the main communications

 5     system had been destroyed.

 6             Furthermore, when it comes to reporting, the Prosecution says

 7     that the -- that Mr. Zupljanin received reports drafted by the

 8     Milos Group and this doesn't arise from either the testimony of

 9     Mr. Radulovic or the testimony of the Defence witness Sajinovic who said

10     that the Milos Group reports were not sent to their superiors but,

11     rather, they were sent to the CSB in Belgrade.  This is on page 25120.

12             To corroborate this part of Sajinovic's testimony, I would like

13     to draw the Trial Chamber's attention to P1328.13.  This is an Official

14     Note which was drafted in 1993 at the state security CSB Banja Luka and

15     in which it says something about the establishment of the Milos Group,

16     and I quote:

17             "Bearing in mind that over two years ago we were officially

18     established as a group intended for co-operation with the MUP of Serbia,

19     we had an occasion on several occasions to spend some time and get in

20     touch with the colleagues in the MUP of Serbia.  From the beginning, we

21     agreed amongst ourselves that we will focus our interest on collecting

22     intelligence about the enemy armed formations, the enemy intelligence

23     services, associates, and other collaborators of the enemy," and so on

24     and so forth.

25             In paragraphs 891 to 909 of the Prosecutor's final brief, there

Page 27619

 1     is a reference to the information that Mr. Zupljanin had with regard to

 2     detention centres.  In paragraph 891 there's a reference to a document

 3     which is P1560.  We claim that the introduction into this document

 4     says -- or, it arises from that introduction that that decision was in

 5     keeping with the decision of the municipal Crisis Staff in Prijedor and

 6     that the purpose of that decision was to detain people who were captured

 7     in combat and who had to be interviewed.

 8             The Defence repeats and reiterates its position that the tone,

 9     the language, and the official nature of this order points to the fact

10     that this was a military facility.  Moreover, it arises from the

11     testimony of Mr. Radulovic on page 11126 that Mr. Drljaca bypassed

12     Mr. Zupljanin and he deprived him of any information.

13             Furthermore in paragraph 891, the Prosecution claims that in

14     May Radulovic twice reported on -- the problem of the mass arrests of the

15     non-Serbian population and that the detainees were not provided with

16     adequate food or accommodation.  The Prosecution refers to two reports

17     and by the Milos Group, and I already said that there is no single piece

18     of evidence to the effect that those reports were ever sent and that

19     Mr. Zupljanin received the Milos Group reports.

20             As for the crimes committed in certain detention centres, and

21     Mr. Zupljanin's knowledge about that, a lot was said about that in our

22     final brief.  I would like to add to what was already said, that

23     Zupljanin did not know anything about those crimes.  Our thesis was

24     corroborated by the fact that the information that he received from

25     Radulovic, and our learned colleagues said that that had happened several

Page 27620

 1     days before the collegium meeting on the 11th of July, and that he

 2     immediately reported that to the collegium, and he demanded that measures

 3     should be taken.  In August, he set up a commission whose task was to

 4     examine the conditions and the treatment of the detainees in those

 5     facilities.  This you will find in P601 on the revisited issue of that

 6     commission a bit later.

 7             Zupljanin's lack of knowledge about the events in Prijedor was

 8     testified about by Witness ST-241.  He was one of the employees of the

 9     National Security Service and, as such, he was sent to Omarska.  The

10     witness testified that there were never any contacts between the

11     operatives who participated in interviewing the suspects in Omarska and

12     Mr. Zupljanin.  You will find this on page 16745.

13             Zupljanin's lack of knowledge about the conditions in Omarska is

14     corroborated by document P1560.  It is stated in this order:

15             "I strictly forbid conveying information of any sort with regard

16     to the functioning of this collection centre.  All official documentation

17     has to be kept at the centre and it cannot be -- it cannot be taken out

18     of the centre or destroyed without the approval of the chief of the

19     police station in Prijedor."

20             Drljaca emphasised the weight of any breach of this order and he

21     added that he demands all the personnel, and especially authorised

22     officials, to strictly adhere to the instructions provided herein.

23             When it comes to the allegations in paragraph 9002, according to

24     which Mr. Zupljanin visited Omarska twice, save for the testimony of

25     Witness ST-23 there is no other evidence.  I have already addressed the

Page 27621

 1     credibility of this witness, so I wouldn't want to waste any more time on

 2     that.

 3             Witness Jankovic testified that before the arrival of the

 4     delegation to Omarska on the 14th of July, Drljaca had rearranged

 5     conditions in the prison.  Because of that delegation, Miskovic admitted

 6     that the detainees had looked unkempt and that they had not been clean

 7     shaven, and Zupljanin drew everybody's attention to everybody at the

 8     meeting on the 11th of July.  In any case, he did not mention any signs

 9     of physical maltreatment.

10             Srdic, the president of the Red Cross in Prijedor, confirmed that

11     the Red Cross had opportunities to visit the prisoners and bring them

12     food and medicines.

13             When it comes to paragraph 904, it is stated in that

14     paragraph that General Talic stated that no single soldier was informed

15     in the massacre at Keraterm on the 25th of July.  The position of the

16     Defence is that we do not challenge the fact that there was indeed crime

17     committed against the prisoners in Keraterm, including also the murder in

18     room 3.

19             Prosecutor Witness ST-151, who was at Keraterm at that time,

20     stated that people who stormed into the room 3 were not guards but

21     soldiers who had arrived from outside, and those who controlled Keraterm

22     and Trnopolje wore olive-drab and camouflage uniforms.  This was

23     subsequently confirmed by Prosecutor Witness ST-183.  He stated that

24     Colonel Arsic had taken over command in Prijedor and subordinated local

25     police forces.

Page 27622

 1             When it comes to a paragraph 913, we --

 2             THE INTERPRETER:  Interpreter's correction:  Paragraph 919.

 3             MR. ALEKSIC: [Interpretation] We contest the allegations in this

 4     paragraph where it is stated that at the beginning of -- at the end of

 5     July or beginning of August Radulovic informed Zupljanin about a meeting

 6     in Teslic.  Amongst others, Generals Mladic and Lisica were also there

 7     and the leadership of the army ordered the local police to expel the

 8     non-Serbian population from that territory.  This is not true and this

 9     was confirmed by the Prosecution Witness ST-191 who attended the meeting

10     himself.  He testified that the only time when Mladic was in Teslic that

11     was in late September or early October, and that was the only time that

12     Mladic visited Teslic, that there were about 30 to 35 people attending

13     that meeting.

14             I would like to mention that at that time Mr. Radulovic had

15     already left Teslic.  When Witness 191 was faced with this document, the

16     witness said that nothing had been said at the meeting about ethnic

17     cleansing and that the report is completely fabricated and that its

18     contents completely false.  The witness said nothing that is mentioned

19     here did not happen at the meeting.  That is on transcript page 18548.

20             Lisica was also asked about the document and about that meeting

21     at transcript page 26902.  He was also asked about Mladic's diary.

22     According to Mladic's diary, that meeting happened on the

23     5th of December.

24             In paragraphs 922, the Prosecution says that ST-174 constantly

25     complained to Zupljanin about the Serbian police that committed crimes

Page 27623

 1     against the non-Serbian population.  We -- I already discussed the

 2     credibility of this witness at the very outset of my presentation, so I

 3     don't want to repeat myself.  We're claiming that Mr. Zupljanin undertook

 4     a number of measures against such unlawful actions.  The Prosecution

 5     witness ST-225 confirmed that he was a witness in the police

 6     investigation into the explosions and planting explosive devices on the

 7     houses of non-Serbs.  He also supported the position of the Defence that

 8     it was the army that should have investigated the aforementioned

 9     incidents.  He also confirmed that soldiers, when they were coming back

10     from the front line, usually shot in the air and caused trouble.  On one

11     occasion they even set fire near Podpecna [phoen] mosque.

12             When it comes to paragraph 923 and the red van which is mentioned

13     in there, the Defence would like to recall the testimony of

14     Witness ST-223, who stated in his testimony that in any case the police

15     did whatever they could and he admitted that he was not absolutely sure

16     whether there -- anything was done against those persons, whether they

17     were, indeed, members of the army or perhaps the police.

18             When he was faced with the evidence, according to which Zupljanin

19     had ordered the arrest of Goran Gataric or Gavrin, for whom ST-223

20     believed that he was one of those who rode in the red van, later on it

21     was established that Gavrin was a soldier and a report by the military

22     police confirmed that he was arrested in 1993 on account of the crimes

23     that he had committed in 1992.

24             In paragraph 799, it is stated that Zupljanin, when he wanted to

25     do so, could undertake certain measures, and the example of Teslic is

Page 27624

 1     mentioned and the arrest of the Mice Group.  I would kindly ask the

 2     Trial Chamber to pay attention to the part of the testimony of

 3     Witness Radulovic on transcript pages 11087 and 11088 where he explained

 4     the difference where he said why it was possible in Teslic and not in

 5     Prijedor, primarily in Prijedor, and in other regions as well.

 6             In paragraph 803 there is a reference to the fact that Zupljanin

 7     had given authority to SJBs to investigate grave crimes.  It was not

 8     Zupljanin's decision.  It was the government of the Republika Srpska that

 9     made the decision.  L55 says that basic courts became responsible for all

10     crimes, and, in line with that, basic courts became competent for

11     investigation of all the crimes, so the SJBs were supposed to investigate

12     all crimes including the gravest of crimes.

13             As for the operative plan, or paragraph 804, it is stated in here

14     that Mr. Zupljanin, although he already had information from two previous

15     reports about the number of crimes committed in the course of April, he

16     did not approval the plan before the 25th of May.  I invite the

17     Trial Chamber to carefully inspect the document.  I believe it is very

18     important.  It is stated in that document this was the plan to elucidate

19     robberies, terrorism, extortions, and other such crimes, and that those

20     crimes escalated in number in Banja Luka from the beginning of April of

21     that year.

22             In that paragraph, the Prosecution criticises Mr. Zupljanin for

23     having done very little and that what he did was negligible.  In that

24     document, there's a detailed list of measures that were supposed to be

25     taken.  It is stated that over 40 people had to be arrested.  It is

Page 27625

 1     stated how many crimes were committed.  It is stated that 76 explosive

 2     devices were planted.  Some very specific measures are listed as how

 3     things had to be done, and at the end of the document Mr. Zupljanin says

 4     that since the aforementioned persons organised themselves as members of

 5     the SOS, that they were well armed and some of them had even been

 6     mobilised into JNA units, their arrests had to be carried out by the

 7     units of the military police.  In order to [indiscernible] the plan

 8     efficiently, things had to be co-ordinated with regular military courts.

 9     And, at the end, it is stated:

10             "Until the moment the military prosecutor's office and the

11     military courts are established, there are no conditions in place for the

12     full-on implementation of the plan because these people are mostly

13     military conscripts, former TO members, which is why civilian courts and

14     prosecutor's office cannot be involved in the conduct of proceedings

15     against them."

16             MR. KRGOVIC: [Interpretation] Your Honours, I am going to say

17     just a few words before the break.

18             First, at page 13, line 18, of today's transcript, there's an

19     imprecision.  As it came in, it turns out as if Mr. Aleksic disagreed

20     with what Ms. Butler said, and that was, of course, not the case.  He

21     agreed with what Ms. Butler said and disagreed with what the Prosecution

22     had to say.

23             Let me, Your Honours, turn to several matters arising from the

24     30 May closing arguments of the Prosecution, specifically page 27440,

25     where the Prosecution say that in the case where a reserve policeman is

Page 27626

 1     taken off the list of the police and transferred to the army, that it may

 2     so happen that a member of the police who committed a disciplinary or

 3     criminal offence, upon transfer to the army, may commit a similar crime

 4     and since -- since the VRS was not privy to what sort of the conduct he

 5     had engaged in before joining the army.

 6             Now this statement is completely untrue.  The evidence,

 7     documentary and the testimonies, confirm that whenever an individual was

 8     taken off the reserve police force and transferred to the army, this

 9     would be reflected in the personnel file which would also be sent to the

10     army through the Ministry of Defence.

11             Now, in view of the fact that the personnel file of every

12     individual had to contain details about the individual's disciplinary and

13     possible disciplinary procedures against him, this position expressed by

14     the Prosecution does not reflect the actual state of affairs.

15             Furthermore, at paragraph 738 of their final brief, the

16     Prosecution cited Defence exhibit, 2D63.  They discussed the fact where

17     it was that the members of the special police unit ended up after the

18     unit's disbandment.  I established that in the English translation in

19     e-court the first page of this document is missing.

20             Can we call up 2D63 now, page 1.

21             THE INTERPRETER:  Can Mr. Krgovic speak into the microphone,

22     please.

23             MR. KRGOVIC: [Interpretation] Look at the first part where it

24     says that most of the members of the former special detachment were

25     within the war-time assignments of the VRS and not on the lists of the

Page 27627

 1     police force or any sort of special police that was allegedly set up by

 2     Zupljanin.  And there is no evidence to prove that Zupljanin set up any

 3     special police units in the course of 1992, as of Autumn 1992, onto 1993.

 4             Your Honours, I would like to say a few words about

 5     Mr. Stojan Zupljanin's personality and character, and I will be sharing

 6     this topic with my learned friend, Ms. Butler.  Perhaps we can take the

 7     break now so we can look into the part that we will share and see if we

 8     can reduce it somewhat and bring our closing arguments to an end.

 9             JUDGE HALL:  Yes.  So we would return in 20 minutes.

10                           --- Recess taken at 10.23 a.m.

11                           --- On resuming at 10.53 a.m.

12             JUDGE HALL:  Yes, Mr. Krgovic [Microphone not activated]

13             MR. KRGOVIC: [Interpretation] Your Honours, in their final trial

14     brief and closing arguments, the Prosecution tried to represent

15     Stojan Zupljanin as a person who was crucial and played a key role in the

16     persecutions and murders.

17             It is our position, Your Honours, that there is considerable or

18     overwhelming evidence that refutes these positions advanced by the

19     Prosecution, and I'm referring primarily to some of the key documents

20     that my colleague Aleksic mentioned, including P2065, P355, P160, the

21     last one being very important because it is the 11th of July speech by

22     Mr. Zupljanin where he pin-pointed some of the key problems in the

23     working of the MUP; among those things, for the first time a senior

24     high-ranking officer pointed to the existence of camps, the prevailing

25     poor conditions in them long before this became public knowledge.  He

Page 27628

 1     indicated the problems that we addressed during this trial, the problems

 2     with the army, resubordination, the operation of the communications

 3     system, the fact that the judiciary was not working, and many other

 4     things.

 5             If Mr. Zupljanin voluntarily, as the Prosecution put it,

 6     participated in the development of a joint criminal plan, why did he

 7     address these issues on the 11th of July?  Why did he advocate that

 8     better conditions be put in place?  Why did he intercede and advocate

 9     that they be released?

10             The crucial document that the Their Honours should bear in mind

11     when deciding about the character of Mr. Zupljanin and his sentence is

12     2D25.  Look at the start -- look at the beginning of the document,

13     Your Honours, and find there how it is that Mr. Zupljanin described the

14     situation in the area of responsibility of the Security Services Centre.

15     He speaks about armed rebellion, acts of violence, crime, looting,

16     flouting the law, civilian or civil disobedience and all the other

17     occurrences that characterise the situation in Krajina at the time.  What

18     you will not find in any other document is to be found at page 2 of this

19     document where he says that the situation, such as this one, creates fear

20     among other ethnic groups and unavoidably causes ethnic division and a

21     lack of confidence in the institutions of the system.

22             Would this be the way that these matters would be addressed by a

23     person who was an important member of the -- of a criminal enterprise?

24     He does not hesitate to say at the bottom of the second page and at the

25     top of the third page of this document and to criticise and draw the

Page 27629

 1     attention of the police in public security stations, to all these various

 2     facts.

 3             And, at the end, Your Honours, you will see that there are 11

 4     items containing 11 orders that he issued in -- in the document.  Namely,

 5     that the failure to obey any orders, including the army and Main Staff,

 6     would be contrary to the law; that no tasks should be taken on, such as

 7     to guard prisoners, who have been unlawfully detained; taking essential,

 8     resolute and uncompromising actions to shed light on or detect any crime

 9     present in stations; filing criminal reports to prosecutors; and, where

10     there is no prosecutor's office active in one's area, reports should be

11     filed to the second prosecutor closest to the area.

12             A detailed analysis of this document will undoubtedly show that

13     this is not the sort of the situation to which an old say would apply

14     that the only necessary thing to fight evil would be for a good man not

15     to do anything.

16             Your Honours, in assessing the evidence, look at P601 and P595,

17     P621, and P624.  From these documents it will become clear to you that

18     Mr. Zupljanin was committed to the maintenance of law and order for all

19     individuals regardless of their religion or ethnicity, that he was not

20     afraid to appoint to the unlawful activities on the part of his

21     subordinates, or those who were supposed to be his subordinates, and that

22     he did everything in his power to present such activities.

23             Finally, I'd like to remind Their Honours of two events that shed

24     light on the personality of Mr. Zupljanin.  Namely, the events in Teslic,

25     where Mr. Zupljanin secured the release from detention several hundred --

Page 27630

 1     of several hundred Muslims and Croats in the course of the Mice action;

 2     and the incident along the Stanari-Teslic road where Mr. Zupljanin

 3     prevented the killing of 600 non-Serbs.  The appropriate references are

 4     at pages of the transcript --

 5             THE INTERPRETER:  Can Mr. Krgovic please repeat the reference

 6     slowly.

 7             MR. KRGOVIC: [Interpretation] 2598 to 2599.  Transcript pages

 8     11020 and 11021.

 9             Your Honours, my brief presentation so far and the documents and

10     exhibits I referred to did not reflect anything of the kind in this case

11     or in the cases that are before the BH State Courts, what -- Zupljanin's

12     words and Zupljanin's actions.  That's what I meant.

13             Your Honours, I have concluded my presentation.  I will now give

14     the floor to Ms. Butler who will be speaking about sentencing and some

15     other legal issues.

16             MS. BUTLER:  Good morning, Your Honours.

17             I will now make some short submissions on matters of law and then

18     sentencing, and that will conclude the presentation for the

19     Zupljanin Defence team.

20             In a criminal trial, Your Honours, there are many cumulative

21     elements that must be proved beyond a reasonable doubt.  Each and every

22     one has to be proved, and if one fails, the whole case fails.

23             We say that the Prosecution has not proved every single element

24     of any of the modes of liability that they put in their indictment.

25     Unfortunately, I don't have the luxury of time to go through the complex

Page 27631

 1     web of liability that is alleged against my client, but I will make some

 2     brief and I hope illustrative comments to demonstrate my point in

 3     relation to joint criminal enterprise in relation to command

 4     responsibility, and aiding and abetting.

 5             For the sake of clarity, the Defence also maintain that the

 6     Prosecution is a long way off proving the other modes of liability

 7     charged in the indictment; that is, planning, instigating, and ordering.

 8             The Prosecution themselves may also recognise this, as despite

 9     the more than 1.000 paragraphs in their beautifully put final brief and

10     despite having a number of specific sections dealing with modes of

11     liability, there is no discussion of Mr. Zupljanin's apparent liability

12     pursuant to the doctrines of planning, instigating, or ordering.  It is

13     the Defence submission that this omission speaks volumes about the

14     strength of the Prosecution's evidence on these modes.

15             I will turn first to joint criminal enterprise, or JCE.  For

16     better or for worse, this doctrine is now part of the landscape of this

17     Tribunal.  However, as the Appeals Chamber has taken care to emphasise in

18     the Brdjanin case, the doctrine may not be applied so as to give rise to

19     guilt by mere social.  That is not enough.  As the Appeals Chamber was

20     keen to highlight in that case:  All elements of the case must be proved

21     by the Prosecution beyond a reasonable doubt.

22             In her submissions, my learned friend, Ms. Korner, acknowledged

23     that there is no direct evidence of Zupljanin's alleged discriminatory

24     attitude towards non-Serbs.  As she put it at transcript T27365 Zupljanin

25     was not a Brdjanin, he wasn't a Vukic, he wasn't a Kalinic.  I can see my

Page 27632

 1     learned friend shaking her head and I will correct that.  She did go on

 2     to assert that if you look at his actions, they have no other explanation

 3     but of his wholehearted endorsement of and involvement in a Bosnian Serb

 4     criminal plan.

 5             Now, Your Honours will be well aware of the test for conviction

 6     for a JCE where it relies upon circumstantial evidence.  We say, and this

 7     has been affirmed recently by the Haradinaj Trial Judgement, that

 8     participation in a JCE, when relied upon by some circumstantial evidence,

 9     must be the only reasonable conclusion on the evidence.

10             Your Honour, in our respective submission, the Prosecution has

11     not proved to the requisite standard that there is no other theory that

12     could explain Mr. Zupljanin's conduct except for his participation in a

13     JCE.  Despite all their hard work, despite all their diligence, the

14     Prosecution evidence just does not withstand scrutiny on this issue.

15             This is because the Defence suggest that Mr. Zupljanin's good

16     character is such that it tends to negate the suggestion that he

17     willingly participated in a JCE.  Now, we accept wholeheartedly

18     Mr. Hannis's observation yesterday that good character is not a Defence

19     to the charges.  That's not what we are saying.  What we are saying is

20     that if a person is of good character, and, specifically, with respect to

21     Mr. Zupljanin, is known to be non-discriminatory, that is both relevant

22     and probative for the purpose of determining his proclivity to

23     participate in a common criminal plan.

24             Your Honours will undoubtedly recall the host of evidence

25     highlighted in paragraphs 56 to 75 of our final brief which originated

Page 27633

 1     from both Prosecution and Defence witnesses and which illustrates what we

 2     say is the true and non-discriminatory character of my client.  We say

 3     that this is significant evidence and it cannot be readily dismissed.

 4             When Your Honours deliberate on the evidence in this case, we

 5     would ask you to ask yourself:  Is Stojan Zupljanin the kind of man with

 6     a burning hatred of non-Serbs?  Is he the kind of man who would killing

 7     commit the kinds of heinous acts that are alleged by the Prosecution to

 8     be part of this JCE?  Is it really possible to reconcile the police

 9     officer, described by many as a person of the utmost integrity, who went

10     out of his way to treat all religions and ethnicities equally and he took

11     care during the war to ensure that businesses of local Muslims thrived,

12     is it really possible to reconcile that officer of the law with the

13     lackadaisical, uncaring and highly prejudiced individual described by the

14     Prosecution?

15             Your Honours, a JCE theory, however much work has done upon it,

16     however much analysis, however many hours are spent on it, should not be

17     accepted by strength of repetition.  In our respectful submission, the

18     evidence in this case does not show that there is no other explanation

19     for Mr. Zupljanin's conduct but for his participation in a JCE.

20             I will deal next with the issue of command responsibility.

21     Your Honours will be well aware that the concept did not evolve as a

22     matter of strict liability whereby a commander is responsible for every

23     single act by every single person, whether the commander knows about that

24     act or no.  The Celebici Trial Chamber said on this subject at paragraph

25     377 of its Judgement:

Page 27634

 1             "Great care must be taken, lest an injustice be committed in

 2     holding individuals responsible for the acts of others in situation where

 3     the link of control is absent or too remote."

 4             To determine whether Mr. Zupljanin was able to exercise effective

 5     control in the chaotic situation that existed in the Krajina in 1992, the

 6     Trial Chamber should not rely solely on his legal authority but must

 7     instead study the evidence as to what practical control he had over his

 8     purported subordinates.  We note that the Prosecution themselves accept

 9     at transcript page 27330 that the course of the relationships between the

10     political, the army, and the police, did not always run smoothly.  It is

11     our case that in actual fact the relationship between these three bodies

12     was so fractured and disproportionate in terms of the real power that the

13     Crisis Staffs and the army had, that it completely subjugated

14     Mr. Zupljanin' authority over local police, who, by law, were meant to be

15     his subordinates.

16             We say that the practice of resubordination of my police officers

17     to the army to engage in combat tasks is problematic for the

18     Prosecution's case on command responsibility.  This is because any

19     confusion as to the chain of command has the effect of negating the

20     existence of effective control.  We say that this raises a reasonable

21     doubt as to whether Mr. Zupljanin had effective control over the

22     perpetrators of the crimes.

23             I will deal now with the matters raised on Wednesday in the

24     course of Mr. Olmsted's well-put submissions.  The particular references

25     are at transcript page 27441 to 27443.  In his submissions, Mr. Olmsted

Page 27635

 1     referred to what he regarded as persuasive authority from the

 2     Popovic Trial Judgement.  In that authority, Mr. Borovcanin was found to

 3     have retained effective control over RS MUP police special units even

 4     when they were resubordinated and were committing crimes in Potocari.  In

 5     the interests of time, I won't read out the full extracts from that

 6     Judgement, but I would certainly invite Your Honours to have a look at

 7     that in due course.  When one does, one can see that Mr. Olmsted is quite

 8     correct to note that the Trial Chamber, in paragraph 1568 of that case,

 9     did recall the principle of unity of command under which MUP forces

10     resubordinated to the VRS retained their internal chain of command.  They

11     did find that.  However, that case can be readily distinguished on facts

12     from that of Mr. Zupljanin.  Quite apart from the evidence about

13     Mr. Borovcanin's receipt of a contemporaneous report from the units in

14     question and putting to one side his presence in Potocari at the relevant

15     times, paragraphs 1567 and 1568 of the Borovcanin Judgement indicate that

16     Mr. Borovcanin gave an interview to the Prosecutor in which he did not

17     contest that the troops in question were under his command and control.

18             Likewise, the evidence cited in those paragraphs indicates that

19     Mr. Borovcanin's orders were, in fact, followed by those subordinate

20     units.  We suggest that these facts are very different to those in the

21     present case where we say that:  First, Mr. Zupljanin's command and

22     control of his alleged subordinates is contested; and, second, in

23     practice, Mr. Zupljanin's orders were not actually followed by those

24     subordinates.

25             The next issue addressed by Mr. Olmsted was in relation to

Page 27636

 1     Your Honour Judge Hall's question about the Tribunal's case law

 2     supporting the proposition that a subordinate can be under the command of

 3     more than one superior and that each said superior can be held

 4     responsible for the subordinate's crimes.

 5             Now, in answer to that question, Mr. Olmsted cited the case of

 6     Strugar for this proposition at paragraph 367.  Now, it may be an error

 7     on the transcript, but from my study of the Judgement, I think he must

 8     have been referring to paragraph 365 because in that paragraph, the

 9     Trial Chamber recalled that:

10             "The test of effective control ... implies that more than one

11     person can be held responsible for the same crime committed by a

12     subordinate."

13             But, if one has a look at the context to that quote, so,

14     specifically, if you read paragraphs 361 to 366 of that Judgement with

15     care, it's plain that the Strugar Judgement, Strugar Trial Chamber, in

16     fact, as it says in terms in paragraph 361, was concerned with the issue

17     of whether a commander may be found responsible for the crimes committed

18     by a subordinate two levels down in the chain of command.  So they were

19     talking about a vertical chain of command.  It was specifically not

20     concerned with the proposition which Mr. Olmsted seeks to establish;

21     namely, that parallel chains of command are recognised in the case law of

22     this Tribunal.

23             Turning back to command responsibility more generally.  In

24     conclusion, quite apart from the issue of effective control, given the

25     insufficient evidence to prove beyond a reasonable doubt Mr. Zupljanin's

Page 27637

 1     knowledge of crimes and his failure to take measure to prevent and punish

 2     those crimes, we say that he cannot, therefore, be found liable pursuant

 3     to this mode of liability.

 4             I will deal now with aiding and abetting.  The Prosecution

 5     maintain that Mr. Zupljanin is also liable for aiding and abetting the

 6     crimes charged in the indictment by way of both his actions and

 7     omissions.  I will deal with both allegations relatively shortly.

 8             First, in relation to his actions, it is plan that the elements

 9     for this mode of liability cannot be made out on the evidence.  There is

10     no evidence proving beyond a reasonable doubt that Mr. Zupljanin's acts

11     had a substantial effect on the commission of the crimes.  It is also not

12     proved that Mr. Zupljanin took a decision to act in the way he did in

13     1992, in the knowledge that he would be supporting the individuals

14     committing indictment offences.

15             Indeed, the evidence, as was outlined in our final brief as well

16     as during these closing submissions, shows the very opposite.

17     Mr. Zupljanin was horrified by any crimes he heard about.  He took steps

18     to try and prevent these occurrences and to try and punish the

19     perpetrators.

20             Second, in relation to aiding and abetting by omission, the

21     Trial Chamber will be very well aware of the limited jurisprudence to

22     date on this mode of liability.  It is the Defence submission that if one

23     scrutinises the Borovcanin Trial Judgement, which is the leading

24     Judgement on this area, particularly at paragraphs 1543 to 1563, that it

25     is immediately obvious that the alleged omissions of Mr. Zupljanin in

Page 27638

 1     this case are of a wholly different scale to the alleged omissions --

 2     well, to the admissions, I'm sorry, of Mr. Borovcanin in relation to the

 3     massacre at the Kravica warehouse.

 4             For these reasons, we say that the elements of aiding and

 5     abetting, either by action or omission, are not made out.

 6             My final submissions refer to -- relate to the issue of sentence.

 7     For the sake of clarity, it remains the position of the Defence of

 8     Stojan Zupljanin that our client is not guilt, and that the only proper

 9     verdict that you may return in relation to the charges is that of an

10     acquittal.

11             Although we still proclaim the innocence of our client, due to

12     the Tribunal's settled - yet still very unfortunate - practice of

13     conflating submissions as to conviction and sentence, we will take this

14     opportunity now to make some brief remarks.

15             We note in the Prosecution's final brief at paragraph 999 that it

16     says "both men," presumably meaning Stanisic and Zupljanin, are

17     responsible for crimes committed "in a series of at least 52 detention

18     facilities."  The Prosecution make no attempt to distinguish between the

19     crimes for which Mr. Zupljanin is charged, which relate to 22 detention

20     facilities, and the other crimes mentioned in the indictment for which he

21     is not alleged to have been involved in any way, shape, or form.  This

22     tarring of Mr. Zupljanin with crimes for which he is not charged must be

23     a mistake.  It is certainly a regrettable one.

24             It is trite law to state, of course, that the Trial Chamber must

25     consider the exact role of each individual accused before determining an

Page 27639

 1     appropriate sentence.  The Trial Chamber must carefully take into account

 2     both their intention as well as their acts and omissions.  Bearing this

 3     in mind, even taking the Prosecution case at its highest, for the

 4     Prosecution to suggest that Stojan Zupljanin should receive a sentence of

 5     life imprisonment, we say is nothing short of absurd.  Not one of the

 6     more than a dozen individuals convicted at this Tribunal for crimes

 7     taking place in the Krajina have had a life sentence upheld on appeal.

 8     Not one.

 9             This kind of blanket submission as to the maximum available

10     penalty without any form of tailoring to the crimes charged, without any

11     guidance by reference to comparative sentenced handed out at the Tribunal

12     for similar crimes is of no help whatsoever to a Trial Chamber trying to

13     come to a fair and just outcome.

14             Sentences thus far handed out to individuals for crimes committed

15     in the Krajina region following a contested trial range from 40 years at

16     the highest end.  That was for Stakic who was found to have orchestrated

17     and actively participated in the tragic events taking place at Prijedor.

18     And, at the low end, they go right down to five years and for that Prcac,

19     a retired police officer working at Omarska whose silence in the face of

20     crimes committed there was found to have given tacit support to the

21     perpetrators.

22             Your Honours, we say that even if, contrary to all our

23     submissions, you find that Stojan Zupljanin has played a part in the

24     allegations made against them, then in light of the lack of direct

25     evidence as to his direct involvement in those crimes, in the light of

Page 27640

 1     his efforts to prevent and punish those crimes, and in light of his good

 2     character and his lack of discrimination against non-Serbs, we would say

 3     that a punishment at the very lowest end of that spectrum is the right

 4     disposition of this case.

 5             Thank you, Your Honours.

 6             JUDGE HALL:  Thank you, Ms. Butler.

 7             I take it, Mr. Krgovic, that that was the final word from the

 8     Defence of Zupljanin.

 9             MR. KRGOVIC: [Interpretation] Your Honours, this concludes our

10     closing arguments.

11             I would like to inform the Trial Chamber that my client,

12     Stojan Zupljanin, would like to address Their Honours to make a few

13     points, with your leave.

14             JUDGE HALL:  Yes, thank you.  We have been alerted to that.

15             Yes, thank you.

16                           [Trial Chamber confers]

17             JUDGE HALL:  Before we inquire of counsel for the Prosecution as

18     to whether they have any submissions to make by way of rebuttal in

19     accordance with Rule 86(A), the Chamber, in the person of Judge Harhoff,

20     has one matter which he would seek counsel for the Prosecution to

21     explicate.

22             JUDGE HARHOFF:  Thank you.

23             The Chamber has listened with great care to what both parties

24     have said and there was one little issue raised - I think by Mr. Olmsted,

25     but I'm not sure - that we would wish to have just some clarification, if

Page 27641

 1     possible.

 2             And that is the issue of whether, within the context of a JCE 3

 3     crime, that is to say, a crime that was committed not as part of the --

 4     the common plan but, nevertheless, was a foreseeable crime, whether the

 5     Prosecution is of the view that such a foreseeable crime could also be a

 6     crime that carries dolus specialus, special intent.

 7             There is a discussion about this in several instances, and we

 8     would just wish to know what the Prosecution's position is on this

 9     matter, if possible.

10             Thanks.

11             MS. KORNER:  [Microphone not activated]... we're slightly taken

12     by surprise by that, and if Your Honours would just give us a moment or

13     so to discuss that.

14             JUDGE HALL:  Should we rise?

15             MS. KORNER:  Your Honours, yes.  [Microphone not activated]

16     moment when you say, Could we perhaps ask for a little clarification,

17     because Mr. Olmsted has, in fact -- is going to deal with the matters

18     that were the cause of some discussion yesterday in relation to the

19     resubordination and dual control - we hadn't anticipated this question -

20     could, perhaps, we inquire which particular crimes Your Honour had in

21     mind, as requiring dolus specialus.

22             JUDGE HARHOFF:  Persecution.

23             MS. KORNER:  Persecution, yes.  Your Honours, could we come back

24     to that?  It strikes me we're going to go beyond, regrettably, the second

25     break, in any event, with the matters that -- and we would welcome the

Page 27642

 1     chance to discuss it over the break and then come back and give

 2     Your Honour an answer.

 3             Your Honours, can we deal with it in this way.  As Your Honours

 4     know, two matters arose during the course of our submissions yesterday --

 5     the day before yesterday.  The first, in relation, as he have just

 6     mentioned, Mr. Olmsted's reference to, as it were, the dual chains of

 7     command with which we would wish to address you on now and which has been

 8     raised again by Mr. Krgovic and the Defence team for Zupljanin and then

 9     Mr. Hannis on this question of the Stanisic interview.

10             However, I don't know, did Your Honours rule on whether

11     Mr. Zupljanin could have a final word?

12             JUDGE HALL:  I'm sorry, I neglected to -- when I indicated that

13     we were alerted to the application would be made, I should have said that

14     the Chamber would allow him to have a word and that would be the -- the

15     last thing before we formally close.

16             MS. KORNER:  I see.

17             JUDGE HALL:  And coming back to the discussions that we would

18     have had earlier in the week about the time for any wrap-up legal

19     arguments, I suppose, subject to being correct, that Rule 86(A) to which

20     I alluded earlier, that what we are doing now is conflating the two

21     things.  So, in other words, any -- the -- the -- any rebuttal, rejoinder

22     that we would now hear would embrace those issues which -- to which

23     counsel on both sides would have alluded earlier in the week.

24             MS. KORNER:  Your Honours, I was about to say that.  We -- we --

25     we do not seek to deal in rebuttal with any of the factual matters, those

Page 27643

 1     that have come up, and those that we objected to we have raised

 2     effectively during the course of argument.

 3             We simply seek to deal with the matters of law.  So if

 4     Your Honours are content, then Mr. Olmsted can deal with the issue of the

 5     dual chains of command, as it were, and then Mr. Hannis can deal with the

 6     interview, and then I just have a few small points that arise from the

 7     final briefs.

 8             MR. OLMSTED:  Thank you, Your Honours.

 9             Firstly, yesterday, Mr. Zecevic quoted my response to

10     Judge Hall's question to suggest that the Prosecution had changed its

11     position with regard to resubordination, that we were now taking the

12     position that resubordination applied whenever the police were

13     participating in combat operations on the front lines.  That is not the

14     position of the Prosecution.  It has never been the position of the

15     Prosecution.  We have continuously maintained throughout the trial that

16     resubordination could only occur when the police were engaged in combat

17     operation along the front lines; however, not all instances in which the

18     police did engage in combat operations along the front lines were

19     instances where they were resubordinated to the army.  Rather,

20     resubordination rarely occurred during the indictment period, and it did

21     not occur in relation to any of the crimes charged in the indictment.

22             And I just point out that the CSB Banja Luka's year-end report,

23     P624, makes the distinction between police participation in combat

24     independently, and police participation in combat as a resubordinated

25     unit to the army.

Page 27644

 1             So just to make that clear.

 2             And we refer the Trial Chamber to paragraphs 871 to 880 of our

 3     final brief where we make clear our position and the evidence on this

 4     issue.

 5             The legal submission I was making on behalf of the Prosecution

 6     Wednesday was that even if the Chamber were to find that with regard to a

 7     crime charged in the indictment a particular police unit was

 8     resubordinated to the military, that does not mean, as a matter of law,

 9     that the accused were no longer the superiors of that police unit for

10     purposes of command responsibility under Article 7(3) of the Tribunal's

11     Statute.  Rather, under command responsibility, a perpetrator can have

12     more than one superior who has effective control over that perpetrator,

13     and each of those superiors can be held criminally liable for that

14     perpetrator's crimes.

15             There are, essentially, what I would break down into two

16     categories of Tribunal cases that support this argument.  First, there

17     are a number of cases against military accused which established that

18     perpetrators can have more than one superior both within the same

19     military chain of command as well as in multiple chains of command, and I

20     refer the Trial Chamber in this case to Strugar Trial Judgement,

21     paragraph 365; the Naletilic Trial Judgement, paragraph 69; and the

22     Blaskic Trial Judgement at paragraph 303.

23             Second, there is a line of cases against civilian accused which

24     established that a -- that perpetrators can have more than one superior

25     within separate chains of command of different organs.

Page 27645

 1             In particular, the perpetrators can have a civilian superior as

 2     well as an army superior, and I refer you to the Aleksovski

 3     paragraph 106; the Colonel Jelac Trial Judgement, paragraphs 93 to 107;

 4     as well as the Popovic Trial Judgement, the paragraphs I provided on

 5     Wednesday.

 6             Let's take the Aleksovski case.  The accused in that case was the

 7     civilian warden of a prison in Lasva valley.  As a Defence, he argued

 8     that the guards at the prison who committed the war crimes at issue were

 9     members of military police and therefore he had no superior

10     responsibility over them.  The guards had their own military chain of

11     command that was responsibility for their actions.

12             The Trial Chamber disagreed finding at paragraph 106:

13             "The issue whether the guards came concurrently under another

14     authority, such as the military police commander, in no way detracts from

15     the fact that the accused was their superior within the confines of the

16     Kaonik prison."

17             Now, the Prosecution submits that an analogy can be drawn between

18     that case at what occurred in Manjaca camp in 1992.  Even if the

19     Trial Chamber were to accept the Defence argument that the police

20     officers from Sanski Most and Kljuc who were sent to Manjaca by CSB

21     Banja Luka to assist with guarding that facility, were resubordinated on

22     each occasion, each shift that they went to that facility, it does not

23     automatically follow that their only superior was Colonel Popovic, the

24     camp commander.  While at the camp, the colonel undoubtedly gave the

25     police officers who were performing guard duties orders and instructions.

Page 27646

 1     However, the police superiors also maintained effective control over

 2     these police guards, determining which police officers to send to Manjaca

 3     and for how long, and as the Prosecution submits, they exercise ultimate

 4     disciplinary and criminal jurisdiction over these police officers.

 5             Now, in the Popovic case, the accused Borovcanin was the RS MUP

 6     deputy commander of a joint MUP force that included several police

 7     companies that participated with the VRS in operations in Srebrenica in

 8     July 1995.  As a Defence, he argued that one of the police companies, the

 9     Jahorina recruits, was under the command of the VRS Bratunac Brigade

10     security organ, while committing crimes in Potocari on the 12th and 13th

11     of July.

12             The Trial Chamber in this case found that even though the

13     Jahorina recruits were resubordinated to the army, Borovcanin maintained

14     effective control over these police officers.  In making this finding,

15     the Trial Chamber relied on -- in part, Article 14 of the 1994 RS Law on

16     the Implementation of the Law on Internal Affairs During an Imminent

17     Threat of War or State of War.  That is it L317 in our case.  And that

18     law states, Article 14:

19             "Police units shall be under the direct command of a commander

20     who is a member of the Ministry of Interior.  During the time they are

21     resubordinated to the Army of Republika Srpska, they shall retain their

22     organisation and may not be split up or separated."

23             The Trial Chamber then found, as Ms. Butler pointed out, that

24     this law established a unity of command principle of MUP forces

25     resubordinated to the VRS.  And that's at paragraph 1567.

Page 27647

 1             The Prosecution submits that this 1994 law which I just quoted is

 2     nearly identical to Stanisic's 15 May 1992 order establishing the police

 3     war units which required that if those units were subordinated and they

 4     weren't always subordinated, but if they were, the ministry units shall

 5     be under the direct command of certain ministry officials.  Now, to cite

 6     that is 1D46.

 7             Now, as Ms. Butler attempted to do, of course, if you look at

 8     these cases that I've just mentioned, you will find factual distinctions.

 9     That is inevitable.  This case that we have before us is unique in that

10     we are charging high-level police officials for the conduct for

11     perpetrators at quite a low level.  But what we do submit is that this

12     jurisprudence establishes the general legal principles that Your Honours

13     should use as a guide when you are coming -- when you are addressing

14     these, to a certain degree, novel legal issues with regard to

15     resubordination.

16             And we submit that the underlying point of this jurisprudence is

17     that the concept of resubordination or unity of command are not decisive

18     of the accused's command responsibility.  What is decisive is whether the

19     accused could exercise effective control over their subordinates.  This

20     is a question of fact, and, as the Prosecution has explained throughout

21     its final brief and in its closing arguments, this has been established

22     by the evidence.

23             MS. KORNER: [Microphone not activated] Your Honours, Before you

24     hear from Mr. Hannis, do you want to hear from the other side on any of

25     these matters?

Page 27648

 1             JUDGE HALL:  I think it would be more efficient to hear all of

 2     the Prosecution's submissions and then we hear from the other side.

 3             MR. HANNIS:  Thank you, Your Honours, good morning.

 4             I just want to talk briefly about the issues raised concerning

 5     comments about Mr. Stanisic' suspect interview with the OTP in 2007.

 6             This is -- this is not in the nature of a comment of the kind

 7     prohibited by the Statute as held in Celebici.  What this was about was

 8     what Mico Stanisic said and what he left unsaid during his 2007 suspect

 9     interview.  And you'll recall that was an interview that was done with

10     his counsel present.  You can read in the interview that he was advised

11     of all his rights and reminded of those rights each and every day of the

12     interview.  He freely waived those rights and agreed that his statement

13     could be used at trial.  He answered some questions but didn't answer all

14     questions.  He said there were some matters he didn't want to talk about.

15             Mr. Zecevic has tried to claim that since we, the Prosecution,

16     put the interview into evidence via a bar table motion, that means we

17     vouch for the truth of its contents.  That's not exactly correct,

18     Your Honour.  We don't.  And I dare say we never said that.

19             You can see in our bar table motion 2nd December 2010, his

20     interview was 65 ter number 2827.01 through 2827.14.  It's listed in

21     Annex A to the motion which is at, I think it's the Registry's page

22     number D, as in David, 10335.  And the column in the table that is

23     entitled:  Relevance to case issues, we said that his interview was "the

24     interview conducted under caution with the accused, Mico Stanisic,

25     provides evidence of his position on many issues of relevance to this

Page 27649

 1     trial."

 2             That's all it said.

 3             Had we -- and, frankly, Your Honour, had we believed that

 4     everything he said in his interview was true, we would have been

 5     ethically bound to dismiss the indictment because he has claimed he was

 6     innocent.  This is being offered to prove many other matters.  And also

 7     the issue about whether we decided to tender it into evidence you should

 8     be aware that there's ICTR jurisprudence in a case whose name I will

 9     butcher, it is Ndayambaje, N-d-a-y-a-m-b-a-j-e, et al.  My apologies for

10     my pronunciation.  It is ICTR 98-42-T.  The 15th of May, 2006.  It

11     appears to hold that if the Prosecution does not tender such a statement

12     in its case, it may be precluded from using the contents or the substance

13     of such a statement in the Defence case, and in the event that the

14     accused did not testify in a situation like that, the Prosecution

15     wouldn't be able to use it at all.

16             Now by not objecting to use of his statement at trial,

17     Mico Stanisic put his credibility at issue.  And it's not unfair or

18     inappropriate for you to consider what he said and what he left unsaid or

19     refused to say at the time of that interview when you decide what weight

20     to give his interview in whole or regarding specific parts of that

21     interview.

22             I would just indicate I come from a jurisdiction where the

23     general rule is that hearsay is not admissible, as opposed to here,

24     hearsay is generally admissible.  In -- in the system in the US, an

25     out-of-court statement of a witness is hearsay and generally not

Page 27650

 1     admissible, but there's an exception for admissions by a party opponent

 2     in a civil case or a criminal case.  They are defined as being not

 3     hearsay, and the theory is that if a party admits something that's

 4     contrary to his interest, his pecuniary interest or his penal interest,

 5     it is more reliable than self-serving statements.

 6             We believe that in this situation it is entirely appropriate for

 7     you to consider claims made by Mico Stanisic in his interview which

 8     neither panned out in determine what weight to give his words.  Contrary

 9     to what Mr. Zecevic has tried to assert, that is, that everything he said

10     in 2007 was true and turned out to match precisely the evidence presented

11     at trial, that's simply not so.  We gave you one example earlier in

12     closing, his claim that between April and September 1992, before the

13     autonomous regions were -- were banned in September, he said:

14             "No CSB or SJB chief ever cited or relied on one of his or his

15     assistant minister's orders."

16             That is absolutely not true.  We showed you three specific

17     examples and there are many more.

18             Finally, he didn't have to speak at all.  He had an absolute

19     right not to speak to the Prosecution but when he voluntarily and

20     knowingly waived that right and proceeded to selectively answer some

21     questions but not others, he cannot preclude the Prosecution from arguing

22     or you Judges from considering that selectivity in 2007 in deciding what

23     weight to give that total evidence.

24             That's our submission.  Thank you for hearing me.

25                                [Technical difficulty]

Page 27651

 1             MS. KORNER:  Can I turn to a few matters that arise from both

 2     accused final brief.  They are relatively minor and can be dealt with

 3     very quickly.

 4             If I stand in the middle, then hopefully one will pick them up.

 5             Would Your Honours give me one moment.

 6             Your Honours, the first few matters arise from the Stanisic final

 7     briefs.

 8             JUDGE DELVOIE:  It is still not coming through.

 9             MS. KORNER:  I honestly don't know what I can do about this other

10     than shouting, and I have a fairly carrying voice I'm told, in any event.

11                           [Technical difficulty]

12             MS. KORNER:  The interpreters need to put it on to interpret

13     because ...

14             Would it simpler if we just rose and see if we can sort this one

15     out.

16                           --- Recess taken at 11.52 a.m.

17                           --- Upon resuming at 12.19 p.m.

18             JUDGE HARHOFF:  Are the booths able to hear you, Ms. Korner?

19             MS. KORNER:  [Microphone not activated] ... going on but.

20             THE INTERPRETER:  The interpreters can hear Ms. Korner.

21             MS. KORNER:  Do Your Honours want me to continue even thought the

22     LiveNote's not working?

23             JUDGE HARHOFF:  [Microphone not activated What about the

24     stenographer?

25             THE COURT REPORTER:  [Microphone not activated]  I can hear but

Page 27652

 1     now the LiveNote isn't working.

 2             MS. KORNER:  That's what -- sorry, that was what -- oh, you

 3     didn't hear that, Your Honours.  I see.  The message was LiveNote stopped

 4     working.

 5             JUDGE HALL:  Let's press on, shall we.

 6             MS. KORNER:  Right.  I assume that it will just be tapped and

 7     then the [indiscernible].

 8             Your Honours, can I go back to answering Judge Harhoff's question

 9     and, really, I should have not required any time because I had completely

10     forgotten.

11             JUDGE HARHOFF:  Well, please let me clarify, it was only because

12     you have charged the two accused with persecution that we were left with

13     this question, and rather than having to guess what the Prosecution's

14     position is, we thought we might as well use this occasion to get a view

15     on it.  Thanks.

16             MS. KORNER:  Your Honours, I -- can I say straight away, of

17     course, our -- our first submission on that is that all the crimes are

18     within the -- the original JCE, but in the alternative that the -- the --

19     the crimes outside those of forcible transfer and deportation come within

20     JCE 3.  The leading authority and which has been followed in every case

21     that we can see is that of Brdjanin, the decision on the interlocutory

22     appeal.  And, as I say, I really ought to have remembered that.

23             The Trial Chamber in Brdjanin at the Rule 98 stage had, in fact,

24     dismissed the charges of genocide, and that was -- there was an appeal on

25     the basis that that was a erroneous decision in law.  And the Appeals

Page 27653

 1     Chamber on the 19th of March, 2004, held as follows:  They, first of all,

 2     dealt with an accused who enters into a joint criminal enterprise to

 3     commit the crime of forcible transfer, obviously shares the intent of the

 4     direct perpetrators to commit that crime.  However, if the Prosecution

 5     can establish that the direct perpetrator, in fact, committed a different

 6     crime and that the accused was aware that the different crime was a

 7     natural and foreseeable consequence of the agreement to forcibly

 8     transfer, then the accused can be convicted of that different offence.

 9     And they go on to deal with genocide.  And then paragraph 7, as a mode of

10     liability, the third category of joint criminal enterprise is no

11     different from other forms of criminal liability which do not require

12     proof of intent to commit a crime on the part of the accused before

13     criminal liability attaches.

14             Your Honour, that was most recently cited in the Karadzic case of

15     one of the early legal decisions.  So, Your Honour, that's the situation,

16     we say.

17             JUDGE HARHOFF:  And does that in the Prosecution's opinion cover

18     cases where the additional -- the additional foreseeable crime, was a

19     crime that carries a special intent?

20             MS. KORNER:  Yes.  This actually dealt with genocide and you

21     can't have more of a special intent than genocide.

22             JUDGE HARHOFF:  I agree, just to be sure.

23             MS. KORNER:  Yes.

24             JUDGE HARHOFF:  Thank you very much.

25             MS. KORNER:  Your Honours, thank you for that.

Page 27654

 1             And while we're on that, can I -- it is rather more factual but

 2     dealing with Ms. Butler's review of the sentences.  The -- the sentence

 3     that was passed on Mr. Brdjanin, it was originally was 35 years - she

 4     didn't mention that - but reduced to 32 on appeal.

 5             Your Honours, may I then turn, as I say, very quickly to some of

 6     the more minor legal issue that have arisen from the final briefs of the

 7     accused.

 8             Your Honours, starting with Stanisic, please.  At paragraph 7 of

 9     their final brief -- sorry.  Yes, paragraph 7.  The final sentence there

10     states, they're dealing with, in particular, intercept evidence, and the

11     CHS, and end off by saying that:

12             "Evidence not proved to be authentic beyond a reasonable doubt

13     would be granted no weight at the end of a trial."

14             And they cite for this proposition, Brdjanin and Popovic.

15     Your Honours, in fact, proof beyond a reasonable doubt applies to facts

16     not evidence, and only though facts upon which a conviction or sentence

17     depends.  And the case on that is the Appeals Judgement, Milosevic,

18     paragraph 20.  Obviously interlocutory appeal.  Proof beyond a reasonable

19     doubt applies to facts, as I said, and, for example, an element of the

20     crime or a mode of responsibility or a fact indispensable to entering a

21     conviction and, Your Honours, the cite for that is Halilovic Appeals

22     Judgement, paragraph 125.

23             Your Honours, in paragraph 10, and I think this was just an error

24     possibly.  They deal with the actual burden and standard of proof.  They

25     rightly deal with the fact that it has to be a reasonable doubt until the

Page 27655

 1     penultimate sentence at paragraph 10 where they say:

 2             "If at the conclusion of proceed there is any doubt that the

 3     Prosecution has established the case against the accused, the accused is

 4     entitled to the benefit of that doubt."

 5             It is, of course, any reasonable doubt not fanciful or the like.

 6     As I say, I think that was just a drafting error.

 7             Your Honours, still on the Stanisic brief, if one looks

 8     at paragraph -- just to get them in order -- slightly.  Yes,

 9     paragraph 211 of the Stanisic brief.  There, they deal -- this is the

10     part of the brief that deals with resubordination and its consequences.

11     And at the end of that paragraph, on page 84, they say:

12             "International law governing armed conflicts recognising that

13     members of the police may be incorporated into the armed force through

14     subordination to the army and that subordinate members of the police lose

15     their status as civilian policemen and gain the status of military

16     personnel and thereby become legitimate targets."

17             And they quote one of their documents plus Lisica.  But, in fact,

18     Your Honours, international law does not support this argument that the

19     accused lost effective control of the MUP units once incorporated into

20     the armed forces.  The relevant provision which is not cited here is

21     Additional Protocol I, Article 43(3) and that merely notes that:

22             "If police units are incorporated into a party's armed forces,

23     notice must be given to the other parties to the international armed

24     conflict.  This procedure ensures that other parties know which police

25     units can be treated as legitimate military targets."

Page 27656

 1             And there's the various commentaries on this.

 2             The -- adding to this, what they say is subordinate and

 3     subordination, it doesn't come into Article 43 at all.  Because,

 4     obviously, this is a -- the question of which superior has the power, as

 5     Mr. Olmsted has dealt with, and duty to act is based not on international

 6     but on domestic law.

 7             And Your Honours, I think, finally, on the Stanisic brief, if one

 8     looks at paragraph 674.  This is already one [indiscernible] one topic.

 9     They state the -- the existence of de jure authority is not synonymous

10     with effective control.  It does not necessarily imply de facto

11     authority, nor does it create a presumption of effective control.  And

12     they cite Halilovic and Oric.  Instead the inquiry should focus on the

13     de facto relationship between the alleged superior and subordinate.

14             However, Your Honours, what they don't cite and this also arises

15     from the Oric case, and also, like Mr. Hannis, I have even more

16     difficulty with Rwandan names than I do with Bosnian.  It's a case called

17     N-t-a-b-a-k-u-z-e Appeals Judgement at paragraph 169.  It can be -- de --

18     de jure authority can be an indicator of effective control.

19             At paragraph 681, they distinguish between a non-military

20     superior and a military superior and they quote the Rome Statute.

21     Your Honours, in our submission, there are is no separate mens rea for

22     civilian superiors.  The same mens rea requirement applies to both

23     civilian and military superiors.  The cases on that point are Djordjevic,

24     Milutinovic, another Rwandan case - both of them Trial Judgements, I

25     should add, obviously - this one is an Appeals Judgement

Page 27657

 1     B-a-g-i-l-i-s-h-e-m-a, Appeals Judgement, paragraph 35.  And we submit

 2     that, although the Rome Statute gives different mens rea, that is not

 3     reflective of customary international law.

 4             Your Honours, those are the matters that we would deal with in

 5     the Stanisic brief.

 6             In respect of the Zupljanin brief.

 7             Your Honours, the first is paragraph 24.  At the end, they're

 8     dealing with planning as a mode of liability.  At the end of that

 9     paragraph, they say:

10             "The defendant must be proven to have possessed the state of mind

11     required by the underlying offence with which he is charged and to have

12     directly or indirectly intended that the crime in question be committed."

13             Your Honours, we say that the mens rea for planning is -- is a

14     direct intent to plan a crime, or an awareness of the substantial

15     likelihood that a crime will be committed in the execution of the acts or

16     omissions planned.

17             Again, it's the Milosevic Appeal Judgement, paragraph 268; and

18     Kordic Appeals Judgement, paragraphs 29 and 31, which are not cited in

19     the cites to that sentence in the brief.

20             Next, Your Honours, the question of evidence outside the

21     indictment period, at paragraphs 55 and 60, I think it is.  Yes.

22             Your Honours, they assert that it is impermissible - in

23     paragraph 55 - for the Trial Chamber to give consideration to any events

24     subsequent to the indictment period in determining his responsibility for

25     acts taking place between the 1st of April and the 31st of December.

Page 27658

 1             Your Honours, we say that is -- that is really incorrect.

 2     Your Honours, Your Honours are entitled to look at evidence outside the

 3     indictment period.  He cannot be held liable for any actions that he took

 4     in 1991 or 1993, but we say - and we say that's what the law says - that

 5     it can be evidence in support of other evidence which shows his actions

 6     in 1992 were criminal, and it goes further than just the mens rea itself.

 7             And, Your Honours, we set it out in paragraphs 714 to 717 of our

 8     brief because we say his actions in 1991, for example, are directly

 9     referable to his participation in the common plan.

10             Just let me check.  I think there was one more paragraph in

11     respect of ...

12             Oh, yes, sorry, Your Honours.  I should -- I -- if we go back to

13     paragraph 21.  It started with that.  In fact, this is very much along

14     the lines of a question Judge Harhoff asked us.

15             The Defence submit that in respect of JCE 3, he wasn't aware,

16     et cetera, but that these were a natural and foreseeable consequence of

17     the alleged JCE.  Such crimes, it is said, are of a wholly different

18     nature to acts of forcible transfer or deportation.  They were either

19     completely outside the JCE with which is he charged or formed part of an

20     expanded JCE to commit acts of revenge.

21             Your Honours, obviously what amounts to the JCE 3 crimes in a

22     particular case is a factual question, but the crimes that we have

23     charged of persecution, extermination, murder, torture, cruel treatment

24     have already been found to be the natural and foreseeable consequences in

25     many cases in -- before these Tribunals of one where the actual intention

Page 27659

 1     was that to forcibly transfer or deport.  And we take leave to differ

 2     with the assertion that these crimes are of a wholly different nature to

 3     such an accident that they cannot be JCE crimes.  And Your Honours,

 4     there's a host of different cases that support that.

 5             So, Your Honours, those are the matters that we would wish to

 6     raise.

 7             JUDGE HALL:  Thank you, Ms. Korner.

 8             Yes, Mr. Zecevic.

 9             MR. ZECEVIC:  Mr. O'Sullivan will address first, and I then will

10     address the part which Mr. Olmsted was referring, and Mr. O'Sullivan will

11     address the rest of the submission.

12             Thank you.

13             MR. O'SULLIVAN:  Your Honour, I will respond to what Mr. Hannis

14     said about the OTP interview with Mr. Stanisic.

15             Just to remind the Chamber that Mr. Stanisic was interviewed as

16     an accused person after his initial appearance while on provisional

17     release.  You have heard that the statement was offered through the bar

18     table by the Prosecution and it was relied upon by the Prosecution in its

19     pre-trial brief, its opening statement, and during the trial.  It is

20     certainly a matter for you to weigh that piece of evidence along with all

21     the rest, and that's all we ask you to do.

22             It's our position that that statement is entirely consistent with

23     the evidence in this case.  The final point we want to make on this is

24     that there should be no adverse inference taken against Mr. Stanisic for

25     exercising his right not to testify at trial.  That is undisturbed by the

Page 27660

 1     fact that he has given a pre-trial interview to the Prosecution which was

 2     tendered by the Prosecution which you must evaluate.  In no way,

 3     according to the Statute or the jurisprudence, can you draw an adverse

 4     interest against him for remaining silent at trial.

 5             Thank you.

 6             JUDGE HARHOFF:  Mr. O'Sullivan, there is no question about the

 7     Chamber not drawing any adverse inference from the fact that your client

 8     has refused -- or has deadlined to testify.  This is not the issue.  I

 9     think the issue was, rather, whether the consent by your client to have

10     the statement used during trial, whether that would have any impact on

11     the weight which should be given to the statement.

12             MR. O'SULLIVAN:  When he was read the caution under Rules 42 and

13     43, he agreed to have that statement used at trial, and, indeed, it was

14     offered by the Prosecution.  And that's why I emphasise the point at

15     which he gave that statement after his initial appearance as an accused

16     person, with the full knowledge that it would be used at trial.  And I

17     think you should look at it in that light in addition to what we say is

18     the other evidence in the case which is consistent with what he said.

19             MS. KORNER:  And, Your Honours, can I just make it very clear

20     that at no stage has the Prosecution ever suggested, nor would it, that

21     that has anything to do with his right to testify at trial.  It's a

22     completely different issue.

23             MR. ZECEVIC:  Your Honours, with your leave, I will speak in

24     Serbian.

25             [Interpretation] Your Honours, the position of the Defence with

Page 27661

 1     regard to the claims and positions presented by Mr. Olmsted is this:  We

 2     absolutely do not agree with these claims and positions, and I will

 3     explain why.

 4             Mr. Olmsted rightly observes that there were two issues at stake

 5     here.  The first issue is this:  Can several superior persons have the

 6     same command responsibility for the acts committed by one subordinate?

 7     We agree that they can.

 8             However, Your Honours, we are talking about a company commander,

 9     a battalion commander, a brigade commander.  The three of them are parts

10     of the same chain, and all three of them can be held responsible for the

11     actions or acts committed by a soldier in that company.  And that is the

12     situation, Your Honours, which applies to Strugar, as well as to

13     Naletilic, as well as to Blaskic and Popovic.  Why does it apply to

14     Popovic?

15             The answer is simple, Your Honours.  When you read the

16     Trial Judgement in the Popovic case, it says there that Borovcanin

17     received an order from the minister to take the special unit and to

18     report to Krstic to be resubordinated to General Krstic when he gets

19     there.  At that moment when he, as the commander of the police unit, is

20     resubordinated to General Krstic, he gets a military superior who is

21     above him.  At that moment, he enters a military structure, and the

22     distinction between him and any other company commander or battalion

23     commander in the Army of Republika Srpska at that moment ceases to exist.

24     It simply does not exist anymore.

25             He becomes an element of the command structure of the army.

Page 27662

 1     Claims proffered by Mr. Olmsted apply to an entirely different situation.

 2     I don't have the exact reference number.  However, he spoke on page 48 of

 3     today's transcript about Borovcanin, and he says that Borovcanin was

 4     found to be responsible for -- please bear with me.  For a unit from

 5     Mount Jahorina which was under the command of the Bratunac Brigade on the

 6     12th and the 13th of July.

 7             Your Honours, this is an identical situation.  Those soldiers,

 8     those troops, or, rather, those policemen who are resubordinated to the

 9     military, we claim, and the law provides for them to become military

10     conscripts of -- or soldiers.  They were members of his unit, under his

11     command, and he resubordinated that entire unit, together with himself,

12     to the army.  At one point in time, one part of that whole unit, several

13     soldiers from that unit, went and joined another unit of the Army of

14     Republika Srpska and committed a crime, and the Trial Chamber found him

15     guilty.  However, in that case, he was part of the military hierarchy,

16     and he had nothing whatsoever to do with the Ministry of Defence at that

17     moment when the crime was committed.  And that is the gist of the whole

18     matter.  The fact that Borovcanin, before that and after that, was a

19     member of the Ministry of Defence --

20             THE INTERPRETER:  The interpreter's correction:  The Ministry of

21     Interior.

22             MR. ZECEVIC: [Interpretation] -- at the moment when the crimes

23     were committed, the same crimes for which he was found guilty, he was a

24     member of the Army of Republika Srpska because he was resubordinated [as

25     interpreted] to them, and he was part of that command chain, and that's

Page 27663

 1     why he was found guilty and convicted.

 2             The second issue, Your Honours, is the issue addressed by

 3     Mr. Olmsted on pages 47 and 48 of today's transcript.  He spoke about two

 4     parallel, different chains of command, whereby there is a civilian

 5     authority or superior, as well as a military authority or a military

 6     superior.

 7             What Mr. Olmsted omits to observe in the Judgements or perhaps

 8     omits to mention here is a very clear position proffered by the Trial

 9     Chambers in those cases, and I will quote that position:

10             "A perpetrator must obviously and clearly," and I underline

11     obviously and clearly, "be within the hierarchical chain of command of

12     the accused."

13             And this is the situation that we're talking about.  They found

14     that the prison warden was obviously and clearly superior to those who

15     committed the crime at the moment when the crime was committed.  And this

16     is a fact that was established.  And we cannot draw any parallels with

17     this case.  We are not talking about dual authority or double authority.

18     In that sense, the Prosecutor's assertion that what is at issue here are

19     general legal principles that you should be govern -- governed by and

20     that you should influence your decision-making process when you are

21     considering these facts is incorrect.  In general terms, and when we're

22     talking about a general legal principle, we have to admit that, according

23     to the doctrine of command responsibility, there is no possibility to

24     have two different commanders belonging to two different chains of

25     command.  It can happen only - and I repeat, only - if all the commanders

Page 27664

 1     belong to one vertical line and chain of command.

 2             At the end of the day, the gist of the matter, when it comes to

 3     effective control, that, in theory, Your Honours -- it is theoretically

 4     impossible to have two different chains of effective control, two lines

 5     of effective controls, because one line and somebody in that line can

 6     say, You go to the left; whereas, the other person in the other line of

 7     command can say, You go to the right.  Who is that person or that line

 8     that holds effective control?

 9             There's no possibility for two commanders to have effective

10     control because it may happen that the two of them issued two

11     contradictory orders at the same time.

12             According to the theory of command responsibility, there should

13     be just one, only one person, who was effective control.  And what the

14     jurisprudence of this Tribunal says and what the theory says is that, at

15     the moment when a crime is committed, that person who has effective

16     control, at that moment, is the person who should be held responsible and

17     accountable for that crime.

18             JUDGE HALL: [Previous translation continues]... thank you.

19             MR. KRGOVIC:  Your Honour, our Defence team will respond only on

20     issue or error in our final brief, so Ms. Butler will deal with that.

21             MS. BUTLER:  Thank you, Your Honours.

22             So in relation to the first aspect raised by Ms. Korner, that

23     related to the intention for planning, and she was saying that we were

24     wrong to say it was the direct intention or an indirect intention.  Now,

25     she is quite right.  We could have been more precise in our form of words

Page 27665

 1     there by using the term "indirect intention."  What we actually meant

 2     was, as Ms. Korner identifies, is the correct standard:  An awareness of

 3     a substantial likelihood that the crime would be committed in execution

 4     of the planned act.  So we've got no contention about that, Your Honours.

 5             The second point that she raised related to evidence outside the

 6     indictment period.  Now, we are slightly further apart on this issue,

 7     Your Honours.  We would suggest that if one takes a look at the Stakic

 8     Appeal Judgement at paragraphs 122 to 132 and at the Nahimana Appeal

 9     Judgement at paragraph 315, that establishes that essentially acts

10     outside the indictment period can be taken into account by Your Honours

11     but only in relation to certain aspects of the case.  So one aspect is in

12     relation to whether or not the crimes are committed in a widespread and

13     systematic fashion, as a sort of -- one of the elements of the chapeau

14     for against crime against humanity.  Another way in which these types of

15     acts can be taken into account is for the mens rea of the particular

16     accused person.  And another way is for clarifying the context to the

17     crimes.  But it's our submission that you cannot take them into account

18     in determining the particular individual participation of an accused in

19     the crimes charged.  So it is relevant to mens rea, to background, but

20     not relevant to individual actus reus.

21             Now, the third aspect that Ms. Korner has raised in relation to

22     joint criminal enterprise in paragraph 21 of our brief.  Now, she said

23     there -- which was discussing the expanded forms of crimes --

24             THE INTERPRETER:  Slow down.

25             MS. BUTLER: [Previous translation continues] ... matter of

Page 27666

 1     submission, and that is how our paragraph starts in that brief.  It says:

 2     "The Defence submit that ..."

 3             So our case is that the expanded alleged crimes were not a

 4     natural or foreseeable consequence of the original crimes in

 5     Mr. Zupljanin's view.

 6             Now, just related to that, if I can add a couple of words to

 7     assist with Judge Harhoff's question to the Prosecution.

 8             We obviously accept that the Brdjanin interlocutory decision was

 9     made back in 2004.  What we would suggest for Your Honours that if you

10     were tempted to enter into a conviction on the basis for a specific

11     intent crime under a JCE 3, that one would need to be extremely careful

12     about the position under customary international law for that mode of

13     liability in 1992.

14             I'm sure that Your Honours are aware, but that particular

15     interlocutory decision from 2004 has been heavily criticised by academic

16     commentators, and not the least of those is His Honour Judge Cassese, who

17     has written a very compelling criticism of that, and that's in the

18     "Journal of International Justice" in 2007, Your Honours.

19             So we would just suggest that one would need to be cautious about

20     the position under customary in 1992.

21             Thank you.

22             MS. KORNER:  Your Honours, can I just perhaps ask that line -- at

23     page 11, line 16, I really don't think that's what Ms. Butler said about

24     me.  I think she actually said:  "She's quite correct."

25             MS. BUTLER:  I can confirm that, Ms. Korner.  Thank you.

Page 27667

 1             JUDGE HALL:  Before we afford the accused Zupljanin to make the

 2     brief remarks that he had asked to make, Mr. Zecevic, is there a like

 3     request on behalf of your client?

 4             MR. ZECEVIC:  No, Your Honours.

 5             JUDGE HALL:  Thank you.

 6             So, Mr. Zupljanin, you may proceed when you're ready.

 7             THE ACCUSED ZUPLJANIN: [Interpretation] Thank you, Your Honours,

 8     for allowing me to speak at the end of this trial.

 9             I wish to say that I fully endorse the closing arguments of my

10     Defence team.  And, on this occasion, just as I did at the beginning of

11     the trial, I wish to express my sincere regret and sympathy for the

12     victims and their sufferings, as I have not had the occasion to tell them

13     that in person during the trial.

14             Thank you.

15             JUDGE HALL:  Thank you.

16             Yes, Ms. Korner.

17             MS. KORNER:  I just want to -- I think the Defence mentioned it

18     but I don't think we did, but we'd like to mention it now.  We want to

19     thank the interpreters and the court staff for their assistance over the

20     trial.  Particularly the interpreters.  We understand how difficult it is

21     sometimes with different accents, and different speeds, and

22     mispronunciation of words, and we're grateful to all concerned.

23             MR. ZECEVIC:  We join with the -- our full support of what

24     Ms. Korner said.

25             We would also like to thank the Registry and the court staff, as

Page 27668

 1     well as all our interns and associates, who helped us prepare this --

 2     this Defence case.

 3             Thank you very much, Your Honours.

 4             JUDGE HALL:  Before I perform the formalities under Rule 37, the

 5     Chamber, of course -- Rule 87, I'm sorry.  The Chamber, of course, joins

 6     with what counsel has said in thanking the support staff that have made

 7     this exercise over the past months - in fact, years - possible:  The

 8     interpreters, the court reporters, the security staff, and I would add to

 9     that the members of the Chamber's own team.  But, also, the Chamber must

10     thank counsel for their assistance.

11             And we now are at that stage where it falls to me to declare

12     these proceedings closed.

13             Thank you.

14                            --- Whereupon the hearing adjourned at 1.00 p.m.,

15                           sine die.