Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 16 December 2015

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           --- Upon commencing at 8.48 a.m.

 6             JUDGE AGIUS:  Good morning, everybody.

 7             Madam Registrar, could you call the case, please.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case number

 9     IT-08-91-A, the Prosecutor versus Stanisic and Zupljanin.

10             JUDGE AGIUS:  Before we start, I want to make sure that the

11     parties can follow the proceedings in a language that they understand.

12             Mr. Stanisic, can you follow the proceedings in a language that

13     you understand?

14             THE APPELLANT STANISIC: [Interpretation] I can, I can.  Thank

15     you.

16             JUDGE AGIUS:  Thank you.

17             Mr. Zupljanin, same question to you.

18             THE APPELLANT ZUPLJANIN: [Interpretation] Thank you very much.  I

19     can follow.

20             JUDGE AGIUS:  Thank you.

21             As a preliminary matter before I ask for presentations, on

22     November 18, Mr. Dragan Krgovic, counsel for Mr. Zupljanin, through an

23     e-mail to the Appeals Chamber Legal Officer, requested that

24     Mr. Christopher Gosnell, Legal Consultant in the Zupljanin Defence team,

25     be granted the right of audience during this appeal hearing.  The request

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 1     was unopposed.  The ICTY Office of Legal Aid and Defence matters has

 2     confirmed to us that Mr. Gosnell is fully qualified and is admitted to

 3     the list of counsel pursuant to Rule 45 of the Rules of Procedure and

 4     Evidence.  Mr. Gosnell, in fact, has been working on Mr. Zupljanin's

 5     appeal as a legal consultant and is familiar with the case.

 6             In these circumstances the Appeals Chamber is satisfied that

 7     granting Mr. Gosnell the right of audience is in the interests of justice

 8     and consequently grants the request.

 9             Could I now please have appearances for the parties, starting

10     with the Prosecution.

11             MS. BAIG:  Good morning, Your Honours.  Laurel Baig for the

12     Prosecution.  I'm joined by my colleagues Mr. Todd Schneider, Mr. Aditya

13     Menon, Grace Harbour, and our case manager Colin Nawrot.  Thank you.

14             JUDGE AGIUS:  I thank you.

15             Counsel for Mr. Stanisic.

16             MR. ZECEVIC:  Good morning, Your Honours.  Appearing for Stanisic

17     Defence, Slobodan Zecevic, Stephane Bourgon, James Jackson, Ms. Isabelle

18     Martineau, Relja Radovic, and Ms. Claire Smith.  Thank you very much.

19             JUDGE AGIUS:  Thank you.

20             Defence for Mr. Zupljanin.

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

22     Ms. Tatjana Cmeric, and Christopher Gosnell appearing for Zupljanin

23     Defence.

24             JUDGE AGIUS:  Thank you.

25             Mr. Stanisic, Mr. Zupljanin, and the Office of the Prosecutor

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 1     lodged appeals against the trial judgement rendered in this case on 27

 2     March 2013 by Trial Chamber II.  Pursuant to the Scheduling Order issued

 3     on 30th October 2015, the Appeals Chamber will hear the appeals today.

 4     Before doing so, I will provide a brief summary of the case and of

 5     Mr. Stanisic's and Mr. Zupljanin's appeal and that of the Prosecution.  I

 6     will then outline how we will proceed today.

 7             The case concerns the responsibility of Mr. Stanisic and

 8     Mr. Zupljanin for crimes committed in Bosnia and Herzegovina from the 1st

 9     of April to the 31st of December, 1992.  Throughout that time,

10     Mr. Stanisic was the minister of interior of the newly established

11     Ministry of the Interior of Republika Srpska, Serb Republic in Bosnia and

12     Herzegovina, and an ex officio member of the National Security Council.

13     Mr. Zupljanin was the chief of the Regional Security Service Centre of

14     Banja Luka and for part of the relevant time, he was also a member of the

15     Crisis Staff of the Autonomous Region of Krajina.

16             The Trial Chamber found that a joint criminal enterprise existed

17     from no longer than 24th October 1991 until at least 31st December 1992,

18     with the objective to permanently remove Bosnian Muslims and Bosnian

19     Croats from the territory of the planned Serb state.  I will refer to it

20     as the JCE.  It also found that this purpose was implemented through the

21     commission of the crimes of persecutions, through forcible transfer and

22     deportation, and inhumane acts, consisting of forcible transfer as crimes

23     against humanity.

24             The Trial Chamber convicted Mr. Stanisic for crimes committed in

25     each of the 20 municipalities listed in the indictment and Mr. Zupljanin

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 1     for crimes committed in the eight municipalities of the Autonomous Region

 2     of Krajina.  They were both convicted through the first category of joint

 3     criminal enterprise for persecutions as a crime against humanity and

 4     through the third category of joint criminal enterprise for murder and

 5     torture as violation of the laws or customs of war.

 6             In addition, Mr. Zupljanin was convicted pursuant to the third

 7     category of joint criminal enterprise for extermination as a crime

 8     against humanity and for ordering persecutions through appropriation.

 9             On the basis of the principles relating to cumulative

10     convictions, the Trial Chamber did not enter convictions against

11     Mr. Stanisic and Zupljanin for murder, torture, inhumane acts,

12     deportation, and inhumane acts (forcible transfers) as crimes against

13     humanity or cruel treatment as a violation of the laws or customs of war.

14             The Trial Chamber sentenced both Mr. Stanisic and Mr. Zupljanin

15     to 22 years of imprisonment.

16             Mr. Stanisic advances 16 grounds of appeal; Mr. Zupljanin, six,

17     challenging their respective convictions and sentences.

18             Under Mr. Stanisic's ground of appeal 1 bis and Mr. Zupljanin's

19     sixth ground of appeal, the two appellants argue that their right to a

20     fair trial by an independent and impartial Tribunal has been violated as

21     a result of the participation of Judge Harhoff in the trial proceedings.

22     Under his first ground of appeal, Mr. Stanisic alleges that the Trial

23     Chamber erred in law by failing to provide a reasoned opinion for his

24     convictions for persecutions, murder, and torture under the first and

25     third categories of joint criminal enterprise.

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 1             Under his second through sixth grounds of appeal, Mr. Stanisic

 2     challenges the Trial Chamber's findings concerning his responsibility

 3     pursuant to the first category of joint criminal enterprise.  Under his

 4     seventh ground of appeal, Mr. Stanisic challenges the Trial Chamber's

 5     assessment of his interview with the Prosecution.

 6             In his grounds of appeal eight to 11, Mr. Stanisic raises a

 7     number of challenges related to his convictions pursuant to the third

 8     category of joint criminal enterprise.

 9             And finally, under his 12th through 15th grounds of appeal,

10     Mr. Stanisic alleges a number of errors of law and facts in relation to

11     his sentence.

12             The Prosecution responds that Mr. Stanisic's appeal should be

13     dismissed in its entirety.

14             In his first ground of appeal, Mr. Zupljanin raises a number of

15     challenges to the Trial Chamber's findings on his responsibility pursuant

16     to the first category of joint criminal enterprise.

17             Under his second ground of appeal, Mr. Zupljanin challenges his

18     convictions pursuant to the third category of joint criminal enterprise.

19             In his third ground of appeal, he alleges errors in the Trial

20     Chamber's findings on extermination.  Under his fourth ground of appeal,

21     Mr. Zupljanin alleges multiple errors in relation to his sentence.

22             And finally, under his fifth ground of appeal, Mr. Zupljanin

23     alleges that the Trial Chamber erred in finding him responsible for

24     persecutions through the appropriation of property.

25             The Prosecution responds that Mr. Zupljanin's appeal should be

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 1     dismissed.

 2             I will now move to the Prosecution's appeal.  The Prosecution

 3     advances two grounds of appeal.  First, it challenges the sentences

 4     imposed by the Trial Chamber of Mr. Stanisic and Mr. Zupljanin and

 5     requests that the Appeals Chamber substitute these sentences with

 6     sentences in the range of 30 to 40 years.  In its second ground of

 7     appeal, the Prosecution argues that the Trial Chamber erred in its

 8     application of the law related to cumulative convictions.

 9             Mr. Stanisic and Zupljanin respond that the Appeals Chamber

10     should dismiss the Prosecution's ground of appeal in their entirety.

11             During this hearing, counsel may argue the grounds of appeal in

12     any order they consider suitable for their presentation.  However, I

13     would urge counsel not to repeat or summarise arguments already presented

14     in their briefs with which - please remember - the Appeals Chamber is

15     already very well familiar.

16             I recall that parties are invited to discuss in their oral

17     submissions certain matters set out in the addendum to the Scheduling

18     Order which was issued on 4th December 2015.  For the sake of clarity, I

19     ask that parties indicate which issues they are at the beginning of their

20     submissions.

21             Furthermore, the parties are invited to provide precise

22     references to material supporting their oral submissions.

23             I would also like to recall that this appeal is not a trial de

24     novo and the parties must refrain from repeating their cases which were

25     presented at trial.  Arguments must be limited to alleged errors of law

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 1     which invalidate the trial judgement or alleged errors of fact which

 2     occasion a miscarriage of justice.

 3             Finally, I would like to remind the parties to be particularly

 4     careful not to reveal any information that could identify a protected

 5     witness or other protected information or material.

 6             I will now turn to today's timetable.  As set out in the Appeals

 7     Chamber decision on the Prosecution urgent motion to revise the timetable

 8     for the appeal hearing of 11 December, we will proceed as follows:

 9             First, we will hear submissions from counsel for Mr. Stanisic for

10     a total of one hour and 35 minutes.  Then we will continue with the

11     Prosecution's response for 15 minutes.  After a pause of 20 minutes, we

12     will resume for the remainder of the Prosecution's response for 45

13     minutes, which will be followed by Mr. Stanisic's reply for 20 minutes.

14     We will then proceed with submissions for Mr. Zupljanin for 55 minutes

15     and we will break for lunch at five minutes past 1.00.

16             We will resume at ten minutes past 2.00 to hear the remainder of

17     Mr. Zupljanin's submission for another 40 minutes and then hear the

18     Prosecution's response for 60 minutes.  After that, Mr. Zupljanin will

19     have the opportunity to reply for 20 minutes and we will take a break for

20     25 minutes.  We will then resume at 4.35 in the afternoon to hear the

21     Prosecution's submissions for 40 minutes and the responses of the legal

22     teams for Mr. Stanisic and Mr. Zupljanin for 20 minutes each.  After

23     that, the Prosecution will have 15 minutes to reply to these responses.

24             Lastly, it is customary for the Appeals Chamber to give an

25     opportunity to appellants to make a personal address to the Appeals

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 1     Chamber if they so wish.  Hence, at the end of this hearing, both

 2     Mr. Stanisic and Mr. Zupljanin will have ten minutes each for a personal

 3     address if they wish to do so.

 4             I wish to remind the parties that the Judges may interrupt them

 5     at any time to ask questions and may ask questions themselves following

 6     each of their submissions or at the end of the hearing, depending on what

 7     we think is best at any given time.

 8             We will now immediately move to hear submissions by

 9     Mr. Stanisic's team.  We will be checking the time based on the clock in

10     this courtroom, so you're starting at approximately five minutes past

11     9.00.  Thank you.

12             And, Mr. Zecevic, please go ahead.

13             MR. ZECEVIC:  Thank you.

14             Good morning, Mr. President.  Good morning, Honourable Judges.  I

15     have the honour to begin the presentation of our oral submission on

16     behalf of Mr. Stanisic in respect of his appeal against his conviction.

17     We have limited time so the introduction will be brief.  You have heard

18     this one before, I am sure, but I have to say it:  Mico Stanisic's case

19     is unique.  It is --

20             JUDGE AGIUS:  One moment.  I noticed that on one monitor we are

21     receiving the transcript.  On the other one, which is the LiveNote, I

22     think, the e-court, we are not.  Yes, I think in the meantime we can

23     continue because I am sure this can be recovered, but it's for the

24     technicians, wherever they are.

25             Okay, Mr. Zecevic, my apologies to you.  Please go ahead.

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 1             MR. ZECEVIC:  No, it's okay.  I understand, Your Honour.

 2             Your Honour, we have a PowerPoint presentation which is following

 3     what I'm saying.  I hope the Judges are -- Your Honours are receiving

 4     that.

 5             JUDGE AGIUS:  That should be here.  Yes.  I have it and my

 6     colleagues -- press e-court on the left-hand side.

 7             Yes, you may proceed because if I have it, my colleagues have it

 8     as well.

 9             MR. ZECEVIC:  Thank you very much, Mr. President.

10             As I was saying, Mico Stanisic's case is unique.  It is unique

11     due to the situation involving Judge Harhoff, one of the Trial Judges,

12     who in June 2013 displayed a reasonable apprehension of bias in favour of

13     conviction which impacts the Trial Chamber judgement of 27 March 2013.

14     It is also unique due to the position of Minister of Interior held by

15     Mr. Stanisic, who was a part of the government, some members of which

16     were involved in a joint criminal enterprise to forcibly transfer and

17     deport Muslims and Croats from --

18             THE INTERPRETER:  All other microphones in the courtroom, please

19     off.

20             MR. ZECEVIC:  A joint criminal enterprise to forcibly transfer

21     and deport Muslims and Croats from territories of BiH.  It is unique

22     because Mico Stanisic was found to have contributed to the JCE, not on

23     the basis of any specific act, but rather because he failed to take

24     sufficient action to investigate and prosecute crimes against Muslims and

25     Croats.

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 1             In our respectful submission, this is a first.

 2             It follows, Mr. President, that the context of this case is of

 3     the utmost importance, even at the appeals stage.  The manner in which

 4     this case was conducted is also important.  Mico Stanisic surrendered on

 5     11 March 2005, as soon as he was informed of the indictment; consented to

 6     a detailed interview conducted by the Prosecution before the beginning of

 7     the trial; conducted his trial in line with the information he provided

 8     to the Prosecution during his interview before trial; presented his

 9     closing argument in conformity with the information he provided to the

10     Prosecution during his interview before the trial; has been in jeopardy

11     for a period of more than ten years.

12             Our submission today will be presented according to the following

13     outline:

14             Part 1, under A, Judge Fred Harhoff's electronic correspondence

15     addressed to 56 "friends" raises a reasonable apprehension of bias, which

16     invalidates Mico Stanisic's convictions entered for Counts 1, 4, and 6.

17             B:  Response to Appeals Chamber's preliminary questions under (i)

18     and (ii).

19             Part 2:  A, response to question 1(i) posed by the Appeals

20     Chamber; B, response to question 1(ii) posed by the Appeals Chamber; C,

21     response to question 2 posed by the Appeals Chamber; and D, response to

22     question 1(ii) and 3 posed by the Appeals Chamber.  At the end you will

23     hear our concluding remarks.

24             I now turn, Your Honours, over the floor to my colleague, who

25     will address you concerning the first part of our submission.  Thank you

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 1     very much.

 2             JUDGE AGIUS:  Yes, Mr. Bourgon.

 3             MR. BOURGON:  Thank you, Mr. President.  Good morning.  Good

 4     morning, Honourable Judges.  It is both an honour and a privilege to

 5     appear before you this morning to deliver arguments on behalf of Mico

 6     Stanisic.

 7             Part 1 of our submissions has to do with the matter involving

 8     Judge Harhoff.  Mr. President, the reasonable apprehension of bias on the

 9     part of Judge Frederik Harhoff which arises from his mail, his e-mail,

10     addressed to 56 friends is a highly sensitive issue.  We take no

11     pleasure, Mr. President, in arguing this issue before the Appeals Chamber

12     this morning.  However, in light of the potential consequences for Mico

13     Stanisic himself in the first place but also for the ICTY, and also as a

14     result of the impact for international criminal justice as a whole, it is

15     in the interests of justice for us to respectfully but, at the same time,

16     openly and thoroughly present our arguments.

17             My submissions this morning on this issue will be presented under

18     five headings, as follows:

19             I will first address the letter itself or the e-mail and the

20     effect it produces in this case, that is, in the proceedings against Mico

21     Stanisic.  This was addressed in our additional appellant's brief in

22     section B (ii) in pages 13 to 19.  I will then address the rebuttal

23     material which has been admitted in respect of this issue.  And in the

24     third place, I will explain why the decision rendered by the Specially

25     Convened Chamber in the Seselj proceedings - I'm referring here to the

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 1     first decision as well as the decision on reconsideration - I will

 2     explain why these decisions are relevant and are probative in

 3     establishing a reasonable apprehension of bias on the part of Judge

 4     Harhoff in this case.

 5             I will then answer, of course, the first question posed by the

 6     Appeals Chamber and I will answer this question - no surprise to you - in

 7     the affirmative.  I will explain why the participation of Judge Frederik

 8     Harhoff in Mico Stanisic's proceedings invalidates the convictions

 9     entered against him.  I will also argue in this section that the proper

10     remedy for such a violation in the circumstances of this case is no less

11     than a stay of proceedings or, in French, "arrêt du procédure."

12             Lastly, I will answer the second question posed by the Appeals

13     Chamber in respect of this issue.

14             Before moving on to these five arguments, Mr. President, I deem

15     important to make some preliminary observations, which I believe are of

16     the highest importance in determining whether the e-mail addressed by

17     Judge Harhoff to 56 friends reveals, indeed, a reasonable apprehension of

18     bias, again in the context of this case.

19             My first preliminary observation has to do with the importance,

20     the fundamental importance of the right of an accused to be tried by

21     independent and impartial Judges, of course by an independent and

22     impartial Chamber composed of three Judges.  It's an issue of trust,

23     Mr. President.  Impartiality of the Judges is the most important aspect

24     of the justice system.  If there is no trust, if there is no trust in one

25     Judge in respect of a particular case, if it appears that the Judge was

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 1     not impartial to the reasonable observer - I will come back to that -

 2     there is no justice, proceedings must be invalidated.

 3             The obligation vested in the Trial Chamber to ensure the proper

 4     administration of justice, of course it's very well-known, Mr. President,

 5     justice must be done but justice must be seen to be done.

 6             My second preliminary observation has to do with the presumption

 7     of impartiality, which attaches to Judges and also the fact that this

 8     presumption is, indeed, important and is also very strong and not easy to

 9     rebut.  We fully acknowledge the strength and the importance of this

10     presumption; however, we also submit respectfully that the Appeals

11     Chamber must not hesitate a minute.  When a reasonable appearance of bias

12     on the part of a Judge is established, measures must be taken to

13     re-establish the confidence of the public in the administration of

14     justice.  In respect of a single accused, measure must be taken to

15     correct the violation of his fundamental right.

16             My third preliminary observation of course is based on the first

17     two because I'd like to say a quick word as to why we took the position

18     before this hearing this morning of filing many submissions to try and

19     get this matter adjudicated earlier.

20             Mr. President, there is no hiding the fact that the publication

21     of Judge Harhoff's letter in the Danish newspaper on 13 June shook the

22     Tribunal, and a decision rendered by the Specially Convened Chamber even

23     more so.  I weigh my words here.  It might have shook the Tribunal, but

24     it certainly did not shock the Tribunal.

25             The finding of the Specially Convened Chamber found that - that's

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 1     the reading of the finding itself:

 2             "By referring to a 'set practice' of convicting accused persons

 3     without reference to an evaluation of the evidence in each individual

 4     case, the Majority, Judge Liu dissenting, considers that there are

 5     grounds for concluding that a reasonable observer, properly informed,

 6     would reasonably apprehend bias on the part of Judge Harhoff" - and here

 7     the words are important - "in favour of conviction.  This includes for

 8     the purposes of the present case."

 9             The specially convened Chamber's majority went on to say:

10             "This appearance of bias is further compounded by Judge Harhoff's

11     statement that he is confronted by a professional and moral dilemma,

12     which in the view of the Majority, is a clear reference to his difficulty

13     in applying the current jurisprudence of this Tribunal.  In the

14     circumstances" of this case "the Majority considers" Judge Liu dissenting

15     "that the Letter, when read as a whole, rebuts the presumption of

16     impartiality."

17             This is an unprecedented finding.  We have done a lot of research

18     into this area.  We have all heard the expression "convicting judge"

19     before.  We have all heard the expression "judge shopping" before.  But

20     this is way beyond the use of such terms that sometimes we hear

21     unfortunately in the legal profession.  When a judge is found to display

22     an appearance of bias in favour of conviction, it must produce results,

23     not only on the cases on which he is sitting, but it must also be dealt

24     with.

25             The ongoing impact of this finding on the legacy of the ICTY has

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 1     yet to be fully assessed.  Personally, as a Defence counsel for many

 2     years, with my past that is very well-known when I used to be the Chef de

 3     Cabinet for the President and I worked closely with the Judges, everyone

 4     knows how important for me the work of the Judges is and how much I

 5     respect the function of the Judges.  But to me this letter has

 6     devastating consequences on the trust of the public.  Of course that's

 7     not the issue today.  The issue today is what does it do for

 8     Mr. Stanisic.  That's what I will address.

 9             Because of the decision that came out in the Prosecutor versus

10     Seselj, we have insisted to have the matter adjudicated because of course

11     the appearance of bias is based on the same letter and, as I will argue

12     later, there are very few differences between what happened in the Seselj

13     case and in this case.  Of course the Appeals Chamber has decided to deal

14     with this issue on appeal.  We are here today and this is what I will do.

15             Nonetheless, we insist on the fact that the Appeals Chamber must

16     first consider this ground of appeal before moving to part 2 of our

17     appeal.  If this ground of appeal should be retained by the Appeals

18     Chamber, in our respectful submission, there's no need to go further that

19     we even address the other grounds.  If this ground should not be retained

20     by the Appeals Chamber, then of course we move on to part 2 of our

21     appeal.  But even in part 2 of our appeal, the words of Judge Harhoff

22     regarding, for example, his understanding that we can convict in the

23     framework of a joint criminal enterprise on the basis of knowledge, these

24     words also would be relevant for the second part of the appeal.

25             Let me begin with my arguments and by quickly going over the

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 1     reasonable observer test.  Pursuant to the case law of the ICTY, a judge

 2     is disqualified if there is a showing of actual bias or of an

 3     unacceptable appearance of bias.  And many cases, I refer to Prosecutor

 4     versus Delalic, Prosecutor versus Milosevic, Prosecutor versus

 5     Furundzija, I think that was the first time this test was laid out, where

 6     we have the following:  An unacceptable appearance of bias exists if the

 7     circumstances would lead a reasonable observer, properly informed, to

 8     reasonably apprehend bias.  This is commonly known as the reasonable

 9     observer test.

10             So what is a reasonable observer?  Well, this term has been

11     defined as:

12             "... an informed person, with knowledge of all relevant

13     circumstances, including" as was pointed out by Judge Liu in his

14     dissenting opinion "knowledge of all the relevant circumstances including

15     the traditions of integrity and impartiality that form a part of the

16     background."

17             For us the essential elements of this reasonable observer test

18     are the following:  We require a reasonable person, a person that is

19     properly informed of all relevant circumstances - and I will cover that -

20     and was aware of the traditions of integrity and impartiality, but the

21     reasonable observer on the basis of all circumstances will conclude on

22     the existence of an unacceptable appearance of bias.

23             We personally have a problem with the word "unacceptable."  We

24     believe it doesn't fit in that definition at all because whether it is

25     actual bias or appearance of bias, both are unacceptable.  I think what

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 1     was meant by the word "unacceptable" is what we refer to as a double

 2     objective test.  The real issue is that the conclusion on the existence

 3     of appearance of bias must be a reasonable one.  This is the position

 4     adopted by the Supreme Court of Canada, who has defined apprehension of

 5     bias as follows:  "... must be a reasonable one held by a reasonable and

 6     right-minded person, applying themselves to the question and obtaining

 7     thereon the required information ..."

 8             The test contains a two-fold objective element:  The person

 9     considering the alleged bias must be reasonable and the apprehension of

10     bias itself must also be reasonable, albeit in the circumstances of this

11     case.

12             The question is whether a reasonable observer, putting his mind

13     to the letter or to the e-mail of Judge Harhoff, fully informed of the

14     context, would conclude on the existence of a reasonable apprehension of

15     bias on the part of Judge Harhoff in this case.  In this regard we take

16     full notice of the separate opinion of Judge Afande which was appended to

17     the decision on reconsideration of our motion for mistrial.

18             The issue itself, the letter, does it reveal a reasonable

19     apprehension of bias on the part of Judge Harhoff?  And the question at

20     the end of the day is:  Would it be more likely than not that Judge

21     Harhoff carried this bias when adjudicating the proceedings against Mico

22     Stanisic?  At the end of the day, this is the question, we say, the

23     Appeals Chamber must address.

24             Let us take a look at the context.  What do we have?  Well, we

25     have a Judge of the international Tribunal, a Judge who has been a

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 1     professor of law, who has a concrete and known legal background.  This

 2     Judge has previously worked as a Senior Legal Officer in Chambers of the

 3     same Tribunal.  This Judge has been a Judge for six years.  To the point

 4     of writing the letter, he has been involved in five cases before the

 5     ICTY.  We look at the cases including Prosecutor versus Milosevic, that's

 6     Dragomir; we look at the case Prosecutor versus Delic, in which he was a

 7     Trial Judge; we look at the case of Prosecutor versus Seselj; Prosecutor

 8     versus Djordjevic, in which he was a Pre-Trial Judge but then was not on

 9     the trial; and finally this case, the case of Mico Stanisic and

10     Zupljanin.

11             These cases deal with either command responsibility and joint

12     criminal enterprise and aiding and abetting.  These cases, at least the

13     three cases and the cases in which decisions were rendered, the results

14     were guilty findings.  Nothing wrong with a guilty finding, but of course

15     we still have to note that in the cases in which he was involved which

16     referred to issues in the letter, these cases ended up with a finding of

17     guilt.  It's just a fact, nothing more.

18             The problem, Mr. President, is not the fact that Judge Frederik

19     Harhoff reacted to certain judgements; rather, it's the problem in the

20     manner in which he reacted to certain judgements, because those are the

21     cases in which he was involved.  But the context of the letter is when he

22     gains information concerning two judgements rendered by his peers.

23             What judgements are we talking about?  We're talking about,

24     first, the Perisic judgement, then the Gotovina judgement, and finally a

25     judgement rendered by the Trial Chamber in Stanisic and Simatovic.

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 1     That's the context.  He gains information concerning these judgements.

 2     He reads media articles related to these judgements.  The Trial Chamber

 3     issues -- having read these media articles related to these judgements,

 4     he reacts to the situation.  So the mail is a reaction to these three

 5     decisions, two by the Appeals Chamber and one by a Trial Chamber.

 6             The problem is not that he reacted.  After all, I mean Judges are

 7     expected to take stock of judgements issued by their peers, if only as a

 8     matter of professional development.  That's not the problem.  The problem

 9     is the manner in which he reacted and what the manner in which he reacted

10     reveals.  In our submission, the manner in which he reacted reveals,

11     beyond any doubt, at a minimum, a reasonable apprehension of bias in

12     favour of convicting any leader or accused leader having knowledge of the

13     crimes committed in the framework of a common goal.  Those are his words

14     and this is what the letter sends as a message.

15             It is also our respectful submission that Mico Stanisic, as

16     minister of the interior, accused of being a member of a joint criminal

17     enterprise involving ethnic cleansing, which is mentioned in the letter,

18     and having contributed to furthering this JCE - that's the finding - is

19     specifically included in the category of persons likely to be convicted

20     as a result of Judge Harhoff's predisposition, whether in appearance or

21     in reality, regardless of the evidence put forward.

22             Judge Harhoff admits in his letter, "In all the courts I have

23     worked in here, I have always presumed that it was right ..." - I insist

24     on the word "right" because in his memo he will use a different word, in

25     his explaining memo - "to convict leaders for the crimes committed with

Page 80

 1     their knowledge within the framework of a common goal."  He's referring

 2     to joint criminal enterprise and he says it's right to convict them on

 3     the basis of their knowledge of crimes.  And then he explains why, but

 4     that explanation only serves to explain that he's willing to convict on

 5     the basis of knowledge.

 6             Now, how does Judge Harhoff react?  Well, we learned from the

 7     letter that first he sent the two articles, two media articles, that I

 8     will talk about later, and he sends these two articles to a group of 56

 9     so-called friends.  We don't know who these 56 people are and we do not

10     have any content of the e-mail which covered or accompanied these two

11     articles.  But we learned from the letter that his apparent aim is to add

12     what he calls a few personal comments to his earlier e-mail, which in and

13     of itself does not appear to be a problem.  He circulates two media

14     articles and then he wants to give a few personal comments.

15             Of course, it does appear odd that we say for a Judge to share

16     with 56 friends the deep concern which he says is shared by his

17     colleagues in Chambers.  But I don't think that this raises the

18     apprehension of bias.  But then he refers to the set practice.  He begins

19     by describing what in his view was the existing situation at the Tribunal

20     until autumn 2012.  He describes the situation as a "... set practice at

21     the court that military commanders were held responsible for war crimes

22     that their subordinates committed during the war ...", set practice as

23     mentioned by the Specially Convened Chamber, no reference to the

24     evidence.

25             This is definitely problematic.  This is especially the case when

Page 81

 1     you read this paragraph in conjunction with a later paragraph which reads

 2     as follows:

 3             "In all the courts I have worked in here, I have always presumed

 4     that it was right to convict leaders for the crimes committed within

 5     their knowledge within a framework of a common goal."

 6             Judge Harhoff's admission refers to JCE liability and it reveals

 7     to us a predisposition to convict leaders on the basis of their

 8     knowledge, regardless of the law applicable, which always requires that

 9     members of a JCE -- always required, sorry, that members of a JCE

10     intended to further the common goal.  He refers to a change in the

11     practice.  He highlights what he perceives to be a change in the

12     practice.  A change for the worse, according to him, was implemented by

13     the Appeals Chamber in these two judgements:  Gotovina case, three

14     Croatian generals, trial judgement 15 April 2011, but the appeals 16

15     November 2012.  He refers to the Perisic case and then he refers to

16     Jovica Stanisic and Franko Simatovic case.  In the latter, of course, he

17     uses a word that is not even used in the media article where he talks

18     about Simatovic and his, I think -- the henchman of Jovica Stanisic.

19             Judge Harhoff does not make any comments on the Prlic case issued

20     immediately prior to the Jovica Stanisic case which ended up in the

21     conviction of six Croatian generals or high-level officials.  In the

22     letter he makes clear his dissatisfaction with this perceived change.

23             In our submission, Judges should refrain from publicly

24     criticising judgements rendered by colleagues.  Nonetheless, this has

25     happened before and there has been no allegation of bias, as far as we

Page 82

 1     know, that gave rise to allegations of apprehension of bias.  The

 2     situation here is wholly different.  Judge Harhoff's criticism is driven

 3     by a frustration that the set -- that as a result of these judgements,

 4     the set practice of holding commanders responsible for their crimes on

 5     the basis of knowledge is a thing of the past.  Judge Harhoff

 6     specifically mentions in his letter the following:

 7             "The result is ... not only that the court has taken a

 8     significant step back from the lesson that commanding military leaders

 9     have to take responsibility for their subordinates ..." and then he

10     says "... unless it can be proven that they knew nothing about it) - but

11     also that the theory of responsibility" - that's where it hurts - "under

12     the specific 'joint criminal enterprise' has now been reduced from

13     contribution to crimes (in some way or another) to demanding a direct

14     intention to commit crime (and so not just acceptance of the crimes being

15     committed."  And then he says, "Most of the cases will lead to commanding

16     officers walking free from here on."

17             I mean, the reasonable observer reading this sentence clearly

18     understands what Judge Harhoff is referring to, and Judge Harhoff goes

19     further by his subsequent comment:

20             "How do we explain to the thousands of victims that the Court is

21     no longer able to convict the participants in the joint criminal

22     enterprise unless the Judges can justify that the participants in their

23     common goal actively and with direct intent contributed to the crimes?"

24             And then he refers to his -- again he goes on to say:

25             "Until now we have convicted these participants who in one way or

Page 83

 1     another showed that they agreed ..." and then of course he gives the

 2     example "to eradicate the non-Serbian population from areas the Serbians

 3     had deemed cleaned, as well as in one way or another achieved or

 4     contributed to achieving the goal."  But then where it says:  "Without

 5     having to prove that they had a direct intention to commit every single

 6     crime to achieve it ..."

 7             Not only is he frustrated, he says, how can we explain that we

 8     can't convict anymore?  It's not true that we can't convict; it's not

 9     true that there was a set practice.  But his understanding of the law and

10     the way he applied it based on his predisposition, of course, is

11     displayed in the letter.  Taking into consideration that there has been

12     no change in the law applicable to JCE mode of liability, that is more

13     than troubling.

14             More importantly, for a Judge who has admitted having always

15     presumed that it was right to convict leaders for the crimes committed

16     with their knowledge, of course within the framework of a common goal,

17     this plainly reveals a predisposition to convict leaders on the basis of

18     their knowledge, in contravention of the applicable law before the

19     Tribunal.

20             Such a predisposition, which in our view establishes a reasonable

21     apprehension of bias, is compounded by his statement:

22             "The latest judgements here have brought me a deep professional

23     and moral dilemma, not previously faced.  The worst of it is the

24     suspicion that some of my colleagues have been behind a short-sighted

25     political pressure that completely changes the premises of my work in my

Page 84

 1     service to wisdom and the law."

 2             In our submission, Judge Harhoff makes it clear that he disagrees

 3     with the law applicable with the international tribunal, including in

 4     respect of the JCE mode of liability applicable to this case and that he

 5     is struggling with the manner in which he should react.

 6             Turning to the reasonable observer, what would he make of the

 7     manner in which Judge Harhoff reacted to the situation arising from this,

 8     the two judgements, of course, and the one trial judgement rendered

 9     during the period during 16 November 2012 until 30 May 2013?

10             Well, first the reasonable observer would note that Mico

11     Stanisic, in his capacity as minister of the interior, is definitely

12     included in the category of leaders discussed specifically in Judge

13     Harhoff's letter.

14             Second, the reasonable observer would note that Mico Stanisic was

15     charged pursuant to JCE.

16             Third, the reasonable observer would note that the JCE alleged in

17     the indictment includes crimes linked to the removal of the non-Serbian

18     population which is referred in the letter.  He would note, that is, the

19     reasonable observer, that Mico Stanisic was convicted by a Bench of three

20     Judges, that Mico Stanisic was convicted on the basis of the JCE mode of

21     liability.  He would know that the trial judgement against Mico Stanisic

22     was rendered on 27 March, 71 days before Judge Harhoff's letter was made

23     public on 13 June 2013.  He would know that Judge Harhoff's letter to 56

24     friends, considering the context in which it was drafted and published,

25     reveals a reasonable apprehension of bias in favour of convicting leaders

Page 85

 1     on the basis of knowledge, and he would note that Judge Harhoff was

 2     labouring at the time on the professional and moral dilemma, that is, at

 3     the minimum during the period during which he was deliberating in this

 4     case.

 5             Judge Harhoff's letter reveals, in our respectful submission, a

 6     reasonable apprehension of bias, that is, that Judge Harhoff, while

 7     sitting as a Judge in the trial of Mico Stanisic at least, at the

 8     minimum, in appearance, did not decide fairly, to refer to my earlier

 9     quote.

10             I did not address in these submissions the allegations made by

11     Judge Harhoff against other Judges of the Tribunal, including the

12     President, Judge Meron; including Judge Orie; the Judge from Zimbabwe;

13     and also with Judge Guney, which in our submission strengthen Judge

14     Harhoff's willingness to convict, in addition to hurting the legacy of

15     the international Tribunal in an incommensurable way.

16             Part 2, let's look at the rebuttal material.  The case law makes

17     it clear that the reasonable observer test rests on the premise that the

18     reasonable observer is properly informed.  He must be fully apprised of

19     all relevant information that might impact his assessment, including of

20     course the context.  In relation to the context, I described the context.

21     Today I will limit my submissions to the rebuttal material which was

22     admitted at the request of the Prosecution, the memorandum from Judge

23     Harhoff and the two media articles.

24             The first article is in The Economist, published on the 1st of

25     June.  It talks mainly about two judgements, Prlic, first, and talks

Page 86

 1     about JCE but very -- in passing; and then talks about Stanisic and

 2     Simatovic and focuses on the specific direction criteria for aiding and

 3     abetting.  It also mentions briefly Perisic, also specific direction

 4     criteria for aiding and abetting.  It mentions Haradinaj, who was

 5     acquitted on a re-trial.  And it mentions Gotovina, who was acquitted on

 6     appeal.  It appears, according to the article, that the population is

 7     shocked by the judgements previously mentioned.

 8             So what can we draw from this first article, that it looks at the

 9     Tribunal case law over the past two years and says:  Wow, something is

10     happening there.

11             Okay.  Second article, New York Times, published immediately on

12     the 2nd of June.  Of course we know that this article is written by Eric

13     Corney, a professor of politics who also does sociology, and was cited in

14     the first article.  He talks about the acquittal of Stanisic and

15     Simatovic and he calls it a dramatic reversal, and he talks about the

16     same thing, that the population has questions about these acquittals.  He

17     mentions briefly joint criminal enterprise and the criteria of mens rea.

18     He talks about aiding and abetting mostly and he talks about specific

19     directive.

20             These two articles, the Appeals Chamber has already said, would

21     help in evaluating the context.  Well, we described the context.  There

22     is criticism out there about decisions rendered by a lot of people.  So

23     the reasonable observer would look at these articles and he would say:

24     Yeah, that might have prompted Judge Harhoff to react.  But as mentioned

25     earlier, it's not his reaction that is important; it's the manner in

Page 87

 1     which he reacted.

 2             Judge Harhoff's memorandum is much more important.  The timing of

 3     the memorandum is not so much important, because albeit he reacted when

 4     he was given an opportunity, pursuant to Rule 15(B), in the Seselj

 5     proceedings.  That's when Judge Harhoff reacted officially, at least from

 6     what's on the record.  So the timing, the fact that he waited, is

 7     important but is not so important.

 8             What is sure is that he had a lot of time to think about it

 9     before giving his opinion to Judge Antonetti, the Presiding Judge in the

10     Seselj proceedings.  That e-mail is sent to the same 56 people from the

11     first mail with the two articles and it is leaked to the press.

12             Now, Judge Harhoff makes a big issue of the fact that it wasn't

13     intended to be public.  We say that's beside the point.  When a Judge

14     writes to 56 persons in an e-mail in today's world, he definitely accepts

15     the risk that his views will become public.  And once they are public,

16     that is beyond the point.

17             What is important is the appearance displayed by this article in

18     the public.  He says:  The fact that I did not say certainly does not

19     imply that I have abandoned the requirement of the evidence.  Well, it's

20     nice to say after the fact, but what the people read is what was in the

21     letter.  He said:  I did not abandon the requirement to assess all the

22     facts.  Very nice to say in defence, but that should have been in his

23     letter if that's what he means.

24             The change in the conditions for criminal responsibility, it's

25     wholly significant because there has been no change.  There has been no

Page 88

 1     further requirements in Gotovina, unlike what he says in his memo.  He

 2     explains in the part on the perceived bias - and that's the most part of

 3     his memo - he explains his remark that he has always found it just - I

 4     refer to the actual e-mail which said "right".

 5             First, he said if you convict under JCE on the basis of

 6     knowledge, clearly you have abandoned the normal mens rea requirement,

 7     contrary to what he says.  On the part of a Judge with his legal

 8     background, not correct.  A new practice would require more than just a

 9     degree, he says, of -- a higher degree of intent.  Incorrect.  Even in

10     his memo, the way he approaches the law is incorrect.

11             Again, he says in his memo:  "It might make it very difficult to

12     convict superior military commanders, may not only make it almost

13     impossible to convict generals in the future," but yet there was no

14     change.  So even in his memo he does not correct his predisposition to

15     convict.

16             He adds a little later:

17             "I've always rendered my judgements in confidence that superior

18     commanders would come to realise at some point that the common plan to

19     forcibly evict 'others' from 'own areas' contradicts a fundamental order

20     in life ..."

21             I'm sorry to say but this gives an impression that the man is on

22     a mission, he's on a mission to convict.  They will come to realise --

23     I'm going to convict them on the basis of knowledge and I'm sure they'll

24     come to realise that what they did is wrong, once they sit in a jail.

25     That's the impression.  I'm not saying this is what Judge Harhoff

Page 89

 1     believes, but that's certainly the impression we get.  He says it's a

 2     moral and political statement and not a legal position.  That does not

 3     match the context.  The context must be read in the complete reading of

 4     his letter and his statement that he always saw it right to convict on

 5     the basis of knowledge.  It's not possible that a reasonable observer

 6     would miss this.

 7             Lastly, the last comment is very important when it talks about

 8     the dilemma, and I'll just mention -- I draw your attention to that

 9     paragraph, but I want you to look at the difference in what he says in

10     his memo and what he said in his e-mail.  Clearly in the memo he is

11     labouring under this dilemma.  Suddenly in his memo, because he very well

12     knows the appearance he gave in his letter, so he backtracks and he tries

13     to explain, and then he said "the dilemma I would be under."  So from

14     being under a dilemma for some time, now he might or would be in a

15     dilemma if he finds out that there is international or outside

16     interference.  His attempt just to change this paragraph in itself is

17     revealing.

18             The Seselj decision, part 3.  The letter was published on the 13

19     June.  Seselj reacted, the first one, on 1 June, although we never learn

20     of it until the 9th of -- he reacted on 1 July, sorry, and it only became

21     public on 9 July because of translation issues.  Mico Stanisic

22     immediately reacted or in the same time-frame on the 2nd of July.  On the

23     20th of June, Delic also reacted.  Zupljanin reacted soon after.  The

24     fact that four accused, either being tried or having been tried, reacted

25     soon after publication of Judge Harhoff is a fact that the reasonable

Page 90

 1     observer would not miss.

 2             The Specially Convened Chamber issued its decision, concluding by

 3     majority, that Judge Harhoff has demonstrated a bias in favour of

 4     conviction, and that would be a conclusion of a reasonable observer

 5     properly informed, and found that the presumption of impartiality, no

 6     matter how important it is, has been rebutted.

 7             On 9 September, on the basis of that decision, we immediately

 8     asked for more information to be added to our request to amend our notice

 9     of appeal, and we underscored in there, and I will simply refer to that

10     filing of ours, because we say there, we underscored, the relevance of

11     the decision.

12             We also underscore in there that there is no right of appeal in

13     such decisions.  Why is this so?  Very clear.  Once the cat is out of the

14     bag and there has been a finding on a predisposition to convict, an

15     appearance of bias, an appearance of conviction, it would take a lot to

16     reverse that finding and still be consistent in terms of decisions before

17     this Tribunal.

18             The majority rejected the Prosecution's application for

19     reconsideration and then because of that decision, we thought this

20     decision is now final, we must adjudicate as soon as possible.  Because

21     of the nature and appearance of the bias, that's the reason we acted this

22     way.  If the bias displayed by Judge Harhoff was limited to the Seselj

23     case, if, for example, he had been involved, as in a previous case before

24     the ICTR with an affair in the Prosecution of that case, then of course

25     it would be limited to the case in the Seselj proceedings, even though it

Page 91

 1     might still produce results, but now we're talking about of an appearance

 2     of bias in favour of conviction.

 3             The matter would not have such high probative value if it wasn't

 4     so general and so personally attached to the Judge.  It impacts the

 5     overall impartiality of a Judge in favour of conviction.  We've said many

 6     times, the independence and impartiality of Judges is the absolute

 7     legitimacy of any judicial system.

 8             So is there any difference between that decision and this case?

 9     Yes, there are.  The first one is that this case, the judgement had

10     already been rendered.  But we explain in our submissions that it is

11     evident that the appearance of bias displayed in the letter, it did

12     impact on the proceedings and it did exist at the time he was

13     adjudicating in this case.

14             The second difference, the Specially Convened Chamber appears not

15     to have considered Judge Harhoff's memo and did not consider the two

16     media articles, which is the rebuttal material in this case.  First, I

17     know that that was not a legal mistake because that was what Rule 15(B)

18     provided at the time, so it's not a mistake.  But of course we have two

19     different situations.  You will consider Judge Harhoff's memo and you

20     will consider those two media articles which the Specially Convened

21     Chamber did not.  But even when you consider this material, we

22     respectfully submit that you will come to the conclusion, especially with

23     the issue about the moral dilemma or the dilemma he was labouring under,

24     that you will conclude that the rebuttal material provides a context but

25     highlights and underscores the unacceptable character of the letter.  In

Page 92

 1     our submission this goes way beyond conduct unbecoming of a Judge,

 2     regardless of what that means in terms of what you do with the Judge.

 3     We're talking about an appearance of bias in favour of conviction which

 4     hurts at the heart -- strikes at the heart of the decision against

 5     Mico Stanisic.

 6             I close here saying that in our submission this must lead to

 7     invalidation of the findings entered or convictions entered against

 8     Mico Stanisic.  That's my answer to the first question.  Our answer to

 9     the first question is straightforward.  Because of the right to be

10     judged, to be tried before a Chamber composed of three impartial Judges,

11     which was not the case, the conviction for Counts 1, 4, and 6 must be

12     quashed.  We have explained this in our submissions.

13             What is more important, however, is what do we do next?  We quash

14     the conviction but what?  Well, considering the seriousness of the

15     violation which has nothing to do with Mico Stanisic, considering the

16     importance of the right to be tried by an independent and impartial

17     Tribunal, considering that Mico Stanisic has been in jeopardy for ten

18     years, considering that Mico Stanisic, since he arrived, at least

19     co-operated and at least wanted to provide information which is evidenced

20     by accepting to be interviewed by the Prosecution, for us there's only

21     one possibility:  It's to order a stay of proceedings and to release him

22     forthwith.

23             Now, in our written submissions we have underscored the

24     possibility for Mico Stanisic to be tried de novo.  It's not for us to

25     say whether he should be tried de novo, not for us to argue this way.

Page 93

 1     For us, it's the violation, it's the invalidation and the stay of

 2     proceedings.  If there should be a trial de novo, that's for the

 3     Prosecution to determine whether this is necessary and whether this is in

 4     the interests of justice, and we will react at that time.

 5             The second question posed by the Appeals Chamber, if the Appeals

 6     Chamber finds there's a violation but not sufficient enough to warrant

 7     invalidation of the conviction, this appears to us, Mr. President, to be

 8     a straightforward theoretical question.  It would be - I can't really

 9     find the word - the reaction if we say there has been an unacceptable

10     appearance of bias, it applies to this case, but it's not important

11     enough for the conviction to be invalidated.

12             But you've asked a question so we will respond.  In our view, the

13     only possible remedy in such a case is of course you maintain the

14     conviction but you must reduce the sentence to time served and send him

15     home.  In such a case, the Tribunal maintains the conviction.  I think

16     that might be in the interests of justice, but at least the accused or

17     the convicted person gets full credit for the violation, and it is well

18     noted for the legacy of international criminal justice.

19             Now, we considered of course another possibility.  Maybe we say

20     because of the violation the Appeals Chamber will simply look at the rest

21     of the appeal without taking into consideration what the Judges did, will

22     assess the evidence de novo.  Well, under a normal appeal, certainly the

23     Appeals Chamber can do that and it will look at all the evidence and it

24     will make some determinations de novo.  That has taken place before and

25     that can happen.  Not here.  Why?  Because a lot of the evidence that's

Page 94

 1     on the record is the result of decisions rendered by these three Judges,

 2     which means that the Appeals Chamber would have not only to make a

 3     determination for itself on the basis of the evidence, it would have to

 4     go back all the way to the beginning and start over as if it was a

 5     Chamber of first instance.

 6             This was underscored and highlighted, how difficult an exercise

 7     it can be, by Judge Afande who, of course, talked about replacing Judge

 8     Harhoff in the Seselj proceedings.  We say that the Appeals Chamber

 9     cannot do this because then they would be acting as a Trial Chamber of

10     first instance and, as such, then Mr. Stanisic would be deprived of his

11     right of appeal.  It would be a conviction entered on appeal.  Judge

12     Pocar has underscored this issue many times, albeit in dissenting or

13     separate opinions.

14             This concludes my submissions on Judge Harhoff.  If the Appeals

15     Chamber does not have any questions, I'll move on to the second part that

16     has to do with question 2 -- the first question posed by the Appeals

17     Chamber related to the resubordination of members of the RS MUP.

18             Regarding the first question which reads as follows:

19             "In light of the Trial Chamber's findings in paragraphs 737 to

20     759 and in particular 757 whether the Trial Chamber found that Stanisic

21     was responsible for failing to investigate crimes committed by the police

22     resubordinated to the military."

23             The straightforward answer to this question is yes.  If we look

24     at paragraph 757, the Trial Chamber found that Mico Stanisic failed to

25     act in the same decisive manner with regards to the other crimes, such as

Page 95

 1     unlawful detention and displacement and removal of Muslims, Croats, and

 2     other non-Serb civilians, and the ensuing crimes of killing and inhumane

 3     treatment.

 4             The crimes referred by the Trial Chamber in this paragraph are,

 5     first and foremost, the crimes committed during the take-over of

 6     municipalities, and that was referred to in paragraph 737 of the

 7     judgement.  Second, in paragraph 737 where the crimes are described, the

 8     perpetrators are identified as being MUP and other Serb forces.  This

 9     refers exactly to the situation or the joint action on the RS MUP and the

10     other Serb forces.

11             Now, although the entire section dealing with Mico Stanisic's

12     contribution to the JCE in paragraphs 729 to 756 contains no footnotes,

13     which makes verifying or challenging the Trial Chamber's purported

14     findings virtually impossible.  Nonetheless, in 737 it describes a

15     situation during which RS MUP forces were resubordinated to the military.

16             I draw the Appeals Chamber's attention to paragraphs 740, 743,

17     745, and 750, which makes it clear that this section applies to members

18     of the police who were resubordinated to the military.  In fact, 759 is

19     even more clear.  It attributes responsibility to Mico Stanisic for

20     taking insufficient action to put an end to the crimes mentioned

21     previously and permitted RS MUP forces to continue participating in joint

22     operations in the municipalities with other Serb forces.

23             So that's the answer to the Appeals Chamber's questions, but what

24     then?  That's much more important.  This is paramount to the consequences

25     of the findings, and I draw the Appeals Chamber's attention to paragraph

Page 96

 1     342, where the Trial Chamber confirmed that it was unable to find whether

 2     the military or the civilians which might have been responsible for the

 3     investigation and prosecution of crimes against Muslims and Croats which

 4     may have been committed by policemen resubordinated to the military.

 5             What is significant was the Trial Chamber's failure to pronounce

 6     on this responsibility to investigate and prosecute is the following:

 7     First, contrary to the Trial Chamber's assertion, this goes way beyond

 8     Article 7(3) of the Statute.

 9             Second, it's incorrect for the Trial Chamber to, on one hand,

10     say, Well, I can't say who's responsible, A or B - B being

11     Mico Stanisic - but then I will ascribe responsibility to Mico Stanisic

12     for failing to prosecute and investigate.  You can't do the two together.

13             Thirdly, and more importantly, the Trial Chamber compounded its

14     own error by using this finding in order to make Mico Stanisic a member

15     of the joint criminal enterprise.  Complete circular reasoning.  This

16     error must be addressed and must lead to invalidation of Counts 1, 4, and

17     6.

18             I move to the next question posed by the Appeals Chamber.  That's

19     the second part of the first question dealing of course with mens rea,

20     but in light of failure to provide a reasoned opinion, and of course to

21     the third question, as of when did -- or if the Trial Chamber identified

22     as of when Mico Stanisic formed the necessary mens rea for the joint

23     criminal enterprise.

24             The Trial Chamber's findings with respect to mens rea of

25     Mico Stanisic are found in 766 to 769, merely four or five paragraphs.

Page 97

 1     As argued in our submissions - and I will not repeat our submissions - we

 2     believe the Trial Chamber erred in drawing the inference that

 3     Mico Stanisic shared a mens rea.

 4             Let me begin by talking about inference.  I don't want to

 5     belabour the point.  The Appeals Chamber is well aware of the applicable

 6     law.  But there are a number of errors which strikes at the heart of the

 7     Trial Chamber's drawing of this inference, and it has to do with the law

 8     applicable to the drawing of inferences in the absence, of course, of

 9     direct evidence.

10             It's clearly established, first, that in order to draw an

11     inference, the finding must be made about consideration of the totality

12     of the evidence on the record.  Second, the inference drawn from the

13     totality of the inference on the record must be the only reasonable and

14     logical conclusion that can be drawn in the circumstances.  I draw your

15     attention to Prosecutor versus Vasiljevic and Prosecutor versus Oric, but

16     this can be found in many other places in the case law.

17             It is our respectful submission that this is not what the

18     Trial Chamber did.  It did not follow this law.  Indeed, first, it

19     rests -- the inference drawn by the Trial Chamber rests on an incomplete

20     evaluation of the evidence available.  In some cases the Trial Chamber

21     did not even refer to relevant evidence.  I just give you one example,

22     Mr. President, a report sent to Karadzic on the 17th of July, 1992,

23     Exhibit P427.8.  Nowhere to be seen in the judgement.  In our view,

24     highly relevant.

25             In other cases, the Chamber referred to certain exhibits, for

Page 98

 1     example, some of the orders issued by Mico Stanisic, but it did not

 2     consider these orders in drawing the impugned reference.

 3             For example, an order issued on the 23rd of July.  We can look at

 4     paragraph 640 of the judgement:  "Stanisic ordered that legal measures be

 5     taken against all members of MUP who committed crimes since the

 6     establishment of the RS MUP."

 7             Paragraph 664:  "Stanisic ordered all CSB and SJB chiefs to

 8     obtain info on the treatment of prisoners of war and the conditions of

 9     detainees."

10             Paragraph 667:  "An order of 10 August, Stanisic ordered to the

11     chief of Sarajevo, Doboj, Trebinje, Bijeljina, Banja Luka CSBs, stressing

12     that detention should be carried out exclusively within existing

13     regulations."

14             Paragraph 668, "Order of 17 August, Stanisic ordered to CSB

15     chiefs, ordering them to abide by the laws of war and international

16     conventions."

17             These are but a few examples.  The Trial Chamber mentions these

18     orders but does not take them into account in the paragraphs dealing with

19     mens rea.  Had the Chamber considered the totality of the evidence on the

20     record, in particular the numerous measures taken by Mico Stanisic that

21     impeded the implementation of the JCE, it would, in our respectful

22     submission, necessarily have concluded that its finding or its inference

23     that Mico Stanisic shared the required mens rea was certainly not the

24     only reasonable inference available on the evidence.

25             Another possible and, in fact, much more obvious conclusion was

Page 99

 1     that Mico Stanisic adhered to the political, legitimate, political goal

 2     of the Republika Srpska but did not share in any way the mens rea for the

 3     common criminal purpose and the crimes comprised therein.

 4             All of our arguments in this respect are in the appellant's

 5     brief, and today I will only review a few of the most important errors.

 6             In addition to not considering all of the evidence, the Chamber

 7     committed a number of errors of fact.  I refer the Appeals Chamber to the

 8     appellant's brief.  I will highlight only a few of these errors because

 9     they are relevant, but there's many more.

10             Stanisic is a member of the SDS; wrong.  The evidence in this

11     regard can be found at appellant's brief, we give a full description at

12     paragraph 131.  Stanisic is a member of the BSA, the Bosnian Serb

13     Assembly; wrong.  The evidence can be found in the appellant's brief at

14     paragraph 125 with all the necessary evidence.  Stanisic approved of

15     Arkan's actions; wrong.  Stanisic did not approve of Arkan's actions.

16     Reference in our brief at paragraphs 140 to 146.  It is necessary in our

17     view for the Appeals Chamber to look at the evidence of Bjelosevic,

18     confidential; the evidence of Pejic; the evidence of Adnan; the evidence

19     of Davidovic, in particular, to find that the Trial Chamber committed an

20     error of fact in saying that Stanisic approved of Arkan's action.

21             The motivation of Stanisic to arrest the Yellow Wasps was not

22     related to the commission of crimes and Stanisic's real motivation is

23     more linked to petty theft.  Wrong.  This is an error of fact.  Stanisic

24     really opposed the Yellow Wasps.  Two were prosecuted and convicted for

25     war crimes outside of Republika Srpska and the others were found guilty,

Page 100

 1     albeit of lesser crimes.  I refer the Appeals Chamber to the appellant's

 2     brief, paragraphs 413, 417.

 3             These four examples highlight errors of fact committed by the

 4     Trial Chamber.  Had the Trial Chamber not made these numerous errors of

 5     fact, it could not have drawn the impugned inference.

 6             Now, after errors of fact, we need to address the standpoint of

 7     the Trial Chamber before it set out to address the evidence, its going-in

 8     views, its initial conclusions.  There are at least three I wish to

 9     highlight this morning which tainted the appreciation of the evidence by

10     the Trial Chamber.

11             The first one has to do with the Bosnian Serb leadership.  This

12     issue is addressed in our brief under ground 2.  The Chamber erroneously

13     constructed an entity it identified as BSL and it defined this entity as

14     the leading members of the SDS and those who occupied important posts in

15     the RS.  The Trial Chamber goes on to say:

16             "They all share," that is the members of the BSL, so-called BSL,

17     "they all shared and worked toward the same goal under the Bosnian Serb

18     leadership."

19             Now, by taking this view even before looking at the evidence,

20     they arbitrarily created an entity of which Mico Stanisic was evidently

21     and automatically a member of because he's a minister, and then they

22     ascribe to members of this group an intent to work under the same intent

23     under the leadership -- under the Bosnian Serb leadership.  By doing so,

24     they were inclined to find that Mico Stanisic possessed the required

25     mens rea even before looking at the evidence.

Page 101

 1             The second one, the conflation of the legitimate political goal

 2     of the RS, along with the common criminal purpose or the intent to

 3     further the common criminal purpose.  Considering Mico Stanisic's

 4     position as minister, of course he worked within the government and he

 5     had to interact with members of the government.  Some of them were

 6     members of the joint criminal enterprise.  The problem here is that when

 7     assessing the evidence, the Trial Chamber evaluated his conduct within

 8     the framework of a legitimate political goal - he's a minister; he's

 9     working in the government - and they used this to draw conclusions that

10     he shared the intent of the common criminal purpose.

11             It is recognised, of course, actions committed by an accused may

12     serve to infer the intent to contribute to a legitimate political goal,

13     while at the same time establishing the intent of a common criminal

14     purpose.  But there is nonetheless a distinction to be made when you

15     assess the evidence, and that's what the Trial Chamber failed to do when

16     it assessed the evidence.

17             Third and last in the going-in position, the issue of the

18     minority.  I'll make it short.  According to the Trial Chamber, it

19     appears that if you are a Serb, if you are in a high position, then you

20     are BSL, then you worked towards the goal of the joint criminal

21     enterprise.  All of them.  The Trial Chamber identified at some point

22     that there was a majority within the BSL, which of course implies that

23     there was also a minority, but they did not consider the possibility that

24     Mico Stanisic was a member of this minority, which is what we submit the

25     evidence reveals.  But what's important is that they had these views

Page 102

 1     before looking at the evidence.

 2             The next issue is the knowledge criteria.  Well, we go back to

 3     Judge Harhoff but only in part.  It is our submission that the

 4     Trial Chamber drew its inference that Mico Stanisic shared the intent to

 5     further the JCE, but they did so using an incorrect knowledge standard.

 6     It is well established that knowledge of an accused must not be conflated

 7     with the intent of an accused.  Based on knowledge, if an accused has

 8     acted some way, of course you put the two together, you may arrive - may,

 9     not might, may - arrive at an inference, but not just knowledge.  The

10     accused must have acted some way.  Now, this is of the highest importance

11     here because the manner in which he did act is contrary to the mens rea

12     of the JCE.  That underscores the whole problem.

13             When Mico Stanisic did obtain information about the crimes - and

14     he did; it is in the judgement and we acknowledge that - but what did he

15     do when he got the knowledge?  Let's take one example which is a defining

16     moment in the events:  11 July, the first collegium, the first collegium

17     on 11 July 1992 is when Mico Stanisic gains information about large-scale

18     crimes being committed.  What does he do next?  17 July, he reports to

19     Karadzic; 18 July, he writes to Prime Minister Djeric.  The first one was

20     427.8; the second one is P00190.  19 July, he receives a report in

21     relation to the matter, 1D0076.  19 July, he introduces a questionnaire

22     to find out what's going on and he instructs all police forces to report

23     on war crimes.  27 July, he issues the order banning the special police

24     in the SJB and the CSB because they had created some kind of a police

25     without the approval of the minister.  19 September, he issues rules on

Page 103

 1     the disciplinary responsibility of the ministry.

 2             Now, these actions which follows his gaining knowledge shows

 3     that -- at least militates in favour that he did not share the mens rea.

 4     We don't know what consideration the Trial Chamber gave to these orders

 5     in respect of mens rea.  That's also the problem.

 6             In this case the Trial Chamber made it clear that they started to

 7     look at Mico Stanisic's mens rea by looking at his knowledge of crimes

 8     committed.  This is very important, as will be seen in our answer to the

 9     second question, because which crimes and when the crimes were committed

10     is highly relevant to determine when he forms the necessary mens rea.

11     But we don't know.  He gains knowledge of crimes and we don't know what

12     specific crimes at what specific time.

13             JUDGE AGIUS:  Mr. Bourgon, you have ten minutes left.

14             MR. BOURGON:  Thank you.  Is that -- thank you, Mr. President.

15             I move on to the next issue with respect to mens rea which we

16     feel is very important, and this has to do with the actions taken to

17     oppose the paramilitary units everywhere in Bosnia, not just in one area

18     but everywhere.

19             Mico Stanisic's opposition to the use of paramilitary forces cost

20     him big time.  He clashed with Biljana Plavsic and was considered as a

21     traitor.  He put his family in harm's way.  This goes way beyond not

22     being a popular man.  A minister who takes such actions in these

23     circumstances cannot be said to have the intent to further the JCE.

24             Lastly, I look at all the orders on the record that the

25     Trial Chamber might have referred to but did not consider in respect of

Page 104

 1     mens rea.

 2             For all of these reasons, it is clear, in our submission, that

 3     the mens rea of -- the inference that he shared the mens rea is wrong

 4     because it is absolutely not the only reasonable conclusion that can be

 5     drawn on the face of the evidence.

 6             As to the timing, the question of the Appeals Chamber as of when,

 7     there is no finding.  In a case against Zupljanin, there is a date upon

 8     which he would have formed the mens rea.  For Stanisic, there is no such

 9     date.  If we try to find such a date on the basis of the evidence, we

10     cannot find one.  It's not able to establish one, and that is critical.

11     If you cannot identify the date upon which he formed the mens rea, then

12     of course it has a direct bearing on his convictions for Counts 1, 4, and

13     6.

14             This concludes my submissions on respect of mens rea.  I will

15     turn over to my colleague for the last question which is question 2

16     regarding contribution.  Thank you, Mr. President.

17             MR. ZECEVIC:  Thank you, Your Honours.  I'm aware of the time.

18     It wasn't the agreement that we had, but in any case I will try to do my

19     best.

20             Your Honours, I will now address the second component of the

21     first question; namely, identifying the evidence and the Trial Chamber

22     findings undermining the conclusions concerning Stanisic's contribution

23     to the JCE.  The Trial Chamber failed to enter an express finding that

24     Stanisic contributed, let alone significantly contributed, to the JCE.

25             As we don't have enough time, Your Honours, our oral arguments in

Page 105

 1     support of Stanisic's sixth ground of appeal are in written brief.  I

 2     will focus on only the few issues now.  One is the errors of fact and

 3     these are highlighted again in our written submissions.

 4             On this occasion I would only cite four specific examples of the

 5     errors in the judgement.  Error at paragraph 733, the Chamber erred in

 6     finding that from April 1st, 1992, Stanisic made the majority of key

 7     appointments in the RS MUP and had the sole authority to appoint,

 8     discipline, and dismiss chiefs of the CSB and SJB.  Mico Stanisic did not

 9     have the sole authority as, first of all, all these persons had been

10     appointed by BiH Minister Delimustafic and they would have still been

11     appointed had Mr. Stanisic did anything or not.

12             In addition, at the paragraph 695, the Trial Chamber accepted

13     that the rules were amended in September 1992 by Mico Stanisic, and

14     therefore the earliest, on the accepted evidence, the legal reasoning

15     giving Mico Stanisic sole authority to appoint, discipline, and dismiss

16     chiefs, came into force in September 1992.  Your Honours, the reference

17     is Witness Kovac at 27238 of transcript, also paragraphs 14 and 695 of

18     the trial judgement, as well as 1D54.

19             Second error at paragraph 739 is the finding that Karadzic sent a

20     request to Mico Stanisic on 1st of July, and due to this mistake the

21     Trial Chamber attached little weight to Stanisic's statement that the

22     RS MUP was not consulted regarding assignments of RS MUP forces to army

23     for combat tasks.  However, the evidence confirming this error is also in

24     the judgement in paragraph 591 which shows that Karadzic actually ordered

25     Mr. Stanisic as a supreme commander and subsequently Stanisic requested

Page 106

 1     for their return.  The evidence is 1D99, 1D100, and Witness Borovcanin's

 2     testimony.

 3             Your Honours, I move now to the other issue that permeates this

 4     judgement.  There is a problem with the identification of specific acts.

 5     Indeed, the Trial Chamber fails to identify any specific act attributed

 6     to Stanisic through which he contributed to furthering of the JCE.

 7     Indeed, instead of identifying specific acts, the Chamber addressed his

 8     roles in his capacity as minister of interior.  The reason why this is so

 9     is that specific acts taken at face value consistently went against the

10     furtherance of the JCE.

11             I also refer to my colleague's earlier submission that the

12     Trial Chamber failed to identify when Stanisic possessed the required

13     intent for the first category of JCE.  Indeed, the other roles that

14     Stanisic studied -- which were studied by the Chamber, they have one main

15     characteristic in common:  Indeed, they deal with the action which, in

16     and of themselves, consistently went against furthering of JCE.

17     Nonetheless, the Chamber found that Stanisic did not do enough of these

18     acts and that, as a result, he contributed to furthering the JCE.

19             The Trial Chamber characterised this as an omission of --

20     apparently this is not omission or liability per se.  Had the Chamber

21     properly considered that omissions in this context must amount to

22     culpable omissions and that such omissions must exert concretely

23     influence on the perpetration of the crime, it could not have reached the

24     finding that Stanisic contributed to purported JCE.

25             Considering that the Chamber's finding that Stanisic contributed

Page 107

 1     to JCE by, on one hand, issuing a number of orders impeding the

 2     implementation of the JCE, while at the same time not doing enough, it is

 3     a failure by the Trial Chamber to identify at which point the cumulative

 4     effect of the orders impeding the JCE becomes a significant contribution

 5     to the same JCE.

 6             This is what makes this case unique and that is why the

 7     Trial Chamber's finding is wrong in law and in fact.  Even if the Appeals

 8     Chamber was to try and identify at which point the cumulative effect of

 9     Stanisic's orders reaches the threshold for contributing to the JCE, the

10     evidence simply does not exist for such a finding.

11             I now briefly move to the third question by the Appeals Chamber.

12     In light of our earlier submissions, there is no doubt that the

13     contribution has to be followed or combined with the necessary mens rea

14     for the JCE.  In other words, the first step is forming the mens rea; the

15     second step is contributing to the JCE.  Therefore, consequently, acts

16     committed before the existence of the JCE and before formation of the

17     necessary mens rea must be disregarded.

18             Consequently, in this case, considering that the Chamber failed

19     to identify as of when Mico Stanisic formed the necessary mens rea, the

20     Appeals Chamber cannot identify as of when he began to contribute to the

21     JCE.  Necessarily, what follows is that the convictions entered pursuant

22     to Counts 1, 4, and 6 must be quashed.

23             Your Honours, in concluding remarks, I still have some couple of

24     minutes because there was some technical issues at the beginning, I'm

25     sure Your Honours remember.

Page 108

 1             JUDGE AGIUS:  The tape ends in four minutes' time anyway.

 2             MR. ZECEVIC:  Thank you so much.

 3             First, we ask the Appeals Chamber to consider our submission in

 4     respect of the appearance of bias in favour of conviction of accused

 5     leaders on the basis of their knowledge of the crimes in the framework of

 6     JCE, even though the applicable mens rea has not been proven.

 7             If the Appeals Chamber concludes that the presumption of

 8     impartiality which attaches to Judge Harhoff is rebutted, this is the end

 9     of the matter and the Appeals Chamber needs not to consider the other

10     arguments.  Should the Appeals Chamber find that no appearance of bias on

11     the part of Judge Harhoff has been established in this case, only then

12     should the Appeals Chamber consider the other grounds of appeal.

13             As you can see with our submission today, our focus has been on

14     the alleged error committed by the Chamber in drawing the inference that

15     Mico Stanisic shared the mens rea for the JCE as well as in light of the

16     question posed by the Appeals Chamber, the alleged errors committed by

17     Trial Chamber in finding that Mico Stanisic contributed to furthering the

18     JCE.

19             Although we have not addressed many of our grounds of appeal

20     during our submissions today due to limitations of time, we do maintain

21     our argument and we respectfully refer the Appeals Chamber to our written

22     submission in relation to these grounds.

23             In particular, I wish to draw the Appeals Chamber's attention to

24     our grounds addressing the sentencing error omitted by the Trial Chamber.

25     These grounds can be divided in two categories.  Firstly, technical

Page 109

 1     errors, but nonetheless reversible errors which warrant a reduction in

 2     sentence; secondly, and more importantly, the manifestly unreasonable

 3     quantum of sentence imposed by Mico Stanisic.

 4             Indeed, should the Appeals Chamber deny all of our grounds of

 5     appeal dealing with the convictions, one conclusion must remain:  If the

 6     Appeals Chamber affirms the Trial Chamber findings that Mico Stanisic was

 7     a member of the JCE, it is our respectful submission that it could not

 8     ignore that his contribution to furthering the JCE, in light of the

 9     totality of evidence on the record, is nowhere close to the

10     Trial Chamber's assessment of the same and that, as a result, the

11     sentence imposed of 22 years of imprisonment should be reduced

12     drastically.

13             Your Honours, this concludes our submission in support of

14     Mico Stanisic's appeal, and unless the Appeals Chamber has additional

15     questions, I will turn over the floor to the Prosecution for its

16     response.  Thank you, Your Honour.

17             JUDGE AGIUS:  Thank you, Mr. Zecevic.

18             MR. ZECEVIC:  Thank you, Mr. President.

19             JUDGE AGIUS:  There are no questions from the Bench.  So we are

20     going to change a little bit the schedule.  We are going to have the

21     break now, but we reconvene at 11.00.  Thank you.

22                           --- Recess taken at 10.43 a.m.

23                           --- On resuming at 11.05 a.m.

24             JUDGE AGIUS:  Yes, Prosecution, you've got 60 minutes.

25             MR. SCHNEIDER:  Good morning, Your Honours.  Todd Schneider for

Page 110

 1     the Prosecution.

 2             Your Honours, today I will be addressing your questions specific

 3     to Mico Stanisic and responding to the Defence arguments they've raised.

 4     My colleague Ms. Baig will then ask your question on the Judge Harhoff

 5     e-mail issue.  For the remainder of the Defence submissions today and in

 6     their appeal, we would rely on our response brief.

 7             Your Honours, as minister of the interior, Mico Stanisic deployed

 8     his police to break the law rather than to uphold it, to target non-Serbs

 9     rather than to protect them, all in furtherance of the common criminal

10     purpose, to permanently remove non-Serbs from the RS and achieve a Serb

11     state as ethnically pure as possible.  He was not merely fulfilling his

12     duties as a minister, as the Defence has argued today, in order to

13     achieve a legitimate political goal.  Stanisic played a central role in

14     the ethnic cleansing campaign together with his fellow JCE members,

15     Radovan Karadzic, Stojan Zupljanin, and others.  The Trial Chamber

16     rightly concluded that he was a member of the JCE.

17             I'm going to focus my submissions today around your questions.

18     I'll deviate slightly from the order and focus first on the second part

19     of question 1 concerning the Trial Chamber's findings on his JCE intent

20     and contribution.  I will spend most of my time answering that.  I will

21     then answer your questions 2 and 3 on timing issues and then finally

22     address the first part of question A concerning resubordination.

23             Starting with the second part of question 1, identify the

24     evidence and findings supporting the Trial Chamber's conclusions in

25     Volume 2, paragraphs 729 to 769, concerning Stanisic's contribution to

Page 111

 1     and shared intent to further the JCE.  The Trial Chamber's conclusions

 2     were based on a wide range of evidence and -- findings and evidence

 3     detailing Stanisic's key role in the JCE.  These showed, first,

 4     Stanisic's extensive and important contributions, most notably using his

 5     police to force out non-Serbs; and second, his shared intent.

 6             So let me turn first to the Trial Chamber's findings on his

 7     significant contribution.  As the Trial Chamber found, Stanisic

 8     contributed to the JCE by using the police forces under his command in

 9     furtherance of the common criminal purpose.  He did so across 20

10     municipalities over a nine-month period.

11             I'm going to cover today four examples of his contributions that

12     the Trial Chamber relied on.  First, he played a central role in creating

13     Bosnian Serb institutions and policies.  Second, he used his police in

14     the take-overs and ensuing campaign of violence.  This included, third,

15     ensuring that they played a major role in the mass illegal detentions.

16     And fourth, he ensured that his police turned a blind eye to the crimes

17     against non-Serbs.  Contrary to Defence arguments today, his contribution

18     was not based solely or only on his role as a minister.

19             Starting with his first contribution, Stanisic played a central

20     role in the creation of Bosnian Serb institutions and policies.  The

21     Trial Chamber reasonably relied on this as forming part of his

22     significant contribution because, through his actions, high-level

23     policies were set and the police were created to implement the JCE;

24     Volume 2, paragraphs 734 and 769.  Stanisic was a key member of the

25     Bosnian Serb decision-making authorities; Volume 2, paragraph 732.  The

Page 112

 1     Bosnian Serb leadership repeatedly turned to him when forming its most

 2     critical Bosnian Serb institutions.  He was a founding member of the SDS.

 3     He was on the RS Council of Ministers from its beginning, the same with

 4     the National Security Council, and most importantly for this case, he was

 5     the minister of interior and head of the police force; Volume 2,

 6     paragraphs 144, 542, and 549.

 7             In each position he worked, together with other JCE members, to

 8     create policies and structures to implement the common criminal purpose.

 9     Stanisic took part in the first Council of Ministers meeting on 11

10     January 1992, when the council set as a priority the "defining of ethnic

11     territory."  Volume 2, paragraph 551.  As the Trial Chamber found,

12     defining ethnic territory involved the "forceful assumption of control

13     over territories."  Volume 2, paragraph 310.

14             Then on 11 February 1992 Stanisic was at the Serb collegium

15     meeting, whose very purpose was the creation of the RS police; Volume 2,

16     paragraph 732.  In attendance was Zupljanin and others key to

17     implementing the JCE.  At this meeting Stanisic explained to everyone the

18     position of the RS Council of Ministers in Bosnian territories "which are

19     under Serbian control.  That control must be felt."  Volume 2, paragraph

20     555.  And, in fact, Stanisic's police played a key role in ensuring Serb

21     control was felt, but to do so he needed the right people for the job.

22     He appointed to key positions a number of persons the Trial Chamber found

23     to be JCE members, including Zupljanin, starting on 1 April 1992; Volume

24     2, paragraph 579 and 744 --

25             THE INTERPRETER:  Interpreter's note:  Could you please slow

Page 113

 1     down.  Thank you.

 2             MR. SCHNEIDER:  Apologies to the interpreters.

 3             "Thieves and criminals," as Stanisic described them, were

 4     accepted into the reserve police in its early days; Volume 2, paragraph

 5     600.  And he purged the police force of Muslims and Croats; Volume 2,

 6     paragraphs 576 to 577 and 738.  With the right people in place, Stanisic

 7     was ready to --

 8             THE APPELLANT ZUPLJANIN: [Interpretation] There is a problem.  We

 9     are not receiving interpretation.  I repeat:  We are not receiving

10     interpretation into the Serbian language.  Now I can hear you.  Thank

11     you.

12             JUDGE AGIUS:  All right.  Thank you.

13             Let's proceed, and if you get the problem again, Mr. Zupljanin,

14     please draw our attention straight away.

15             Same applies to you, Mr. Stanisic.

16             MR. SCHNEIDER:  Continuing.  With the right people in place,

17     Stanisic was ready to use his police to implement the JCE, and that's

18     exactly what he did, which brings me to his next contribution.

19             Stanisic used his police in take-overs and in the ensuing

20     persecutory campaign of violence against non-Serbs.  The Trial Chamber

21     reasonably relied on this as part of his significant contribution because

22     the take-overs and violent aftermath resulted in the mass exodus of

23     non-Serbs; Volume 2, paragraph 737.

24             Stanisic and his police were involved from the beginning, indeed

25     they were critical to the success of the take-overs.  The police had a

Page 114

 1     central vole in the Variant A and B instructions, the main purpose of

 2     which was to prepare local Bosnian Serbs to take power in municipalities.

 3     The police were also, prior to establishment of the VRS, the only armed

 4     force directly and exclusively controlled by the RS leadership, and 14 of

 5     the municipalities in this case were taken over before the VRS was

 6     formed.  And for the finding I've just noted, this is at paragraphs 57,

 7     310, 731 and 741 of Volume 2.

 8             As Stanisic wrote in a letter on 18 April 1992, just three weeks

 9     into the take-overs, the police were already controlling nearly 70

10     per cent of the territory of BiH; Exhibit P54, page 2.  And they were

11     doing so at the behest of Stanisic, the highest commander of the RS

12     police forces.

13             Stanisic continually used his powers as head of the police to

14     devote police resources to an armed joint operation with the VRS during

15     the take-overs and their aftermath.  For example, his May 15th, 1992,

16     order.  This order declared that police would be organised into war time

17     units and said police would participate in co-ordinated action with the

18     armed forces.  This order reflected his command and control because it

19     specified that Stanisic or a senior official had to authorise police

20     involvement in combat and it required that the ministry be informed of

21     deployments; Volume 2, paragraphs 758 and 739.  Stanisic followed up on

22     this order during the rest of 1992 by consistently approving police

23     deployments; Volume 2, paragraphs 594, 743, and examples in our response

24     brief at paragraph 128.

25             Stanisic did not limit the use of his police to the initial

Page 115

 1     take-overs alone.  Even after Serb forces had taken over municipalities,

 2     his police continued to take part in the campaign of violence designed to

 3     force non-Serbs out.  Let me give you one example.  The special police

 4     platoon of Dusko Malovic personally commanded by Stanisic.  In December

 5     1992, this unit killed 21 Muslims in Bijeljina as part of a plan to

 6     spread terror among the Muslim population.  Nevertheless, as the

 7     Trial Chamber found, higher-ups in the police tried to cover the crimes

 8     up; Volume 2, paragraphs 601 to 603, and Volume 1, 894 to 895.

 9             So let me now turn to his next contribution:  Stanisic using his

10     police to arrest, detain, and ultimately expel non-Serbs.  To be clear,

11     this is actually an important subpart of his prior contribution, using

12     his police in the take-overs and violent aftermath but is easier to

13     discuss it separately.

14             The Trial Chamber reasonably relied on Stanisic using his police

15     in the illegal detentions because these detentions formed part of the

16     violent means that provoked the mass exodus of non-Serbs; Volume 2,

17     paragraphs 737 and 761.

18             Stanisic's police were crucial in the widespread arrest,

19     detentions, and abuses.  Substantial police resources were directed to

20     the arrest, detention, and interrogation of thousands of non-Serbs.

21     Detainees were held in at least 50 detention sites across the RS.  In

22     some cases the police detained prisoners in their own SJBs or in

23     facilities attached to police stations.  In other instances the police

24     established, managed, or guarded camps or operated them jointly with the

25     military; Volume 2, paragraphs 745, 760 and 761, and we'd also refer you

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 1     to our appeal brief at paragraph 10.

 2             Stanisic directly contributed to this criminal system of

 3     detention.  He could have closed down detention centres or withdrawn his

 4     police from them; Volume 2, paragraph 761.  But he chose not to do so.

 5     Instead, he waited until the international outcry was so great that he

 6     had to do something, and at that point he issued toothless orders that

 7     were never followed up.

 8             The consequences for non-Serbs were horrific.  The police,

 9     together with other forces, illegally detained and brutally mistreated

10     thousands of non-Serbs.  They held them in inhumane conditions, typically

11     in places never designed to hold prisoners.  Detainees were viciously

12     beaten, often to the point of death, or else simply executed, and

13     prisoners were raped and sexually assaulted.  See the findings collected

14     in our appeal brief at paragraphs 10 to 24.

15             Let me turn now to the last contribution I'll discuss:

16     Stanisic's discriminatory police that created a climate of impunity

17     within the police and a climate of insecurity within the non-Serb

18     population.

19             The Trial Chamber reasonably relied on this as part of his

20     significant contribution because this climate of impunity and insecurity

21     left non-Serbs no choice but to flee; Volume 2, paragraphs 745, 757, and

22     758.

23             What do I mean by "discriminatory policing"?  It's how Stanisic

24     prioritised the investigation of crimes against Serbs while he turned a

25     blind eye to crimes against non-Serbs, whether committed by members of

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 1     his own police or by other perpetrators.

 2             Recall the Trial Chamber's broader findings.  Throughout the RS,

 3     police and prosecutors operated in a discriminatory manner by not

 4     reporting or underreporting serious crimes committed by Serb perpetrators

 5     against non-Serbs; Volume 2, paragraphs 104 and 745.  This is reflected

 6     in RS police crime registers from 1992, civilian and military log-books

 7     from the same time, both of which contain barely any records on these

 8     types of crimes; Volume 2, paragraphs 34 to 35, 96 to 98, and 101.

 9             Stanisic played a leading role in this discriminatory policing

10     that created insecurity among the non-Serb population.  He repeatedly

11     issued orders to investigate crimes against Serbs only; Volume 2,

12     paragraphs 723, 727, and 758.  And we highlight just one example, a May

13     16th, 1992, order.  This is Exhibit P173, discussed at Volume 2,

14     paragraph 723.  In this order Stanisic wrote:

15             "Measures and activities conducted to document war crimes, these

16     activities require the collection of information and documents on war

17     crimes against Serbs," - against Serbs - because that is what Stanisic

18     really cared about.  By contrast, Stanisic failed to act decisively when

19     the victims were non-Serb; Volume 2, paragraph 757.

20             As the Defence have noted today, he went after the notorious

21     paramilitary unit, the Yellow Wasps; however, contrary to the Defence

22     arguments, he did so because they refused to submit to the army command,

23     because of auto theft and because they assaulted an RS official.  He did

24     not go after them for their commission of war crimes.

25             THE INTERPRETER:  Interpreter's note:  Would the counsel kindly

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 1     slow down.

 2             MR. SCHNEIDER:  Apologies again to the interpreter.

 3             And the citations for the findings I've just discussed, Volume 2,

 4     paragraphs 713 through 715 and 756.

 5             Stanisic was tasked to gather information on Muslims and others

 6     leaving the RS; Volume 2, paragraphs 627 and 650.  Despite this, he

 7     failed to take decisive measures in relation to the mass expulsions and

 8     he failed to take decisive measures against the detention crimes as well;

 9     Volume 2, paragraph 757.

10             Furthermore, Stanisic promoted a climate of impunity within the

11     police, at least when it concerned crimes against non-Serbs.  Yes, he

12     disciplined and dismissed members of his police, but this was for theft

13     and professional misconduct, or in the case of Obren Petrovic for

14     protection of Muslims.  He didn't discipline or dismiss them for crimes

15     that furthered the JCE; Volume 2, paragraphs 698 to 708 and 754.

16             Through this discriminatory policing, he promoted a climate of

17     impunity and insecurity.  Contrary to the Defence arguments, it was not

18     merely about Stanisic failing to do enough.

19             To sum up this section, given how Stanisic created Bosnian Serb

20     institutions and policies, given how he used his police in the take-overs

21     and their violent aftermath, in particular, the widespread illegal

22     detentions, and given how he promoted a climate of impunity and

23     insecurity, the Trial Chamber reasonably found that Stanisic made a

24     significant contribution to the JCE.

25             So let me now, in the context of your question 1, the second

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 1     part, turn to his shared intent for the JCE.  The Trial Chamber's

 2     conclusion that Stanisic shared the intent for the JCE was supported by a

 3     wide range of findings.  I'm going to discuss four points:  Stanisic's

 4     adherence to SDS policies; his close relationship to Karadzic, the

 5     president of the SDS; Stanisic's deal with the violent criminal Arkan;

 6     and his continued contributions to the JCE despite his awareness of

 7     crime.  Contrary to the Defence arguments today, he was not found to be

 8     an automatic member of the JCE based merely on his position as minister.

 9     The Trial Chamber's findings did not rest on his knowledge alone.

10             I turn to the first point, the first set of findings, Stanisic's

11     continued commitment to SDS policies.  The Trial Chamber reasonably

12     relied on this as helping to show his shared intent; Volume 2, paragraphs

13     767 and 769.

14             As the Trial Chamber found, the SDS party structure shared and

15     worked toward the goal of establishing a Serb state as ethnically pure as

16     possible through the permanent removal of non-Serbs; Volume 2, paragraph

17     311.  Stanisic's own words showed that he shared that goal and the intent

18     for the JCE.  As Stanisic admitted in a November 1992 speech, he had

19     always followed the policies of the SDS Presidency and deputies in the

20     former state.  "Those who want to separate me from that are making a

21     mistake."  Volume 2, paragraph 570 and also 734.

22             By the time of Stanisic's November speech, what SDS policies

23     meant in practice was obvious to all given what had already happened by

24     then.  Over 100.000 non-Serbs forced out, thousands more killed or

25     abused.  Contrary to what the Defence have claimed today, this is not

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 1     about achieving a legitimate political goal.

 2             My next point, Stanisic's close relationship with Karadzic which

 3     the Trial Chamber reasonably relied on to help show his shared intent;

 4     Volume 2, paragraph 769.  Karadzic was the president of the SDS and the

 5     main decision-maker in the Bosnian Serb leadership.  He became president

 6     of the Presidency; Volume 2, paragraphs 132, 136, and 137.

 7             Through his leadership position, Karadzic was the key figure in

 8     developing the persecutory policies of the Bosnian Serb leadership.  For

 9     instance, Karadzic publicly threatened the Muslim people with possible

10     extinction if BiH declared independence.  In March 1992, just after the

11     conflict, Karadzic announced a war would include the forcible and bloody

12     transfer of minorities and the creation of ethnically homogenous regions

13     within BiH; Volume 2, paragraphs 161 and 179.

14             Stanisic was close to Karadzic from early 1991.  They were so

15     close that he was called Radovan's man.  Stanisic also served together

16     with Karadzic on high-level RS institutions, such as the National

17     Security Council; Volume 2, paragraph 144.  And as minister of interior,

18     Stanisic often bypassed proper channels to communicate directly with

19     Karadzic and the Presidency; Volume 2, paragraphs 565 to 570 and 730.

20             Stanisic never wavered in his loyalty to Karadzic and his

21     policies even in the wake of the massive and systemic criminality

22     committed under Karadzic's overall leadership.  This is a strong

23     indicator of Stanisic's shared intent.

24             My third point, Stanisic's deal with Arkan which the

25     Trial Chamber reasonably relied on for his shared intent; Volume 2,

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 1     paragraph 768.  Stanisic approved of Arkan and his men, notoriously

 2     violent criminals, assisting in the take-overs in exchange for which

 3     Stanisic agreed Arkan's men could take any property they wanted; Volume

 4     2, paragraph 710.

 5             During the take-overs Arkan's men committed horrific crimes.  The

 6     Defence challenges on the underlying evidence addressed in our response

 7     brief at paragraph 51 to 53.  Given the Chamber correctly found Stanisic

 8     made this deal, it also further correctly found it was another strong

 9     indicator of his shared intent.

10             The last point I'll discuss, how Stanisic persistently

11     contributed to the JCE over a significant period of time, despite his

12     awareness of the widespread crimes committed against non-Serbs.  The

13     Trial Chamber reasonably relied on this for his shared intent; Volume 2,

14     paragraphs 743, 768, and 769.  I've already discussed his important and

15     extensive contributions.  I'm going to focus here on his knowledge of

16     crimes.

17             As the Trial Chamber reasonably found, Stanisic was informed of

18     crimes against non-Serbs through multiple channels, including various

19     sources within the police and RS government as well as from the

20     international media and international organisations; Volume 2, paragraphs

21     757 and 759.

22             Before discussing the specific reports the Chamber relied on,

23     I'll first touch on Stanisic's various channels of information.  As the

24     Trial Chamber found, the police structure prepared daily, weekly, and

25     quarterly reports to inform Stanisic of what was happening in the RS;

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 1     Volume 2, paragraph 690.  The police security service, the SNB, kept

 2     police officials informed of developments in the municipalities; Volume

 3     2, paragraphs 26 and 689.  Stanisic attended joint meetings of the

 4     national Security Council and RS government who met daily throughout

 5     April and early May 1992.  At these meetings, decisions were made on

 6     military and security activities and reports of combat and the political

 7     situation were presented; Volume 2, paragraphs 144 and 573.  Stanisic was

 8     also a member of the RS government and attended most of its sessions;

 9     Volume 2, 572.

10             In light of these many channels of communication, let me now turn

11     to the Trial Chamber's findings on the specific reports of crimes to

12     Stanisic.  For instance, in April 1992, Stanisic was informed of the

13     looting of Muslim property by reserve police; Volume 2, paragraph 603.

14     In early May he was aware of "unprincipled conduct" by his reserve

15     police; Volume 2, paragraph 613.  By early June, at the latest, he was

16     aware of the unlawful detentions of non-Serbs; Volume 2, paragraph 762.

17     This finding is based on, among others, on 10 June 1992 Stanisic was at

18     an RS government meeting where they discussed issues relating to the

19     treatment of detainees triggered by complaints about mistreatment of the

20     civilian population; Volume 2, paragraphs 623 and 763.

21             By this time, the mass arrest of thousands of Muslims and Croats

22     had begun and the existence of the camps was known internationally;

23     Volume 2, paragraph 763.  Then on 11 July 1992, Zupljanin reported to

24     Stanisic that the army and Crisis Staffs had requested that as many

25     Muslims as possible be gathered, and Zupljanin also reported that the

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 1     Muslims were being detained by police in undefined camps in bad

 2     conditions where international norms were not observed; Volume 2,

 3     paragraph 631 and 633.

 4             Two weeks after Zupljanin reported to Stanisic that police were

 5     holding in such camps several thousand Muslims and Croats, including

 6     minors, elderly, and disabled persons.  Zupljanin proposed then lawfully

 7     detained non-Serbs be used as hostages; Volume 2, paragraphs 623, 631,

 8     633 and 638.

 9             As the Trial Chamber found, the violent crimes against non-Serbs,

10     including the unlawful detentions and mistreatment, led to the forcible

11     displacement of non-Serbs; Volume 2, paragraph 737.  In fact, the

12     displacement of non-Serbs was so widespread that on 4 July 1992 at an RS

13     government session that Stanisic attended, the question was raised if

14     there were "agreed criteria regarding the moving out of the Muslim

15     population" from the RS.  Stanisic's Ministry of Interior was entrusted

16     to collect the information on this issue; Volume 2, paragraph 627, and

17     Exhibit P236, pages 4 to 5.

18             One week after this Stanisic learned of the relocations of

19     certain "citizens' villages" and attempts to assign this task to the

20     police.  Soon after he received a report from Visegrad that over 2.000

21     Muslims moved out in an organised manner while the police exhibited a

22     lack of professionalism; Volume 2, paragraphs 627, 632 and 634.

23             Despite Stanisic's knowledge the crimes which kept building over

24     time, he chose to continue contributing to the JCE.  Contrary to Defence

25     arguments today, it is Stanisic's actions after this knowledge that

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 1     further confirms his shared intent for the JCE.

 2             So for all the reasons I've just mentioned, the Trial Chamber

 3     reasonably found that Stanisic shared the intent for the JCE, and to sum

 4     up our answer, a wide range of findings and evidence supported the

 5     Trial Chamber's conclusion that Stanisic was member of the JCE.  That

 6     completes our answer to the second part of question 1.

 7             Your Honours, before I move on to our remaining questions, let me

 8     just address an argument raised by the Defence regarding both his shared

 9     intent and his contribution.

10             The Defence today have argued that Stanisic tried to halt crimes

11     against non-Serbs through his orders.  They have cited a string of orders

12     that he issued.  Contrary to their argument, the Trial Chamber considered

13     these orders and reasonably found they did not undermine its conclusion

14     about his shared intent and significant contribution, and to understand

15     why you need to look at the orders themselves.

16             Many of the orders cited today and in the Defence's appeal brief

17     relate to other types of crimes, thefts, police misconduct, not serious

18     crimes against non-Serb victims.  Other orders show that Stanisic

19     transferred criminals from his reserve police to the army, but as the

20     Trial Chamber reasonably found, this was not an appropriate response

21     because it meant that known criminals would continue to interact with

22     civilians; Volume 2, 751.

23             As for the orders on detention crimes which the Defence have

24     highlighted today, the Defence ignore the relevant context.  Stanisic

25     issued these orders because of international pressure and he didn't

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 1     follow up his strong words in these orders with strong actions even

 2     though he knew detention crimes continued despite the orders; Volume 2,

 3     paragraphs 752 to 753.

 4             What do I mean by "strong actions"?  Like the steps he took when

 5     Serbs were the victims, for example, taking on the paramilitary group the

 6     Yellow Wasps for thefts and harassing Serbs, where the police launched a

 7     major operation to arrest them after Stanisic instructed them to do

 8     whatever was necessary; Volume 2, paragraphs 714 and 756.

 9             Another example of Stanisic's strong actions when Volkswagen

10     Golfs were being stolen from a factory, Stanisic organised a unit to

11     secure cars at this factory; Volume 2, paragraph 708.  No such measures

12     were ever taken for the crimes against non-Serbs, including the illegal

13     and abusive detentions.

14             So let me now turn to questions 2 and 3 where Your Honours have

15     asked when the Trial Chamber found Stanisic had knowledge of the crimes,

16     when he had the required intent for JCE I, and when he began to

17     contribute to the JCE.  I'm going to address these questions in reverse

18     order dealing with the timing of his contributions first, then his

19     intent, and finally his knowledge of crimes.

20             Starting with the contribution.  In setting out Stanisic's JCE

21     contributions, the first contribution the Chamber found was his

22     participation in the 11 February 1992 meeting with Zupljanin and others

23     when he made preparations to establish the RS police force; Volume 2,

24     paragraphs 732 and 544 to 555.

25             Next, intent.  As to when the Chamber found Stanisic shared the

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 1     intent for the JCE, the Chamber's findings show that Stanisic shared the

 2     intent from the JCE's beginning.  As the Trial Chamber found, the JCE

 3     existed from no later than 24 October 1991; Volume 2, paragraph 313.

 4     Then when it turned to assessing Stanisic's mens rea, the Chamber found

 5     that he shared the intent for the JCE with the other JCE members; Volume

 6     2, paragraph 769.

 7             The factors I've discussed previously demonstrate Stanisic's

 8     intent from the time the JCE was formed.  In particular when assessing

 9     Stanisic's intent, the Chamber relied on Stanisic's commitment to SDS

10     policies and his close connections with the key SDS policy-maker,

11     Karadzic; Volume 2, paragraphs 565, 570, 767, and 769.

12             Long before the outbreak of the conflict, it was clear that these

13     policies involved the permanent forcible removal of non-Serbs; Volume 2,

14     paragraphs 311, 313, and 767.  In any event, at the very least, the

15     Chamber clearly found that Stanisic shared the intent for the JCE by 1

16     April 1992, when the JCE crimes began because the Chamber found Stanisic

17     responsible for committing crimes beginning in April 1992 through his

18     participation in the JCE, and I'd refer Your Honours to the findings in

19     Volume 2, between 801 and 885.

20             Last within these questions, turning to the question of when the

21     Chamber found Stanisic had knowledge of the crimes, I've already

22     discussed the Chamber's findings about his knowledge of crimes and the

23     many channels of information at his disposal.

24             To answer your specific question, Stanisic was informed from

25     April 1992 of crimes that formed part of the violent means forcing

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 1     non-Serbs out, such as lootings and beatings; Volume 2, paragraphs 603,

 2     610 to 612.

 3             By early June at the latest, he was aware of the unlawful

 4     detentions of non-Serbs; Volume 2, paragraph 762.  He had specific

 5     reports of the displacement of non-Serbs from at least July 1992; Volume

 6     2, paragraphs 627, 632, and 634.  These reports to Stanisic only

 7     confirmed what he intended to occur once he had joined the JCE.  And that

 8     completes my the answers to questions 2 and 3.

 9             Turning to the last question I will address, the first part of

10     question 1:  Discuss whether the Trial Chamber found Stanisic responsible

11     for failing to investigate crimes committed by police resubordinated to

12     the military.

13             The Trial Chamber properly analysed this issue.  When discussing

14     the Chamber's analysis, I need to distinguish between its analysis of

15     Stanisic's failure to fulfil two distinct duties:  First, his duty as a

16     superior to prevent or punish the crimes of his subordinates; second, his

17     duty as a police official to protect the civilian population; Volume 2,

18     paragraph 754.

19             In relation to the first duty, the answer to your question is no.

20     When the Chamber considered Stanisic's failure to prevent and punish the

21     crimes of his subordinates, the Chamber properly confined its analysis to

22     those subordinates who were under his direct authority.  This included,

23     for example, the chiefs of CSBs and SJBs who were directly subordinated

24     to him, such as Simo Drljaca in Prijedor who had established the Omarska

25     camp; Volume 2, paragraphs 754 to 755.  It did not consider Stanisic's

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 1     failure to investigate crimes committed by police resubordinated to the

 2     military.

 3             Let me turn now to Stanisic's other duty, his duty as a police

 4     official to protect the civilian population.  In relation to this duty,

 5     the answer to your question is that this was an irrelevant factor to the

 6     Trial Chamber's analysis.  This is because Stanisic's duty to protect

 7     civilians was broader in scope than his duty to prevent or punish his

 8     subordinates, because unlike his superior duty, Stanisic's duty as a

 9     police official to protect civilians would require, amongst other

10     actions, that Stanisic take steps to investigate all crimes committed

11     against the civilian population, regardless of the affiliation of the

12     perpetrator.  Given this, whether or not the perpetrators of crimes were

13     resubordinated is irrelevant to the Trial Chamber's proper conclusion

14     that Stanisic failed to protect the civilian population in its findings

15     at paragraph 751 and 754 of Volume 2.

16             That completes our answer to the first part of question 1 and I'm

17     going to turn the floor over to my colleague Ms. Baig.

18             JUDGE FLUEGGE:  Before you hand over, I have one question for

19     you, Mr. Schneider.  I didn't hear anything about your position with

20     respect to the alleged membership of Mr. Stanisic as minister of the MUP

21     in the BSA, the Bosnian Serb Assembly, but I took it from the written

22     submissions that you have the same position as the Defence relating to

23     paragraph 125 of the appeals brief of the Defence.  Have you any idea

24     about a legal background, what is the legal basis for this assertion that

25     it was not possible for a minister to be at the same time a minister of

Page 129

 1     the Assembly?

 2             The same question I would like to be answered during the response

 3     by the Defence.

 4             Do you have any?

 5             MR. SCHNEIDER:  Just a moment.

 6                           [Prosecution counsel confer]

 7             MR. SCHNEIDER:  Thank you for the question.  We would confirm,

 8     again rely on our answer in the response brief, that he was not a member

 9     of the BSA.  As far as the particular question on the legal basis, we

10     don't have a particular submission on that point.

11             JUDGE FLUEGGE:  Thank you.

12             MS. BAIG:  Your Honours, if you permit me, I'm going to jump

13     right in.  A reasonable -- I'm addressing the Harhoff issue, the Harhoff

14     e-mail issue.

15             A reasonable observer properly informed, with knowledge of all of

16     the relevant circumstances, would view the Stanisic and Zupljanin trial

17     as being fairly decided by an impartial Bench, with full respect for the

18     rights of the accused.  That's because in this case the circumstances of

19     this case do not give rise to an apprehension of bias on the part of

20     Judge Harhoff, neither the e-mail in which he expresses a legal

21     disagreement with jurisprudential developments, nor the subsequent

22     majority decision in the Seselj Special Trial Chamber displaces the

23     strong presumption of impartiality.

24             I'll first address Judge Harhoff's e-mail in which he expresses a

25     disagreement on the law, including the context in which this e-mail must

Page 130

 1     be assessed; and then I'll turn to explain how and why the approach taken

 2     in the Seselj case is wrong, unpersuasive, and should not be followed.

 3     And finally, I will address or answer Your Honours' questions concerning

 4     possible remedies.

 5             The e-mail does not give rise to an appearance of bias in this

 6     case.  A reasonable observer would have to consider the e-mail in light

 7     of its informal nature, its context, and in light of the judgement

 8     itself.  The e-mail was an informal communication.  In it, Judge Harhoff

 9     uses casual, non-legal language, as would be expected when communicating

10     informally to a group of friends.  It is unreasonable to expect the same

11     level of precision in informal remarks.

12             When discussing a technical legal topic, like modes of

13     responsibility, with a non-legal audience, the failure to use precise and

14     technical legal language, as would be expected in a formal legal

15     submission, is simply unsurprising and you can see this in the e-mail in

16     the conflation of elements of different modes, command responsibility,

17     aiding and abetting, JCE 1 and JCE 3, that my learned colleague

18     highlighted this morning.

19             JUDGE AGIUS:  You have ten minutes remaining.

20             MS. BAIG:  Yes.  Thank you, Your Honour.

21             But the informal language does not create a suggestion that Judge

22     Harhoff is unwilling to apply the correct law and it does not create an

23     appearance of bias.

24             The context of the e-mail is also critically important.  In the

25     e-mail, Judge Harhoff comments on the two recent press reports that he

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 1     had circulated to the same e-mail group and he reacts to these news

 2     articles and expresses a disagreement with a perceived trend in the case

 3     law culminating in the Stanisic and Simatovic trial judgement that he

 4     perceives as elevating the legal requirements for convicting high-level

 5     military leaders.  This is a disagreement about the law and a trend in

 6     the case law.  He does not mention the Stanisic and Zupljanin case, nor

 7     does he comment on any of the cases in which he has served as a Judge.

 8             It is unreasonable to expect that Judges do not have personal

 9     feelings about the law and legal developments or that they always agree

10     with every case.  What the reasonable observer can expect is that

11     professional judges can put aside their personal views when it comes to

12     deciding the case before them.

13             That's why, Your Honours, it is also critically important for the

14     reasonable observer to look at the e-mail in light of the judgement in

15     this case.  The judgement in this case confirms the correct

16     interpretation of the e-mail, one that does not raise an appearance of

17     bias.  It's in the judgement where Judge Harhoff records his professional

18     view about the facts and law applicable to this case, where he sets out

19     his professional views on fairness, factual findings, law, reasonable

20     doubt, and guilt.

21             In the unanimous trial judgement, Judge Harhoff and his two

22     fellow Judges agreed to enter both convictions and acquittals.  Both the

23     unanimity and the fact that he concurred in acquittals confirms the

24     correct interpretation of the e-mail.  If he was biased in favour of

25     conviction, one would not expect to see him entering such acquittals.

Page 132

 1     And so too does the Chamber's reasoning.  This is not a judgement based

 2     on predisposition; it's based on the evidence.

 3             Further evidence, Your Honours, against any apprehension of bias

 4     can be drawn from the trial record as we've set out in our brief.  A

 5     reasonable observer, considering the e-mail in light of its nature,

 6     context, and the judgement, a reasonable observer who's properly

 7     informed, would conclude that this trial was a fair one.

 8             That conclusion would not be affected by the Seselj majority

 9     decision.  That decision is not a legal precedent in any sense of that

10     word.  Its erroneous outcome impacts only the Seselj case.  It's a trial

11     decision not subject to an appeal, nor is it persuasive authority.  The

12     majority provides only the barest of reasoning, a couple of paragraphs.

13     This is certainly not a situation where two wrongs would make a right.

14             Let me take you to two key flaws in the Seselj majority decision.

15     First, it's legally flawed because it presumed bias rather than relying

16     on the long-standing presumption of impartiality.  It concludes that the

17     reference to set practice implies that Judge Harhoff would convict an

18     accused without regard to the evidence before him, but his omission to

19     make reference to such an obvious point in an informal e-mail to a group

20     of friends against the backdrop of his extensive professional experience

21     as a Judge, such an omission cannot be sufficient to overcome the

22     presumption that professional judges decide cases based on the governing

23     law and facts before them.

24             That decision is also factually flawed.  Instead of viewing the

25     e-mail in its totality, the majority focused on isolated phrases, taking

Page 133

 1     them out of context and giving them strained meaning.  There's simply no

 2     evidentiary basis for the majority's conclusion that Judge Harhoff's

 3     reference to a professional and moral dilemma referred to a reluctance to

 4     apply the correct law.  In the next sentence, Judge Harhoff plainly

 5     states that the dilemma concerned his suspicions that colleagues might be

 6     under political pressure, and this correct interpretation is confirmed by

 7     Judge Harhoff's explanation in Exhibit PA1 and the content of the media

 8     report in PA3.

 9             In addition to the inherent flaws in that decision, the factual

10     circumstances before you in this case are different than in the Seselj

11     case.  First and foremost, you have the unanimous trial judgement which

12     shows that the majority's interpretation of that e-mail was incorrect.

13     The trial judgement shows that the reading of the e-mail, the suggestion

14     that Judge Harhoff might convict without with regard to the evidence,

15     that's refuted by the judgement.  The judgement also shows that the

16     majority's reading of the dilemma language was incorrect, since the Trial

17     Judges, including Judge Harhoff, carefully applied the Tribunal's law to

18     the facts in the case.

19             Your Honours also have the additional evidence admitted on appeal

20     which was not taken into account by the Seselj majority that gives fuller

21     context to the words in his e-mail.  You have the two newspaper articles

22     and you have Judge Harhoff's own views on the e-mail.  You have his

23     explanation, and in this memorandum, Exhibit PA1, he explains the words

24     he used and his motivations.  This explanation was not considered by the

25     Seselj majority.  This was expressly criticised by the dissenting Judge.

Page 134

 1     Instead, the Seselj majority viewed the comments to be immaterial to the

 2     issue of bias, but the recent rule change to Rule 15 specifically

 3     provides that "the report of the Presiding Judge, which shall include any

 4     comments or material provided by the Challenge Judge, shall be provided

 5     to the Panel tasked with determining a motion for disqualification."  So

 6     it clearly is not immaterial.  So, Your Honours, the Seselj decision

 7     cannot determine the question before you today.

 8             And now I come to your question.  If you find an appearance of

 9     bias, would his participation invalidate the conviction?  The

10     Prosecution's position is that in order to ensure public confidence in

11     the integrity of this institution, a finding of judicial bias should

12     result in the invalidation of the conviction.  But this does not and

13     cannot mean that a not guilty verdict should follow.

14             In a case involving a unanimous conviction for international

15     crimes, a case based on strong evidence of guilt, it would be a grave

16     injustice to acquit on account of this e-mail or to stay the charges as

17     was asked today.  Other remedial measures are available to address the

18     hypothetical fair trial violation that's posited in your question.  One

19     would be to remand the matter back to the two remaining Trial Judges with

20     a substitute Judge, similar to what was done in the Seselj case for a

21     reevaluation.  A second option would be to conduct a full re-trial as the

22     Appeals Chamber ordered yesterday in the Stanisic and Simatovic

23     judgement.  And Zupljanin is asking for a de novo review by the Appeals

24     Chamber, which is certainly an available remedy for a fair trial error

25     that results in an error of law.

Page 135

 1             Quickly in relation to the second part of your question, it's

 2     very difficult to contemplate a situation where a finding of bias leads

 3     to a remedy other than the invalidation of the verdict.  I can only point

 4     out here, Your Honours, that if an appearance of bias is found in this

 5     case, it would be at the lowest level of possible reasons to fear a lack

 6     of impartiality.  It would be an appearance of bias rather than actual

 7     bias.  It would arise after the fact.  It would be based on a tenuous

 8     interpretation of an informal communication without any identified impact

 9     on the case itself, in a case involving the built-in safe-guards of a

10     three-member Bench.

11             If the hypothetical finding of an appearance of bias is so weak

12     that it could be compensated through an alternative remedy that does not

13     involve the invalidation of the verdict, like a declaration or sentence

14     reduction, then, Your Honours, the real question is whether this rises to

15     the level of an appearance of bias at all.  In the Prosecution's

16     submission, it does not.  Disqualifying Judges based on unfounded

17     allegations of bias is as much a threat to justice as a Judge who is not

18     impartial.

19             I think that concludes our submissions at 12.05.

20             JUDGE AGIUS:  Thank you, Madam.

21             Mr. Zecevic or Mr. Bourgon, you have got 20 minutes.

22             MR. ZECEVIC:  Thank you, Your Honour.  Mr. President,

23     Your Honours.

24             I will start and then my colleague Mr. Bourgon would continue.  I

25     would first like to, to the best of my ability, answer the Honourable

Page 136

 1     Judges' question concerning the relationship between membership or the --

 2     being a parliamentary in the Bosnian Serb Assembly and the function of

 3     the minister.

 4             Your Honour, according to the relevant regulation, meaning, first

 5     and foremost, the Constitution of the Republika Srpska, the Law on

 6     Government, the government is responsible to Bosnian Serb Assembly for

 7     its work.  The Bosnian Serb Assembly appoints, elects, the prime minister

 8     and the ministers, and they are all -- they respond for their work to the

 9     Assembly.  Therefore, at this point, I'm sorry, I cannot advise

10     Your Honours of the specific provisions of the law because I don't know

11     them by heart, but it is understandable that it would be impermissible, a

12     conflict of interest, that one person sits as a parliamentary, so a

13     member of the Assembly, and at the same time be in the function of a

14     minister which is responsible to the same Assembly.  In fact, this

15     Assembly can dismiss the ministers, which they did in the case of

16     Mico Stanisic in November 1992.

17             JUDGE FLUEGGE:  Thank you.

18             MR. ZECEVIC:  Thank you.

19             Your Honours, let me try to respond, again to the best of my

20     ability, to sum up the issues raised by my learned friend from the

21     Prosecution.

22             One of the propositions was that -- the Prosecution stated today

23     that Mico Stanisic's role was not based solely or only on his role as a

24     minister; however, his responsibility was not based on -- solely or only

25     on his role as a minister.  And then in support of this proposition,

Page 137

 1     actually the Prosecution cites all the roles -- all roles which

 2     Mico Stanisic or acts that he did as a minister.  In that they used the

 3     appointments and the use of police in take-overs and other roles which,

 4     according to the judgement, were cited as ways of contribution.

 5             In respect to errors, I will read two that I have -- two examples

 6     which I can -- which I think can support our position.  At paragraph 758,

 7     the Chamber erred in finding that the instruction did not include the

 8     investigation - this is the federal MUP instruction - did not include the

 9     investigation of all crimes, irrespective of the -- of the ethnicity of

10     the victims.  However, the document's opening refers to verification of

11     war crimes, crimes of genocide, and other crimes against humanity and

12     international law committed against the Serbs and other ethnicities.  The

13     evidence which confirms this error can be found, inter alia, at 1D634 and

14     Defence Witness Macar at transcript 22879, as well as Witness Tusevljak

15     at 22420.

16             Another error at paragraph 764, the Chamber erred in finding that

17     based on the evidence of Witness Radulovic, information gathered by the

18     SNB was available to Stanisic.  The witness confirmed that Stanisic was

19     not informed of his reports.  The evidence which confirms this error can

20     be found, inter alia, at OTP Witness Radulovic transcript 11014, 11073,

21     11188, 11199, as well as Witness Skipina at transcript 8412 and 8470.

22             Your Honours, while we're talking about the knowledge issue, this

23     was also raised by the Prosecution.  I ask Your Honours to refer to

24     paragraph 275 of the final brief -- Defence final brief where we in

25     detail explained the situation which prevailed at the time; namely, the

Page 138

 1     situation is such that according to the finding - and this is confirmed

 2     in the judgement and the evidence of course - the overall number of

 3     dispatches over nine months has come to 4.040 received in the ministry at

 4     the seat and 4.170 dispatched.  Compared to the situation before the war

 5     or immediately after that in 1993, it turned out that the number of

 6     dispatches during the first nine months of the war that happened in

 7     Bosnia are less than the average monthly number of dispatches before the

 8     war or in 1993.

 9             So to compare, there was 8.500 roughly all together received and

10     sent dispatches, while in 1993 the number rose to 353.215.  So that

11     should illustrate the situation with the communications system and the

12     knowledge.

13             I think the Prosecution alleges also some things which go along

14     the errors which were committed by the Trial Chamber in its judgement.

15     For example, one of the allegations was that the civil law apparatus was

16     discriminatory in that period and that Mico Stanisic was responsible for

17     that.  We already made a written submission to that, and I invite you to

18     read it.  However, the situation appears to be that -- what the

19     suggestion is also by the Prosecutor and the Trial Chamber is that Mico,

20     in some really strange way as minister of interior, would have the right

21     to direct the prosecutors how to -- or judiciary system how to do its

22     job.  Our submission is -- our written submission is based on -- perhaps

23     I can give one example.  It's Exhibit P1609.1, which is in opposition to

24     what the Prosecution is saying about the discriminatory nature of the

25     work of the police.

Page 139

 1             Along these lines I must say that similarly in the Trial Chamber,

 2     the Chamber found Mico Stanisic guilty for transferring the reserve

 3     policemen to the army, but also previously found that Mico Stanisic did

 4     not have any other option or disciplinary measure except to transfer the

 5     reserve policemen in case of -- reserve policemen being not suitable to

 6     work for the police, he will be transferred to the army.  Therefore, I

 7     would say, if you permit me, that the Trial Chamber as well as the

 8     Prosecution tries to imply some kind of a superman standard to

 9     Mico Stanisic, where he would be expected to do more than he is obviously

10     and realistically able to do.

11             I give the floor to my learned friend Mr. Bourgon.  Thank you.

12             MR. BOURGON:  Thank you, Mr. President.

13             I move to my colleague's arguments regarding the mens rea or

14     defining on mens rea.  My colleague's arguments focuses on the fact that

15     Mico Stanisic would have adhered to SDS policies; number two, to a

16     relationship with Karadzic; and number three, the fact that he would

17     approve of Arkan's action.

18             With respect to SDS policies, Mico Stanisic as a minister adhered

19     to lawful policies; that was his job at the ministry, and this is

20     outlined or laid out in arguments.  The facts, we say, do not try to

21     separate me from -- from following legitimate and lawful policies has

22     nothing to do with mens rea.

23             The relationship with Karadzic is addressed in our brief at

24     ground 4.  He was not close to Karadzic.  There was no special

25     relationship.  And the fact that the argument that he would bypass normal

Page 140

 1     channels to speak with Karadzic is also not true.  It ignores all of the

 2     daily reports that are in the record which shows that there were daily

 3     reports between the Ministry of the Interior and the government.

 4             The Arkan issue is very important.  We've said it before.  It's

 5     completely wrong.  Once the Appeals Chamber will turn its mind to the

 6     testimony of the witnesses mentioned, especially Davidovic and the way

 7     the Trial Chamber handled this testimony, it will see that Mico Stanisic

 8     did not approve of Arkan's action.

 9             I'd like to refer to what my colleague said about the

10     Yellow Wasps.  He mentioned "major operation to arrest them."  This must

11     be looked at in the context of his relationship where he got into an

12     argument with Plavsic.  When you put the two together, regardless of what

13     these people were arrested for, it's the result that matters in order to

14     find the mens rea of Mr. Stanisic.  And when you look at the result, two

15     of these members were prosecuted for war crimes, albeit outside of the

16     RS; the others were relieved.  The issue that my colleague says, he cared

17     about the fact that they did not want to fall under the command of the

18     army.  It is a major issue.  It is important for Stanisic to ensure that

19     we don't have rogue criminals walking around.  It is important for him.

20             Lastly, my colleague says that there was a persistent

21     contribution over a significant period of time despite his awareness.

22     This fails to take into account the number of orders issued, but the

23     content of the orders.  My colleague's comment that the orders were

24     toothless simply does not correspond to the reality.  The Appeals Chamber

25     must bear in mind Stanisic dismissed senior officials, including two

Page 141

 1     assistant ministers.  He disbanded the special police.  With respect to

 2     the reserve police, he did everything he could do within the law.

 3             My colleague referred at page 61, lines 1 to 6, 11 July.  I said

 4     previously this is a turning point.  What Stanisic did after 11 July is

 5     key.  The report from Visegrad mentioned at page 61, lines 21 to 24,

 6     again, is a factual error.  Once the Appeals Chamber will look at this

 7     report, it will see that there's an error that this -- the link between

 8     the 2.000 displaced persons and the unprofessionalism of the police can't

 9     be matched together out of this report.  Yet, it's one of the major

10     things mentioned by the Trial Chamber in the limited paragraphs about

11     contribution.

12             As of when he contributed, my colleague mentions the first

13     action, 11 February.  He fails to take into account that by that time

14     surely Mico Stanisic did not have the mens rea.  Again, look at the 11

15     July as a date at which he did not have mens rea.  As of when?  My

16     colleague mentions the JCE begins on a certain date; we say he's a member

17     of the JCE; therefore the date must be the beginning of the JCE.  Doesn't

18     work, Mr. President.

19             Resubordination argument.  My colleague focuses on the duty to

20     prevent and punish and the duty to protect civilians.  That's not the

21     question.  The question from the Appeals Chamber is quite clear.  The

22     question was:  Was he found responsible for failing to investigate and

23     punish?  Yes, he was.  Did the Trial Chamber fail to say who is

24     responsible for failing to -- for investigation and prosecuting?  Yes, it

25     did.  It failed to pronounce on this issue; that closes the matter.

Page 142

 1             With respect to the Harhoff issue, my colleague on the

 2     Prosecution calls it a legal disagreement based on a disagreement in the

 3     jurisprudence.  It goes way further than this.  And my colleague also

 4     relies on the Seselj decision.

 5             The first most important issue, whether the communication of

 6     Judge Harhoff was informal, casual, meant to be addressed to friends,

 7     that's not the question.  Whether it is unreasonable or not for a Judge

 8     to write strictly or not in a memo, that's beyond the point.  The issue

 9     is you read the memo and what is the appearance that comes out of the

10     memo; this is what matters.  And it is clear what comes out of this memo,

11     that there's a clear predisposition to convict on the basis of knowledge.

12     It's what the letter reveals.

13             My colleague raised a very interesting issue at 69, lines 7 to 8,

14     professional judges are able to set aside personal views.  Wow.  When I

15     read this memo, this is anything but a Judge who is able to set aside his

16     professional views.  The e-mail is completely opposite.  The fact that

17     you have a unanimous decision in Stanisic has absolutely no bearing.

18     What is at stake here is not the appearance of the trial, not whether the

19     judgement was unanimous.  What is at stake is whether that letter

20     displays a reasonable apprehension of bias; and if so, does it impact on

21     the trial.  We have already explained why we believe it does.  Whether

22     the trial was conducted fairly or decided by three Judges unanimously,

23     again, is beside the point.

24             My colleague says, well, if he had an appearance of bias, you

25     would have expected him to enter a dissenting opinion.  Well, that's

Page 143

 1     exactly the point we're saying.  Appearance of bias, if you add the

 2     appearance of bias, then a Judge is not going put in a judgement that he

 3     disagrees with the law and that he usually convicts on the basis of

 4     knowledge, so this time he's going to say I enter a guilty finding but

 5     only on knowledge.  Of course a Judge is not going to do this.  So that

 6     doesn't work.

 7             In Seselj, the Specially Convened Chamber, one, did not commit

 8     any legal error - I said that before - but it did not presume bias.  This

 9     is not what it says.  I refer to the most important thing, I guess, in

10     Judge Harhoff's comment, the dilemma, the way he explains the dilemma,

11     trying to walk back because he really knows what the dilemma in his

12     e-mail really displays and he's trying to explain it.  It has become he

13     would be under a dilemma or it was clearly "I was under a dilemma."

14             Lastly, I just say simply about the rule change.  We have a rule

15     change.  I think the rule change fits with Judge Afande's separate

16     opinion.  Yes, the report is important, but in this time, in this case,

17     the report compounds the appearance of bias.

18             JUDGE AGIUS:  Please conclude.

19             MR. BOURGON:  We agree with the Prosecution that if there is an

20     appearance of bias, and we say it is, the remedy is invalidate the

21     conviction and send him home.  If the Prosecutor wants to ask for a

22     re-trial later, they can do so and we will respond.

23             Thank you very much, Mr. President.  This concludes our

24     submissions.

25             JUDGE AGIUS:  Thank you, Mr. Bourgon.

Page 144

 1             Now, Mr. Krgovic or Mr. Gosnell - I don't know who is going to

 2     take the floor - we will go till five minutes past 1.00, and then of

 3     course we will continue after the lunch break.

 4             MR. GOSNELL:  Thank you very much, Mr. President.  Good

 5     afternoon, Your Honours.  For those of you who don't know me, my name is

 6     Christopher Gosnell and I appear on behalf of Mr. Zupljanin.

 7             I take the floor first to address you on three issues, the first

 8     being the violation of Mr. Zupljanin's right to be tried by a fair and

 9     impartial Tribunal; the second issue being the Trial Chamber's improper

10     reliance on Mr. Zupljanin's alleged presence at the Holiday Inn in

11     February 1992; and the Trial Chamber's lack of reason in imputing

12     omissions to Mr. Zupljanin for the purpose of making findings of

13     actus reus and mens rea for commission by JCE.

14             My learned friend Mr. Krgovic will extend the discussion of

15     resubordination and explain how dominant, how central, that issue was

16     during the trial, even to the extent that the Judges themselves took the

17     initiative to call Chamber witnesses on the issue.

18             My learned friend Ms. Cmeric will then address Your Honours on

19     extermination and sentencing.

20             Your Honours, Judge Harhoff's e-mail to 56 friends and

21     acquaintances was sent 71 days after he had signed the judgement

22     convicting Mr. Zupljanin and sentencing him to 22 years.  On that basis

23     and that basis alone with one minor exception, and in our respectful

24     view, that e-mail gives rise to a reasonable apprehension of bias through

25     a deep-seeded reluctance to apply the standards that are well

Page 145

 1     established, well known, well understood, long applied at this Tribunal

 2     in case after case.

 3             Before we embark on a discussion of the e-mail itself, it's

 4     perhaps useful to just look at what those positions -- what that doctrine

 5     is.  I do have the assistance of a PowerPoint presentation.

 6             The unique aspect of JCE, joint criminal enterprise, is that this

 7     is a form of commission which permits the actus reus to be performed by a

 8     plurality of persons.  This means that no single person, as in the case

 9     of physical commission, needs to commit the actus reus; it can be spread

10     across different people.  And that leads to a lowering of the actus reus

11     threshold relative to physical commission to merely acts that in some way

12     are directed to the furthering of the common plan.

13             At the same time, however, the mens rea standard is the same as

14     for physical commission and that standard is that the accused intended

15     the crime.

16             Now, it's not so much that JCE at this stage of the Tribunal's

17     history is legally debatable, complex, or fraught; the issue is that it

18     creates complexities of adjudication.  Mens rea, after all, is not just

19     an attitude or a mind-set; mens rea is the animating intent with which an

20     act is performed.  And reducing that actus reus threshold means that

21     Judges, as Your Honours know from having sat on trials at this Tribunal,

22     have less direct information to rely upon in inferring that animating

23     purpose behind an act.  And that analysis becomes even more complex, as

24     is the case in this case, where there are even lawful acts of violence

25     being committed in the course of an armed conflict and is made even more

Page 146

 1     fraught by the fact that there may be those who wish to achieve their

 2     aims by lawful means, whereas there are other individuals who want to

 3     achieve the same ends by unlawful criminal means.

 4             So given that fraught background, that context in which

 5     fact-finding is so difficult, especially in respect of this reduced

 6     actus reus, how do the Trial Chambers of this Tribunal ensure that that

 7     standard of direct intent for mens rea is maintained?

 8             Well, the first step is that common purpose has to be strictly

 9     defined.  It may not include a purpose that is not criminal, and if it

10     did, that would risk analysing mens rea in respect of a purpose that is

11     much too broad.  It would permit an imputation of mens rea to something

12     that is not entirely criminal.

13             Now, of course, the case law of the Tribunal has long stated that

14     the criminal purpose may amount to or involve a criminal purpose, but

15     that must be understood, we submit, as an amounting or involving that is

16     intrinsic to the criminal purpose rather than merely being a possible or

17     a foreseeable means by which that purpose is achieved, because if you

18     introduced those concepts of foreseeability or possibility, of course the

19     standard for direct intent would be indirectly lowered below what is

20     permitted.

21             So what is the relationship - and it's an issue that was raised

22     repeatedly in the trial judgement - between knowledge and intent?  And

23     this is from Your Honours' -- the Appeals Chamber's recent judgement in

24     Sainovic, stating that the accused must share the intent for the

25     commission of the crimes and not merely foresee their occurrence.

Page 147

 1     Foreseeability cannot be mechanically or automatically applied to infer

 2     direct intent, nor can direct intent be automatically or mechanically

 3     inferred on the basis even of contemporaneous knowledge that crimes are

 4     being committed.

 5             And the particularly salient part of the passage that is now in

 6     front of you from the Krajisnik's appeals judgement is underlined and

 7     bolded there at the end which describes the proper type of fact-finding

 8     that must be engaged in before findings of mens rea and actus reus can be

 9     arrived at.  And I quote:

10             "In those instances where the Trial Chamber referred to a

11     particular month in which leading JCE members became aware of the

12     commission of expanded crimes, it did not specify the date when this

13     happened or whether Krajisnik was among the leading JCE members who

14     gained such awareness, let alone when leading JCE members went from being

15     merely aware of the crime to intending it."

16             This is, I suggest, the proper level of rigour that is required

17     by Your Honours, by the Appeals Chamber, in fact-finding in respect of

18     mens rea.  So this is the jurisprudential context, and I suggest it's not

19     complicated.  It's clear, the standard that's required for JCE.  It's

20     settled.  And this is the context in which we must analyse what Judge

21     Harhoff wrote 71 days after he signed the Zupljanin trial judgement.

22             Now, what he says -- and I propose to try to add some value to

23     what has already been said by my colleagues about this e-mail by trying

24     to read the e-mail wholistically, in its entirety, to ensure that there

25     can be no misunderstanding about what Judge Harhoff, we say, must have

Page 148

 1     meant, what he must have been expressing in this e-mail.  And the e-mail

 2     starts in terms of the discussion of JCE with the phrase or the

 3     expression:

 4             "We had also developed an extended criminal responsibility for

 5     people (ministers, politicians, military leaders, officers and others),

 6     who had supported an overall goal to eradicate ethnic groups from certain

 7     areas through criminal violence, and which in one way or another

 8     contributed to the achievement of such a goal; it is this responsibility

 9     that goes by the name of 'joint criminal enterprise.'"

10             Now, I pause here to say that if the words "supported an overall

11     goal" is understood as meaning direct intent, that there would be nothing

12     in that words to arouse in the mind of an reasonable observer that Judge

13     Harhoff was proposing an improperly low mens rea threshold.  As it stands

14     this could be interpreted as indeed conveying the notion of direct

15     intent.  But as we'll see from the rest of the e-mail, that's not how he

16     understands agreement or support.

17             After this passage, there is the discussion of the three cases

18     that have already been mentioned by my learned colleagues, and Judge

19     Harhoff continues:

20             "What can we learn from this?

21             "You would think that the military establishment in leading

22     states (such as USA and Israel) felt that the courts in practice were

23     getting too close to the military commanders' responsibilities.  One

24     hoped that the commanders would not be held responsible unless they had

25     actively encouraged their subordinate forces to commit crimes.  In other

Page 149

 1     words:

 2             "The court was heading too far in the direction of commanding

 3     officers being held responsible for every crime their subordinates

 4     committed.  Thus their intention to commit crime had to be specifically

 5     proven.

 6             "But that is exactly" -- and then Judge Harhoff defends this

 7     position, the previous state of the law as he understood it:

 8             "That is exactly what the commanders get paid for:  They must

 9     ensure that in their area of responsibility no crimes are committed, and

10     if they are they must do what they can to prosecute the guilty parties.

11     And no one who supports the idea of ethnic eradication can deny the

12     responsibility of, in one way or another, contributing to the achievement

13     of such a goal.

14             "However, this is no longer the case.  Now apparently the

15     commanders must have had a direct intention to commit crimes - and not

16     just knowledge or suspicion that the crimes were or would be committed."

17             Now, at this point, Your Honours, a reasonable observer, I

18     suggest, would not be able to avoid harbouring the impression or having

19     the impression that Judge Harhoff is distinguishing between two concepts:

20     a JCE standard on the one hand that involves support and a JCE standard

21     that involves direct intention to commit crimes.  That's a distinction

22     that Judge Harhoff is creating between direct intent and support.  We

23     don't know precisely what Judge Harhoff might mean by "support," but we

24     do know that it is in his view lower than direct intent and

25     significant -- lower to a degree that is sufficient to provoke in him

Page 150

 1     very, very strong expressions in this e-mail.

 2             Now, what he is also doing is repudiating, quite clearly, the

 3     standard which is well established in the law of the Tribunal and which

 4     did not change as a result of any of the decisions that he refers to.

 5     That's the law as it's been since Tadic.  And the fact that Judge Harhoff

 6     is mistaken about the meaning of these recent cases that he's referring

 7     to is irrelevant.  What's important is the reflection in this e-mail that

 8     Judge Harhoff is expressing disagreement with the standard of direct

 9     intent for JCE.

10             And is such disagreement allowed in line with the Judge's oath?

11     Certainly, Your Honours, it's allowed.  Judge Schomburg expressed sharp

12     disagreement with the doctrine of JCE and he put it in his judgement

13     clearly and expressly.  And the position as expressed in the judgement is

14     what allowed the Appeals Chamber to look closely at what standard was

15     being applied and to determine whether a conviction was correct on a

16     basis of the standard expressed by the Judges.

17             Now, it's possible that someone could attempt to argue that what

18     Judge Harhoff was referring to was merely the actus reus not needing to

19     be criminal, and indeed in Sainovic it's true; the actus reus does not

20     need to involve a crime.  There's no dispute about that.  But even if

21     that act, whatever that may be, is not a crime, that mens rea standard is

22     always direct intent.

23             Now, Your Honours, I don't propose to read what's on this slide.

24     It's well-known what's in the content of this particular passage and I

25     don't think it could have been put better than by Judge Liu in his

Page 151

 1     dissenting opinion in the Seselj disqualification decision, who said that

 2     they constitute, and I quote, "unsubstantiated speculations and

 3     insinuations of improper conduct by other colleagues in a fashion that is

 4     unbefitting of a Judge," and that's at paragraph 2 of his dissent.

 5             What's significant without getting into the details is the

 6     stridency of the details, the level of hostility, the sense of usurpation

 7     of the law as a result of these decisions.

 8             Judge Harhoff goes on to explain that the theory -- and this is

 9     coming back to the distinction that I was drawing earlier between

10     agreement/support on the one hand, and intent, direct intent, at least as

11     in the mind -- expressed by the mind of -- in the e-mail of Judge

12     Harhoff.  And he says:

13             "The theory of responsibility under the specific joint criminal

14     enterprise has now been reduced from contribution to crimes in some way

15     or another to demanding a direct intention to commit crime and not just

16     acceptance of the crimes being committed."

17             Again, we see here this juxtaposition, as we saw before, between

18     direct intention to commit crime on the one hand and acceptance -

19     acceptance - of the crimes being committed.  Now, albeit imperfectly, the

20     origin of this distinction might be similar to the distinction between

21     dolus directus and dolus eventualis, between direct intent and acceptance

22     of the risk of a possibility that crimes will occur, the same

23     distinction, as Your Honours will know, in the mens rea between JCE 1 and

24     JCE 3.  And here we see Judge Harhoff saying the standard for JCE 3 is

25     perfectly acceptable for imposing liability pursuant to JCE 1.

Page 152

 1             And the distinction comes up again:

 2             "I have always presumed that it was right to convict leaders for

 3     the crimes committed within their knowledge within a framework of a

 4     common goal.  It all boils down to the difference between knowing on the

 5     one hand that the crimes actually were committed or that they were going

 6     to be committed, and on the other hand planning to commit them.  That's

 7     the bottom line!"

 8             As Your Honours know, planning requires direct intent.  So again

 9     we see this dichotomy, this juxtaposition, between a standard of direct

10     intent and mere awareness that crimes might or would be committed.  And a

11     reasonable observer could not help but infer from this passage, in

12     conjunction with the earlier passages, that this is precisely the

13     standard of JCE that he was applying in the Zupljanin case.  And why do I

14     say that?  Because in this very passage on the page in front of you he

15     says:

16             "In all the courts I have worked in here, I have always presumed

17     that it was right to convict leaders ..."

18             Surely this applies to the case that he had just worked on, the

19     last case he had worked on, the case whose judgement he had signed just

20     two months before.  It's an indirect implicit reference to what he had

21     just been involved in as a Judge.  So even if there's no express

22     reference in the e-mail to any of the cases on which he was working,

23     there's certainly an implied reference.  And there's not only an implied

24     reference but an indication of the standard that he applied in those

25     cases.

Page 153

 1             Now, the three foregoing passages, I suggest, especially, not in

 2     spite of, especially to an observer who is impeccably informed about the

 3     law of this Tribunal, that reasonable observer would understand the

 4     dichotomy, the juxtaposition being drawn repeatedly by Judge Harhoff in

 5     this e-mail, with support or agreement as something less than direct

 6     intent.

 7             Now, here we see a slight variation of the terminology being used

 8     by Judge Harhoff.  He says:

 9             "How do we now explain to the thousands of victims that the court

10     is no longer able to convict the participants of the joint criminal

11     enterprise, unless the Judges can justify that the participants in their

12     common goal actively and with direct intent contributed to the crimes?

13     Until now, we have convicted these participants who in one way or another

14     showed that they agreed with the common goal ... as well as in one way or

15     another, had contributed to achieving the common goal - without having to

16     specifically prove that they had a direct intention to commit every

17     single crime to achieve it.  It is almost impossible to prove."

18             Again, Your Honours, the same distinction, the same dichotomy,

19     the same contrast being drawn between agreement and direct intent, with

20     agreement being something lower.

21             Now, what does Judge Harhoff say after he's had time to reflect

22     on the content of his e-mail in order to explain what he said?  Well,

23     what he says is:

24             "The point was, and this is clear from the context, that the new

25     practice would require more than just the degree of intent associated

Page 154

 1     with knowledge, i.e., that the supreme commanders could only be convicted

 2     in the future if a stronger degree of intent could be proven at trial."

 3             Your Honours, we just saw the passage from Krajisnik, indicating

 4     the importance of proceeding through the steps of the analysis of the

 5     facts, of determining whether or not intent could be inferred from

 6     knowledge, whether or not there is sufficient acts that indicate that

 7     mens rea exists, that special and high threshold of mens rea that is the

 8     same for direct commission, the same for swinging an axe and killing

 9     someone, that same level of intent requires rigour, reasons, and an

10     analysis.  In relation to knowledge, yes, but certainly not comprised by

11     knowledge as we see reflected in this passage which is written by Judge

12     Harhoff with the benefit of hindsight.

13             Now, the fact that before this passage there's a pro forma

14     reference to the framework of JCE or the regular framework of mens rea

15     and actus reus has to be read in light of this, it has to be read in

16     light of the passages, the repeated passages in the e-mail, which shows

17     quite distinctly, Your Honours, that Judge Harhoff's understanding of

18     that framework, his understanding of mens rea within JCE, involves a

19     standard that is less than direct intent.

20             Now, the Prosecution, while it was speaking, indicated that

21     there's no difficulty because the trial judgement shows that Judge

22     Harhoff applied the correct standard.  He set aside his deeply felt, his

23     deep-seeded views about JCE and properly participated in the judgement

24     that sets out the standard correctly.  Well, is that really true?  Are

25     there indications in the judgement that something less than direct intent

Page 155

 1     has been applied?

 2             Your Honours are a court of appeal over a range of matters with

 3     very limited jurisdiction.  Yes, of course, you owe deference to

 4     Trial Chambers' reasoning and assessments, but on the other hand at this

 5     stage of the Tribunal's history, it's not likely for Trial Judges to make

 6     overt mistakes about the applicable law, nor are Your Honours expected to

 7     merely sit back and not look for indications, clues, suggestions that an

 8     improper standard was applied.  And you do that, of course, by looking to

 9     see if there are omissions, failures to state reasons, or if indeed there

10     are statements, maybe not throughout the judgement but here and there

11     that suggest to Your Honours that, boy, there's something wrong here,

12     something that's happened that causes difficulty for Your Honours in

13     assessing whether or not indeed the standard that is set out in the

14     applicable law section is what was actually applied to the facts that was

15     before the Trial Chamber.  And, Your Honours, there are indications of

16     that absence of reasoning and incongruities in the judgement that suggest

17     there was a problem with the mens rea being applied.

18             Here we see at paragraph 313, in Volume 2 of the judgement, an

19     indication that the common plan did exist, the objective of which was "to

20     permanently remove Bosnian Muslims ... through the commission of the

21     crimes of forcible transfer ... the Chamber finds that there is

22     insufficient evidence to find that other crimes alleged in the indictment

23     were part of this joint criminal enterprise."

24             So in the Trial Chamber's view, there is only a common criminal

25     purpose involving deportation and forcible transfer.  How is forcible

Page 156

 1     transfer carried out, Your Honours?  Forcible transfer is carried out

 2     through coercion.  It's carried out through unlawful coercion.

 3     Typically, the lowest level of coercion in the cast of crimes under the

 4     ICTY Statute is persecution, i.e., discriminating against an individual

 5     by various means to make them feel unwelcome, to put it in simplistic

 6     terms.  That's normally the basic way of encouraging people to leave an

 7     area.

 8             But what does the Trial Chamber say about persecution?  At

 9     paragraph 528:

10             "The Trial Chamber recalls its findings that Serb forces carried

11     out the forcible removal ... by committing crimes against them and by

12     enforcing living conditions following the take-over of towns and

13     villages.  Zupljanin was also a member of both the ARK and Banja Luka

14     Crisis Staffs, which issued orders restricting the rights of Muslims and

15     Croats to perform certain jobs or impacting on their property rights.  On

16     this basis, the Trial Chamber finds that the possibility that Serb forces

17     could impose and maintain restrictive and discriminatory measures against

18     non-Serbs in the ARK municipalities in the execution of the common

19     criminal plan was sufficiently substantial so as to be foreseeable to

20     Stojan Zupljanin and that he willingly took that risk."

21             And this is the same finding, Your Honours, also in respect of

22     unlawful detention, and indeed all of the other crimes that are alleged

23     in the indictment.

24             Now, is that reconcilable?  Are those two findings fully

25     incompatible?  Well, they may be.  I would say, Your Honours, that

Page 157

 1     they're probably not compatible.  But even if they're possibly

 2     compatible, the fact that these incongruous findings can appear in the

 3     judgement without an explanation, without a discussion, without an

 4     attempt to say:  Here is why we find that Mr. Zupljanin had direct intent

 5     in respect of coercion to encourage people to leave the area of the ARK,

 6     while on the other hand we find that we cannot convict him, we cannot

 7     find that he has direct intent in respect of persecution or unlawful

 8     confinement or imprisonment or murder or any of the other crimes charged

 9     in the indictment, here is why, here is the explanation as to why those

10     are reconcilable.

11             Another inference Your Honours could draw from these two passages

12     is to see them as in fact completely compatible if you apply the standard

13     that we see in Judge Harhoff's e-mail; namely, knowledge, foresight, some

14     kind of acquiescence, which leads to an assumption that he has something

15     less than direct intent but is sort of going along in a way that can

16     nourish a foreseeability finding on the part of the Judges.

17             Now, His Honour Judge Liu raised some important and very salient

18     concerns about the sufficiency of the reasoning by the majority that --

19     of the Special Chamber that disqualified Judge Harhoff from the Seselj

20     case, which doesn't necessarily mean that their conclusions are wrong,

21     but on the other hand Judge Liu's observations certainly warrant further

22     discussion.

23             Judge Liu pointed out two particular factors that he considered

24     important in dissenting, and the first point that he made was that the

25     entire context should be considered, including Judge Harhoff's

Page 158

 1     explanatory memorandum.  Now, as the previous slide of that memorandum

 2     shows when we look at it, Judge Harhoff actually reinforces, not dispels,

 3     the impression that he believes that the state of the law is that direct

 4     intent is not required for a finding of JCE liability.

 5             The other important aspect of the 8th of July explanatory

 6     memorandum, which I believe could have been taken account and I would

 7     suggest Your Honours should take into account in your analysis here, is

 8     that notwithstanding the very striking remarks by Judge Liu about the

 9     nature of Judge Harhoff's conduct, that Judge Harhoff in his explanatory

10     memorandum doesn't acknowledge any deviation from accepted standards of

11     judicial conduct.  He doesn't say that he's done anything wrong and that

12     he feels any regret for having indicated some of the things that he did

13     in his e-mail.

14             Second point that arises from Judge Liu's dissent which is very

15     relevant is the question as to whether the deep professional and moral

16     dilemma is actual or potential.  Judge Harhoff's position in his

17     explanatory memorandum is that it was potential.  In the e-mail itself he

18     says that this deep professional and moral dilemma has arisen from "the

19     latest judgements here."  He also says that this is a dilemma that he has

20     not previously faced.  Again, the unmistakable impression that would be

21     created in the mind of a reasonable observer is that Judge Harhoff is

22     facing this dilemma.  He's not facing it because of any potential

23     misconduct in terms of communication with Judges; he's facing this

24     dilemma because of what he describes as the developments in Perisic.

25             JUDGE AGIUS:  We have five minutes left and the tape will run

Page 159

 1     out, so we need to conclude in five minutes.

 2             MR. GOSNELL:  Mr. President, I could go until 1.05 or I could

 3     stop now if it's --

 4             JUDGE AGIUS:  It's up to you.  I wouldn't interfere with that.

 5             MR. GOSNELL:  Well, perhaps it would be best to stop now and then

 6     come back after the lunch.

 7             JUDGE AGIUS:  Okay.  Thank you.

 8             So we'll have a break of one hour and five minutes starting from

 9     now.  That means we will reconvene at five minutes past 2.00.

10                           --- Luncheon recess taken at 12.59 p.m.

11                           --- On resuming at 2.06 p.m.

12             JUDGE AGIUS:  We shall now continue with Mr. Zupljanin's

13     submissions.  You have 60 minutes remaining, if my calculation is

14     correct.

15             There is a new schedule which I am going to inform you about.  As

16     I said now, Zupljanin's submissions to 15.05.  Prosecution responds from

17     15.05 to 16.05, unless you want to cut down on those 60 minutes.  Then

18     there will be a break from 16.05 to 16.25.  We are reducing the break

19     from 25 minutes to 20 minutes.  After that, from 16.25 to 16.45,

20     Zupljanin will reply.  From 16.45 to 17.25, we have the Prosecution's

21     submissions, 40 minutes on their appeal.  We have from 17.25 to 17.45,

22     the Stanisic response, 20 minutes or less if you prefer.  Then there is a

23     break from 17.45 to 18.05, again 20 minutes.  Zupljanin response, 20

24     minutes.  Prosecution reply from 18.25 to 18.40.  And finally, if there

25     are going to be -- the appellants are going to address, Mr. Stanisic has

Page 160

 1     ten minutes from 18.40 and Mr. Zupljanin will have ten minutes from 18.50

 2     and we will finish at 7.00.  Okay.

 3             So let's co-operate because it's a long day and please try to

 4     avoid repeating.  We've heard a lot of repetition of what is contained in

 5     the briefs this morning, in spite of my suggestion first thing in the

 6     morning not to do that.

 7             So, Mr. Gosnell.

 8             MR. GOSNELL:  Mr. President, thank you for that direction, and

 9     I'll just say there's nothing more to say about the issue of the e-mail,

10     except to commend Your Honours' particular attention to the Hoekstra

11     case, which I would suggest to Your Honours does present many of the

12     characteristics that we have here.

13             Your Honours have asked in the Scheduling Order if there is an

14     appearance of bias, whether it invalidates Mr. Zupljanin's conviction.

15     Assuredly it does, Mr. President.  I command to your attention the

16     Medicaments case, paragraph 35; the Hatchcock case, paragraph 4; the

17     Hoekstra case, paragraph 24; as well as the cases collected by Judge

18     Afande in his dissenting opinion in the continuation of proceedings in

19     the Seselj case, paragraph 11.

20             Second question, if the conviction is not set aside, what

21     remedies for the breach of Zupljanin's fair trial rights may be

22     appropriate.  The answer, Mr. President, is none.  There is no remedy

23     that is equal to the prejudice arising from the participation of a Judge

24     who has an appearance of bias in the judgement.

25             The position set out in the appeal brief in respect of de novo

Page 161

 1     findings was a secondary position, certainly not the primary position.

 2     And in any event, given the jurisprudence of the -- or at least the tenor

 3     of the jurisprudence of the Appeals Chamber would not permit de novo

 4     findings of guilt against the accused.  And we suggest that in a case

 5     such as this, where all of the findings would have to be started from

 6     anew, there could not be a finding of guilt.

 7             Your Honours have also asked whether or not there was a failure

 8     to -- the Trial Chamber erred in determining that Mr. Zupljanin was

 9     present at the Holiday Inn and participated or was present at the SDS

10     Main and Executive Board meetings there, and the answer, Your Honours, is

11     that the Trial Chamber did err in that respect.  The issue was barely

12     mentioned at trial.  The meeting is mentioned in the Prosecution

13     pre-trial brief, paragraphs 85 to 86, with no reference to Mr. Zupljanin

14     having been present.  When there was a witness present before the

15     Trial Chamber who was at that meeting, he was not asked whether

16     Mr. Zupljanin was present.  That witness was not even asked who was

17     present at that meeting.  And then the Trial Chamber proceeded to find

18     that Mr. Zupljanin was present on the basis of a receipt from the Holiday

19     Inn, indicating the name Zupljanin, and an intercept in which there is a

20     reference by an interlocutor with Mr. Karadzic, saying that he could meet

21     with a person named Stojan during the breaks.  Even accepting that

22     evidence, assuming it's reliable, doesn't prove that Mr. Zupljanin was

23     there at the meeting, doesn't prove that he was there - importantly - at

24     the time of the discussion of the Variant A and Variant B proposals,

25     which is actually what's important in terms of drawing an inference of

Page 162

 1     mens rea.

 2             In that regard, Your Honours, the scarcity of evidence is

 3     striking in comparison to the reliance placed on this event, this

 4     attendance at this meeting, which is mentioned at paragraph 519 in Volume

 5     2 of the judgement, the crucible of the Trial Chamber's mens rea

 6     findings, and yet this alleged participation is a matter that was

 7     essentially not discussed at all at trial.  All of a sudden it ends up in

 8     the -- at the core finding of mens rea for the trial judgement.

 9             And why is that, Mr. President?  Why is that?  Why did the

10     Trial Chamber strain to find that he was present?  Because,

11     Mr. President, this is, if not the only, then one of the only very few

12     indications of any mens rea at the very beginning of April which the

13     Trial Chamber imputed to Mr. Zupljanin.  And, as Your Honours know from

14     our appeal brief, I won't repeat the arguments, the Trial Chamber relied

15     extensively on actions of Mr. Zupljanin that occurred long after April

16     1992 and did not make any discussion -- there was no discussion as to why

17     those actions as late as November 1992 nourished, substantiated its

18     finding, that he possessed that mens rea as of April.

19             And I recall from the Sainovic case, at paragraph 1035, by the

20     Appeals Chamber, the statement that the Appeals Chamber was not persuaded

21     by the Prosecution's argument that Sainovic's subsequent failure to

22     encourage the persons in charge to prosecute or punish the physical

23     perpetrators is indicative of his intent at the time when the crimes were

24     committed.  There must be that coincidence of mens rea and actus reus.

25     There must be an ability to find beyond a reasonable doubt that the

Page 163

 1     mens rea exists at that particular point in time, and the Trial Chamber's

 2     indiscriminate, undifferentiated findings, relying on all these events up

 3     to November 1992, leaves Your Honours in doubt as of when the

 4     Trial Chamber could have said beyond a reasonable doubt now Mr. Zupljanin

 5     does possess the mens rea beyond a reasonable doubt, and that's the

 6     problem with the Trial Chamber's findings, a lack of specificity as to

 7     the timing of his joining the JCE and the basis on which that was

 8     inferred.

 9             Your Honours have asked whether in relation to Mr. Zupljanin's

10     first ground of appeal the Trial Chamber found Mr. Zupljanin responsible

11     for failing to investigate crimes committed by the police resubordinated

12     to the military.  The answer is yes and abundantly and pervasively.  You

13     see, Your Honours, at paragraph 519, which I referred to as the crucible

14     paragraph for mens rea, reference to acts and omissions, and then in the

15     middle of the paragraph:

16             "The Trial Chamber has also considered Zupljanin's failure to

17     protect the non-Serb population in conjunction with his enrolment of the

18     SOS in the detachment, his inaction in relation to the crimes committed

19     by this unit and his statements and actions taken in response."

20             So there we see references to omissions.  But it's not just

21     there, Your Honours.  It's also paragraph 504; Mr. Zupljanin is said to

22     have done nothing.  Paragraph 505, he did not impose disciplinary

23     sanctions.  At paragraphs 441 through 455, the heading of that section is

24     "Failing While Under a Duty Under Laws and Regulations Applicable to MUP

25     to Protect Entire Civilian Population Within Areas in ARK

Page 164

 1     Municipalities."  Paragraphs 457 through 488, encouraging and

 2     facilitating commission of crimes by Serb forces by not taking adequate

 3     steps to investigate, arrest, or punish perpetrators of such crimes.

 4             Now, it's true that the Trial Chamber did not make an express

 5     finding that there were occasions when a policeman who was subordinated

 6     to the military was not subject to disciplinary measures or sanctioned by

 7     Mr. Zupljanin and that there could be an inference of intent on that

 8     basis.  That's true, Your Honours, but only because the Trial Chamber

 9     expressly renounced any need or obligation to set out that there ever was

10     any subordination at any time.  And it's not just - as the Prosecution

11     argues at paragraphs 33 and 71 of their response brief - that this issue

12     was not addressed abstractly or that this was merely a hypothetical

13     concern.  Your Honours, the issue was not only not addressed abstractly,

14     it was not dealt with specifically in respect of all of the individual

15     events which led up to paragraph 519, that finding of mens rea.

16             And given the evidential context, how much time at trial was

17     spent on these issues, some of which will be discussed by my learned

18     colleague Mr. Krgovic, the Trial Chamber's own active interest in the

19     issue, including discussing for quite a number of paragraphs the

20     implications of resubordination, that evidential context leads to the

21     conclusion that this is not simply a hypothetical concern where the

22     Defence comes up at the last minute in its final trial brief and says,

23     Oh, wait a minute, we have a basis for saying that it turns out he didn't

24     have jurisdiction.  No, this was an issue throughout trial as the Judges

25     knew and yet they renounced any need to address the issue.

Page 165

 1             Under what circumstances is it appropriate --

 2             THE INTERPRETER:  Kindly slow down, please, for the sake of the

 3     interpreters and court reporter.  Thank you.

 4             MR. GOSNELL:  That a person is participating in a JCE.  We have

 5     guidance on this issue from the Tolimir trial judgement, paragraph 1117.

 6     This is referring to four elements and it's referring to criminal

 7     responsibility for an omission under Article 7(1).  There's no indication

 8     that JCE should be exempt from this approach.  JCE is a form of

 9     commission under Article 7(1).  And you can see the four conditions that

10     are set out there:  A duty to act mandated by a rule; not only a public

11     law, a criminal law that the person had the ability to act to fulfil that

12     duty; that the person in addition failed to act intending the criminally

13     sanctioned consequences; and that the failure to act resulted in the

14     commission of the crime.

15             Now, actually the Prosecution's position isn't all that

16     different, although it's a little bit vaguer.  When a Chamber considers

17     JCE liability based in a part on an omission, it is only required in its

18     actus reus analysis to find that an accused was under a relevant duty,

19     that they had the ability to act, and that their failure to act factually

20     contributed to the implementation of the JCE.

21             Now, we say, of course, those standards are too low, but either

22     way at least they are standards for assessing whether or not a

23     hypothetical action which was not performed by an accused actually

24     constitutes an omission that can be taken into account as constituting

25     part of the actus reus and mens rea for commission by way of JCE.

Page 166

 1             Now, what was the Trial Chamber's position on this issue?  Well,

 2     before I turn to that, I had a chance briefly to familiarise myself with

 3     Your Honours' pronouncement in the Stanisic and Simatovic case, and what

 4     I see in that judgement based upon a fairly superficial review is that

 5     Your Honours are very concerned to ensure that findings of JCE, this very

 6     powerful form of liability, ought to be substantiated by very specific

 7     findings, very precise indications as to how actus reus was determined,

 8     how mens rea was determined.

 9             How did the Trial Chamber assess whether a hypothetical action

10     which was not taken should be attributed to Mr. Zupljanin?  No analysis,

11     Your Honours.  No description.  A series of conclusions, offhand

12     observations that he failed to do X or Y, an omission to do X or Y, did

13     not take action against X or Y.  Not only is there no framework of

14     analysis, but when you add in the failure to address the issue of

15     resubordination, it constitutes a complete absence of reasons that could

16     satisfy Your Honours that the Trial Chamber has indeed taken the correct

17     approach to mens rea and actus reus.

18             Now, in declining to assess resubordination, the Trial Chamber

19     may have conflated resubordination with superior responsibility, as if

20     the former could only be relevant to the latter.  But this is not a

21     correct equivalence; it's a equivalence.  Whether the police force was

22     suspected of committing crimes at the time resubordinated to the military

23     was mutually exclusive of Mr. Zupljanin's authority over them, and the

24     Trial Chamber recognised that, saying they could not determine who had

25     authority to punish, discipline, control police who were resubordinated

Page 167

 1     to the military.  That's the Trial Chamber's own - if I can call it a

 2     finding - that's the Trial Chamber's own finding.  It's a finding that it

 3     couldn't make a finding.  And it should have triggered at that point,

 4     once the Trial Chamber made that finding, it was incumbent upon them to

 5     rigorously analyse whether particular acts by policemen were or were not

 6     undertaken in the context of resubordination, because otherwise,

 7     Your Honours, what we have is a situation where the Trial Chamber cannot

 8     say, in light of its own doubts about resubordination, its own

 9     recognition of the seriousness of the issue, how central it was to

10     assessing Mr. Zupljanin's capacity to act, obligation to act, duty to

11     act, in light of all that, it wasn't possible for the Trial Chamber to

12     decide beyond a reasonable doubt that particular actions or crimes

13     committed by persons who were resubordinated to the military should be

14     attributed to Mr. Zupljanin.

15             Mr. President, with your leave, I will now cede the floor to

16     Mr. Krgovic who will address you on some of the very extensive evidence

17     that was heard about resubordination during the trial.  I thank

18     Your Honours.

19             THE INTERPRETER:  Mr. Gosnell is kindly requested to switch off

20     the microphone.

21             MR. KRGOVIC: [Interpretation] Your Honours, I will speak in

22     Serbian.

23             JUDGE AGIUS:  Mr. Gosnell, microphone.

24             MR. KRGOVIC: [Interpretation] Your Honours, I will speak in the

25     Serbian language because I can explain myself better with regard to some

Page 168

 1     things in my native tongue, and I have provided a transcript of my speech

 2     to the booths so that there will be no problem with following my address.

 3             Your Honours, resubordination is a central topic that was dealt

 4     with by the Defence, Prosecution, and the Trial Chamber intensively

 5     throughout the trial.  The issue was raised in the courtroom for the

 6     first time on the 2nd of October, 2009, at the very beginning of the

 7     trial, some two weeks after its commencement.  We spent months in the

 8     courtroom, if not an entire year, discussing the issue.  Dozens of

 9     witnesses were heard.  A large number of documents was introduced,

10     including two expert reports on the part of the Defence as well as those

11     experts' testimony.  In addition, both OTP experts, the police and

12     military one testified on that issue.  Furthermore, the Trial Chamber

13     called its own two witnesses proprio motu who dealt exclusively with the

14     topic.

15             Your Honours, I would like to draw your attention to our

16     PowerPoint presentation, where we have Judge Hall commenting upon General

17     Lisica's testimony, and he said:

18             [In English] "We require your assistance on the resubordination

19     of police forces to the army and the responsibility for an investigation

20     and prosecution of the serious crimes allegedly committed by

21     resubordinated forces during time of resubordination."

22             [Interpretation] Your Honours, we began the trial with that topic

23     and concluded it with the topic as well.  What was the outcome?

24     Following a summary of most witness testimony and evidence on the topic,

25     the Trial Chamber first stated that it is not in a position to establish

Page 169

 1     whether the military or civilian authorities would be the ones

 2     responsible for conducting investigations and prosecution for crimes

 3     against Muslims and Croats that may have been committed by members of the

 4     police resubordinated to the army.  The Trial Chamber further stated that

 5     there was no need to provide any further conclusions regarding the issue

 6     of resubordination.

 7             Your Honours, despite all that, in paragraph 518 of the second

 8     volume of the judgement, the Trial Chamber found that Zupljanin was

 9     liable because he, I quote, "failed to launch criminal investigations and

10     discipline his subordinates who had committed crimes against non-Serbs,

11     thus creating a climate of impunity."

12             Also, in paragraph 519 of the second volume, the Trial Chamber

13     found that Zupljanin failed to protect the non-Serb population, inter

14     alia, by failing to discipline the units under his control.  The basic

15     issues to which the Trial Chamber did not provide an answer which, had

16     they been correctly analysed in detail and had they been answered, would

17     to a significant extent, if not completely, have changed the

18     Trial Chamber conclusions regarding Zupljanin's failure to act.

19             The first such issue is when and under what circumstances were

20     members of the police resubordinated to the army.  In other words, in

21     which situations and periods were the members of the police beyond the

22     authority and competence of Zupljanin?  And secondly, to what extent were

23     the crimes that Zupljanin was charged with committed by members of the

24     police while they were resubordinated to the Army of Republika Srpska?

25             Why is this issue important, Your Honours?  And I will cite

Page 170

 1     relevant examples from the judgement where the relevant police stations,

 2     including entire police stations, were completely resubordinated to the

 3     military structures.  Such examples are Donji Vakuf, Kljuc, Kotor Varos,

 4     the security detail at the military camps of Manjaca and Trnopolje, as

 5     well as the participation of the police in all combat activities in the

 6     territory of the ARK.

 7             Your Honours, the Trial Chamber had before them a plethora of

 8     evidence and testimony, based on which it was easy to establish who had

 9     the authority and who was responsible to launch investigations and

10     discipline perpetrators in these places and locations.  I just wanted to

11     cite a few examples, some exhibits and the names of certain witnesses.

12     These are Exhibits 5160, 2D159, 1D662, 1D368, P1888, P624.  Then the

13     testimony of Witness Slavko Lisica, then Witness Aleksandar Krulj,

14     Witness SD172, Witness General Vidosav Kovacevic, as well as

15     Witness Nenad Krejic.  All this evidence was ignored by the

16     Trial Chamber.

17             Why is resubordination so important?  Because there is evidence

18     in the case indicating that 80 per cent of the policemen who were members

19     of the Banja Luka CSB were resubordinated to the army between the 4th of

20     April, 1992, until December 1992, the 31st of December, 1992.

21             We can also have a look at P624, report on the work of the

22     Banja Luka CSB drafted by Mr. Zupljanin, as well as the testimony of

23     Witness Goran Macar, transcript pages 23094 and 23095.

24             Furthermore, Your Honours, in such situations Zupljanin did not

25     have the authority over the forces that may have committed those crimes.

Page 171

 1     Furthermore, Zupljanin had difficulty exercising his authority over such

 2     members of the police who were not resubordinated as can be seen in

 3     Exhibit P624.  So even had Zupljanin tried to issue an order to such

 4     forces resubordinated to the army, such individuals or units would have

 5     been under no obligation to act on such order because at that moment in

 6     time they belonged to a different chain of command and decision-making.

 7             The issue of resubordination is also closely linked to the issue

 8     of Zupljanin's obligation and criminal liability vis-à-vis protecting

 9     civilians as a whole.  The very fact, Your Honours, that over 80 per cent

10     of regular and reserve policemen were resubordinated to the army between

11     April and December 1992 and that Zupljanin could neither exercise

12     authority over them nor could he count on them to perform regular police

13     tasks explains why Zupljanin de facto was not in a position to provide

14     adequate protection to the civilian population, of which he was found

15     guilty.

16             Therefore, to the extent to which Zupljanin's orders were

17     inefficient, it was not because Zupljanin wished them to be such or

18     because he was protecting the members of the police; it was because he

19     had neither the ways nor means to see them through.  To that effect, we

20     have the testimony of Witness SD161, transcript pages 3527 and 3528 and

21     3533 to 3535, as well as the testimony of Witness SD007 who expressly

22     stated that such orders could almost never be put into practice.

23             Finally, Your Honours, I would like to address something that my

24     learned friend Mr. Gosnell also mentioned and that was a question by the

25     Appeals Chamber.  You wanted to know whether the Trial Chamber found

Page 172

 1     Zupljanin responsible for failing to investigate crimes committed by

 2     police resubordinated to the military.

 3             Your Honours, based on everything specified in our appeal reply

 4     by Zupljanin and what I stated today, we believe that the answer to that

 5     question is positive, i.e., that the Trial Chamber indeed pronounced

 6     Zupljanin guilty of failing to investigate and discipline the

 7     perpetrators of crimes in cases where the crimes were committed by the

 8     policemen who at the time of commission were resubordinated to the VRS.

 9             Your Honours, these are no small omissions on the part of the

10     Trial Chamber, nor are they technicalities that would not have an impact

11     on the liability or sentence of the accused.  These issues go to the gist

12     of the Trial Chamber's conclusions regarding Stojan Zupljanin's

13     liability.  These are serious errors on behalf of the Trial Chamber

14     invalidating the judgement on several levels.  They made the conclusions

15     regarding facts at least uncertain and, one may also say, unreasonable.

16     As such, they require radical intervention by the Appeals Chamber.

17             Your Honours, this is all I wanted to say on this matter and

18     Ms. Cmeric will take it from here.

19             MS. CMERIC:  Good afternoon, Your Honours.  My name is

20     Tatjana Cmeric, and today I will be addressing your question concerning

21     the extermination charge and then I will move on to discuss sentencing.

22             Mr. President, with your permission, I would proceed to answer

23     Your Honours' question regarding Zupljanin's third ground of appeal;

24     namely, and I quote, "whether the Trial Chamber made the required finding

25     that the perpetrators of the killing of 20 detainees during their

Page 173

 1     transport from Betonirka detention facility to Manjaca camp on 7 July

 2     1992 possessed the required intent for extermination; and if not, whether

 3     the absence of such a finding would invalidate the Trial Chamber's

 4     conclusion."

 5             The mens rea of extermination requires the intention of the

 6     perpetrator to kill on a large scale or to systematically subject a large

 7     number of people to conditions of living that would lead to their deaths.

 8     Only in Volume 1, paragraph 215 of the judgement, the Trial Chamber

 9     avers, and I quote, "police officers intended to inflict serious bodily

10     harm upon the detainees being transported and that the detainees were

11     killed."

12             The Chamber appears to be also accepting in the same paragraph

13     and elsewhere in the judgement the possibility that death of about 20

14     detainees, as they put it, may not have even been intentional; namely, in

15     the said paragraph, 215, of the judgement the Trial Chamber stated, and I

16     quote, "the police officers knew or should have known that with their

17     actions they could have caused the victims' deaths."

18             Then in Volume 2, paragraph 524, the Chamber states, and I quote:

19             "On 7 July 1992, 20 non-Serb detainees had died in a truck while

20     being transported by the Sanski Most police."

21             All the facts surrounding this incident, taken at their best or

22     at their worst, do not show beyond a reasonable doubt that principal

23     perpetrators possessed the required mens rea for the crime of

24     extermination.  It is certainly not the only reasonable inference a trier

25     of fact would have found on the evidence.

Page 174

 1             Your Honours, I would ask if we could now move briefly into

 2     private session, please.

 3             JUDGE AGIUS:  Let's move into private session, please, for a

 4     while.  Are we in private session yet?

 5                           [Private session]

 6   (redacted)

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10   (redacted)

11   (redacted)

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13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

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20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

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25   (redacted)

Page 175

 1   (redacted)

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 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15                           [Open session]

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

17             JUDGE AGIUS:  We are in open session.

18             Ms. Cmeric, please.

19             MS. CMERIC:  Thank you.

20             So this witness says that police members who were heading the

21     column were not even aware of the conditions in which the detainees were

22     transported to Manjaca.  And we have no other evidence suggesting that

23     they had any specific knowledge about it, let alone that they intended to

24     subject the detainees to conditions that would lead to their death.  The

25     Trial Chamber completely disregarded it.

Page 176

 1             Testimony like this should not have been disregarded but instead

 2     considered in conjunction with Exhibit P486, which is a daily report from

 3     Manjaca camp operational team sent to the command of the 1st Krajina

 4     Corps security intelligence department, dated 8 July 1992.  The document

 5     refers to 24 prisoners who, as the report reads, died, probably due to

 6     lack of oxygen.  The report criticises the Sanski Most organs, so not

 7     specifically police or not the police alone or even not the Sanski Most

 8     police at all.

 9             A similar report that can also be looked at is P487, dated 9 July

10     1992.  Notably, both reports were sent to a military corps and not to the

11     Sanski Most or the Banja Luka police or not to Zupljanin for that matter.

12     So even accepting that the police or other persons involved in transport

13     of detainees to Manjaca were aware of the transportation conditions, the

14     Prosecution has failed to prove beyond reasonable doubt that principal

15     perpetrators possessed the required mens rea to either kill on a massive

16     scale or to systematically subject these people to conditions of living

17     that would lead to their deaths.  The requirement is that the

18     perpetrators' mental state encompasses all objective elements of the

19     crime.  The annihilation of a mass of people and those directives is the

20     level of criminality required, rather than recklessness or gross

21     negligence.

22             Your Honours, to go even further, if the recklessness or dolus

23     eventualis standard would satisfy the mens rea of extermination in

24     respect of the Sanski Most -- I apologise, could satisfy the mens rea of

25     extermination, the Chamber's findings still do not meet even that lower

Page 177

 1     standard in respect of the Sanski Most incident.  The Chamber found that

 2     the police officers, and I quote again, "knew or should have known that

 3     with their actions they could have caused the victims' deaths."

 4             The "should have known" standard is a statement of negligence and

 5     carelessness, not a voluntary undertaking of a risk as required by dolus

 6     eventualis.  The Chamber's findings do not meet the mens rea threshold

 7     for extermination.

 8             As noted in paragraph 234 of the Zupljanin appeal brief, the

 9     perpetrators, therefore, did not commit extermination, and that event

10     cannot be so characterised or imputed as such to the JCE even if it was

11     foreseeable.  This was an error of law arising from a misstatement of the

12     Chamber's own findings that invalidates the Chamber's legal conclusion.

13             Finally, to answer the first part of Your Honours' question, the

14     Trial Chamber did make a finding concerning principal perpetrators'

15     intent for extermination.  The issue here, therefore, is not the absence

16     of any finding on the Chamber's part; it is that the finding does not

17     meet the mens rea requirement for the crime of extermination.

18             To answer the second part of Your Honours' question, the

19     existence of the finding as it stands does invalidate the Trial Chamber's

20     conclusion in a way that the finding of extermination with respect to 7

21     July 1992 incident can no longer stand.

22             That concludes my submissions in relation to Your Honours'

23     question.  With your permission, I would now move to discuss the

24     sentencing.

25             Your Honours, the Trial Chamber correctly set out the applicable

Page 178

 1     allow concerning sentencing but failed to follow it and did not exercise

 2     its discretion in the way to achieve a proper balance in view of the

 3     evidence on the record between the gravity of the crimes and the

 4     individual circumstances of the accused.  The Trial Chamber made several

 5     discernible errors which, viewed either separately or jointly, caused

 6     irreparable damage to the sentencing part of the judgement.

 7             Sentences imposed in previous cases are not binding on subsequent

 8     Chambers that have the obligation to individualise the penalty.  As the

 9     Chamber correctly held and noted in Volume 2, paragraph 887, the

10     discretion for determining the appropriate sentence, although broad, is

11     not unlimited.  The Trial Chamber in this case failed to give sufficient

12     weight to relevant considerations.  It made clear errors as to the facts

13     upon which it exercised its discretion and made decisions that are so

14     unreasonable and unjust that the Appeals Chamber is able to infer that

15     the Trial Chamber failed to properly exercise its discretion.

16             The Trial Chamber overestimated Mr. Zupljanin's position,

17     responsibilities, and authority and, on the other hand, undervalued his

18     positive deeds and efforts.  The Chamber took as aggravating circumstance

19     the fact that Zupljanin had wrongfully used his authority to assist

20     crimes.  However, when paragraph 948 in Volume 2 of the judgement is

21     carefully read, it appears that the Chamber had, in fact, relied on

22     Zupljanin's official capacity as the chief of the Banja Luka CSB, thereby

23     making a discernible error of double counting.

24             In Stakic, Your Honours, the Appeals Chamber held that the

25     Trial Chamber must provide convincing reasons for its choice of factors;

Page 179

 1     that's at paragraph 416.  The Trial Chamber failed to do so when it

 2     failed to establish that Zupljanin's dispatches and orders were in itself

 3     criminal.  In fact, there are no findings in the trial judgement that

 4     Zupljanin has misused his authority in that respect.

 5             By his direct actions, Zupljanin, among others, managed to save

 6     over a thousand lives.  He intervened when lives of nearly 600 people of

 7     Roma and Muslim ethnicity were at stake and also was actively involved in

 8     the release of several hundred detained non-Serbs in Teslic.

 9     Your Honours will find detailed submissions in paragraphs 247 and 249 of

10     the Zupljanin appeal brief on these matters and also in transcript 27630,

11     27631, and all the references contained therein.

12             The Chamber makes no mention of any of this in the sentencing

13     section.  Instead, it assesses that Zupljanin only reacted in, and I

14     quote, "specific and isolated instances."  That's judgement Volume 2,

15     paragraph 952.  And the Prosecution stated in paragraphs 212 and 213 of

16     its response brief and will undoubtedly reiterate that Zupljanin should

17     not benefit in mitigation from such situations as he helped create them

18     by participating in the JCE.

19             Your Honours, while contesting the Prosecution's submission, I

20     draw your attention to the Krajisnik case, where the Appeals Chamber

21     accepted as a mitigating factor his attempts to help certain non-Serbs

22     with their imprisonment and humanitarian aid; that's judgement paragraph

23     816, 817.  The Chamber did so, despite finding Mr. Krajisnik to be, and I

24     quote, "an architect of ethnic cleansing with respect to creation of

25     conditions of imprisonment."

Page 180

 1             The position of the Popovic et al. Trial Chamber that saving

 2     lives is a mitigating factor, even if such act is motivated by military

 3     considerations, and that is the position relied on in footnote 340 of the

 4     Zupljanin appeal brief and contested by the Prosecution in paragraph 213

 5     of their response brief.  So that position of the Popovic et al.

 6     Trial Chamber has now been upheld by the Popovic et al. appeal judgement,

 7     and that can be found in paragraphs 2076 and 2077.

 8             Zupljanin's positive actions had no hidden or nefarious motives,

 9     yet they were given insufficient weight or were blatantly disregarded by

10     the Chamber.  Ample evidence was heard, Your Honours, in trial on the

11     exigent circumstances existing at the relevant time-period, on the

12     breakdown in communications system, and lack of adequate reporting.  I

13     can refer you to Exhibits 2D52, P595, P621, P160, 2D50, and also to

14     testimony of SD166 and SD167.

15             Also, evidence was heard in trial on shortage of personnel

16     Zupljanin was facing; for example, you may want to look at Exhibit P560.

17     On the risks Zupljanin was facing, and that can be found in Exhibit 2D91

18     and also testimony of SD182 and SD172.  And despite that, on the open

19     criticism, Zupljanin was not afraid to communicate to certain authorities

20     and officials concerning their conduct towards the non-Serb population

21     and highly inadequate conditions in undefined camps in a blatant breach

22     of international norms, as he put it, and this can be found in Exhibits

23     P160 and 2D25.

24             Zupljanin made pleas to his peers to do everything within their

25     power to preserve peace.  He made serious efforts to devise and implement

Page 181

 1     a work-plan to tackle the crime, which is 1D198.  He openly opposed

 2     crime, violence, and effort to -- put a lot of effort to protect the

 3     non-Serb population.  Zupljanin repeatedly made efforts to preserve and

 4     restore law and order.  For instance, you may look at Exhibits P601 and

 5     P595, and also P621 and P624, not to mention the numerous criminal

 6     complaints and reports he filed.  And I refer Your Honours to Exhibits

 7     2D57, 2D58, 2D59, and so on, to name just a few.

 8             The Trial Chamber not only failed to take into account these

 9     endeavours, it went even further to aver that Zupljanin played, and I

10     quote, "a crucial role in the commission of the crimes for which he has

11     been found guilty," without any reference or regard to the nature of

12     forms of Zupljanin's participation in relation to the sentence.  These

13     arguments can be found in detail in subground 4(B) of the Zupljanin

14     appeal brief.

15             In case, however, the Appeals Chamber upheld the factual findings

16     on which Zupljanin's sentence lies, the sentence itself still requires

17     reduction.  As noted in the Galic appeal judgement, paragraph 455, and I

18     quote:

19             "Although the Trial Chamber did not err in its factual findings

20     and correctly noted the principles governing sentencing, it committed an

21     error in finding that the sentence imposed adequately reflects the level

22     of gravity of the crimes committed by Galic and his degree of

23     participation."

24             This is also referenced by the recent Djordjevic appeal

25     judgement, paragraph 968.

Page 182

 1             Your Honours, Mr. Zupljanin may not have always managed to react

 2     as promptly and as adequately as expected from an officer of the law.  He

 3     was not always adamant in his reactions and he may not have always found

 4     the most appropriate solution to a problem he was facing.  Over 20 years

 5     after the war and events in question, one can easily fall into a

 6     dangerous trap of oversimplifying the circumstances at the time.

 7             Looking from this perspective, it may appear easy to choose

 8     between different options and means at one's disposal and make the right

 9     decision, but back in the times of war it was everything but simple.

10     Seemingly simple solutions and decisions were often burdened with

11     obstacles and difficulties unimaginable to a present-day observer.  And

12     yes, in an ideal world, much more could have been done to prevent

13     movement of population or mistreatments and many more lives could have

14     been saved.

15             But the circumstances surrounding Mr. Zupljanin's daily duties

16     and activities were anything but ideal.  They were difficult; they were

17     chaotic, unpredictable, exigent.  That is why his sentence, if any, must

18     take into account the series of efforts Zupljanin made to suppress

19     violence, to preclude, prevent, or discover any wrong-doers, and also all

20     the actions taken against them and numerous lives and families he did

21     manage to save.  This deserves credit and should not have been dismissed

22     so lightly.  The sentence of 22 years imposed against Mr. Zupljanin is

23     manifestly excessive and disproportionate.

24             In addition to --

25             JUDGE AGIUS:  Five minutes left.

Page 183

 1             MS. CMERIC:  Yes, thank you.

 2             In addition to maintaining all the arguments from the appeal

 3     brief and reply brief, it is submitted that significant weight should

 4     have been given to the aforementioned particular factors and

 5     circumstances, which were so blatantly misconceived or disregarded in the

 6     sentencing part of the trial judgement.  Your Honours are, therefore,

 7     invited to rectify the errors and omissions of the Trial Chamber and

 8     reduce Mr. Zupljanin's sentence accordingly.

 9             That concludes my submissions, Your Honour.

10             JUDGE AGIUS:  Thank you, Ms. Cmeric.

11             Prosecution, you have 60 minutes.  It's five past 3.00 now,

12     according to the courtroom clock.

13             MR. MENON:  Good afternoon, Your Honours.

14             JUDGE AGIUS:  Good afternoon.

15             MR. MENON:  My name is Aditya Menon and I will be responding to

16     Zupljanin's appeal, together with Ms. Baig.

17             In our submissions this afternoon, Your Honours, we will show you

18     why Zupljanin's conviction is safe and why it should not be overturned,

19     why Your Honours can be satisfied that Zupljanin was tried by a fair and

20     impartial Bench, and why that Bench was right to convict him.  The bottom

21     line, Your Honours, is that the arguments the Defence makes challenging

22     Zupljanin's conviction and sentence are a diversion from the simple, the

23     obvious, and the very reasonable basis on which the Chamber established

24     his criminal responsibility.

25             Zupljanin was the police chief, after all, who created a unit out

Page 184

 1     of criminals and deployed that unit again and again and again, even as

 2     its members victimised non-Serbs.  You haven't heard it from the Defence

 3     but you'll hear it from me.  He was the police chief who told non-Serbs

 4     he couldn't protect them and kept his word by allowing non-Serbs to be

 5     victimised in the building that he worked, in the town where he was

 6     based, and across the ARK region for which he was responsible.  You

 7     haven't heard it from them but you'll hear it from me.

 8             He was the police chief who saw the horrid crimes that police

 9     forces perpetrated firsthand and heard and read about them through

10     reports he received and yet was emboldened to shield perpetrators from

11     criminal prosecution.  You haven't heard it from them but you will hear

12     it from me.

13             For the Defence, Your Honours, there's simply no escaping the

14     Chamber's reasoned findings about the choices Zupljanin made, the

15     deliberate conduct he engaged in, the numerous crimes he knew of, and his

16     unflinching commitment to the common criminal purpose, the common

17     criminal purpose to create a Serb state as ethnically pure as possible

18     through a persecutory campaign of forcible transfer and deportation.

19             Now, in my submissions this afternoon, I'll discuss the basis for

20     the Chamber's conclusion concerning Zupljanin's JCE contributions.  I'll

21     begin with the massive amount of active conduct, active conduct that the

22     Chamber relied upon in establishing his significant contribution.  As

23     much as the Defence would like this to be an omission liability case, it

24     simply is not one.

25             After I discuss Zupljanin's active conduct, I'll discuss the

Page 185

 1     climate of impunity that he created in the ARK through his acts and his

 2     deliberate inaction.  I'll then discuss the Chamber's reliance on

 3     Zupljanin's duty to protect the civilian population and then proceed to

 4     the issue of resubordination.

 5             In the course of my submissions, Your Honours, I'll answer the

 6     questions you've raised in relation to Zupljanin's first and third

 7     grounds of appeal.  Ms. Baig will conclude the Prosecution's submissions

 8     by responding to Zupljanin's arguments concerning his sixth ground of

 9     appeal, the Harhoff e-mail issue.

10             Turning then to the active conduct that the Chamber relied upon

11     in establishing Zupljanin's significant contribution.  Whilst Zupljanin

12     certainly contributed to the common criminal purpose through his

13     inaction, the Chamber also made extensive findings concerning Zupljanin's

14     active conduct, findings that in and of themselves establish his

15     significant contribution.

16             What did this active conduct entail?  Notably it entailed

17     creating and deploying the special police detachment, his special police

18     detachment.  It entailed disarming non-Serbs.  It entailed playing a

19     proactive role in the unlawful arrest and detention of non-Serbs.  The

20     Defence's arguments not only obscure this active conduct, it completely

21     ignores the active conduct that he engaged in in furthering the common

22     criminal purpose.

23             Let me begin the discussion about Zupljanin's active conduct by

24     talking about Banja Luka because that's where the story about his special

25     police detachment begins.

Page 186

 1             Having been one of the key actors who organised the blockade of

 2     Banja Luka by the SOS paramilitary group on the 3rd of April, 1992,

 3     Zupljanin fuelled the campaign of violence that followed that blockade by

 4     creating and deploying his special police detachment, a unit which he

 5     filled with seasoned criminals.

 6             What did the campaign of violence in Banja Luka into which

 7     Zupljanin introduced his special police detachment look like?  Let me

 8     tell you what it looked like.  After the blockade, the SOS, who had close

 9     links to the SDS, carried out attacks against non-Serbs and their

10     property in Banja Luka by blowing up houses and businesses two or three

11     times a week; that's Volume 1, paragraphs 157 and 209.

12             Zupljanin's policemen didn't meaningfully address these crimes;

13     instead, when patrolling Muslim neighbourhoods, they seized money and

14     gathered information that was used to bring people in for interrogation

15     at Zupljanin's headquarters, the Banja Luka CSB building; Volume 1,

16     paragraph 157.

17             A group of Serbs who drove a red van and included members of

18     Zupljanin's police force were particularly notorious in Banja Luka.  They

19     beat, they harassed, they arrested, and they stole property from

20     non-Serbs.  Those whom they violently abducted were shoved into their red

21     van which was driven around Banja Luka with its doors open so that the

22     abuse suffered by their victims was seen by everybody.  The red van group

23     launched some of their attacks from Zupljanin's CSB building and then

24     they returned there with their victims so that the victims could be

25     beaten and humiliated some more; Volume 1, paragraphs 159 and 201.

Page 187

 1             To make matters worse, Zupljanin granted these perpetrators

 2     impunity by publicly announcing in the first half of April 1992 that he

 3     couldn't guarantee the physical security and safety of non-Serbs and

 4     their property.  That's Volume 2, paragraphs 450 and 496.  The

 5     threatening atmosphere in Banja Luka following the blockade caused

 6     hundreds of non-Serbs to flee the municipality every week in buses

 7     escorted by the police; Volume 2, paragraphs 499 and 512.

 8             It was in the midst of this violence that was taking place all

 9     around him that Zupljanin created his special police detachment of about

10     150 to 200 men.  Zupljanin provided them, his detachment members, with ID

11     cards that authorised them to arrest people, to conduct searches without

12     a warrant, and to carry and use fire-arms; Volume 2, paragraph 390.

13             Zupljanin was warned about the dangers of inducting criminals

14     from the SOS into his special police detachment, but he disregarded those

15     warnings, praising the SOS for being Serbian knights; Volume 2,

16     paragraphs 388 and 499; Volume 1, paragraph 193.

17             Following its creation, Zupljanin unleashed the detachment in

18     Banja Luka in May 1992 where unit members arbitrarily arrested and beat

19     non-Serbs and looted their property.  Just as other perpetrators had been

20     doing since the blockade of Banja Luka in April, detachment members took

21     non-Serbs to Zupljanin's - Zupljanin's - headquarters, the Banja Luka CSB

22     building, and they beat them there; Volume 1, paragraphs 164 and 201.

23             In May 1992 detachment members were also actively committing

24     crimes outside of Banja Luka.  That month Zupljanin sent detachment

25     members to Bosanski Novi and Doboj and learned that they had committed

Page 188

 1     crimes in these municipalities as well; Volume 2, paragraphs 405, 431,

 2     440, and 502.

 3             Despite knowing that its members had victimised non-Serbs,

 4     Zupljanin allowed the detachment to operate in Banja Luka and deploy the

 5     detachment to assist in the take-over of other municipalities as well,

 6     and unsurprisingly members of the detachment continued to commit crimes

 7     against non-Serbs.  For instance, on the 13th of June, 1992, Prijedor SJB

 8     Chief Simo Drljaca reports to Zupljanin that detachment members had

 9     carried out arbitrary arrests, were abusing and robbing prisoners at

10     Omarska camp, and had looted property during mopping-up operations;

11     Volume 2, paragraph 421.

12             In June 1992, Zupljanin also deployed the detachment to

13     Kotor Varos at the request of the local Crisis Staff, and by the end of

14     that month, reports of the detachment's involvement in looting and

15     killing and raping non-Serbs in Kotor Varos reached Zupljanin; Volume 1,

16     paragraph 451; Volume 2, paragraph 425.  As late as August 1992,

17     detachment members were still expelling Muslims; Volume 2, paragraph 397.

18             Now, beyond his role in deploying the detachment, as I mentioned

19     at the outset, Zupljanin also actively contributed to the common criminal

20     purpose by ordering ARK policemen to co-operate with other Serb forces in

21     carrying out a disarming operation in May and June 1992 as the Chamber

22     found was instrumental - instrumental - to the removal of the non-Serb

23     population; Volume 2, paragraph 500.

24             The disarming operation facilitated attacks on non-Serbs by Serb

25     forces.  For example, in Prijedor, a largely successful drive at

Page 189

 1     confiscating arms from the Muslim and Croat population, including legally

 2     owned hunting rifles and pistols, resulted in an essentially unopposed

 3     take-over that Serb forces exploited by laying waste to the non-Serb

 4     areas they attacked.  The attacks caused the civilian population to flee

 5     their homes and hide in nearby towns, forests, and valleys, where they

 6     were hunted down and arrested; Volume 1, paragraph 658.

 7             In Prijedor, as in other ARK municipalities, arrests of non-Serbs

 8     were mass and indiscriminate.  These arrests formed part of the pattern

 9     of conduct designed to rid the RS of its non-Serb population.  The

10     Chamber's finding that Zupljanin played a proactive part - a proactive

11     part - in the mass arrest and detention of non-Serbs is a further

12     reflection of the active conduct he engaged in in furtherance of the

13     common criminal purpose.

14             How did Zupljanin play a proactive role in the mass arrest and

15     detention operation?  Well, first he closely supervised that operation.

16     Remember, Your Honours, Zupljanin had firsthand knowledge of the brutal

17     mistreatment being inflicted on detainees at the Banja Luka CSB building,

18     his Banja Luka CSB building, where it was common practice to openly beat

19     and humiliate non-Serbs; Volume 1, paragraphs 166 and 201; Volume 2,

20     paragraphs 415 and 503.

21             Beyond that, Zupljanin visited Omarska camp and saw non-Serb

22     detainees who looked miserable and undernourished, were foul-smelling and

23     showed signs of abuse to which they had been subjected; Volume 2,

24     paragraphs 424 and 508.  Zupljanin also visited Manjaca camp where he saw

25     detainees who had been deprived of the basic facilities to clean

Page 190

 1     themselves, living in stables built for animals; Volume 1, paragraph 182;

 2     Volume 2, paragraph 506.

 3             And beyond what he observed directly, Zupljanin received reports

 4     about the unlawful detention, mistreatment, and murder of non-Serbs;

 5     Volume 2, paragraphs 418 to 423, 425 to 427, and 506 to 510.

 6             But, Your Honours, Zupljanin didn't just closely follow the

 7     events on the ground, he provided Stanisic, his fellow JCE member, with

 8     information on the breadth of the detention operation in the ARK, crimes

 9     being committed, and he also made recommendations on how the detention

10     operation should be carried out.  That's Volume 2, paragraphs 434 to 435.

11             Zupljanin was so deeply involved in the operation, the detention

12     operation, that he even facilitated the removal of detainees from the RS.

13     For example, on the 29th of September, 1992, Zupljanin ordered the

14     Prijedor police to escort buses transporting more than 1.500 non-Serbs

15     from Trnopolje camp in Prijedor to Croatia; Volume 2, paragraph 511.

16             In addition to the proactive role that Zupljanin played in mass

17     arrest and detention of non-Serbs, in addition to his role in disarming

18     non-Serbs, and in addition to his role in creating and deploying the

19     special police detachment, there was more because Zupljanin also created

20     a climate of impunity in the ARK that perpetuated the cycle of violence

21     that was driving non-Serbs out of the RS.

22             How did he create that climate of impunity?  He did it through

23     action and he did it through deliberate - deliberate - inaction.

24     Zupljanin deliberately filed misleading criminal reports concerning the

25     massacre at Koricanske Stijene and the killings outside Manjaca camp in

Page 191

 1     order to shield the perpetrators from criminal prosecution; Volume 2,

 2     paragraph 519.

 3             Zupljanin also formed a sham commission to inspect detention

 4     camps and facilities in Prijedor, Sanski Most, and Bosanski Novi.  This

 5     commission produced a report that the Defence had acknowledged, at

 6     paragraph 166 of Zupljanin's appeal brief, was a self-serving white-wash.

 7     Their words.

 8             By filing misleading criminal reports and forming a sham

 9     commission, Zupljanin acted, he acted to shield perpetrators.  But as I

10     said, the climate of impunity in the ARK was a product of acts as well as

11     deliberate inaction, Zupljanin's acts and his deliberate inaction.

12             Ultimately, what the Chamber saw and determined from the evidence

13     was that Zupljanin's acts and his inaction were all born of a choice, a

14     choice that had deadly and horrific consequences for non-Serbs, a choice

15     that the Chamber refers to at paragraph 519 of Volume 2, a choice not to

16     protect non-Serbs, a choice coming from a police chief of Zupljanin's

17     stature that said to perpetrators, It's okay to terrorise non-Serbs

18     because the cycle of violence needed to continue, a choice Zupljanin knew

19     would force non-Serbs to leave the ARK municipalities and, in fact, the

20     RS.

21             Zupljanin's choice was all too apparent in April 1992 when he

22     broadcasted in Banja Luka by saying that he couldn't guarantee the

23     physical security and safety of non-Serbs and their property.  Zupljanin

24     may have said he couldn't protect non-Serbs and their property, but what

25     he really meant was that he didn't want to protect non-Serbs and their

Page 192

 1     property and therefore he wouldn't protect them.

 2             After all, Your Honours, ask yourselves, who was it in Banja Luka

 3     that Zupljanin didn't think he could protect non-Serbs from?  Was it the

 4     red van group who were launching attacks from his CSB building and taking

 5     victims there to be beaten up?  Was it them?  Was it the SOS who

 6     terrorised non-Serbs and yet who Zupljanin found it appropriate to laud

 7     as being Serbian knights?  Or was it the special police detachment which

 8     he created and set loose against the non-Serb population just a few weeks

 9     after his announcement?

10             This isn't a case, Your Honours, as the Defence have mentioned in

11     their sentencing submissions, where Zupljanin simply failed to act as

12     promptly and as adequately as expected from an officer of the law; it's a

13     case where he made the choice not to, deliberately, a deliberate choice

14     not to do so in order to drive non-Serbs out of the ARK and the RS.

15             Non-Serbs were terrorised in Banja Luka throughout 1992; Volume

16     1, paragraph 164; Volume 2, paragraphs 415 and 496.  When they complained

17     to Zupljanin about the abuses they were suffering, as a group of Muslim

18     representatives did in mid-August 1992, they were terrorised even more by

19     Zupljanin's policemen; Volume 2, paragraph 451, paragraph 497, and

20     paragraph 499.

21             Just as in Banja Luka in the days, weeks, and months that

22     followed his April announcement that he couldn't protect non-Serbs,

23     Zupljanin kept his word by failing to genuinely try and halt the crime

24     wave targeted at non-Serbs across the ARK.  He made his choice and he

25     stuck to it.  That choice was apparent from his failure to investigate

Page 193

 1     and discipline members of his own special police detachment for their

 2     crimes in Banja Luka and beyond; Volume 2, paragraphs 462, 484, 504, and

 3     505.

 4             Zupljanin's choice was also apparent in the utter disregard that

 5     he showed on separate occasions when he justified the horrible detention

 6     crimes in Omarska, Keraterm and in Teslic on the basis that there was a

 7     war going on; Volume 2, paragraph 423; Volume 1, paragraph 849.

 8             The Defence have referred to Teslic, but far from an illustration

 9     of his efforts to protect non-Serbs, his conduct in relation to Teslic

10     demonstrates the choice that he made not to protect them so that they

11     would leave the RS and the ARK.  His choice was apparent when he denied

12     Predrag Radulovic's request for a forensic team to exhume the Mice's

13     group's non-Serb victims in Teslic.

14             What did he say to Predrag Radulovic?  He said it wasn't the

15     right time for forensic examinations.  There was no need for forensic

16     examinations of these victims; Volume 2, paragraph 455.  It wasn't the

17     right time to investigate crimes against non-Serbs in Teslic, just like

18     it wasn't the right time to investigate the killings in front of Manjaca

19     camp or the massacre of non-Serbs at Koricanske Stijene, or thousands of

20     other horrible crimes against non-Serbs.

21             Now, meaningfully addressing these crimes, Your Honours, risks

22     slowing the cycle of violence that was driving the expulsion campaign.

23     It risked discouraging perpetrators from terrorising non-Serbs.  And so

24     Zupljanin chose not to take any meaningful action.  He chose to broadcast

25     his choice so that there be no doubt where he stood, so he broadcast it

Page 194

 1     in Banja Luka.  He chose to shield perpetrators.  He chose to form a sham

 2     commission to inspect detention facilities.

 3             By his deliberate inaction, Zupljanin chose not to fulfil the

 4     most basic and the most obvious duty of a police officer:  the duty to

 5     protect the civilian population.  That choice encouraged perpetrators to

 6     continue committing crimes and it discouraged victims from remaining in

 7     the RS.

 8             In Banja Luka, where hundreds of non-Serbs were fleeing the

 9     municipality by the week following the Serb blockade, the Muslim

10     community was shattered.  They were shattered by Zupljanin's announcement

11     that he couldn't protect them.  They realised their safety was in great

12     jeopardy; Volume 2, paragraph 450; Volume 2, paragraph 496.  The impact

13     across the ARK was no different.  At paragraph 518 of Volume 2, the

14     Chamber found that Zupljanin's failure to protect non-Serbs exacerbated

15     their feeling of insecurity and strongly contributed to their flight out

16     of the ARK municipalities.

17             Now, Your Honours, it makes no difference that the Chamber relied

18     on a duty from RS law when assessing Zupljanin's inaction.  The purpose

19     of a duty is to inform an individual of the conduct that is required of

20     them in a given situation.  In this case, Zupljanin knew he was under a

21     duty to protect the civilian population.  He made - as the Chamber found

22     at paragraph 519 of Volume 2 - a decision not to fulfil that duty in

23     order to discriminate against non-Serbs and force them to leave the ARK

24     municipalities, and in doing so he furthered the common criminal purpose

25     by his inaction.

Page 195

 1             In these circumstances, where Zupljanin's deliberate failure to

 2     fulfil a duty he knew he was under furthered the common criminal purpose,

 3     it makes no difference that the duty relied upon was found in national

 4     law and the recent Appeals Chamber judgement in Butare confirms this;

 5     Butare appeals judgement, paragraph 2194.

 6             Zupljanin's also argued this afternoon that the duty must be

 7     based in criminal law.  The Appeals Chamber has never limited omission

 8     liability in this way and that's reflected in the Butare appeal judgement

 9     as well, paragraph 2194.

10             In the context of JCE liability, where the duty is based in --

11     whether the duty is based in criminal law is irrelevant, Your Honours,

12     because JCE contributions needn't be criminal nor form part of the

13     actus reus of the crime.  This principle applies regardless of whether

14     the contribution is an act or an omission.

15             Therefore, Your Honours, since a contribution by omission needn't

16     be criminal, it would make no sense to require that the duty on which

17     that contribution is based to be one that entails a criminal sanction.

18     And in any event, Your Honours, a police officer's failure to fulfil

19     their official duty was criminalised in the RS.  I refer Your Honours to

20     the Prosecution's response brief at footnote 331.

21             I want to turn now, Your Honours, to the first question that

22     you've asked concerning Zupljanin's first ground of appeal, whether the

23     Trial Chamber found Zupljanin responsible for failing to investigate

24     crimes committed by police resubordinated to the military.

25             Your Honours, in answering your question I need to begin with

Page 196

 1     Zupljanin's duty to protect the civilian population.  Resubordination was

 2     irrelevant to Zupljanin's exercise of that duty.  It was irrelevant

 3     because Zupljanin's duty to protect the civilian population imposed on

 4     him an obligation to repress crime against civilian victims, irrespective

 5     of the status or affiliation of the perpetrator.  Furthermore,

 6     Your Honours, this duty wasn't just about investigating crimes; it was

 7     about taking measures, preventive measures, to stop crime.

 8             Now, there's been reference today to paragraph 342 of Volume 2.

 9     The Chamber's observations in that paragraph don't address Zupljanin's

10     duty to protect the civilian population.  The focus of that paragraph is

11     on whether resubordinated policemen were within the military or police

12     chain of command.  Those observations are relevant to Zupljanin's duty to

13     exercise his duty as a superior to punish his subordinates.

14             The Chamber was careful to distinguish that duty, his duty as a

15     superior, from his duty to protect the civilian population.  The Chamber

16     properly relied on Zupljanin's duty as a superior because it reasonably

17     established that he exercised authority over the policemen whom it found

18     he failed to investigate and discipline.  These policemen included

19     members of the special police detachment, policemen involved in the mass

20     arrest and detention operation, and SJB chiefs, like Simo Drljaca who

21     participated in crimes against non-Serbs.

22             By establishing Zupljanin's authority over these policemen, the

23     Chamber clearly resolved that they weren't resubordinated to the

24     military.  None of the arguments that the Defence have made concerning

25     resubordination undermine the Chamber's careful findings concerning

Page 197

 1     Zupljanin's authority.

 2             I just want to offer a couple of examples to illustrate the

 3     Chamber's correct approach to the issue of Zupljanin's authority.  First,

 4     the special police detachment.  The Chamber established that Zupljanin

 5     created the detachment, deployed it.  Crimes committed by the detachment

 6     in Kotor Varos and beyond were consistently reported to him and

 7     detachment members sought his intervention when they ran afoul of the

 8     law; that's volume 438 to 439 and 501 to 503.  The Chamber, therefore,

 9     correctly concluded that Zupljanin exercised complete authority over the

10     detachment and that he had the authority to punish its members.

11             The second example that I want to refer to, Zupljanin's authority

12     over policemen involved in the mass arrest and detention operation.  The

13     Defence have made specific arguments concerning Manjaca, Trnopolje,

14     Keraterm and Omarska camps.  Those are addressed in our response brief.

15     What I'm going to focus on is the broader context that the Chamber relied

16     upon in establishing that Zupljanin had the authority to investigate and

17     discipline policemen involved in the mass arrest and detention operation.

18             THE INTERPRETER:  Kindly slow down for the sake of

19     interpretation.  Thank you.

20             MR. MENON:  I apologise to the interpreters.

21             Zupljanin's authority over the policemen involved in the arrest

22     and detention operation was apparent from his comments at the 11th of

23     July MUP collegium meeting, where he told Stanisic and the other

24     participants that the army and the Crisis Staffs or War Presidencies were

25     requesting that as many Muslims as possible be gathered and were "leaving

Page 198

 1     these undefined camps up to the internal affairs organs."  That's P160

 2     which is discussed at Volume 2, paragraph 434.

 3             Zupljanin isn't talking about the resubordination of policemen to

 4     the military in this passage from P160; he's talking about MUP police --

 5     MUP personnel, excuse me, operating detention camps because, as he

 6     himself acknowledges, camps were left up to the internal affairs organs.

 7     Zupljanin's authority is also plainly apparent from his 20th of July

 8     report to Stanisic, Exhibit P583, discussed at Volume 2, paragraph 435.

 9             In that report Zupljanin refers to the arrest of several

10     thousands of Muslims and Croats, and he indicates that numerous active

11     and reserve policemen were involved in securing the facilities in which

12     these detainees were held.  Zupljanin asks Stanisic to contact the

13     authority organs and the VRS in order to "assume decisive position

14     regarding the further status and treatment" of the detainees.

15             Zupljanin also recommends that unlawfully detained non-Serbs be

16     treated as hostages to be used in prisoners exchanges and that the

17     responsibility of securing detention facilities be assumed by the VRS.

18             Your Honours, Zupljanin's report to Stanisic reveals the MUP's

19     deep involvement in and authority over detention facilities and camps in

20     the ARK.  Zupljanin demonstrates how invested he is in the detention

21     operation by making recommendations on how certain issues should be

22     resolved.

23             As far as the military's concerned, Zupljanin's talking about

24     collaboration with the VRS to resolve issues relating to the treatment of

25     detainees.  He's talking about shifting responsibility for guarding

Page 199

 1     detainees to the VRS.  He's certainly not suggesting that policemen

 2     working within detention facilities and camps have been resubordinated to

 3     the VRS.

 4             The Chamber also had the benefit of evidence showing that

 5     Zupljanin was asked for instructions as to how policemen should treat

 6     detainees.  On the 17th of June, Sanski Most SJB chief complained about

 7     the number of detainees being held at his SJB and asked Zupljanin to

 8     "issue an order giving the SJB strict orders regarding the treatment of

 9     prisoners."  That's P411.21, discussed at Volume 2, paragraph 418.

10             There is nothing exceptional about the mass arrest and detention

11     operation in Sanski Most.  The request that Zupljanin received from the

12     Sanski Most SJB chief is indicative, therefore, of his general authority

13     over policemen involved in the mass arrest and detention operation.

14             I want to turn, Your Honours, to the second question that you've

15     asked regarding Zupljanin's first ground of appeal, whether the

16     Trial Chamber erred in relying on Zupljanin's presence at the meeting at

17     the Holiday Inn of the SDS Main and Executive Boards in assessing his

18     intent.

19             In our submission, Your Honours, the Chamber reasonably

20     established that Zupljanin participated in the 14 February SDS meeting at

21     the Holiday Inn in Sarajevo.  The Holiday Inn receipt that the Chamber

22     relied on, Exhibit P1353.17, that bore Zupljanin's name that said he

23     stayed at the Holiday Inn on the very day that the Main and

24     Executive Board meeting was held at the hotel and that he left the next

25     day was enough to establish Zupljanin's presence at the meeting and, of

Page 200

 1     course, the intercept that the Chamber relied on supports that finding.

 2     We say that having properly established Zupljanin's presence at the

 3     meeting, it was appropriate for the Chamber to rely on that finding when

 4     establishing his shared intent for the common criminal purpose.

 5             At the 14 February meeting, Karadzic called for the

 6     implementation of the final stage of the Variant A and B instructions;

 7     Volume 2, paragraph 237.  The Chamber found that these instructions were

 8     designed to prepare local Serb communities and their leaders to take over

 9     power in municipalities; Volume 2, paragraph 310.  And beginning in

10     Banja Luka and through his deployments of the special police detachment

11     to other municipalities, Zupljanin played a key role in the take-over of

12     municipalities; Volume 2, paragraphs 495 and 518.  Zupljanin's presence

13     at the 14th of February meeting, considered in conjunction with his

14     subsequent conduct, demonstrates his knowledge and agreement with the

15     common criminal purpose.  That said, Your Honours, even if you were to

16     find that the Chamber erred in relying on Zupljanin's presence at the

17     14th of February meeting, there would be no impact on the judgement.

18             Mr. Gosnell miscasts the judgement when he suggests that this was

19     a core finding on which the Chamber based its shared intent conclusion.

20     The Chamber's conclusion that Zupljanin shared the common criminal

21     purpose is entirely supported by numerous other factors that it relied

22     upon, including Zupljanin's close ties with the SDS and role in

23     organising the Banja Luka blockade; Volume 2, paragraphs 495 and 519.

24     Zupljanin's role in implementing discriminatory policies that purged

25     non-Serbs from the police force in the ARK; Volume 2, paragraphs 44, 366,

Page 201

 1     377 to 382 and 519.  His efforts to foster the climate of impunity that

 2     reigned in Banja Luka after the April blockade and his promotion of that

 3     climate of impunity across the ARK.  Zupljanin's orders to disarm

 4     non-Serbs as they were being attacked in Banja Luka and just before they

 5     were attacked in other ARK municipalities.  The proactive role that

 6     Zupljanin played in the mass arrest and detention operation across the

 7     ARK.  His order on the 31st of July in the midst of the expulsion

 8     campaign, in which he referred to large numbers of Muslims and Croats

 9     leaving the ARK and ordered his subordinates to steal their money; Volume

10     2, paragraphs 490 and 526, and his creation of the special police

11     detachment, his immediate and continued deployment of that unit, and his

12     repeated failure to discipline the unit even as he learned of its

13     members' persistent involvement in crimes against non-Serbs, all of these

14     factors overwhelmingly support the Chamber's conclusion that Zupljanin

15     shared the common criminal purpose at least as of the start of April

16     1992.

17             Let me turn, Your Honours, to the question you've asked

18     concerning Zupljanin's third ground of appeal, whether the Trial Chamber

19     made the required finding that the perpetrators of the killing of 20

20     detainees during their transport from Betonirka detention facility in

21     Sanski Most to Manjaca detention camp on 7 July 1992 possessed the

22     required intent for extermination and, if not, whether the absence of

23     such a finding would invalidate the Trial Chamber's conclusion.

24     Your Honours, the Chamber made the required finding to establish the

25     perpetrators' intent for extermination.  Before reaching its conclusion

Page 202

 1     on whether this incident amounted to extermination, the Chamber carefully

 2     considered the underlying evidence at paragraph 189 of volume 1,

 3     stressing the number of detainees that had been transported in the truck

 4     in which the victims perished.  There were around 64 non-Serb prisoners

 5     in total in that truck.  The Chamber also placed emphasis on the manner

 6     in which all of the prisoners had been transported.  The prisoners were

 7     packed like sardines into the truck in which they were transported

 8     without enough air to breathe.  The Chamber also took note of the

 9     particular vulnerability of some of the prisoners.  It observed that some

10     of those who perished were old and in poor health.

11             Having considered all of these circumstances, the Chamber

12     concluded that the requirements of extermination were satisfied at

13     paragraph 219 of volume 1.  It's implicit in this conclusion, we say,

14     Your Honours, that the Chamber applied the correct mens rea test; in

15     other words, that the Chamber satisfied itself that the perpetrators had

16     the intention to subject a large number of people to conditions of living

17     that would lead to their deaths.  It's implicit that this is the test the

18     Chamber applied because this is the mens rea standard that the Chamber

19     stated at paragraph 45 of volume 1 needed to be met for extermination to

20     be established.  In any event, Your Honours, if you come to the view that

21     the Chamber applied an incorrect mens rea standard for extermination, the

22     only reasonable conclusion is that the perpetrators possessed the

23     required intent.  The Defence's attempt this afternoon to distance the

24     police from this particular incident on the basis of a few selective

25     pieces of evidence doesn't show error in the Chamber's finding that the

Page 203

 1     police, in fact, played a central role in the deaths of these non-Serb

 2     prisoners.

 3             Your Honours, before I conclude my submissions, I'm going to turn

 4     to address the Defence's argument the Chamber's JCE 3 findings contradict

 5     its determination concerning Zupljanin's shared intent for forcible

 6     transfer and deportation.  Defence is trying to introduce confusion,

 7     Your Honours, where there simply is none.

 8             First, the JCE 3 crimes don't exhaustively encompass the coercive

 9     acts through which non-Serbs were induced to flee.  Consider, for

10     example, Zupljanin's announcement in Banja Luka that he couldn't protect

11     non-Serbs and the impact that this had on the Muslim community.  Already

12     spoken about that.  This is an example of conduct that was not a JCE 3

13     crime, but yet added to the threatened atmosphere that was driving

14     non-Serbs out of the RS.

15             Second, the exclusion of the JCE 3 crimes from the scope of the

16     common criminal purpose is irrelevant to the Chamber's conclusion that

17     Zupljanin shared the intent for forcible transfer and deportation.  To

18     reach that conclusion that -- that conclusion about shared intent, all

19     the Chamber needed to do was to establish that Zupljanin intended that

20     displacement be forced; in other words, that the victims be given no

21     choice in their displacement.  This is exactly what the Chamber did.

22     I've already spoken about the findings that underlie its shared intent

23     conclusion.  Those findings clearly show that Zupljanin intended forcible

24     transfer and deportation and that he shared that intent with his fellow

25     JCE members.

Page 204

 1             Third and final point that I want to make is that according to

 2     the Appeals Chamber, even if an accused is acquitted of coercive acts

 3     through which forcible transfer and deportation is achieved, that

 4     wouldn't be a problem.  That's what happened in Krajisnik when he was

 5     acquitted of the expanded crimes and yet his conviction for forcible

 6     transfer and deportation was unaffected.

 7             Your Honours, those are my submissions.  I'll turn the podium

 8     over to Ms. Baig unless you have any questions for me.

 9             MS. BAIG:  Your Honours, as I explained in more detail in my

10     response to Stanisic's arguments this morning, a reasonable observer

11     properly informed with knowledge of all the relevant circumstances would

12     view the Stanisic and Zupljanin trial as fairly decided by an impartial

13     Bench with full respect for the rights of the accused.  The circumstances

14     of this case do not give rise to an apprehension of bias on the part of

15     Judge Harhoff.  His e-mail must be interpreted in light of its informal

16     nature and context.

17             My learned colleague this morning took issue with the e-mail's

18     discussion of intent in relation to modes of liability, but again,

19     Your Honours, I have to emphasise that this is not a legal document.  It

20     is an informal e-mail to friends.  The attempt to point fault at

21     particular statements within that document serves no purpose.  My learned

22     colleague's entire argument rests on the assumption that Judge Harhoff

23     was only discussing one specific mode of liability, that is, JCE 1,

24     responsibility.  He tested each and every statement against the legal

25     standard for JCE 1.  But that, with the greatest of respect, is a false

Page 205

 1     premise.  In his e-mail, Judge Harhoff is discussing modes of liability

 2     in a very holistic way.  He indicates in the e-mail that he's discussing

 3     command responsibility, JCE 1; extended JCE 3; and aiding and abetting.

 4     The cases and media articles that he's discussing, as well as his

 5     references to these other modes, makes it clear.

 6             In any event, Your Honours, even if Judge Harhoff made errors in

 7     his presentation of the mental elements in relation to the modes, where

 8     does that take us?  It wouldn't show bias.  It would show a

 9     misunderstanding of the law.  Judges, even in the judgements, even in

10     their formal judicial writing, make errors of law.  This is one of the

11     main purposes of the entire appellate process.  So whether it's a

12     disagreement about the law, as I said this morning, or a misunderstanding

13     about the law, even if that misunderstanding posits a lower mens rea

14     standard, it still does not show bias.  In any event, Your Honours, the

15     trial judgement confirms that the correct interpretation of the e-mail is

16     one that does not show any appearance of bias.

17             For the reasons I've set out this morning, the fairness of the

18     trial is not affected by the Seselj majority decision.  In relation to

19     your question, the Prosecution's position is that a finding of an

20     appearance of bias would lead to the invalidation of the conviction, but

21     this does not and cannot mean an acquittal.  It would have to mean either

22     a trial-level remand or reconsideration or, as Zupljanin has suggested, a

23     curing review by the Appeals Chamber itself.

24             Unless Your Honours have questions, that concludes the

25     Prosecution's response.

Page 206

 1             JUDGE AGIUS:  No questions.

 2             So we have a break now which, with your indulgence, we have

 3     reduced from 25 minutes to 20 minutes.  It's five to 4.00, so we'll

 4     reconvene at 20 minutes from now.  Thank you.  Quarter past.

 5                           --- Recess taken at 3.55 p.m.

 6                           --- On resuming at 4.15 p.m.

 7             JUDGE AGIUS:  Counsel for Mr. Zupljanin, you have 20 minutes,

 8     starting from now.

 9             MS. CMERIC:  Again, good afternoon, Your Honours.  I will respond

10     very briefly to the Prosecution's submissions at pages 137 and 138 of

11     today's hearing concerning Your Honours' question on the third ground of

12     Zupljanin's appeal.

13             Your Honours, in our submission, the Prosecution failed to

14     adequately address the main focus of the question; instead, they tried to

15     refute the Defence arguments concerning lack of mens rea on the

16     perpetrators' part or, indeed, on the insufficient evidence on the police

17     involvement, notably without making a single reference to evidence on the

18     record to the contrary concerning the latter, and by that latter I mean

19     the police involvement in the incident.  And the reason for that,

20     Your Honour, is simple:  No such evidence exists and the Defence

21     submissions provide a comprehensive and clear response to the question

22     asked.

23             My learned colleague Mr. Gosnell will address the remaining part

24     of the OTP response.  Thank you.

25             MR. GOSNELL:  Thank you, Mr. President.

Page 207

 1             Mr. President, the Defence never suggested that the Trial Chamber

 2     did not rely on acts as well as omissions in coming to its conclusion

 3     about joint criminal enterprise, but I do think the extent to which

 4     omissions were relied on by the Trial Chamber are quite fairly set out in

 5     the appeal brief at paragraphs 61 and 62.  And what you'll see, if you

 6     look at those two paragraphs where the elements that were relied on by

 7     the Trial Chamber are set out, is that about half of what the

 8     Trial Chamber relies on is omissions and the question that Your Honours

 9     are faced with in the absence of particularised reasons is:  If the

10     Trial Chamber made an error in respect of omissions, is it the case that

11     the Trial Chamber would have reached the same conclusions in respect of

12     mens rea and actus reus if it were relying only on the acts that it

13     mentions.  And there's nothing in the judgement that suggests that that's

14     the case.

15             The second point that I wish to address amongst the matters that

16     were raised by the Prosecution is the ostensible duty under which

17     Mr. Zupljanin was obliged, and this is set out, according to the

18     Prosecution, at footnote 331 of their response brief, in which there is a

19     reference to a law which indicates that -- a criminal law which indicates

20     that a public official can be found guilty of, inter alia, failing to

21     perform their official duties.

22             Obviously, the tenor of the Prosecution's remarks in general was

23     that Mr. Zupljanin could and should be deemed to have committed an

24     omission, a significant omission, that could be taken into account in

25     respect of any crime against any civilian in Bosnia or within his

Page 208

 1     jurisdiction, geographic jurisdiction, at this particular time.

 2             Now, think about the breadth of that.  In fact, the breadth of

 3     that is incorporated already in paragraph 520 of Volume 2 of the trial

 4     judgement, where the Trial Chamber says that it considered Zupljanin's

 5     failure to protect the non-Serb population.  So the breadth of that duty,

 6     I suggest, is so extremely wide that it would mean that any inaction in

 7     terms of a crime being committed and not being stopped or the person

 8     being arrested could be treated as a legally significant omission.

 9             If you accept that, Your Honours, that means that you're treating

10     any inaction, punitive inaction, in just the same way as an action.  It's

11     being attributed the same amount of significance in terms of inferring

12     actus reus and mens rea.

13             Now, why is that so dangerous in the particular circumstances

14     that faced Mr. Zupljanin?  Well, I draw Your Honours' attention to

15     paragraph 29 of the reply brief, where there's the testimony of General

16     Lisica, describing the situation as it existed at the time during periods

17     of conflict.  And what he says -- and remember, he is a military man, he

18     is a general; he's not a police person trying to shift responsibility on

19     to someone else.  And he says:

20             "All police forces were subordinated to the commander of the zone

21     of responsibility that I had as commander of Tactical Group 3 or

22     commander of Operative Group Doboj ..." and then he goes on to explain

23     further.  And there the record is replete with evidence of this kind,

24     Your Honours.

25             This is why it is so, I suggest, dangerous and reckless to use

Page 209

 1     language like "Zupljanin's SPD committed crimes in, for example,

 2     Kotor Varos," and then assume that those crimes or the failure to stop

 3     them, the failure to them, must be the responsibility of Mr. Zupljanin.

 4     On the contrary, Your Honours, the evidence was that when the SP -- and

 5     this the Chamber did not, of course, decide this in the end.  But when

 6     the SPD went into a combat-style operation, including, for example, in

 7     Kotor Varos, it was potentially -- or the evidence raised the possibility

 8     that they were resubordinated to the military with all that that

 9     entailed, Your Honours.

10             Now, I'm not here to convince you one way or the other as to

11     whether the resubordination existed, nor to convince you as to the

12     implications of that resubordination.  I'm only here to draw your

13     attention to the fact that the Trial Chamber recognised this as an

14     important issue, recognised that resubordination itself was complicated

15     enough that it could not decide who had responsibility to prosecute and

16     investigate crimes when that resubordination occurred, and then proceeded

17     not to make any findings about whether or not, for example, when the SPD

18     was sent to Donji Vakuf and crimes were committed, should those crimes be

19     imputed to Mr. Zupljanin in one way or another?  The Trial Chamber did

20     that.  They imputed that to him.  They ascribed responsibility for those

21     acts to him time and again, whether it was discussing his knowledge of

22     those crimes, whether it was discussing his potential ability to

23     investigate those crimes or to prosecute those crimes.  And yet, no

24     discussion, reasons, addressing the very real issue as to whether or not

25     that formation, the SPD, was at the time of those crimes actually under

Page 210

 1     his jurisdiction, because that's the issue:  Was it under his

 2     jurisdiction at the time of those crimes?

 3             It's not enough to just sweep it all in and say, by

 4     establishment, as the Chamber found, the SPD was part of the police.

 5     Yes, that's what they found, that's true.  But there was an additional

 6     finding required to draw a connection between Mr. Zupljanin's alleged

 7     inaction in respect of specific crimes and those crimes themselves.

 8             Your Honours, I think it's fitting to put on the screen 1D198

 9     because a certain picture was painted of Mr. Zupljanin before

10     Your Honours and we say that we have addressed all of the factual issues

11     that were raised by my learned friend opposite in our appeal brief, but

12     there's certainly not time in 20 minutes to address all those factual

13     matters.

14             But I think it's fitting - I'm not sure if it's on the screen -

15     it's fitting to end, discussing Mr. Zupljanin's person and character,

16     with a report that was written by Mr. Zupljanin.  And this is the

17     work-plan that he prepared and signed, dated the 25th of May, 1992, and

18     it's entitled:  "Operative work-plan for solving robberies, terrorism,

19     extortion, et cetera, which have escalated in the territory of the

20     Banja Luka SJB since the beginning of April."

21             And what he does in this report, Your Honours, is forthrightly

22     describe crimes that are taking place, identify the SOS as the formation

23     to which individuals suspected of crimes are affiliated, and then he

24     describes a series of actions that should be --

25             JUDGE FLUEGGE:  Before you continue, we should wait until we have

Page 211

 1     the English translation on the screen.  We have both sides in the B/C/S.

 2             MR. GOSNELL:  And then he describes the actions that should be

 3     taken.  I do believe there is an English translation somewhere,

 4     Your Honours, but I'll just proceed, push through this even without the

 5     English translation, with Your Honour's leave.

 6             JUDGE FLUEGGE:  There it is.

 7             MR. GOSNELL:  He identifies individuals by name.  He says that

 8     these people should be arrested or investigated.  I'm reliably informed

 9     that on page 3, in the middle of the page, there's a list of individuals,

10     one of whom is somebody identified as AKA Gavrin, who apparently during

11     the trial was identified as the driver of the notorious red van which did

12     indeed commit certain acts, criminal acts, in Banja Luka.  The point is

13     that Mr. Zupljanin actually did make efforts to conduct investigations,

14     particularly close to home where he was able to do it.

15             If we could now just look at page 4, and I believe that this may

16     give Your Honours just a little sense of the situation that was

17     practically facing Mr. Zupljanin.  And it may seem strange viewed from

18     our comfortable perspective, but if we try and put ourselves into the

19     atmosphere reflected in these paragraphs, it may be helpful.

20             What we see here is Mr. Zupljanin saying that many of those

21     suspects were mobilised by the JNA and their arrests should be carried

22     out by members of the special police detachment together with the

23     military police, et cetera.

24             "We need to have a prior agreement with the regular and military

25     courts in keeping all of the arrested persons in detention to prevent

Page 212

 1     organised resistance.  As long as the military prosecution office and the

 2     military court are in the process of being established, the plan cannot

 3     be implemented because most of the offenders are conscripts and members

 4     of the former TO which is why civilian courts and prosecutors refuse to

 5     conduct these proceedings."

 6             My learned friend opposite flippantly said:  Oh, well, who was

 7     committing these crimes if not the police?  Your Honours, there were

 8     thousands, tens of thousands, more than 150.000 people mobilised at this

 9     time or at various times in Bosnia.  Those individuals were not subject

10     to Mr. Zupljanin's jurisdiction, and that was certainly the position that

11     was argued at trial and not decided - not decided - Your Honours, by the

12     Trial Chamber.

13             Now, I would like to just turn in my closing minutes to one issue

14     in respect of the bias issue and that was the question of whether, well,

15     isn't this merely an expression in the e-mail of a genuine

16     misunderstanding of the law and that can happen.  Judges can

17     misunderstand the law, lawyers can misunderstand the law, and so there's

18     nothing new here.

19             Well, Your Honours, I commend to you again the Hoekstra decision

20     from Scotland which commends that bias comes in many forms.  It's not

21     just about a financial interest or an association with a party; it can

22     even arise merely from a judge's predisposition against applying a

23     particular legal rule or principle that in practice in the case will be

24     of benefit to the accused.  That was position in the Hoekstra case.  That

25     is precisely the position also in respect of Mr. Zupljanin.

Page 213

 1             Leaving aside, Your Honours, whether in and of itself it

 2     indicates that there was an error in the judgement, leaving that aside,

 3     nonetheless a predisposition, a tone, a hostility towards the application

 4     of that principle as strong as Your Honours see, that predisposition is

 5     too strong to believe that there would be anything but a lack of

 6     impartiality in the determination of the charges against Mr. Zupljanin.

 7             Your Honours, thank you for your patience and forebearance.

 8     Those are my remarks.

 9             JUDGE AGIUS:  Thank you.

10             Now I turn to the Prosecution.  You have 40 minutes to present

11     your case on your appeal.  Thank you.

12             MS. BAIG:  Hello again.  I just want to, for the record, indicate

13     to Your Honours that we've made a slight personnel shift.  Instead of

14     Ms. Harbour after the break, we now have Ms. Sarah Finnin, one of our

15     colleagues from the Prosecution.

16             Your Honours, before I turn to Ground 1 concerning the error in

17     sentence, there's one small issue that I'd like to clarify in relation to

18     Ground 2 of the Prosecution appeal and that concerns cumulative

19     convictions.

20             One of the issues that's disputed between the parties in relation

21     to Ground 2 concerns the elements of persecution.  I only wish to put on

22     the record the Prosecution's position in relation to an issue raised in

23     the Butare appeals judgement that was delivered on Monday.  In the Butare

24     appeals judgement, the ICTR Appeals Chamber finds that the ICTR has no

25     jurisdiction to adjudicate persecution based on ethnic grounds.  I just

Page 214

 1     want to point out that the ICTY jurisdiction is not limited in this way,

 2     that the reasoning of the Butare appeals judgement is an ICTR-specific

 3     reasoning.

 4             As Your Honours know, the ICTY Appeals Chamber has consistently

 5     confirmed convictions for persecutions based on ethnic grounds.  In

 6     Djordjevic, for example, the Appeals Chamber entered convictions for

 7     persecution on an ethnic basis, and the appeals judgement in Popovic,

 8     Kordic, Stakic, Krnojelac, Kvocka also accept persecution on ethnic

 9     grounds.  There would be no cogent reasons to depart from the established

10     ICTY Appeals Chamber jurisprudence in this regard, and certainly the

11     ICTR-specific reasons in Butare concerning the chapeau of the ICTR

12     provision for crimes against humanity are not cogent in relation to the

13     established ICTY jurisdiction.

14             In any event, Your Honours, in this case, as in so many other

15     ICTY cases, the Trial Chamber is using the term "ethnic group" as being

16     essentially synonymous with both a political and religious affiliation.

17     Muslims, of course, are associated with a political party, the SDA; the

18     Croats with the HDZ political party; and the JCE members.  One of the

19     ways that they were forcibly removing and otherwise targeting the

20     non-Serb population was through destruction of religious buildings.  So

21     ethnicity in this sense is an umbrella term that encompasses both

22     political and religious discriminatory grounds.

23             Turning to Ground 1 concerning sentence.  Mico Stanisic and

24     Stojan Zupljanin were convicted of horrendous crimes affecting the lives

25     of over 100.000 victims.  The Trial Chamber found that they worked

Page 215

 1     together with other leading Bosnian Serbs to permanently remove Bosnian

 2     Muslims and Bosnian Croats from the territory of the planned Serbian

 3     state through the commission of persecutory forcible displacement crimes.

 4             As a direct result of their sinister collaboration, more than

 5     100.000 people were forcibly displaced from their homes and villages in

 6     the ARK and Stanisic was responsible for at least an additional 30.000

 7     displacements from other Republika Srpska municipalities.

 8             This expulsion campaign resulted in the murder of more than 2.300

 9     non-Serbs, over 1.600 in the ARK municipalities alone.  Thousands more,

10     as you've heard referred to today, were subjected to inhumane treatment

11     in detention facilities, where rape, torture, other forms of sexual

12     assault and beatings were commonplace.  The appropriate sentence for this

13     level, the scale of crimes that you see in this case, is life

14     imprisonment.  Based on previous case law, the Prosecution has asked for

15     an increase to at least 30 to 40 years of imprisonment because anything

16     else is grossly inadequate.

17             The 22-year sentences imposed by the Trial Chamber demonstrate an

18     abuse of sentencing discretion.  It simply does not accord with the

19     gravity of the offences for which they were convicted or the form and

20     degree of their participation.

21             I'm going to begin my submissions by demonstrating that their

22     sentences are inconsistent with ICTY sentencing practice.  I'll then draw

23     on some key reasons why their sentences should be higher.  And finally, I

24     will address the effect that these overly lenient sentences have because

25     they send the message that senior leaders, like Stanisic and Zupljanin,

Page 216

 1     are less culpable than the low-level thugs used to carry out their

 2     criminal plan.

 3             Let me begin, Your Honours, by taking you to three cases decided

 4     by this Tribunal concerning individual killing incidents that form part

 5     of the convictions in this case.  In doing so, Your Honours, the

 6     Prosecution, of course, accepts that each sentence must be crafted to

 7     suit the individual circumstances of the case, but where the crimes are

 8     not just similar but identical, this is a measure upon which the adequacy

 9     of a sentence can be tested.

10             So one of the very serious killing incidents for which Stanisic

11     and Zupljanin were both convicted was the Koricanske Stijene massacre of

12     between 150 and 200 Muslim civilians on the 21st of August, 1992.  Darko

13     Mrdja, a member of the Prijedor civilian police intervention squad, the

14     PIP, pled guilty to this same incident before an ICTY Trial Chamber, and

15     he received a sentence of 17 years of imprisonment.  Mrdja was a direct

16     hierarchical subordinate of both Stanisic and Zupljanin.  For one

17     incident on one day in one municipality, a low-level subordinate

18     participant, after a guilty plea, he received a sentence of 17 years of

19     imprisonment.

20             Mitar Vasiljevic, he was convicted of aiding and abetting the

21     murder of five unarmed men at the Drina River bank in Visegrad.  He was

22     not the shooter; he was an accessory.  And you'll remember that the

23     Appeals Chamber imposed a sentence of 15 years of imprisonment.  Again,

24     these murders form part of Stanisic's conviction.  One incident involving

25     five deaths, one day, one municipality, a low-level accessory who did not

Page 217

 1     share any common criminal purpose and did not personally kill anyone, he

 2     received a sentence of 15 years of imprisonment.

 3             And Sredoje Lukic, who was an active-duty officer in the Visegrad

 4     police force, he was convicted of aiding and abetting the incidents on

 5     Pionirska Street, most notably the fire in which 53 victims were

 6     murdered, and the Appeals Chamber imposed a sentence of 27 years.  One

 7     day in one municipality, a subordinate police officer, a sentence of 27

 8     years was found by the Appeals Chamber to be the appropriate punishment

 9     for aiding and abetting.

10             So Stanisic, despite being convicted of these same murders, plus

11     more than 2.000 additional murders, plus forcible displacement of more

12     than 130.000 people, received five years less than this low-level

13     subordinate police officer who was found to be aiding and abetting.

14             These three cases show that participation in even one incident of

15     multiple murder warrants a significant sentence of 15 to 27 years, even

16     as a subordinate, even as an accessory, and even after a guilty plea.

17             Sredoje's cousin, Milan Lukic, again a member of the reserve

18     police force in Visegrad and a local paramilitary, he was also convicted

19     of the Drina River incident and the Pionirska Street murders, as well as

20     some other crimes in Visegrad.  His sentence of life imprisonment for

21     crimes in just one municipality was upheld on appeal.

22             Other principal perpetrators whose multiple crimes were largely

23     encompassed by Stanisic's conviction also received very significant

24     sentences.  For example, Goran Jelesic and Ranko Cesic received sentences

25     of 40 and 18 years after guilty pleas for crimes in Brcko.

Page 218

 1             Let me take you to three of the ICTY's camp cases.  In the Kvocka

 2     case, the police officers involved in the running of the Omarska camp

 3     received sentences ranging from five to 20 years of imprisonment.  Zoran

 4     Zigic, another reserve police officer who visited the camp in order to

 5     abuse and murder detainees, received a 25-year sentence, affirmed on

 6     appeal.  Both Stanisic and Zupljanin were convicted of crimes perpetrated

 7     at this camp, broadly including the crimes for which their subordinates

 8     were found criminally responsible in the Kvocka case.  One camp, one

 9     municipality, smaller number of specific incidents, and we see sentences

10     approved by the Appeals Chamber of up to 25 years.

11             Susica camp in Vlasenica municipality, Dragan Nikolic pled guilty

12     and was sentenced to 20 years for the terrible crimes there.  Stanisic's

13     conviction specifically includes six of Nikolic's nine specific murders,

14     and there's substantial overlap with the rest of the crimes.  The Nikolic

15     sentencing Chamber made clear that but for his guilty plea, his

16     convictions would have warranted a life sentence.  But again, this is

17     only a tiny fraction of the convictions in this case.  One camp, compared

18     to more than 50 across Republika Srpska; one municipality compared to 20;

19     nine murders compared to more than 2.000.

20             And Keraterm camp, the police officer who ran that camp, Dusko

21     Sikirica, received a 15-year sentence after a guilty plea and he was not

22     convicted for any participation in the notorious murder incident

23     involving 128 detainees in the Room 3 massacre, which does form part of

24     both Stanisic and Zupljanin's conviction.  Once again, one camp in one

25     municipality, a significantly more limited criminal conviction, and still

Page 219

 1     a very significant sentence.

 2             It's these cases that crystallise the error in Stanisic and

 3     Zupljanin's 22-year sentences and they explain why the Prosecution says

 4     that 22 years is manifestly inadequate, because the scope of Stanisic and

 5     Zupljanin's criminality is far greater than any of the ICTY cases that

 6     I've just mentioned.  Their responsibility extends far beyond the sum of

 7     these parts, and for this reason their sentences should be much higher.

 8             So I'd like to elaborate on that to draw out five reasons why

 9     Stanisic and Zupljanin's criminal responsibility is more grave and thus

10     more deserving of a higher sentence.

11             The first four of these reasons are quantitative.  In short, that

12     they deserve a higher sentence because the magnitude of their crimes is

13     so much greater than the single incident or camp cases, and the final

14     reason is qualitative, that they deserve higher sentences because the

15     nature of their criminal responsibility is more grave.

16             So reason one, the most significant distinction is that Stanisic

17     and Zupljanin were also convicted for forcibly displacing non-Serbs from

18     the RS, from the Serb-claimed territory.  Persecutory deportation and

19     forcible transfer were not a component of the three murder cases or the

20     three camp cases that I've just discussed.  Zupljanin was found to be

21     criminally responsible for the forcible displacement of more than 100.000

22     non-Serbs from the ARK municipalities, and Stanisic, who was higher up

23     the chain of command and responsible for a larger geographic area, he was

24     convicted of more than 130.000 forcible displacements.

25             Across the RS, Serb-claimed municipalities were taken over often

Page 220

 1     by initial shelling and infantry attacks directed at non-Serb parts of

 2     the village, followed by operations during which civilians were killed,

 3     their homes destroyed, civilians intimidated and forced to flee.

 4     Stanisic and Zupljanin worked closely with other Bosnian Serb civilian

 5     and military authorities and the police played an integral role in these

 6     expulsions.

 7             The Krajisnik Appeals Chamber has qualified persecutory

 8     deportation and forcible transfer as being among the most severe crimes

 9     known to humankind, and that's at paragraph 813 of the Krajisnik appeal

10     judgement.

11             Your Honours, when victims of the most severe crimes known to

12     humankind are being measured in six figures, this must necessarily

13     warrant a very significant sentence.  Twenty-two years is simply not

14     enough.

15             Reason two, Stanisic and Zupljanin deserve a higher sentence

16     because they were responsible for not one but many killing incidents.

17     Over a period of nine months, Stanisic and Zupljanin engaged in conduct

18     that resulted in the killing of more than 2.300 non-Serbs and over 1.600

19     in the ARK alone.  Zupljanin was also convicted of extermination as a

20     crime against humanity.

21             The single killing incidents involving Mrdja, Vasiljevic, and

22     Lukic, involving five to 150 victims, were only a small fraction of their

23     convictions.  When taking over towns, Serb forces, including the police,

24     used overwhelming force, causing the death of many civilians.  During and

25     after take-overs, MUP forces exerted pressure on non-Serbs to leave,

Page 221

 1     including through murder and mass murder.  Those who were arrested or

 2     otherwise detained were at particular risk of being killed.  Non-Serb

 3     detainees were frequently beaten to death, including during

 4     interrogations.  Approximately 100 were murdered in Omarska through

 5     beating, execution, and asphyxiation.  Twenty-six detainees were executed

 6     by Serb police, including members of Zupljanin's special police

 7     detachment, at the Kotor Varos medical centre.  In Ljubija football

 8     stadium, Serb forces killed 60 non-Serbs.  A policeman beheaded a

 9     detainee there.

10             Sentences of 22 years do not and cannot properly reflect the

11     large scale of murders in this case.

12             Now, the fact that their convictions are pursuant to JCE 3 is, of

13     course, relevant to their criminal responsibility for killings, but keep

14     in mind, Your Honours, that all forms of JCE are classified as forms of

15     commission.  The accused intended and pursued a criminal goal, accepting

16     the risk that murder - and for Zupljanin extermination - and the other

17     JCE crimes were the natural and foreseeable consequence.  The Babic

18     appeals judgement has confirmed that guilt is not lessened by a JCE 3

19     conviction, paragraph 26 and 27.

20             And I would point out here, Your Honours, that Vasiljevic and

21     Sredoje Lukic were sentenced to 15 and 27 years for aiding and abetting

22     the principal perpetrators of single killing incidents involving five and

23     53 victims.

24             The scale of their criminal responsibility for the murder of

25     1.600 or more than 2.300 victims and Zupljanin's additional conviction

Page 222

 1     for extermination must necessarily warrant a longer sentence.  It must

 2     warrant a sentence greater than the perpetrators or accessories involved

 3     in the murders of only a tiny fraction of this number.

 4             Reason three, Your Honours, they deserve higher sentences because

 5     they were responsible for not just one but many camps and the crimes

 6     committed there.  Stanisic and Zupljanin were convicted for crimes at 21

 7     detention facilities in the ARK and Stanisic for a total of more than 50

 8     in the RS.  In Prijedor alone, the Trial Chamber found that over 11.000

 9     non-Serbs were detained.  Victims were mistreated in these centres across

10     the region, Omarska, Keraterm, Susica, Manjaca, Luka, but also at smaller

11     detention facilities like the police stations, including at Zupljanin's

12     own CSB building in Banja Luka.

13             The Trial Chamber found that the police were deeply involved in

14     this unlawful detention, horrific conditions of confinement, murder,

15     torture, cruel treatment, sadistic abuse, and sexual violence.

16             Principal perpetrators in these camps received sentences of up to

17     25 years.  Most of these facilities were established, run, or guarded by

18     the police force under Stanisic and Zupljanin's command.  They had the

19     power to put an end to this horrific mistreatment and instead they

20     continued to devote police resources to these camps.  The fate of the

21     detainees was in their hands, yet their sentences are similar to or lower

22     than the principal perpetrators in these camps, sometimes their own

23     subordinates.  Their responsibility for a network of camps across the ARK

24     and the RS demands a significantly higher sentence.

25             Reason four, the brutal forms of sexual violence for which

Page 223

 1     Stanisic and Zupljanin have been found to be criminally responsible also

 2     demand longer sentences.  Omarska's female detainees were frequently

 3     called out by camp guards to be raped and sexually assaulted.  The guards

 4     on Mlado Radic's shift were described as being the worst and he was

 5     sentenced by the ICTY to 20 years of imprisonment in the Kvocka case.

 6             At the Celopek Dom in Zvornik, again guarded by reserve police,

 7     prisoners were subjected to awful conditions of confinement, beatings,

 8     and murders.  Paramilitaries who were let in by the police forced fathers

 9     and sons to rape each other.  They cut off body parts of prisoners, a

10     penis, an ear, and they forced other prisoners to eat them.

11             At the SJB building in Kotor Varos, policemen forced male and

12     female detainees to perform sexual acts on each other in front of a

13     cheering crowd, including police and military onlookers.  Members of

14     Zupljanin's special police department forced two male detainees to

15     perform oral sexual on each other while subjecting them to ethnic slurs.

16     At the sawmill, Zupljanin's detachment raped detainees.

17             Sexual violence of this cruelty - rapes, forced rapes by family

18     members, public rapes, sexual mutilation, sexual cannibalism - deserves a

19     very high sentence.  Twenty-two years is simply too low.

20             Before I move on, I just want to mention that I've not tried to

21     paint an exhaustive picture of their criminal convictions.  In addition

22     to the crimes that I've mentioned, Stanisic and Zupljanin were also

23     convicted of persecution through plunder, wanton destruction of

24     buildings -- sorry, of towns and villages, including religious and

25     cultural buildings, the imposition of restrictive and discriminatory

Page 224

 1     measures.  And Zupljanin was found guilty of ordering his police to

 2     appropriate property of non-Serbs.

 3             My point is quite a simple one:  Stanisic and Zupljanin have been

 4     found guilty of so much more than a single incident or single camp

 5     perpetrators.  This, in and of itself, explains why they deserve a much

 6     higher sentence.

 7             Reason five, Your Honour, the qualitative distinction.  They also

 8     deserve a higher sentence because their actions enabled the low-level

 9     perpetrators.  The JCE members in this case created the situation in

10     which the crimes of the low-level perpetrators were allowed to take place

11     on a massive scale.  Stanisic and Zupljanin and the other JCE members set

12     the stage for these crimes.  They are qualitatively more responsible than

13     the low-level thugs who took up their invitation.

14             Stanisic and Zupljanin and their fellow JCE members used the

15     forces under their control to commit ethnic cleansing.  They shared and

16     significantly contributed to the criminal goal of permanently removing

17     Bosnian Muslims and Bosnian Croats from the territory of the planned

18     Serbian state through the commission of discriminatory forcible

19     displacement crimes.

20             Instead of directing the police and the armed forces under their

21     control to ensure the safety of the population, they turned these forces

22     against the population on a discriminatory basis.  In doing so, they

23     created an atmosphere of impunity, where systematic crimes against

24     non-Serbs were not only tolerated but officially pursued.

25             This holds particularly true for Stanisic and Zupljanin who

Page 225

 1     controlled the police.  The civilian police operated on a discriminatory

 2     basis, spending their resources, following up on petty crimes against

 3     Serb interests, while turning a blind eye towards far more serious crimes

 4     against non-Serbs, all the while participating directly in crimes

 5     themselves.

 6             Stanisic set the priorities for the police force.  He made it

 7     clear early on that crimes against Serbs were the only priority.  He

 8     acted accordingly, continuing to assign police resources to pursue ethnic

 9     cleansing and take-overs and illegal detention camps, all the while

10     ignoring the widespread and systematic crimes against non-Serbs committed

11     by the police under his command, including crimes involving his own

12     special police platoon.

13             Zupljanin shared and implemented these priorities.  He announced

14     that he would not protect the Muslims of Banja Luka.  He took no steps to

15     hold perpetrators accountable, including members of his own special

16     police detachment.  He shielded perpetrators from criminal prosecution.

17     He allowed non-Serbs to be brutally mistreated at his headquarters at the

18     Banja Luka CSB.  He ordered policemen to steal money from non-Serbs.

19             Together, Stanisic and Zupljanin created an atmosphere of

20     impunity.  Crimes were committed by the police or people acting in

21     co-operation with the police.  Perpetrators were encouraged and protected

22     by their superiors and the other leaders who were using them to commit

23     crimes.  They knew that the police, led by Stanisic and Zupljanin, would

24     never arrest them.  The crimes in this case would not and could not have

25     happened without the involvement of the police leadership, that is,

Page 226

 1     without Stanisic and Zupljanin.

 2             This is why the criminal responsibility of Stanisic and Zupljanin

 3     encompasses and eclipses that of the individual principal perpetrators.

 4     As members of the Bosnian Serb leadership, the JCE that set the stage for

 5     massive atrocity crimes, Stanisic and Zupljanin should have received

 6     considerably higher sentences.  The sentences in this case do not

 7     properly reflect their role in creating the conditions in which so many

 8     crimes were purposefully committed or were a foreseeable possibility of

 9     their actions, not just in a single incident, not just in a single camp,

10     not in a single day or in a single municipality.  But again and again and

11     again --

12             THE APPELLANT ZUPLJANIN: [Interpretation] I apologise, we are not

13     receiving interpretation.  I apologise, we are not receiving

14     interpretation.

15             JUDGE AGIUS:  Are you still not receiving interpretation?  Yes,

16     it seems that he is not.

17             THE APPELLANT ZUPLJANIN: [Interpretation] We are not receiving

18     anything.  We cannot hear the Prosecutor.

19             Can you hear interpretation now?  Okay.  Then we can proceed.

20             THE APPELLANT ZUPLJANIN: [Interpretation] Yes, I can hear it now.

21     Thank you.

22             JUDGE AGIUS:  Mr. Stanisic, you had no problem?  Okay.  Thank

23     you.

24             MS. BAIG:  Your Honour, can I ask whether I need to go back at

25     all?

Page 227

 1             JUDGE AGIUS:  I would if I were you.  You have the transcript in

 2     front of you.

 3             MS. BAIG:  Yes.

 4             JUDGE AGIUS:  So I would go back to one or two sentences because

 5     I suppose that's about it.

 6             MS. BAIG:  Okay.

 7             The sentences in this case do not properly reflect their role in

 8     creating the conditions in which so many crimes were purposefully

 9     committed or were a foreseeable possibility of their actions, not just in

10     a single incident, not just in a single camp, not in a single day or in a

11     single municipality, but again and again and again, across many

12     municipalities over many months.  So in addition to their crimes being

13     quantitatively greater, they're qualitatively different role warrants

14     sentences much higher than 22 years.

15             In conclusion, Your Honours, the 22-year sentences are manifestly

16     inadequate.  The Trial Chamber erred in setting unreasonable sentences

17     outside of the boundaries of their sentencing discretion.  The 22-year

18     sentences puts Stanisic and Zupljanin's criminal responsibility in the

19     same range as the low-level perpetrators who committed one or another of

20     the well over 100.000 crimes for which they were convicted.  Their

21     sentences are more lenient than some of their direct subordinates in

22     relation to exactly the same crimes, that is, more lenient than the tools

23     that they and their fellow JCE members used to commit the crimes.  This

24     is a clear error.

25             Their sentences send the wrong message, the message that the

Page 228

 1     principal perpetrators are more criminally responsible than the

 2     high-level leaders, and this is an error.  It's not the message of

 3     international criminal law.  International crimes, such as those for

 4     which Stanisic and Zupljanin have been convicted, cannot usually happen

 5     on such a massive scale without the involvement of the high-level

 6     governmental and military authorities.  It's only when the state

 7     apparatus turns against the population that such crimes become possible.

 8     It's only by turning the police into perpetrators instead of protectors

 9     that such crimes can take place.  And this is what Stanisic and Zupljanin

10     did and this is what they must be punished for.

11             In Celebici, the Appeals Chamber wisely warned that public

12     confidence in the integrity of the administration of criminal justice

13     requires consistency in punishment.  It stated that in cases involving

14     similar factual circumstances and similar convictions, there should be no

15     substantial disparity in sentence, and that's Celebici appeals judgement

16     of 20 February 2001, at paragraphs 756 and 758.

17             But in this case there's no justification as to how or why

18     Stanisic and Zupljanin's sentences are so out of proportion to or more

19     lenient than the low-level perpetrators and accessories who committed

20     their crimes in the execution of Stanisic and Zupljanin's criminal plan.

21     The appropriate sentences for leadership perpetration through a JCE,

22     which pursues and enables widespread and systematic crimes against

23     humanity, must be higher than for the thugs responsible for individual

24     particular criminal incidents.  At trial the Prosecution asked for life

25     sentences.  At the very least, the sentences should not be less than

Page 229

 1     those imposed in the related leadership cases of Brdjanin and Stakic.

 2     Anything less sends the wrong message.

 3             The Prosecution asks this Appeals Chamber to correct the

 4     Trial Chamber's error.  The Prosecution asks you to raise the sentences

 5     of both Stanisic and Zupljanin to properly reflect their leadership role

 6     for the horrific crimes for which they've been found criminally

 7     responsible.  Thank you.

 8             JUDGE AGIUS:  Thank you, Ms. Baig.

 9             Mr. Zecevic or Mr. Bourgon, you have 20 minutes starting from

10     now, and it's seven minutes past 5.00.

11             MR. BOURGON:  Thank you, Mr. President.  I hope to take less than

12     the 20 minutes allotted to me --

13             JUDGE AGIUS:  So do we.

14             MR. BOURGON:  -- for response.

15             Mr. President, let me begin by addressing Ground 2 raised by the

16     Prosecution.  In respect of Ground 2, which is very technical in nature,

17     as to whether cumulative convictions are allowed for persecution and

18     other crimes for humanity, we simply refer the Appeals Chamber to our

19     response brief in paragraphs 11 to 176.  We maintain that in our view the

20     jurisprudence remains unresolved or unsettled in respect of these type of

21     cumulative convictions, and that if it is not unresolved or unsettled,

22     then there are cogent reasons to depart based on fairness to the accused

23     and based on consideration.  Only very distinct crimes may justify

24     multiple convictions.

25             Moving on to the most important issue which is sentencing.  The

Page 230

 1     Prosecution focused on two key words:  quantitative and qualitative.

 2     Basically, the Prosecution says that because the crimes are of such a

 3     large scale, they are more responsible and they deserve a larger

 4     sentence.  That is, for the most part, what we hear today, and because

 5     the Prosecution basically repeating its argument in its brief, our

 6     response will be rather short.

 7             What matters in terms of a crime is not only the scale of the

 8     crimes or the size of the crimes.  Gravity is, first and foremost, a

 9     matter of the contribution of the accused to the crime.  What did he do

10     and how did he contribute to the crime?  And this is not necessarily

11     proportional with the rank of the accused, if we're talking about a

12     military; or about the position held by the accused in the case of a

13     minister.  The issue, Mr. President, is that the Prosecution insists on

14     Stanisic being the highest authority within the RS MUP and Stanisic

15     ensuring that his forces played an integral part of the JCE.

16             Mr. President, we have already addressed the issue that even if

17     all of our grounds of appeal were to be denied, we made it clear in our

18     submissions, as well as this morning, that the contribution of

19     Mico Stanisic to these crimes was nowhere close to what the Trial Chamber

20     found, let alone what the Prosecution would like you to read from the

21     Chamber's findings.

22             The submissions of the Prosecution today fails to take into

23     account that many of these crimes were committed while the members of the

24     RS MUP were resubordinated to the military, and it's not possible to

25     attribute this responsibility to Mico Stanisic due to the absence of the

Page 231

 1     proper Trial Chamber finding in this regard.  But what we have not heard

 2     a thing of today from the Prosecution is the measures taken by Stanisic,

 3     measures of dismissal of people involved in crimes, measures of

 4     disbandment of complete units created without his knowledge, measures of

 5     fighting against the paramilitaries, and the issuance of hundreds of

 6     orders, the multiple effect of which was to frustrate and at least to

 7     ensure that some of these crimes were certainly not committed.

 8             For us, Mr. President, it is clear that when you talk about the

 9     measures taken by Mr. Stanisic, the Prosecution will focus on the fact

10     that all he was interested in was Golf vehicles and theft crimes.  Well,

11     one, this is incorrect.  But what is more important, when the time comes

12     to take measures, you take whatever measures you can take as quickly as

13     you can in order to achieve a result.  And it is the result that matters.

14     And in this case, when we look at these orders, even though they might

15     not have been implemented to the fullest extent possible - which was

16     noted by the Trial Chamber - they did result in protecting victims and in

17     minimising when Mr. Stanisic was aware of the crimes.

18             Referring to the sentencing practice very quickly.  Sentencing

19     practice, even as laid out by the Prosecution today, the quantum differs

20     not only based on the size of the crime but the responsibility.  It is

21     possible to have an individual perpetrator who committed crimes in the

22     one area to get 40 years and it is possible to have a senior leader who

23     is involved in crimes in many localities and yet because his role was

24     much more limited, because his contribution to the joint criminal

25     enterprise was more limited, then he gets a leaner sentence.

Page 232

 1             We see absolutely no problem in respect of the quantum that was

 2     highlighted by my colleague.  The problem we see with the sentence is to

 3     the contrary:  Manifestly unreasonable and manifestly too high.  Why?

 4     Because of the measures taken by Stanisic, because his role -- if you

 5     ever find, Mr. President, that his role -- that he was a member of this

 6     JCE, then his role, with everything that he did which is on the record -

 7     most of it was noted by the Trial Chamber but not all - when you look at

 8     what he did with what he could do in the circumstances, then we see that

 9     his responsibility, despite the number of victims, which is recognised as

10     being very high -- we are not going to downplay the number of victims.

11     We are not going to downplay that there were mass exodus.  We're not

12     going to downplay the fact that many people were displaced.  But the

13     Prosecution focuses on what is the link between Mr. Stanisic and the

14     crimes.  They say the crimes could not have happened without

15     Mr. Stanisic.  That is wholly incorrect, even if he was a member.  And

16     for these reasons, Mr. President, we say that the Prosecution ground of

17     appeal on a manifestly unreasonable sentence must be dismissed.

18             I only have one comment with respect to an observation made by my

19     colleague concerning the crimes at Koricanske Stijene.  I just wish to

20     recall in this regard that Mr. Stanisic, of course, was acquitted at

21     paragraph 798 of the judgement for command responsibility for this

22     specific situation.  We're not sure if this is or is not included in the

23     crimes which fall under the joint criminal enterprise.  In our

24     submission, they don't, but I'm not positive about that.  My submissions,

25     rather, rest on the type of responsibility and the contribution to the

Page 233

 1     crimes and what Mr. Stanisic did try to do as minister of the interior,

 2     even if you find that he was a member.

 3             For all these reasons, the ground of appeal should be dismissed.

 4     This ends our submission, Mr. President.

 5             JUDGE AGIUS:  Thank you, Mr. Bourgon.

 6             I address myself to the Prosecution, to the parties, to the

 7     interpreters, technicians, and my colleagues, of course.  We started this

 8     session at 16.15.  The tape would run out at 18.15.  We have, if everyone

 9     takes full time, we have 20 minutes plus 15, plus 10 and 10, that's 55

10     minutes, which would make it possible to finish before 6.15 if we skip

11     the break.  But I need the consensus of everyone.

12             So starting with the Prosecution?

13             MS. BAIG:  Yes, Your Honour.

14             JUDGE AGIUS:  Thank you.

15             The two Defence teams?

16             MR. ZECEVIC:  We agree, Your Honour.

17             JUDGE AGIUS:  Okay.

18             The interpreters?  I see a nod from one booth, a nod from the

19     other booth, yeah, and the third booth.

20             All right.  Okay.

21             My colleagues, I assume, agree as well.

22             So we proceed.  Next is Zupljanin response and you have 20

23     minutes.

24             MS. CMERIC:  Yes.  Thank you, Your Honour.  Your Honours, I will

25     begin the Zupljanin Defence response to Prosecution's appeal by

Page 234

 1     addressing the second ground, that is cumulative convictions.

 2             Let me say at the outset that Zupljanin maintains all arguments

 3     from his response brief and those are paragraphs 17 to 25.  Zupljanin is

 4     well aware of the divergent positions in the Tribunal's jurisprudence on

 5     entering convictions for crimes against humanity that are also the basis

 6     for persecution.  The Prosecution has indicated in the footnote of their

 7     appeal brief, do not seek an increase in Zupljanin's sentence for the

 8     additional convictions of murder, torture, deportation, and inhumane

 9     acts, forcible transfer, as crimes against humanity.

10             So if this appeal ground, as Zupljanin understands it, is more of

11     a formal matter that primarily concerns harmonisation of jurisprudence

12     that will not have any impact on sentencing, Zupljanin would refrain from

13     making any further submissions and leave this matter in the Appeals

14     Chamber's capable hands.

15             If, however, on the basis of additional convictions the Appeals

16     Chamber is, for one reason or another, inclined to consider an increase

17     of Mr. Zupljanin's sentence, it is submitted that such approach would

18     effectively amount to entering new charges on appeal which would be

19     contrary to Mr. Zupljanin's right to appeal.

20             So in case the Appeals Chamber decides to correct the

21     Trial Chamber's reasoning and findings, Zupljanin submits that His Honour

22     Judge Pocar's methodology from his partially dissenting opinion in

23     Popovic et al. should be followed.  In other words, Your Honours are

24     invited to adopt the approach from the Krstic case and several other

25     appeal judgements, i.e., to just pronounce the error but decline to enter

Page 235

 1     new convictions against Mr. Zupljanin for murder, torture, deportation,

 2     and inhumane acts, forcible transfer, as crimes against humanity, and

 3     such pronunciation should not reflect on Mr. Zupljanin's sentence.  In

 4     this manner, Your Honours, we submit the balance between fairness to the

 5     accused and the interests in convictions will be met while, at the same

 6     time, Zupljanin's right to appeal will not be violated.

 7             I will now turn over the floor to my learned colleague

 8     Mr. Gosnell, who will address the remainder of the Prosecution's appeal.

 9     I thank you.

10             MR. GOSNELL:  Your Honours, Mr. Zupljanin requests dismissal of

11     Prosecution's appeal Ground 1.  The Prosecution has just submitted that

12     the sentence for Mr. Zupljanin should not be any less than for other

13     leadership cases arising from similar or the same circumstances.  Yet, at

14     trial the Prosecution submitted that Mr. Zupljanin wasn't a Brdjanin, he

15     wasn't a Vukic, he wasn't a Kalenic, and that was a measured submission,

16     a measured submission that is reflected on some degree presumably in the

17     Trial Chamber's own assessment, full assessment, of the facts that it

18     found as against Mr. Zupljanin.

19             The Prosecution has not alleged or suggested that there has been

20     an error of methodology on the part of the Trial Chamber in reaching its

21     sentence.  Quite the contrary, the methodology being proposed by the

22     Prosecution would itself constitute a serious methodological error.  In

23     particular, it seems to suggest that intent should be accorded either no

24     value or virtually no value, whereas obviously intent is of the utmost

25     concern in assessing culpability which must be considered, surely, the

Page 236

 1     primary factor in assessing and determining sentence.

 2             So, Your Honours, on the basis of those submissions and the

 3     submissions that have been made by my learned colleague for Mr. Stanisic,

 4     as well obviously the submissions that are made in the Defence's Ground 4

 5     appeal, we request that appeal Ground 1 be dismissed.

 6             JUDGE AGIUS:  Thank you.  I hear no further submissions from your

 7     team.

 8             Prosecution reply.  You have 15 minutes.

 9             MS. BAIG:  Thank you.  Your Honour, I have one small

10     clarification to make in reply.  The learned counsel for Stanisic queried

11     whether Stanisic was, in fact, convicted for the Koricanske Stijene

12     events and he certainly is.  I would direct Your Honours to convictions

13     for murder found at paragraph 858 of Volume 2, and further to 855 and

14     856.  The paragraph that he refers to, 798, to clarify, there, the

15     Chamber is clearly only speaking about extermination and because he was

16     not found to be in a position to foresee extermination therefore was not

17     convicted under JCE 3, the Chamber went on to look at other modes of

18     responsibility and they found that he was not responsible pursuant to

19     7(3) for extermination.  He was, however, convicted for murder, which was

20     all that Mrdja was convicted for.

21             Your Honour, for the remainder of our submissions, we would rely

22     on our briefs.  Sorry, Your Honours, just one moment.

23             Your Honours, just a small clarification.  The quotation about

24     Brdjanin and Vukic that my learned colleague refers to, you can find that

25     at transcript page 27365, and I believe it's been taken out of context.

Page 237

 1             For the rest of our submissions, we will rely on our briefs.

 2     Thank you very much.

 3             JUDGE AGIUS:  Thank you.

 4             Mr. Zecevic, is your client going to address the Appeals Chamber?

 5             MR. ZECEVIC:  Yes, Your Honours.

 6             JUDGE AGIUS:  All right.

 7             Mr. Stanisic, you have an opportunity to address the Appeals

 8     Chamber and please restrict yourself to the ten-minute limit.  Thank you.

 9             THE APPELLANT STANISIC: [Interpretation] Mr. President,

10     Your Honours, allow me to begin my address by expressing my gratitude to

11     you for giving me this opportunity to address you today.  As it has been

12     a long day, I promise that I will try to be as brief as possible.

13             During the last few months, you have heard and read much about me

14     in the submissions of my counsel and the Prosecution.  However, with the

15     exception, of course, of the Presiding Judge, this is the first time you

16     actually see me and have a chance to assesses and compare everything you

17     have heard or read about me - be it good or bad - and which, as I'm

18     convinced, you will assess in a proper and humane manner.

19             More than ten years ago - and I can hardly believe it's been so

20     long - I was informed that ICTY issued an indictment against me.  Of

21     course, as a law-abiding man who feels ethics to be an integral part of

22     my being, I immediately expressed through the relevant organs of the

23     Republic of Serbia my unconditional wish to travel to The Hague and

24     respond to the accusations directed against me before ICTY.  I came to

25     The Hague with a clear purpose:  I wanted to be enterprising and explain

Page 238

 1     the following:  Who I was and what position I took at the relevant time,

 2     what I did and what measures I took at the relevant time, why I took such

 3     measures, how I did that and how I acted under the hardly bearable

 4     conditions prevailing at the time.

 5             I, therefore, unconditionally accepted to be interviewed by the

 6     Prosecution so that they would understand my position.  I gave an

 7     extensive interview to the Prosecution, and from then on up until today

 8     it turned to the battle of my life.  I authorised the team of my counsel

 9     to prepare my defence in accordance with all the information I had given

10     to the Prosecution, both with regard to the persons I communicated with

11     in any way and the documents from the relevant period.

12             From the first day of the trial to the closing arguments, by an

13     identical and unchanging approach, my counsel followed my personal stand

14     which I have had since my arrival to ICTY.  They explained who I am, what

15     steps I took, and how I conducted myself.  It is needless to say that I

16     was really unhappy when a conviction was issued at the end of the trial.

17     However, I immediately started working on my appeal, adopting the same

18     open and transparent approach once again.

19             From my first day in The Hague to this day, I never had anything

20     to hide and this never changed.  Even though it is true that on my

21     counsel's advice I initially refused to testify in the Karadzic case,

22     from the moment when I was ordered to do so, I fully co-operated with the

23     Trial Chamber in that case and answered all questions to the best of my

24     ability.  I am aware that what I stated there is not an integral part of

25     the record pertaining to my appeal.

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 1             In any case, it is important for me to stress that what I said as

 2     a witness in the Karadzic case shows my willingness to contribute to the

 3     establishment of truth, in particular as regards my conduct at the

 4     relevant time.

 5             I hope that you know that although I held the position of

 6     interior minister of Republika Srpska, I never was a politician.  Let me

 7     note just a small part of what I had to face because of my principled and

 8     professional approach while attempting to make it possible for members of

 9     the MUP to discharge their duties under those difficult, or rather,

10     impossible conditions.

11             I opposed Ms. Plavsic, deputy president of Republika Srpska,

12     because she invited and brought various paramilitary formations from the

13     territory of the former Yugoslavia to Republika Srpska which committed

14     various crimes, including the most serious ones on their arrival to

15     Republika Srpska.  Because of this, together with a part of the

16     Republika Srpska leadership, she launched a fierce and comprehensive

17     campaign against me, accusing me by saying that while she was bringing

18     volunteers to defend the Serbian people from its enemies, I arrested them

19     and persecuted them with the help of MUP members.  Due to this

20     accusation, my personal security as well as that of my family was

21     threatened by extremists from our own people and a part of the

22     Republika Srpska leadership became my enemies.

23             After the first collegium meeting which we managed to hold only

24     on the 11th of July, 1992, having assessed that my assistants in various

25     departments were not sufficiently committed to the discharging of their

Page 240

 1     tasks, I immediately did all that was necessary to remove them from their

 2     posts.  I was successful in this, but consequently I now also had some

 3     enemies within my own ranks.

 4             President Karadzic twice removed me from my post of interior

 5     minister, once during the events that led to the accusations against me

 6     and once more later on.  In both times I stepped down without any fuss

 7     and left, as politics was never something I aspired to.  In so doing, I

 8     sacrificed my own security, which would have been unimportant had I not

 9     also sacrificed the security of my family, including my four children who

10     were all underaged at the time.  During the trial I was criticised for

11     using the term "president" when referring to Radovan Karadzic, even

12     though this happened in but a few instances.  It is true that I used the

13     term but for one reason only, because such etiquette stems from my

14     education as a jurist and my personal courtesy.

15             Your Honours, I assert with full responsibility that I have never

16     committed any crime, including the relevant period.  It was clear to me

17     as a member of the government that the breakup of Yugoslavia would also

18     result in a division of Bosnia between the warring parties, but I assert

19     with full responsibility that I never wanted this to happen through the

20     commission of any crimes.  I also assert that I was not the only one who

21     held such a position.  It is true that I cannot claim before you that

22     none of the members of our highest organs of power or someone at the

23     lower levels may have had different, that is to say, incriminating

24     intentions, but I can claim with full responsibility that I was not among

25     those nor would they have accepted me in view of my position with regard

Page 241

 1     to crimes.

 2             Your Honours, I wish to say something about a letter published by

 3     one of the honourable Judges before whom I stood trial.  My counsel

 4     advised me to be wary if I intended to address this topic, and I shall do

 5     so; however, I feel it important to express my thoughts on this issue.

 6     When I read that letter, I was astonished.  I wondered:  Is it possible

 7     that my fate had already been sealed and that my conviction was a direct

 8     or indirect result of the ideas, views, and standards expressed in that

 9     letter?  I will never know the answer to this question, which makes me

10     really sad and concerned.

11             Your Honours, I sincerely regret that this war ever took place

12     and I sincerely wish that no war ever be fought again anywhere.  I feel

13     very sorry for all the victims who perished as a result of certain

14     incriminating acts committed during the war by members of my people.  I'm

15     also very sad because of all the families who were torn apart as a result

16     of those events.  I equally regret that I could not contribute more in

17     making sure that fewer crimes were committed and more perpetrators

18     brought to justice.

19             And finally, Your Honours, I stand here before you and I claim

20     with full responsibility that considering the information that was

21     available to me and the exceedingly difficult conditions in which we

22     worked, I did my utmost to prevent and end the commission of crimes; and

23     where crimes did happen, that the perpetrators be arrested and brought to

24     justice regardless of their ethnicity or religion.  I believe and I

25     trust, Your Honours, that what you have heard is sufficient to convince

Page 242

 1     you to overturn my conviction and send me back home.

 2             In view of the above, if you do not think that my conviction

 3     should be quashed and I be sent back home, please make it possible for me

 4     to have a new trial before a new Trial Chamber so that I would

 5     demonstrate that I never wanted any crimes to be committed and to explain

 6     the following:  The position I had at the relevant time, the measures I

 7     took, why I took such measures, and how I took them under the exceedingly

 8     difficult conditions at the relevant time.  This is what I wish

 9     regardless of the time necessary for a new impartial trial to which I

10     came voluntarily ten years ago.

11             I thank you once again for the opportunity to address you today.

12     My fate is in your hands.  Thank you.

13             JUDGE AGIUS:  Thank you, Mr. Stanisic.

14             Mr. Zupljanin, do you wish to address the Chamber?

15             THE APPELLANT ZUPLJANIN: [Interpretation] Yes, Mr. President, I'd

16     like to.

17             JUDGE AGIUS:  Ten minutes.  Thank you.

18             THE APPELLANT ZUPLJANIN: [Interpretation] Your Honours, it is not

19     my intention to speak for long because many words have been uttered here;

20     however, I do wish to take part in today 's work in order to remind you

21     of some details.  The war found me at the position of the chief of the

22     Banja Luka CSB; before that, in the BH Ministry of the Interior I had

23     spent full 17 years in different functions.  I come from a mixed family

24     encompassing the members of all three ethnicities.  They lived together

25     before the war, they lived together during the war, and they do so now.

Page 243

 1             The situation we found ourselves in when the civil war began was

 2     a grave one.  It was very difficult to get one's bearing in all that.

 3     Events began taking each other over.  As the conflict grew, it could be

 4     less and less controlled and the polarised ethnicities and the exodus of

 5     people's grew.  In such circumstances, for one to be a policeman was

 6     practically impossible.

 7             My colleagues in the ranks were Croats and Muslims as well.  They

 8     held different positions.  When Republika Srpska was established, I

 9     strove to keep them on board, but unfortunately I was unsuccessful and

10     the CSB was decimated in the process.  The police force was overwhelmed

11     with the events and without the professional cadre.  It was very

12     difficult to stem the flow of those events.  Unfortunately for all of us,

13     the war took place.  People came and went.  Civil disobedience became

14     more pronounced.  Incidents grew in numbers.  Arson took place, looting,

15     murders; all that created chaos and insecurity for the entire population.

16     The forces I had at my disposal were not capable to adequately address

17     the situation we found ourselves in.  I wrote many reports and I publicly

18     spoke of such events, referring to them by their proper name.  I

19     established commissions and other working bodies in order to try and

20     establish what the real situation on the ground is; sometimes I succeeded

21     and others unfortunately I did not.

22             I submitted numerous criminal reports for crimes against

23     non-Serbs wherever I could.  I created operational plans and carried out

24     arrests.  Sometimes I even went beyond what I was allowed to do under the

25     allow in order to do good, but now I see it's turned against me as

Page 244

 1     evidence to prove that my authority was great.  In such a difficult war

 2     time situation, mistakes are possible and mistakes were made, but not

 3     with ill intent.  It is certain that from today's perspective it is far

 4     easier to view them all than it was at the time when they were taking

 5     place, and that is why I sincerely regret some of the things.

 6             I am sorry for the omissions I may be responsible for.  I'm sorry

 7     for all the victims from that period.  Under such circumstances, in such

 8     times, whether I could have performed better or done more, that is

 9     something for this Chamber to decide.  Thank you.

10             JUDGE AGIUS:  All right.  Thank you, Mr. Zupljanin.

11             Any further comments?  Okay.

12             This concludes the hearing of the appeal in this case.  Before we

13     adjourn, I would like to take this moment to thank the parties for their

14     work in this case.  I would also like to express my gratitude to the

15     Registry staff here in the courtroom and outside the courtroom who have

16     been so ably facilitating our hearing today.  Particularly, I would like

17     to thank the interpreters, the recorders for their excellent assistance,

18     and to the technicians and all other staff involved in our assistance

19     during today's session.

20             The Appeals Chamber will render its judgement in due course.  The

21     proceedings stand adjourned.  Thank you.

22                           --- Whereupon the Appeals Hearing adjourned

23                           at 5.42 p.m.