1 Tuesday, 5 December 2006

2 [Appeal Proceedings]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 8.04 a.m.

6 JUDGE POCAR: Good morning, everybody.

7 Mr. Registrar, may I ask you to call the case.

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

9 IT-02-60-A, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

10 JUDGE POCAR: I thank you.

11 May I ask Mr. Blagojevic and Mr. Jokic if they can hear me and

12 follow the proceedings through the translation.

13 THE APPELLANT BLAGOJEVIC: [Interpretation] Yes, I can hear you,

14 Your Honour.

15 THE APPELLANT JOKIC: [Interpretation] Your Honour, I hear and I

16 can follow. Yes, I understand.

17 JUDGE POCAR: I thank you.

18 We now call for appearances. For the Prosecution, please.

19 MR. FARRELL: Good morning, Your Honours. Good morning to my

20 learned counsel. Appearing for the Prosecution is myself, Norman Farrell,

21 and with me is co-counsel, Ms. Marie-Ursula Kind, Mr. Matteo Costi, Ms.

22 Antoinette Issa, and our case manager today is Ms. Lourdes Galicia.

23 JUDGE POCAR: I thank you.

24 And for the Defence of Mr. Blagojevic.

25 MR. DOMAZET: [Interpretation] Your Honours, representing Mr.

1 Vidoje Blagojevic, I am Vladimir Domazet, attorney-at-law.

2 JUDGE POCAR: I thank you.

3 For Mr. Jokic.

4 MR. MURPHY: Good morning, Your Honours. Peter Murphy for Dragan

5 Jokic. I have with me my legal consultant, Ms. Virginia Lindsay.

6 JUDGE POCAR: I thank you.

7 Now, this is the appeals hearing in the case of the Prosecutor

8 against Vidoje Blagojevic and Dragan Jokic. I will briefly summarise the

9 appeals which are pending before the Appeals Chamber in the manner in

10 which we'll proceed today.

11 The appeals deal with crimes committed in the immediate aftermath

12 of the take-over of the Srebrenica safe area by the Army of Republika

13 Srpska, VRS, between 6 and 11 July 1995, and with the role played in these

14 events by the Bratunac and Zvornik Brigades of the Drina Corps of the VRS,

15 and in particular, by two of their respective officers at the time,

16 Colonel Vidoje Blagojevic and Major Dragan Jokic.

17 Blagojevic, Jokic, and the Prosecution appealed from a judgement

18 rendered on 17 January 2005 by Trial Chamber I, composed of Judge Liu,

19 presiding and Judges Vassylenko and Argibay. The Trial Chamber found

20 Blagojevic guilty on charges of complicity in genocide, Count 1B; aiding

21 and abetting murder as a violation of the laws or customs of war, Count 4;

22 and aiding and abetting murder, Count 3; persecutions, Count 5; and other

23 inhumane acts, forcible transfer, Count 6, as crimes against humanity.

24 The Trial Chamber sentenced Blagojevic to a single sentence of

25 imprisonment for 18 years.

1 The Trial Chamber found Jokic guilty on charges of aiding and

2 abetting murder as a violation of the laws or customs of war, Count 4; and

3 of aiding and abetting extermination, Count 2; murder, Count 3; and

4 persecutions through murder, Count 5, as crimes against humanity. The

5 Trial Chamber sentenced Jokic to a single sentence of imprisonment for

6 nine years.

7 The Prosecution filed its notice of appeal on 23 February 2005.

8 Blagojevic was granted two further extensions of time and filed his notice

9 of appeal on 31 May 2005. Jokic filed his first notice of appeal on 23

10 February 2005, followed by a mandate notice of appeal on 25th February

11 2005, 1st December 2005, then 6 July 2006. I will now briefly summarise

12 their grounds of appeal.

13 Blagojevic brings eight grounds of appeal. In Ground 1,

14 Blagojevic alleges that he was denied to the right of counsel of his

15 choice and the result of a fair trial. Under Ground 2, Blagojevic submits

16 that the Trial Chamber committed several errors of fact resulting in his

17 convictions. In Ground 3, Blagojevic further challenges the Trial

18 Chamber's fact on findings and appealing his convictions for aiding and

19 abetting murder as a crime against humanity and that's a violation of the

20 laws and customs of war, based on the killing of more than 50 Bosnian

21 Muslim men in and around the Vuk Karadzic school in Bratunac. Ground 4

22 alleges errors relating to his criminal responsibility for forcible

23 transfer. And Ground 5, for persecution. Ground 6 alleges errors

24 relating to his conviction for complicity in genocide. And Ground 7

25 alleges errors in connection to aiding and abetting. Finally, Ground 8

1 concerns his appeal from sentence.

2 Jokic brings seven grounds of appeal. Under his first and second

3 Grounds, Jokic alleges that the Trial Chamber erred in law and in fact

4 when it found that he acted with the requisite mens rea for aiding and

5 abetting murder as a violation of the laws and customs of war and murder

6 extermination and persecutions as crimes against humanity. Ground 3

7 alleges errors relating to the actus reus of aiding and abetting. Under

8 Ground 4, Jokic claims that a legal error was committed in convicting him

9 as an aider and abettor for conduct allegedly confined to ex post facto

10 assistance. Under Ground 5, Jokic submits that the evidence clearly

11 showed an equally probable explanation for his acts consistent with

12 innocence, namely, that his acts and omissions were motivated by public

13 health reasons and therefore lawful. Ground 6 and 7 allege factual errors

14 with respect to Jokic's presence at the duty officer's station in the

15 early hours of 15 July 1995 and his provision of engineering resources and

16 personnel to the Pilica school burial site.

17 The Prosecution brings four grounds of appeal in relation to

18 Blagojevic, two grounds in relation to Jokic, and one ground relating to

19 corroboration of testimony under Rule 92 bis (D).

20 With regard to Blagojevic, Ground 1 alleges that the Trial Chamber

21 erred in finding that Blagojevic did not have knowledge of the mass

22 killings between 12th and 14th July 1995, and consequently erred in

23 finding that he lacked the mens rea for aiding and abetting these crimes.

24 Under Ground 2, the Prosecution asserts that the Trial Chamber erred in

25 fact in finding that Blagojevic did not have the requisite intent to

1 commit forcible transfer as a part of the joint criminal enterprise to

2 forcibly transfer the Bosnian Muslim population out of Srebrenica.

3 Ground 3 alleges that the Trial Chamber erred in law and in fact

4 in finding that Blagojevic was not responsible for the participation of

5 members of the Bratunac Brigade, including Momir Nikolic in the murder

6 operation under Article 7(3). Ground 4 is an appeal relating to

7 Blagojevic's sentence.

8 With regard to Jokic, the Prosecution decided not to proceed with

9 Ground 1. Under Ground 2, the Prosecution alleges that the Trial Chamber

10 erred in fact in concluding that Jokic did not render substantial

11 assistance to the mass executions at the Petkovci school and dam. Ground

12 3 is an appeal relating to Jokic's sentence.

13 During the hearing, counsel may argue the grounds of appeal in the

14 order they consider most suitable for their presentation, but I would urge

15 them not to repeat just what is in the brief, that the Court is aware of

16 what -- has studied the briefs, so this is not necessary to repeat

17 verbatim or to summarise extensively what is in the brief. I would like

18 to recall the criteria applicable to errors of fact and law alleged on

19 appeal.

20 The appeal is not a trial de novo and the appellants must not

21 merely repeat the case from the trial level; rather, in accordance with

22 Article 24 of the Statute of the Tribunal, the appellants must limit their

23 arguments to alleged errors of law which invalidate the decision or

24 alleged errors of fact occasioning a miscarriage of justice.

25 Additionally, it should be recalled that the appellants have an obligation

1 to provide precise references to materials supporting their arguments on

2 appeal.

3 The hearing will proceed according to the Scheduling Order issued

4 on 10 November 2006. Counsel for Blagojevic will present his submissions

5 this morning until 9.20. From 9.20 to 9.50 we'll hear the response of the

6 Prosecution. Then we have a pause of 30 minutes, then later counsel for

7 Blagojevic will have time to reply for another 20 minutes. And later,

8 we'll proceed with the appeal of Mr. Jokic. And of course, the hearing

9 will continue tomorrow for -- for the remaining issues, in particular, for

10 the appeal of the Prosecution.

11 It would be helpful if the appeal -- to the Chamber if the parties

12 would present their submissions in a precise and clear manner. Judges, of

13 course, may interrupt the parties at any time to ask questions or they may

14 ask questions following each party's submissions or at the end of the

15 hearing. Now, having said this, about the manner in which we will

16 proceed, I would now like to invite counsel for Blagojevic to present

17 submissions in support of his appeal.

18 You have the floor.

19 MR. DOMAZET: [Interpretation] Thank you, Your Honours. As you are

20 probably aware, Mr. Blagojevic chose me as his Defence counsel for the

21 first time when this was permitted him, and this was after the sentence

22 was handed down, and even after the deadline for the appeal announcement

23 had expired. Then the registrar or the Registry confirmed his choice and

24 officially appointed me as his Defence counsel in this case.

25 I found myself before a very complex assignment, to familiarise

1 myself in a very short period of time with the very delicate and complex

2 case of Srebrenica, with which I had no contact with before. I had to

3 study the judgement and go through over 12.000 pages of the trial

4 transcript and through a large number of evidence and documents in almost

5 200 binders. I expected, quite rightly I believe, that deadlines would be

6 extended for the submission of appeal briefs, which only partially

7 happened. On the other hand, there was the request of my client, Mr.

8 Blagojevic, to appeal only in relation to the unfair trial that he had

9 because of the imposed Defence team that conducted the proceedings against

10 his will. And without any contact with him from the very beginning of the

11 trial or, more precisely, almost two months before the beginning of the

12 trial, Mr. Blagojevic requested only this to be the subject of his appeal

13 and that I do not deal at all with the other parts of the judgement

14 because he believed that to be pointless.

15 I had the difficult task of gaining the trust in lawyers that he

16 had lost and to convince him that the ground, fair trial, would be the

17 first ground and the main part of his appeal, but that I was bound to also

18 appeal in relation to the rest of the judgement, even if this was not what

19 he wanted. This is what I did, but I did have a lot of time pressures and

20 other limitations. I had to submit the notice of appeal by the 31st of

21 May, 2005, just two months after I took the case, without having the

22 possibility by then to read and review the entire transcript of the trial.

23 I was rejected in my request that the deadline for the response by

24 the Prosecution should start after I have submitted my appeal brief, so

25 that I had to already submit my response to the OTP appeal brief by the

1 20th of June, even though I was still not in the position to be entirely

2 familiar with the whole case. And then I had to submit the actual appeal

3 brief only seven days after the deadline for the same brief by the Jokic

4 Defence. Because of the way this case was categorised at the lower level

5 and the refusal to acknowledge an additional number of hours in order to

6 familiarise myself with a completely new case, I didn't have the option of

7 having the assistance of a co-counsel. And the legal advisor that I

8 initially asked for and appointed, an attorney with experience as a

9 Defence counsel before this trial, was only a few days after being

10 appointed released from this duty by the Registry, which made my work on

11 the appeal much more difficult.

12 I'm sorry that I had to state all of this before actually moving

13 to my submission, and that I had to use the already limited time on

14 stating this.

15 Vidoje Blagojevic did not have a fair trial. The main issue in

16 the first part of the appeal, that is Ground 1, is whether or not Mr.

17 Blagojevic had a fair trial. Could the trial have been fair when he did

18 not take part in it in any way? From the very beginning until the

19 sentence was handed down, Mr. Blagojevic used every opportunity when he

20 was given the floor to point out this problem, which was that he did not

21 have a proper Defence and that the attorney, Mr. Karnavas, who was his

22 counsel was actually his enemy who was not working in his interest. He

23 wanted to have the right to appoint new lawyers, but this right was

24 granted to him only after the judgement was handed down, so that is almost

25 two full years after the lawyer was dismissed.

1 Throughout this time, Blagojevic was left to his own devices

2 without legal assistance, except during the brief period when he had an

3 independent lawyer but with no effect on the trial itself. The Appeals

4 Chamber did have a part in resolving this problem, but at the very

5 beginning, when both the Trial Chamber and the Appeals Chamber believed

6 that this was a conflict between a lawyer and the accused, which could be

7 resolved in the course of the trial and that there will be trust and

8 confidence established between the two already opposing parties. It's

9 possible that such a position was reached also on the basis of the belief

10 of the Court that the conflict arose just because of the figure of the

11 co-counsel, which was actually the initial reason for the dispute, but it

12 was just the initial reason I note.

13 It can be said that the dispute between Mr. Blagojevic and Mr.

14 Karnavas did begin because of the co-counsel, or let's say that it

15 culminated at that point because, at that point, Mr. Blagojevic felt

16 cheated. At that time, there was never any agreement between him and

17 Mr. Karnavas that Suzana Tomanovic would be co-counsel during the actual

18 trial. Mr. Blagojevic considered her to be an interpreter and associate

19 of Mr. Karnavas, which was beyond dispute at that point in time. This was

20 never actually discussed, and it was quite natural for Mr. Blagojevic to

21 want to have a more experienced lawyer from Serbia as co-counsel with whom

22 he could communicate in his native tongue. He felt that that would be

23 quite important for his defence.

24 Mr. Blagojevic wanted that and he also wanted to personally see

25 and meet the future co-counsel. This was, unfortunately, not possible,

1 not even when that lawyer came to The Hague for that specific purpose.

2 Mr. Karnavas, himself, reacted in a very ugly manner, charging the

3 colleague of his whom he met in Belgrade of not only being incompetent,

4 although we are talking about a lawyer who has had a career of many years

5 in the profession, but he actually called him a plain clown. Something

6 like this could not lead to mutual trust and confidence between the

7 accused and Mr. Karnavas, and it actually made the crisis in their

8 relationship even more serious.

9 Even had Mr. Karnavas's objections to that attorney been correct,

10 he did not allow Mr. Blagojevic the possibility of suggesting another

11 attorney from Serbia, which was Mr. Blagojevic's express wish. On the

12 contrary, he did everything to have the co-counsel of his own choice

13 appointed, and Mr. Blagojevic expressly opposed this. But Mr. Karnavas

14 wanted the co-counsel he had chosen to remain, and this deepened the

15 crisis in their mutual relations, as was evident in all the subsequent

16 Status Conferences.

17 Mr. Karnavas then stated that he would withdraw from the case if

18 he was not in a position to control the case, that is, to have

19 Mrs. Tomanovic as the exclusive co-counsel. Later on, he rejected any

20 possibility of voluntarily withdrawing from the case and did everything to

21 remain, even at the cost of not having any contact whatsoever with the

22 accused, of representing the defence of an accused who did not want him as

23 his counsel and who took every possible opportunity to state this during

24 the trial to the Trial Chamber.

25 At the Status Conference held on the 27th of March, 2003,

1 Mr. Karnavas, responding to a question from Judge Schomburg, stated that

2 he would not act as Defence counsel without Mrs. Tomanovic. He stated on

3 that occasion and repeated more than once that he would withdraw from the

4 case should that be Mr. Blagojevic's wish, and that it was only up to

5 Mr. Blagojevic to make that choice. However, although Mr. Blagojevic, in

6 his letter of the 7th of April, 2003, expressly dismissed Mr. Karnavas and

7 informed the Registry that he did not wish him to be his Defence counsel

8 under any circumstances, Mr. Karnavas not only changed his position and

9 failed to keep his promise, but on the contrary, not only did he demand

10 that he remain as counsel - although he had been dismissed - but

11 fabricated a false accusation of fee splitting.

12 After the Status Conference held on the 27th of March, 2003,

13 where, in private session, Mr. Blagojevic clearly stated his position and

14 Judge Schomburg stated that he would inform the Registry and the Chamber

15 of all this, the conflict led to a complete breakdown of relations and

16 Mr. Blagojevic's decision to dismiss his Defence team, that is Mr.

17 Karnavas, which he did in a letter dated the 7th of April, 2003.

18 Unfortunately, this letter was not delivered to the Trial Chamber also, as

19 should have been done, and the Trial Chamber learned of this problem only

20 at the start of trial. The Presiding Judge Liu then held this against

21 representatives of the Registry.

22 It is very odd, to put it mildly, that the ex parte session of the

23 Status Conference held on the 27th of March, 2003, was not contained in

24 the transcript obtained by the Defence counsel from the Court. There was

25 only a transcript of the public part of the Status Conference, although

1 according to the transcript, it was interrupted and a continuation was

2 announced after a break, after which a private conference was held. But

3 the transcript of the continuation was not in the case file, and I did not

4 receive it. It was only when I stated this at the Status Conference on

5 that same day that I received from the OTP a transcript of the ex parte

6 Status Conference. However, in May 2003, when the decision on

7 Blagojevic's motion was made, it was evident that all this was threatening

8 the start of trial and that this is what influenced the decision that the

9 accused should not be permitted to appoint another Defence team. However,

10 it is evident that the prevailing conviction was that the conflict between

11 the accused and Mr. Karnavas could and would be straightened out and that

12 there would be a reinstatement of confidence between the two. And this,

13 however, never happened because, in the meantime, Mr. Karnavas, in a

14 submission responding to the request to have an independent counsel

15 appointed, stated clearly in more than one paragraph that he was accusing

16 Mr. Blagojevic of attempted fee splitting. There are as many as nine

17 paragraphs in the motion where Mr. Karnavas gave reasons why he should

18 remain the counsel in spite of his dismissal accusing Mr. Blagojevic of

19 fee splitting.

20 I point this out not only to show that this was the decisive

21 influence on the decision that Mr. Blagojevic should not be permitted the

22 right to choose his own counsel, but that this false and tendentious

23 accusation destroyed any possibility of re-establishing any form of

24 cooperation which would be a prerequisite in this case, in this kind of

25 case.

1 In the press, an article was published under the title "Racket

2 Behind the Walls of Scheveningen" about the Blagojevic case dealing with

3 this accusation which was later proved to be false and fabricated. This

4 serious accusation which was completely untrue and which was fabricated

5 caused Mr. Blagojevic to abide by his decision that Mr. Karnavas was not

6 and could not be his Defence counsel, since Mr. Karnavas had accused him

7 of being a common criminal. And after this false accusation, under no

8 circumstances would he accept Mr. Karnavas as his Defence counsel; on the

9 contrary, he considered him to be his enemy.

10 This was the culmination of the conflict which occurred when

11 Mr. Karnavas falsely and tendentiously accused Mr. Blagojevic of being

12 motivated by fee splitting in their conflict, and fee splitting is an

13 impermissible activity which represents a very serious accusation.

14 Mr. Karnavas did this at a point in time when the decision was to be made

15 as to whether he was to be replaced or not in June 2003, and in Mr.

16 Blagojevic's opinion, this was what decisively influenced the position of

17 the Registry and their decision. However, this false and fabricated

18 accusation also had an influence on Mr. Blagojevic, who after this would

19 not accept any kind of compromise and would under no circumstances accept

20 Mr. Karnavas as his counsel.

21 The fact that this accusation was really false was confirmed by

22 Mr. Karnavas himself, but only a year later when the end of the trial was

23 drawing near. On the 13th of July, 2004, at the Status Conference, he

24 probably hoped that this statement would influence Blagojevic and that he

25 would in this way get Mr. Blagojevic to accept him as his counsel. He

1 stated in nine paragraphs of his motion a year previously something that

2 was completely different.

3 Mr. Blagojevic, as an honourable man with no stain in his life or

4 his career as an officer, could not accept this belated admission of a

5 false accusation and he abided by his position that he could have no

6 contact with the counsel who had been appointed by the Registry against

7 his will.

8 Mr. Blagojevic had no influence on the course of the trial during

9 the Prosecution case; and, which is far worse, he had no influence in the

10 course of the Defence case, which was handled by a team of counsel imposed

11 on him without his knowledge and influence. That is why some witnesses of

12 the so-called Defence were hostile and detrimental to his case. These,

13 however, are details. What is most important is that in the proceedings

14 before this Tribunal and according to the jurisprudence and legal system,

15 the trial could not have been fair because Mr. Blagojevic did not have a

16 proper defence, either during the Prosecution case or, more importantly,

17 during the Defence case. Mr. Blagojevic, unfortunately, was only a silent

18 observer.

19 Not only was it not possible for Blagojevic himself to testify,

20 although he wanted to and still wants to because he was prevented in the

21 manner described. What was especially disastrous for his position during

22 the trial is that he could not influence the choice of witnesses, which

23 Mr. Karnavas did according to criteria only known to him. Is it possible

24 in this system to have a fair trial if the accused has no influence on the

25 choice of witnesses who are supposed to represent his Defence and has no

1 influence on their examination? The only reasonable response is that the

2 trial cannot be fair, regardless of whether the Defence counsel wants it

3 to be fair or not. It is simply impossible to mount a Defence case

4 without the accused participating actively.

5 This is not only due to the choice of witnesses and their

6 examination, although that is the key issue. No less important, however,

7 is the selection of written documents to be tendered into evidence or not

8 tendered into evidence. This is truly not possible without the active

9 participation of the accused. The selection and role of the military

10 expert witness in this case was exceptionally important. This can be seen

11 from the importance attributed to this by the Prosecution, and the

12 voluminous nature of the expert report, as well as the number of days on

13 which the military expert testified. However, although expert witness

14 Schifaneli submitted the report, Mr. Karnavas did not call him to appear.

15 At the very beginning, he locates the Drina Corps as a unit active in

16 North-Eastern Bosnia, which was only one but not the only major mistake

17 made by this witness. The Trial Chamber, however, quoted only this

18 completely erroneous fact in its judgement, even had the expert report

19 been done properly and well, the expert witness should have been called to

20 testify and been examined in the course of the trial. None of this

21 happened, however, and it should be weighed whether the accused did or did

22 not have a fair trial.

23 In spite of all this, if the Registry judged that the trial was

24 fair, then why was the accused allowed to change his Defence team without

25 any new procedures being installed in the course of the time-period needed

1 to file a notice of appeal. The decision of Mr. Blagojevic, or rather,

2 the decision to allow Mr. Blagojevic the choice of new Defence counsel

3 after the end of the trial and the handing down of the judgement was fair,

4 but it was belated because the possibilities in an appeal case are

5 limited. So the fairest solution proposed in his appeal is a new trial,

6 together with the whole group accused for the Srebrenica case who have --

7 whose trial has not yet begun.

8 Mr. Blagojevic does not fear any possible new evidence which might

9 turn up in that case because he wishes the truth to be established.

10 Mr. Blagojevic still wishes to testify under oath, and this was not

11 possible in the previous trial. Mr. Blagojevic feels that joining his

12 indictment to the currently ongoing trial for Srebrenica and making it

13 possible for him to present his Defence case and testify in person would

14 not only not be detrimental to the other participants in that case, but

15 would also be in the interests of justice because one and the same Trial

16 Chamber would hand down a judgement for all those accused in the

17 Srebrenica case, with the exception of those who are not yet available to

18 the Tribunal.

19 Mr. Blagojevic, as he will probably tell you himself, is not

20 afraid of such a trial or any of the evidence that might turn up and be

21 used in that trial which were not used during his trial. The only thing

22 that he wishes is a fair trial with a Defence counsel of his choice,

23 regardless of the judgement and ultimately handed down.

24 For all the reasons given above and also from what is written in

25 our appeal, the Blagojevic Defence expects, first of all, that this

1 Appeals Chamber will accept the first and main ground of appeal relating

2 to the unfair trial of the accused Blagojevic and that it will not have to

3 review and decide on the other grounds of appeal by the Defence and the

4 Prosecution. The Defence expects this ground of appeal to be excepted,

5 which would make it possible for the accused Blagojevic to have a new

6 trial, either alone or with the group of accused according to the

7 Srebrenica indictment. He could join then the other accused being at

8 trial and the same Trial Chamber then would be able to decide on all the

9 existing evidence submitted, both by the Prosecution and the Defence,

10 regardless of the earlier, the previous, case. This would be the proper

11 and fair manner to hand down a judgement in the case of the accused

12 Blagojevic with full respect of his basic rights, his right to a defence

13 in which he has trust and confidence and his right to a fair trial.

14 The right to a fair trial is something that Colonel Blagojevic,

15 the then-commander of the Bratunac Brigade, has a right to in order to be

16 able to show that he's not guilty for the tragedy and the victims in

17 Srebrenica; that he was in command of over 2.000 members of the brigade;

18 and that none of them was charged, either here in The Hague or in

19 Sarajevo, with the exception of Momir Nikolic, who as a security officer

20 was in that period not acting under the command of Colonel Blagojevic but

21 as part of and according to the plan of execution of counter-intelligence

22 tasks, according to orders of the security organ of a higher command.

23 Only the commander of the Bratunac Brigade, Colonel Blagojevic,

24 has been charged before this Tribunal, who, during the Krivaja operation,

25 was in command of the brigade and was mostly in Pribicevac, which was his

1 forward command post; who during the days in question, never saw General

2 Mladic, even though the general not only came to Bratunac but had meetings

3 there. Colonel Blagojevic did not attend any of those meetings, while he

4 only saw the commander of the Drina Corps, General Krstic, only once and

5 that was on the 11th of July, 1995, sometime after 2200 hours.

6 Colonel Blagojevic was carrying out assignments given to him

7 during those days, and he was prepared to go into combat with his brigade

8 on the lines to which he was assigned, not only were there no combat

9 actions by his brigade because of the way the situation developed, and

10 they did not happen to see a single enemy soldier, never mind kill or

11 arrest one. They didn't have any contact whatsoever with civilians

12 either. Due to all of the above, Colonel Blagojevic would like to have a

13 fair trial in which he's prepared to testify himself and he expects to be

14 given justice and he would like to present the truth for which he has been

15 fighting for several years here.

16 For all of the above reasons today, in the appeal submission, I

17 submit that the trial -- that the Appeals Chamber should acknowledge and

18 accept Vidoje Blagojevic's appeal and enable him a new and fair trial.

19 Thank you, Your Honours. I have completed my oral submission.

20 JUDGE POCAR: Thank you, Mr. Domazet. You would have more time

21 allotted to you. Is your intention to conclude here your submissions?

22 MR. DOMAZET: [Interpretation] Yes, Your Honours. If possible, if

23 I can have a minute more in my response, that would mean a lot to me, when

24 I submit my response, but for now, I have finished my oral submission.

25 JUDGE POCAR: Thank you. So shall we take it that for the

1 remaining grounds of appeal, you just refer to what you wrote in your

2 brief? Is that correct? For the time being and with reserve -- without

3 prejudice to what you may say during the reply, of course.

4 MR. DOMAZET: [Interpretation] Yes, yes, Your Honour, that is the

5 case, precisely.

6 JUDGE POCAR: I thank you.

7 Judge Meron.

8 JUDGE MERON: Mr. Domazet, I'm not quite clear about where you

9 stand on the appeal. You have given one reply to the President a moment

10 ago, but in your argument two minutes ago, you said the Defence does not

11 expect the Appeals Chamber to review other grounds of appeal, and you have

12 asked only for a new trial together with other Srebrenica defendants. I

13 would like you to please be a bit more precise as to whether you, the

14 Defence, maintains the grounds of appeal which appear in the briefs that

15 you have presented to the Appeals Chamber.

16 MR. DOMAZET: [Interpretation] Yes, Your Honour. I stand by all

17 the appeal grounds that are stated in the appeals brief. I would just

18 like to explain. My position is that I consider that if the Appeals

19 Chamber were to accept the first ground of appeal, deciding on a new

20 trial, then there would be no need to look at the other grounds of appeal

21 of the Defence and of the Prosecution because there would be a new trial.

22 Of course, if this should not be the case, then I would like to have all

23 the grounds of appeal reviewed. That would be the explanation of my

24 position. Thank you.

25 JUDGE MERON: But you realise, of course, that this is -- you only

1 have this opportunity today and tomorrow to argue on behalf of your

2 client, and by limiting your argument today to just one area, haven't you

3 been sort of putting all your eggs in one basket? Also, would you be

4 prepared to reply to questions from the Bench on other grounds of appeal?

5 MR. DOMAZET: [Interpretation] Of course, Your Honour. I

6 understood from what was said that in any case what is stated in the

7 appeal brief is important, and the oral submissions today are limited.

8 And even if I were to discuss each ground of appeal I could here at this

9 time only say a couple of sentences about each one, and this is why I

10 restricted myself, also in accordance with the wishes of my client, to

11 putting forth in as much details as possible the first ground of appeal.

12 As I said, I abide by the grounds because, primarily, I believe that

13 Ground 1 is well-founded and I believe that it should be granted. If this

14 should not be the case, and I'm not prepared to go into this right now, I

15 am of course prepared to respond to the other grounds of appeal, of

16 course, after the response by the Prosecution and then my response to

17 their submission.

18 JUDGE POCAR: I thank you. Your position is quite clear.

19 I think Judge Guney wanted to have the floor.

20 JUDGE GUNEY: [No interpretation]

21 JUDGE POCAR: I understand there is no interpretation. Is there a

22 problem with the translation?

23 THE INTERPRETER: There is no problem, Your Honour.

24 MR. DOMAZET: [Interpretation] I understand French perfectly. It's

25 my mother tongue on my mother's side, anyway -- and French, it's my mother

1 tongue.

2 JUDGE POCAR: Maybe if we have interpretation, Judge Guney, you

3 may go on.

4 JUDGE GUNEY: [Interpretation] Let me resume. I said that during

5 your submission on the 11th of July, 1993 [as interpreted], Mr. Blagojevic

6 was prepared to fight with those people under his command. He waited the

7 entire day and never entered the town because the second sentence had

8 changed. Would you have the kindness to specify what these change and

9 circumstances were all about.

10 MR. DOMAZET: [Interpretation] Yes, Your Honour, I'm going to

11 respond in the language that Mr. Blagojevic understands, and it was his

12 wish that I only use that language today. I will try to explain that.

13 Mr. Blagojevic had orders and tasks that -- according to which he

14 assigned his companies to positions, and he was at the command post in

15 Pribicevac; that is close to Srebrenica. He was supposed to move to

16 Srebrenica from there. However, it came about that the use of his units

17 was not necessary and that his units had no contact with the opposing

18 side, and at that time he was not aware why this happened, probably

19 because the military forces pulled out from a different side, the military

20 forces of the 28th Bosnia and Herzegovina army. They withdrew in a

21 different direction, went towards Tuzla, and that is precisely the axis

22 where most of them were intercepted and where most of them were captured,

23 but not by members of the Bratunac Brigade who were actually on the

24 opposite side. And in that sector, they did not encounter a single enemy

25 soldier, not even a civilian, because this is not a populated area. And

1 that is why I assert in the appeals brief and now that the Bratunac

2 Brigade practically did not participate in the capture of Srebrenica when

3 completely different military and police forces entered the town. The

4 order that he had to search the terrain in front of the positions of his

5 units has nothing to do with what he is being charged with, and that is

6 capturing the soldiers and other things, because his units did not

7 encounter any soldiers that they could capture.

8 So that is the essence of what the Bratunac Brigade was doing at

9 that time. As for how the change of plan came about is something that

10 Colonel Blagojevic does not know and nobody asked anything of him in this

11 respect.

12 JUDGE POCAR: I thank you, Mr. Domazet. I think -- oh, Judge

13 Meron, sorry.

14 JUDGE MERON: I have -- Mr. Domazet, I have one or two questions

15 for you. The first one refers to the murders at the Vuk Karadzic school.

16 Assuming that Mr. Blagojevic heard gun-fire and screaming while in

17 Bratunac, how can we not accept the Trial Chamber's findings, suggesting

18 that he knew of the murders. Surely, at a certain point, enough gun-fire

19 and screaming means more than inhumane treatment; it means murder. Please

20 answer, keeping in mind that we can only reverse if no reasonable Trial

21 Chamber could have found knowledge of murder beyond a reasonable doubt.

22 This is my first question.

23 MR. DOMAZET: [Interpretation] Your Honour, as for the prisoners

24 who were in the Vuk Karadzic school, I think that it is clear that these

25 were not prisoners of the Bratunac Brigade. As for the conclusion of the

1 Trial Chamber that Colonel Blagojevic could have heard, as you say, the

2 shooting or, as you say, even the screaming, the moaning, during the

3 night, I am just going to repeat what I stated in the appeals brief, and

4 that is that Colonel Blagojevic was either at the command post in

5 Pribicevac, thus outside Bratunac, or at his own command post, which is

6 quite a distance away from the Vuk Karadzic school, it's in another part

7 of town. The Trial Chamber concluded, quite erroneously in my view, that

8 Blagojevic slept in his apartment, which according to the findings of the

9 Trial Chamber, is closer to the school. It is closer than the command,

10 obviously, and we know that the command was too far to be able to hear the

11 screaming and the moaning. Perhaps the shooting could have been heard,

12 but not the screaming.

13 However, there was no possibility for Mr. Blagojevic to prove the

14 basic thing, and that was that the apartment used by the previous brigade

15 commander was sealed because of some problems of the previous commander

16 and was not in use. Mr. Blagojevic did not enter the apartment. At the

17 time, Mr. Blagojevic slept in his own command, right next to his office,

18 or at the Hotel Fontana. He never slept in the apartment. So from where

19 he was, if there was some screaming, it was impossible to hear; as for the

20 firing, it was something that was happening often at that time. Some

21 witnesses talked about shooting, but not in such a way that this was --

22 would draw anybody's special attention at the time. The controversial

23 Momir Nikolic, who was a security officer and did participate in various

24 activities in Potocari and Bratunac, had stated that he didn't know about

25 the murders or the killings in the Vuk Karadzic school. He found about

1 them later. If he, as a participant, did not know that there were

2 sporadic killings that night, then it is even less likely that Colonel

3 Blagojevic knew about them.

4 JUDGE MERON: Thank you, Mr. Domazet.

5 My second and last question is this: In your appeals brief, you

6 note that your client's trial counsel did not make an argument as to

7 sentencing. Did this prejudice your client, and if so, how? In

8 particular, were there other mitigating circumstances that the Trial

9 Chamber would have found if trial counsel had briefed the matter? Could

10 you please enlighten us, Mr. Domazet.

11 MR. DOMAZET: [Interpretation] Your Honour, as for the sentencing

12 arguments relating to the actual sentence, no. Perhaps that is erroneous

13 if I said something like that in the appeals brief. Perhaps I had said

14 that it was not possible to speak about anything like that without any

15 contacts with the accused. But Mr. Blagojevic did not want me to discuss

16 the sentence at all in this appeal and to dwell on the sentence as a

17 ground of appeal at all. So I guess that would also apply to the counsel

18 who was imposed on him at the time, Mr. Karnavas. If this is stated in my

19 appeals brief, it does not mean that it is something that it would have

20 any effect on the outcome.

21 JUDGE POCAR: I thank you, Mr. Domazet.

22 Judge Vaz wants the floor, please.

23 JUDGE VAZ: [Interpretation] Thank you, Your Honour. I would just

24 like to put one question.

25 Can you tell us whether the lack of communication between

1 Mr. Karnavas and Mr. Blagojevic was due to the fact that the latter

2 considered Mr. Karnavas to be his enemy - this is a word you used a while

3 ago - and therefore was not willing to prepare his defence? Or was it

4 that Mr. Karnavas did not want to work with him to prepare the defence of

5 his client, Mr. Blagojevic? If you can explain to us these two problems,

6 whether one can strike a balance here or not, whether this can be

7 explained or not.

8 MR. DOMAZET: [Interpretation] I will try. I will try, Your

9 Honour, to respond to this point. As I said, the conflict or the dispute

10 between the two of them -- first of all, let me explain. Enemy-like or as

11 an enemy is something that Mr. Blagojevic used several times when he was

12 allowed to speak by the Trial Chamber. It is a word that he used, a term

13 that he used. I tried to explain that the dispute that started first

14 because of the co-counsel appointment, where Mr. Blagojevic was explicitly

15 against the solution suggested by Mr. Karnavas, and then the dispute went

16 on, and it was not -- this was not the only cause for the dispute. As you

17 could see in the Status Conferences, there was a lack of mutual trust, and

18 there was no joint preparation of the Defence, especially when we're

19 talking about the military expert, because this was not even discussed at

20 that point.

21 So I don't know how Mr. Karnavas decided which witnesses and

22 experts to choose for the trial because this was not discussed.

23 Mr. Karnavas could in no way be satisfactory as far as Mr. Blagojevic was

24 concerned, and then what happened happened. Mr. Blagojevic felt that

25 appointing a more experienced lawyer from Belgrade as co-counsel would

1 provide him more of an opportunity to influence and monitor the work of

2 the main Defence counsel, with whom he communicated through an

3 interpreter. And there were problems. But all of these things that

4 happened as a result led to a complete lack of trust and confidence, and

5 this culminated, when in the course of the proceedings, he was quite

6 unjustly charged with fee splitting and then such a charge was a year

7 later denied by Mr. Karnavas, but it led Mr. Blagojevic to conclude that

8 Mr. Karnavas was an enemy and that he did not want to communicate with him

9 in any way, and it led to the things that happened later.

10 I think that had there been a possibility, it would have been good

11 to introduce the question of the Defence after the completion of the

12 Prosecution case and before the start of the Defence case; that would have

13 been a good moment, otherwise this is something that was not actually

14 discussed even though Mr. Blagojevic did try to resolve this at several

15 points during the trial. And that is why we had the situation that only

16 after the handing down of the judgement, Mr. Blagojevic was permitted to

17 have a new lawyer, to appoint a lawyer of his own choice.

18 JUDGE POCAR: I thank you, Mr. Domazet.

19 Well, this concludes, I believe, the submissions of -- and the

20 questions concerning Mr. Blagojevic's appeal.

21 We'll have now the response of the Prosecution. I will give the

22 floor for 30 minutes to the Prosecution to respond.

23 MR. FARRELL: Good morning. Thank you, Mr. President, Your

24 Honours.

25 As Mr. Domazet has focused his submissions on essentially the

1 first ground of appeal, I suspect that our response will be relatively

2 short and we'll limit our response to that ground of appeal. If there are

3 any comments I can add in relation to the questions that were raised by

4 the Bench, I'll do so and of course in relation to Mr. Domazet's appeal

5 I'm available, as are my co-counsel, to answer any questions.

6 A large part of Mr. Domazet's arguments this morning have been on

7 the issue of what led to the Trial Chamber's decision and subsequently the

8 Appeals Chamber's decision on whether or not his counsel should be

9 withdrawn. The issues pertaining to the cause of the concern and the

10 resulting breakdown between Mr. Blagojevic and his counsel have been fully

11 briefed, argued, and decided upon by the Trial Chamber, and subsequently,

12 in an interlocutory appeal decided on December 15th, 2003, with written

13 decisions on November the 7th, 2003. The issues as to whether counsel

14 should have been withdrawn have been dealt with and resolved by this

15 Appeals Chamber in my respectful submission, and that the cause for -- the

16 alleged cause for the breakdown and the refusal to cooperate was before

17 the Appeals Chamber, including all the material that's been referred to,

18 the transcripts in March 2003, the material in the media that was referred

19 to, and the other material related to the comments by Mr. Karnavas as to

20 the proposed co-counsel.

21 I won't go through those facts, as in my submission those issues

22 have been decided. My submission -- what the Court has to decide on this

23 appeal is whether or not the breakdown in -- and lack of communication

24 throughout the trial has resulted in an unfairness and a miscarriage of

25 justice. We're past the point of deciding whether the withdrawal was the

1 decision not to withdraw was valid or not; that was decided already. What

2 the Appeals Chamber is left with, though, is the somewhat unique

3 circumstances where a trial proceeded without the ability of counsel to

4 consult with his client and without the ability of the client to advise

5 his counsel. But in this case, the Court has found that that arose from

6 his refusal to cooperate or communicate with his counsel, and that that

7 wasn't reasonable -- objectively reasonable or a matter that justified

8 that refusal.

9 Regardless of the cause of the breakdown, the question that must

10 be answered is whether or not, as a result of the breakdown of

11 communications, the trial was rendered unfair. This raises issues not

12 normally associated with an effective assistance of counsel, at least the

13 cases that we've seen before Akayesu and other cases deal with the issue

14 where there is an allegation that counsel wasn't competent. The issue in

15 my submission here is whether or not that competency or effective

16 representation was affected, regardless of the good-will and the efforts

17 of Defence counsel and the willingness to continue to represent him to the

18 best of his ability, but whether or not that lack of communication leads

19 to an unfair trial and, as the standard is set out in Akesiu and

20 miscarriage of justice.

21 The Defence alleges first that the very fact of the breakdown of

22 the communication in and of itself results in an unfair trial and warrants

23 the granting of his appeal.

24 With respect to the breakdown of the communication does not

25 automatically result in an unfair trial. Certainly this Court has to

1 carefully scrutinise the record. Of course this Court will and has to

2 make sure that the trial was fair in light of the unique circumstances

3 that we find ourselves in after the trial is over, but the Court has also

4 recognised that the accused does not have the unilateral right to destroy

5 a relationship with counsel, thereby, in effect, guaranteeing a finding of

6 gross negligence and therefore resulting in his ability to cause a new

7 trial at his own whim.

8 The Appeals Chamber warned against this very result in its

9 decision when it said he did not have the right to unilaterally destroy

10 the trust between himself and counsel. And further, at the end of the

11 Appeals Chamber's decision, the written decision on November 7th, the

12 Appeals Chamber made it clear that he could not proceed to continue to

13 assert a right on the basis of a claim which had no merit.

14 As Defence hasn't gone through them, I won't either, but the

15 review of the witnesses and the documents that the Defence allege,

16 primarily in their written brief, a review of them do not demonstrate that

17 there was ineffective assistance in counsel. Essentially what the Defence

18 has to do on this appeal is show, first of all, what the Defence counsel

19 did which resulted in a miscarriage because of the inability to

20 communicate; or, alternatively, what Defence counsel didn't do because of

21 an inability to communicate. And in my respectful submission, that hasn't

22 been shown.

23 Counsel at trial, as Your Honours are aware, has a wide discretion

24 with how to proceed with a case. And a strategic decision or even a

25 mistake does not necessarily result in gross negligence. That was the

1 specific ruling of this case in the decision of the Prosecutor versus

2 Momir Nikolic, where counsel for Momir Nikolic alleged that counsel at

3 trial was incompetent for failing to put medical records before the Court

4 and the Appeals Chamber found that that wasn't the case, it was a

5 strategic decision, and even if a mistaken one, would not warrant the

6 admission of the evidence on appeal.

7 The second point I wanted to make was that the -- there is a

8 silence from the appellant's counsel as to what the actual prejudice was

9 or where the miscarriage of justice is. Though there's reference to

10 witnesses, for example, Momir Nikolic's testimony, and other aspects of

11 the Defence case, the Defence hasn't clearly demonstrated where that

12 resulted in a miscarriage in the trial record.

13 In relation to the violation of the accused's rights to testify, I

14 think it's fairly clear that the Trial Chamber made extensive efforts to

15 ensure that his rights were actually protected. They wanted to ensure

16 that he was properly informed, that any decision to testify or not to

17 testify was voluntary. And in the end of the day what happened is that

18 the counsel -- the accused, based on the conditions that were required,

19 both by the Trial Chamber but by the Rules, declined to exercise the right

20 to counsel in a manner which accorded with the Rules and the Trial

21 Chamber's decision. At the end of the day, just simply to reiterate, that

22 this is not an issue of whether or not the withdrawal was a correct

23 decision -- or the decision not to withdrawal was correct or not; that's

24 been decided. The issue is whether in the unique circumstances of this

25 case there was an unfair trial.

1 The fact that there was not communication does not automatically

2 result. The Court is fully aware, if you review the filings, primarily

3 the confidential filings or some of the ex parte filings, that there was

4 extensive consultation prior to trial up until the time when there was the

5 final breakdown in April of 2003. There was discussions between Defence

6 counsel and client. There was strategic decisions made. There was

7 discussions about the Prosecution witnesses and the Prosecution witness

8 list. The Defence response to the Prosecution's pre-trial brief wherein

9 the Defence position and its response to the Prosecution's theory of the

10 case, that was all done prior to the breakdown of the communication. And

11 Defence counsel was clearly in a position to know what the position was of

12 his client and how they intended to respond to the Prosecution's theory

13 and facts.

14 The appellant now has been represented by counsel, who appears to

15 have his full trust and full communication. The present counsel with full

16 consultation with his client has put forward all the arguments which both

17 in counsel and the appellant's view demonstrate why the trial was unfair.

18 The Appeals Chamber will see upon a review of these arguments that none of

19 them demonstrate an ineffective representation at trial. Further, this

20 Tribunal has the unique mechanism of Rule 115 and the jurisprudence of

21 this Tribunal has recognised that the exception to the availability of

22 evidence at trial, one of those exceptions is gross negligence of

23 counsel. And that even if the evidence was available at trial, if it was

24 the result of gross negligence of counsel, it will be considered by the

25 Court for admission.

1 Despite claiming that there was evidence that was not called and

2 being critical of the evidence that was called, despite having the

3 opportunity to consult with his client, claiming that there were things

4 that could have been done or were not done over the two-year period there

5 was no consultation, I note that there's not one piece of additional

6 evidence that's been submitted that generates from the renewed

7 consultation between client and counsel. There are no additional

8 witnesses brought. There are no new documents found. In fact, there's no

9 new factual arguments raised that were not raised in essence at the trial.

10 Lastly, in relation to the right of the accused to testify, as

11 I've indicated, it's not an issue of whether he -- the client is right,

12 it's an issue of whether he -- the client to exercise his right. He was

13 placed in the same position as any other accused who wishes to testify.

14 And the fact that he refused to testify according to the Rules and the

15 procedures established by the Trial Chamber because he didn't want to be

16 examined by counsel, does not prove that the right to counsel has been

17 violated; and, more significantly, it does not make competent counsel

18 incompetent. As there's been no demonstration of the right to effective

19 representation at trial that has been denied or resulted in a miscarriage

20 of justice, it's submitted that this ground of appeal should be denied.

21 In light of the fact that there's been no other submissions on

22 substance on the remaining grounds of appeal, the Prosecution does not

23 make any submissions in that regard.

24 If I may, with leave of the President, address a few of the issues

25 that arose in the questions.

1 JUDGE POCAR: Yes, proceed.

2 MR. FARRELL: Thank you.

3 First of all, obviously, as Mr. Domazet has relied on his brief,

4 the Prosecution does so as well. Secondly, there is a question by Judge

5 Meron, and, Your Honour, I will try to look at this and address it more

6 fully, but I may have either misunderstood your question or probably more

7 likely misunderstood the judgement. So I would like to respond to the

8 issue you raised about surely at some point in time the evidence that

9 there was sufficient gun-fire in the Vuk Karadzic school would have

10 resulted in, clearly, knowledge that there were murders that were

11 happening in Bratunac.

12 If I understood your question correctly, and I apologise if I

13 haven't, my understanding -- the implication of your question is that he

14 was not found guilty of the murders in the Vuk Karadzic school and that if

15 he at some point in time, if there was sufficient evidence of the gun-fire

16 from which you could infer knowledge, it means that there would be enough

17 evidence for murder, is -- am I misunderstanding your question, Your

18 Honour?

19 JUDGE MERON: Just to make it completely clear, let me repeat the

20 question as I asked it of the Defence.

21 MR. FARRELL: Thank you.

22 JUDGE MERON: Assuming that Blagojevic heard gun-fire and

23 screaming while in Bratunac, how can we not accept the Trial Chamber's

24 findings in paragraph so-and-so, suggesting that he new of the murders?

25 Surely at a certain point, enough gun-fire and screaming means more than

1 inhumane treatment; it means murder.

2 MR. FARRELL: Thank you, Your Honour. Then I misunderstood your

3 question. The Trial Chamber did as you indicated and as is found at

4 paragraphs 784, 785, and 786 did find him guilty of the murders. Thank

5 you. My apologies.

6 The second issue that was raised by Judge Vaz, and as well, I hope

7 I understood it correctly. Judge Vaz raised a question which resulted in

8 an assessment of whether or not how the Court was to balance between

9 whether or not Blagojevic was not willing to work with Defence counsel and

10 therefore not willing to prepare with him; or whether or not it was the

11 Defence counsel Karnavas who did not want to meet him. If I understand

12 Your Honour's question correctly, the record, the factual record,

13 demonstrates that the Defence counsel was willing to work with the accused

14 during trial and that it was the refusal of the accused that prevented

15 that from happening and prevented the preparation right up until the point

16 in time when Defence counsel -- I'm sorry, right up until the point in

17 time where the accused at the time was asked whether he was willing to

18 testify in, I think, it was July 2004 and then again in September 2004.

19 The Court requested Mr. Karnavas to speak with his client, which he was

20 willing to do, and approached him on at least two occasions to discuss

21 with him his right to testify. And subsequently, in a closed session ex

22 parte at the time, I recall, session, Defence counsel specifically stated

23 on the record in front of his client that his advice to his client was not

24 to testify and not to exercise that right. That was his legal advice.

25 So if I understood your question correctly, the Court attempted to

1 strike a balance in ensuring that whenever necessary and whenever the

2 Court felt it was absolutely necessary that they instructed consultation

3 and that Defence counsel was willing to do so, not only when the Trial

4 Chamber requested it, but on an ongoing basis. That was on the factual

5 record, if that addresses your question, Your Honour.

6 JUDGE VAZ: [Interpretation] Yes, that was a question which I

7 asked. You have answered my question. I just wanted to know what Defence

8 counsel felt about this. Thank you, Mr. Farrell.

9 MR. FARRELL: Thank you for the clarification, Judge Vaz.

10 JUDGE SHAHABUDDEEN: Mr. Farrell, this matter came on

11 interlocutory appeal to the Appeals Chamber. Now, I suppose this could be

12 said: If an accused person is not getting on with his counsel, then the

13 Appeals Chamber may say, Well, look it's your fault and you either take

14 existing counsel or you can self represent. Now, the Appeals Chamber, we

15 know, has a competence -- well, a Chamber has a competence in exceptional

16 circumstances to say to an accused person, Well, you will be represented

17 by counsel even if you do not have any communications with that counsel,

18 but I take it that's in very special and restricted circumstances.

19 What happens here is this, if I apprehend correctly the

20 circumstances, the position is that the Appeals Chamber would have said to

21 Mr. Blagojevic, Well, it's all your fault. That's the counsel assigned to

22 you, and you take him and I suppose leave him -- or leave him. But did

23 the Appeals Chamber go on to say that even if you do not have any

24 confidence in that counsel, the counsel may speak on your behalf? There's

25 a fine distinction between a situation in which a Trial Chamber may

1 exceptionally say to an accused, Look, that's your counsel, he will speak

2 on your behalf even if you do not speak to him. And a case in which the

3 Appeals Chamber doesn't say that, what happens afterwards is that there is

4 a lack of communications between counsel and client and counsel still

5 speaks in court for the client. Is that permissible, Mr. Farrell?

6 MR. FARRELL: Thank you for your question, Judge Shahabuddeen.

7 The simple answer is: Yes. If in the circumstances, the

8 Chamber's decision is one which results in saying: There's no basis for

9 the withdrawal, but doesn't go further and say: As a result, we impose

10 counsel and he must act on your behalf. Then what the Trial Chamber is

11 left with in this case is either he seeks to represent himself or the

12 Trial Chamber has to indicate that counsel is to remain.

13 In this case, the Trial Chamber made it abundantly clear in some

14 of its rulings, including one of its rulings at the end in relation to the

15 right to testify, that the accused, during trial, had indicated that he

16 did not want to represent himself. That being the case, and in light of

17 the decision of both this Appeals Chamber and the Trial Chamber, that

18 counsel have an obligation to stay on the record to defend the client,

19 then at that stage the only choice of the Trial Chamber would be to

20 maintain the counsel which was essentially imposed as a result of the

21 decision but not imposed because of the decision directly, if that answers

22 your question.

23 JUDGE SHAHABUDDEEN: Thank you.

24 JUDGE POCAR: Judge Meron.

25 JUDGE MERON: Thank you, President.

1 Mr. Farrell, you spoke of strategic decisions by the counsel which

2 should not be second-guessed, if I may paraphrase you. You heard my

3 question to the Defence regarding absence of sentencing arguments. Now,

4 the Rules provide, as you know, that if a party decides to have closing

5 arguments, then sentencing submissions are no longer optional. What I

6 would like to know from you is: Do you think that by not making any

7 submissions on sentencing, Mr. Blagojevic's interests may have been

8 prejudiced somehow?

9 MR. FARRELL: First of all, I'm not familiar with the record in

10 terms of the actual oral submissions. I appreciate -- I will check on

11 this, and I apologise I wasn't aware. I know the closing brief may be

12 that way.

13 In the circumstances of this case when the -- to answer your

14 question: No. As a general matter, there would have to be some

15 demonstration now on appeal that there was some prejudice, some actual

16 prejudice. The theoretical possibility of that prejudice is not something

17 upon which, in my submission, the Appeals Chamber should act.

18 There may be some concern caused by the failure to make

19 submissions which would cause this Court to exercise greater caution or

20 scrutinise the record more carefully, but I wouldn't submit in a situation

21 such as sentencing which is a highly discretionary matter by the Trial

22 Chamber in which the Defence case has been clearly put forward and where

23 the evidence has been called, for example, there have been testimony of

24 witnesses who spoke about the acts of Blagojevic at the time, that he, for

25 example, according to two witnesses, that he ordered his subordinates to

1 check on the detainees at the Vuk Karadzic school. So there was evidence

2 brought out as to general matters of his character or nature as a

3 commander.

4 Likewise, if the Court felt -- the Trial Chamber felt that there

5 was sufficient concern in this regard, obviously there would be an

6 obligation on that Trial Chamber to inquire as to whether there are any

7 other matters that need to be brought forward. I would submit that one

8 can assume that the Trial Chamber was not concerned as a result of the

9 failure to file submissions on that matter.

10 JUDGE MERON: Thank you, Mr. Farrell.

11 MR. FARRELL: Thank you, Your Honour.

12 JUDGE POCAR: Well, I think it's now time to have a break, as

13 scheduled. We are five minutes ahead, so I would suggest we come back at

14 10.15 instead of 10.20. We break for half an hour now.

15 --- Recess taken at 9.44 a.m.

16 --- On resuming at 10.17 a.m.

17 JUDGE POCAR: We'll resume now the hearing, and I will give the

18 floor to the Defence of Blagojevic for their reply for 20 minutes.

19 You have the floor, Mr. Domazet.

20 MR. DOMAZET: [Interpretation] Thank you, Your Honours. I will try

21 to limit myself to what my learned friend said in his response, and I hope

22 I shall be able to cover everything I have noted.

23 The first point is that this Appeals Chamber handed down decisions

24 at one period of time; however, it has been misstated that this was in

25 December 2003 and that the decision was published on the 7th of November.

1 However, this was in September 2003. The decision and the grounds for the

2 decision were published on the 7th of November, but it was actually in

3 September 2003 that the Chamber issued this decision and it was only a few

4 months after the start of trial.

5 As regards the reference to the material from the media, I only

6 wish to say that the fact that the article I quoted was published in the

7 media, and the fact that it was published only a few days after the

8 accusation of the 16th of July, when Mr. Karnavas made the accusation in

9 nine paragraphs that this was an attempt at fee splitting, is something

10 that could not have been obtained from the accused. We do not know how

11 this information reached the media in fact.

12 The issue of the reasons for the lack of cooperation between

13 Mr. Karnavas and Mr. Blagojevic and the refusal to communicate is one

14 where I wish to state that it was not only a breakdown in communication

15 that happened, what started as a conflict concerning the co-counsel in

16 late 2002, quite a bit earlier as can be seen from the Status Conferences

17 held at the time, escalated into a conflict and the accused Blagojevic

18 said that he felt that Mr. Karnavas was sabotaging the preparation of his

19 defence. And this came to a head when he brought Mr. ^ Schifanelli as a

20 military expert who was supposed to provide an expert opinion.

21 This was only a few days before the dismissal, and on the 7th of

22 April, 2003, he finally decided to dismiss his counsel, believing at the

23 time and not being conversant with the law and having an opportunity to

24 consult any lawyers, that it was up to him to choose. Because when he was

25 brought to the Detention Unit, he then chose Mr. Karnavas as his counsel

1 and his choice was confirmed by the Registry, which is how it came about

2 that Mr. Karnavas was his Defence counsel. He felt that after everything

3 that had happened, he also had the right to dismiss this counsel and did

4 not have to communicate with him any further.

5 What we wish to point out is that it was not the accused who

6 brought about this crisis in relations with his counsel, that he did not

7 bring the situation on himself. After the sabotage of his defence and the

8 conflicts regarding the co-counsel, the refusal to have a co-counsel from

9 Belgrade chosen by Mr. Blagojevic, matters came to a head when he was

10 accused of attempting to commit a crime, when his counsel accused him of

11 being a criminal. This totally destroyed their relationship, and

12 Mr. Blagojevic cannot be blamed for this. After this, he could not have a

13 shred of confidence in his counsel or try to communicate with him.

14 I noted that the impossibility to communicate has not been

15 established, but I have already stated that because of the nature of the

16 relations between the two communication was no longer possible and it was

17 not possible for Mr. Blagojevic to have confidence in his counsel.

18 Raising the example of Momir Nikolic and his objection to his counsel is

19 something that has nothing to do with this case, nor can it be used as an

20 analogy in this case because the situation there was completely different.

21 As for the objection that there was a miscarriage of justice

22 because of the silence of the Defence, in conducting the case, what did

23 Mr. Karnavas do to bring about a miscarriage of justice. Through his

24 selection of evidence and the manner of presenting the case, I feel that

25 in the total absence of any communication, no Defence counsel, not just

1 Mr. Karnavas, but no other Defence counsel could have conducted the

2 proceedings, cross-examining Prosecution witnesses, calling Defence

3 witnesses and examining them, without the knowledge and agreement of the

4 accused.

5 Mr. Blagojevic, let me repeat, asked me to present only his first

6 ground of appeal and did not give him much assistance in trying to learn

7 more and get more information. Let me remind Your Honours, however, of

8 the examples I have cited of instances very detrimental to Mr. Blagojevic,

9 apart from this overall damage done to him which I've already mentioned.

10 Among these is the military expert Mr. Schifanelli and his testimony

11 regarding the tasks of the Bratunac Brigade, the area in which it was

12 active, the actions taken by various persons and what they were able to

13 do. All this was not dealt with properly by a proper military expert who

14 would have testified at the trial.

15 Mr. Karnavas proposed calling a certain Mr. Keserovic who was a

16 security officer in a higher command, in the commands in the chain of

17 command dealing with counter-intelligence and Momir Nikolic matters not

18 concerning the brigade. He should have been a Defence witness, and he

19 destroyed what had already been demonstrated; for example, the

20 instructions of the General Staff from the year 1994, the directive that

21 the job of a security officer in the brigade amounted to only 20 per cent

22 of his overall work and that 80 per cent of his work was to communicate

23 with the higher-level commands in the security organ, and that this

24 applied to Momir Nikolic. It should have been shown that both in Potocari

25 and in Bratunac and anywhere else, Momir Nikolic was acting on orders from

1 the security chain of command, not in line with the 20 per cent of his

2 activities; however, witness Keserovic changed this ratio to the detriment

3 of the accused.

4 And as for the men whom Mr. Blagojevic allegedly sent to the

5 school to check what was going on, it's true that there was a protected

6 witness who was a suspect at the time who said that he had been there but

7 he didn't see anything bad happening and that he did not report this to

8 Blagojevic; however, this was a Prosecution witness. Mr. Karnavas called

9 witness Beatovic, who in his first statement never mentioned that

10 Blagojevic had ever told him to go and see what was happening at the

11 school, but when he appeared to testify, he said that he went there and

12 saw nothing or nothing that would indicate that there were murders or

13 beatings going on and that he went home and never reported to

14 Mr. Blagojevic.

15 Regardless of the value of such testimony, these are only a few

16 examples that I myself noticed, as Mr. Blagojevic did not want to

17 cooperate on this topic, but I have found examples where what was done at

18 trial was to the detriment of Mr. Blagojevic.

19 In April 2003, efforts were made to solve this problem. There

20 were contacts between the Registry and the accused, and his standpoint was

21 always consistent. But in June 2003, something happened that

22 Mr. Blagojevic could not overlook. When he's given the chance, he will

23 probably say something about this himself.

24 With respect to the allegations made by the Prosecution that it is

25 not true with respect to Blagojevic's testimony that he refused the

1 possibility of testifying, this is not correct. He refused to be examined

2 by Mr. Karnavas, whom he did not recognise as his Defence counsel. He

3 did, however, wish to testify under oath, but he did not wish to be

4 examined by Mr. Karnavas. And that also answers the question put by Her

5 Honour Judge Vaz. Blagojevic, if I understand correctly from the

6 transcript, spoke about a meeting with Mr. Karnavas - I apologise if I did

7 not understand this correctly - or even two meetings. But from the

8 beginning of April 2003 to this date, there has never been a meeting

9 between Mr. Blagojevic and Mr. Karnavas. So when the issue of Blagojevic

10 testifying arose - and for this reason, the trial was adjourned - the

11 Registry did try to establish contact, but Mr. Blagojevic was already

12 convinced, after everything that had happened, the accusations, the

13 sabotage of his defence, did not wish to meet Mr. Karnavas.

14 It's true that Mr. Karnavas said that he would not advise

15 Mr. Blagojevic to testify; that was his professional advice. Many counsel

16 before this Tribunal believe that their clients should not testify and

17 that this is not in their best interests, but the reason Mr. Blagojevic

18 did not testify was not because Mr. Karnavas gave this advice. He wished

19 to testify, regardless of whether his testimony is seen as detrimental to

20 his case or not. He wishes to testify. Therefore, this has been

21 misinterpreted.

22 With respect to the -- what was said about the interlocutory

23 appeal and whether an accused who disagrees with his counsel should

24 represent himself, Mr. Blagojevic did ask whether he could represent

25 himself, but it was not possible for him to make such a decision. He said

1 that he certainly needed a Defence lawyer, but a Defence lawyer who could

2 prepare a proper defence, and that was the standpoint by which he abided.

3 My time, I believe, is running out, so I wish to conclude by

4 saying that in the Prosecutor's response to the first ground, attempts

5 were made to show that Blagojevic himself interrupted communication with

6 his counsel and worked against his own Defence; however, this was a

7 complete breakdown of communication, making it impossible to cooperate

8 because of the accusations that were made. After the serious accusation

9 was made, no further contact was possible until the end of the trial.

10 In my view, this really was not conducive to a fair trial, and for

11 this reason, Mr. Blagojevic did not have a fair trial. Thank you, Your

12 Honours.

13 JUDGE POCAR: I thank you, Mr. Domazet.

14 This concludes the arguments on the appeal submitted by

15 Mr. Blagojevic. We will move on now to the appeal of Mr. Jokic, and I

16 will give the floor to the Defence of Mr. Jokic for their submissions

17 for -- you have -- Mr. Murphy, you have one hour and ten minutes. That

18 is -- well, until 11.45.

19 You have the floor.

20 MR. MURPHY: Thank you very much, Mr. President.

21 And I will use the time, I hope, constructively not to necessarily

22 address each and every ground of appeal, but to give Your Honours the

23 assistance I can perhaps on the most difficult of the issues.

24 [Interpretation] I would like to ask Judge Vaz in French --

25 THE INTERPRETER: Too fast for the French translation.

1 MR. MURPHY: [Interpretation] Judge Vaz and Judge Guney could you

2 let me know.

3 [In English] Your Honours, I want to say, if I may, a few words by

4 way of introduction, firstly, that I'm very conscious of the fact that

5 this appeal relates to the events of Srebrenica, and so is Mr. Dragan

6 Jokic. We are conscious of the fact that in the -- against the background

7 of what has been described as the -- perhaps the worst event of its kind

8 since the Second World War, we are nonetheless addressing Your Honours on

9 a number of legal matters, one of two of which may perhaps at times appear

10 to be of a technical nature.

11 But I'm sure Your Honours will understand that even in this

12 context and perhaps especially in this context, there is a need for

13 precision and a need to be just to the accused who have been charged with

14 and convicted of such serious crimes. And if the Trial Chamber made legal

15 errors in convicting them of such crimes, then it's our submission that,

16 regardless of the gravity of the matter, that is a matter which Your

17 Honours have a duty to correct, and it will be our submission that the

18 Trial Chamber in this case did make, in Mr. Jokic's case, at least two

19 significant legal errors which require the reversal of his convictions.

20 I also want to mention and to begin by thanking Your Honours for

21 giving us leave at a relatively late stage of the proceedings, when I took

22 over as lead counsel, to amend the notice of appeal and the appellant

23 brief. Your Honours, I'm conscious that because of the Appeals Chamber's

24 order, we -- we had to leave in the brief a significant quantity of

25 material that had been included in the original brief. All I say is that

1 if I had begun at the beginning and drafted it from the beginning, it

2 might have been a different document, and the grounds of appeal might

3 today have been a little different. Nonetheless, I'm confident that the

4 leave that Your Honours did give us had enabled us to put the appeal into

5 a context where it can be fully argued in the interests of justice and

6 fairness to Mr. Jokic. And I do appreciate Your Honours' indulgence.

7 The last thing I say by way of introduction is to remind Your

8 Honours that on the 2nd of August of this year, we also filed a motion to

9 strike or require redrafting of parts of the Prosecution's response brief.

10 That, of course, was a step which we did not take lightly, and even though

11 that motion was denied, I will invite Your Honours not to forget it

12 entirely and to give some attention in preparing your judgement to the

13 appendix to that motion in which we set out in a form of a table a number

14 of parts of the Prosecution brief in which the Prosecution purported to

15 describe the Trial Chamber's findings about what Mr. Jokic actually did.

16 It was our position in that motion, Your Honours, and it is our position

17 today, that those passages seriously misrepresent the Trial Chamber's

18 actual findings.

19 Excuse me, Your Honour, I think I need to make an adjustment here.

20 For reasons that will be apparent in a moment, I need the assistance of

21 the computer here.

22 Your Honour, it's of great importance to our appeal to -- that

23 the -- that the Appeals Chamber understand the actual factual basis on

24 which the Trial Chamber made its decision to convict; and, as we set out

25 in our motion, that was a very different basis from the basis upon which

1 the Prosecution say the convictions were based. And I think when we come

2 to discuss the detailed grounds of appeal, I think it will become clear to

3 Your Honours why it is very important to understand what the basis of the

4 conviction was, factually speaking.

5 I have no doubt that the Prosecution, even in this hearing today,

6 will once again invite the Appeals Chamber to take a much broader view of

7 the Trial Chamber's findings than the Trial Chamber itself did. And so

8 with the assistance of the Legal Officer, I think if Your Honours can be

9 switched into e-court mode we can -- I'd like to provide just a visual

10 summary of what is going on.

11 If I can ask whether Your Honours now have access to that. Good.

12 It should be on your screens. If Your Honours share my own terror and

13 bewilderment at modern technology, I can re-assure you that this will be a

14 very brief presentation. Hopefully, it will not take too long.

15 All right. Well, I don't -- perhaps we can get one of the

16 technical officers to assist. I'm not sure why that's not working. I was

17 following the instructions I was given -- oh, there we go. I'm grateful

18 to Ms. Lindsay.

19 The basic finding that the Trial Chamber made in summary of the

20 different allegations was expressed in paragraph 770 of the judgement, in

21 which the Trial Chamber found that "Dragan Jokic rendered practical

22 assistance which had a substantial effect on the commission of the mass

23 executions in Orahovac, Pilica/Branjevo Military Farm, and Kozluk. His

24 acts of assistance included coordinating, sending, and monitoring the

25 deployment of Zvornik Brigade resources and equipment to the mass

1 execution sites between 14 and 17th of July ..."

2 The Prosecution has emphasised the word "included" in that

3 paragraph as indicating that the Trial Chamber only mentioned those

4 particular acts as being part of the assistance rendered by Mr. Jokic, but

5 when we look at the Trial Chamber's other findings, it becomes clear that

6 that was in fact the sum total of their findings about his criminal

7 conduct. Now, that doesn't mean that the Trial Chamber did not make other

8 findings about his activities during the 14th and 17th of July, and the

9 Appeals Chamber having studied the briefs of the parties will have read

10 about his role as duty officer and so on. But when it came to their

11 findings as to culpability, it was to these acts and these acts alone that

12 the Trial Chamber said these were acts of practical assistance that had a

13 substantial effect on the commission. And that, of course, was a finding

14 that had to be made because that was the actus reus of aiding and

15 abetting.

16 Now, the language that the Prosecution used in its response

17 brief - I won't go through it all - but it included extravagant phrases

18 such as that Mr. Jokic was involved in a central role; that the

19 perpetrators relied on knowing that he would assist them; that he had

20 overall knowledge of the murder operation; and so on and so forth. We've

21 set it all out in our motion. If those had been the findings of the Trial

22 Chamber, then one has to ask: Why did the Trial Chamber not agree with

23 the Prosecution that Jokic was a part of the joint criminal enterprise?

24 If his -- if he played a central role, if he was an officer of senior rank

25 who had overall knowledge of the murder operation, was involved from start

1 to finish over a period of four days - and this is all in the

2 Prosecution's brief - why did they not find, as seemed inevitable, that he

3 was part of a joint criminal enterprise? An allegation that they made

4 before the Trial Chamber but have not pursued before this Appeals Chamber.

5 On the screen before Your Honours now are the findings of the

6 Trial Chamber on that issue. Paragraph 23, he did not have the requisite

7 intent. 724: "The Trial Chamber finds that the appropriate form of

8 liability is ... aiding and abetting." Paragraph 725: "The Trial Chamber

9 finds that Dragan Jokic did not commit" these offences "as part of a joint

10 criminal enterprise."

11 And then lastly, the summary of the findings for the purposes of

12 sentences in paragraph 836. As Your Honours know, the jurisprudence of

13 the Tribunal is that sentencing must be based upon the overall criminality

14 of the accused, and this is the Trial Chamber's statement of that

15 criminality. And it begins by saying that Jokic, like Blagojevic, "did

16 not play a major role in the commission of the crimes." That was the

17 Trial Chamber's conclusion.

18 For all the Prosecution's language about his overall involvement,

19 his senior rank, being involved from start to finish, the perpetrators

20 relying on Mr. Jokic, almost giving the impression that none of this would

21 have happened if Mr. Jokic hadn't been there ready and willing to assist,

22 what does the Trial Chamber actually say? He "did not play a major role."

23 And in conclusion, they repeat what they had said in paragraph

24 770, that he substantially assisted by sending machinery, the Engineering

25 Company, to the execution sites.

1 Now, I will not take the time of the Trial Chamber to go through

2 the other findings that we set forth in our motion. We demonstrated how,

3 in other paragraphs of the judgement, the Trial Chamber also dismissed

4 other allegations that had been made against Mr. Jokic. I needn't take

5 Your Honours' time with that.

6 I think we'll fast-forward through and now -- yeah, don't worry

7 about that. Just fast-forward through that whole thing for me, please.

8 Here we have one or two facts that I'm going to ask Your Honours

9 to bear in mind later about the sites to which the Trial Chamber referred.

10 Orahovac, it is alleged that Mr. Jokic had sent an excavator to that site

11 at around noon. The killings began at that site during the early evening.

12 And if time remains, I will address Your Honours about the implication of

13 that finding at a later stage.

14 In relation to the Pilica and Branjevo site, which is the subject

15 of our sixth ground of appeal, Your Honours will see that here the

16 executions had begun and ended during -- certainly at the latest the Trial

17 Chamber found by 4.00 on the afternoon of the 16th of July. A request for

18 machinery was received at 2210, and a second request early the next

19 morning. The significance of that finding I will be dealing with very

20 shortly.

21 And then finally, as to Kozluk, once again we see that executions

22 had ended, and then later machinery was sent. And I will again come back

23 to the significance of that. I don't want to take too much time now.

24 Now, Your Honour, I have no doubt the Prosecution will -- and we

25 can go back to the transcript now. Thank you for that technical

1 assistance; it's very much appreciated.

2 I have no doubt that the Prosecution will give Your Honours their

3 own version of the facts again, and I may have more to say in reply to

4 that, but I'd like now, if I may, to come to the legal grounds of appeal,

5 and these are really the third, fourth, and fifth grounds. To some

6 extent, these grounds run together and constitute a sequence of grounds of

7 appeal, and I will try, in order to be coherent, to deal with them in that

8 way, certainly the third and fourth grounds.

9 The third and fourth grounds, Your Honour, really relate to the

10 subject of the law about aiding and abetting, as it has been set out in

11 Article 7(1) of our Statute and also as it has been developed in the

12 Tribunal's jurisprudence. Now, the important thing, as the Trial Chamber

13 correctly recognised, and the Trial Chamber, we submit, correctly defined

14 aiding and abetting and said that it required that the acts of the accused

15 have a substantial effect on the commission of the offences. And in

16 addressing this ground, Your Honour, I'm really now referring to Pilica

17 and Branjevo Farm and Kozluk.

18 The fourth ground adds to that, that if the assistance given by

19 the accused was ex post facto, in other words, if it occurred at a time

20 when the offences had already been committed and completed, then that

21 cannot amount to aiding and abetting under the law of the Tribunal, under

22 the Statute and the case law. And it really comes down to this in

23 summary, that aiding and abetting is a form of commission. It is one of

24 the ways in which offences may be committed or perpetrated. And so, if

25 the assistance is rendered after the commission and completion of the

1 offences, it follows from that that it is then too late for practical

2 assistance to be rendered in the commission, in the commission, of the

3 offences, which is, as the Trial Chamber correctly found, the definition

4 of aiding and abetting in the Statute and also the way in which the cases

5 have been developed in the Tribunal.

6 Now, we have set out our analysis of the cases and the Statute,

7 and the Prosecution responded. And I refer you particularly to paragraph

8 11.17 of the Prosecution's response brief. And it really appeared from

9 the discussion in the two briefs that the -- the only real area of

10 difference between the parties on the definition of the law was whether or

11 not the Trial Chamber was correct in holding that the acts of the accused

12 must be specifically directed towards the commission of the crimes. And I

13 suppose, actually, then there was a second -- there was actually a second

14 difference where the Trial Chamber also held, correctly, we say, that

15 where the assistance given is ex post facto, that can only amount to

16 aiding and abetting if there was a prior agreement between the accused and

17 the perpetrators to render that assistance. In other words, if Mr. Jokic

18 had on a prior -- at a prior time said in effect, If you need it, I will

19 be there to help. If he had made that tacit or explicit agreement with

20 the perpetrators at the outset.

21 But as the Trial Chamber correctly noted, the law of the Tribunal

22 is that the Prosecution would have to prove the existence of such a prior

23 agreement in order to convict Jokic on these facts. Because remember what

24 happened, Your Honours, in the two cases we referred to of Pilica and

25 Kozluk. Clearly, there can be really no dispute about this, the offences

1 were entirely over, completed, done with, before Mr. Jokic even arguably

2 rendered an act of assistance to the perpetrators. Now, Orahovac is a

3 separate case. I'll come back to that one if I have time. But in

4 relation to those two cases that I mentioned, clearly, the law of the

5 Tribunal is, as the Trial Chamber correctly found, was -- is that the --

6 firstly, the acts of the accused must be specifically directed, they must

7 be -- render practical assistance in the commission of the crimes, in the

8 commission of the crimes. And that if the assistance is ex post facto,

9 then that cannot amount to aiding and abetting unless there was a prior

10 agreement. And we would submit, Your Honour, that the fact -- once the

11 Trial Chamber decided that the Prosecution had failed to prove that

12 Mr. Jokic was a member of the joint criminal enterprise, there was no

13 other evidence of any prior agreement at all between that -- between

14 Mr. Jokic and the perpetrators.

15 Now, the -- what does the Prosecution say about this? Well,

16 firstly, they say that specifically directed should not be regarded as an

17 element -- as a separate element of aiding and abetting, that's at

18 paragraph 11.17 of their brief. We replied to that at paragraphs 36 to 39

19 of our reply, and we showed that in fact the consistent line of authority

20 in the Tribunal from Tadic onwards has been -- does exactly support the

21 Trial Chamber's finding in that respect. They stated the law as it has

22 been laid down in a series of cases. And the Prosecution supplies no

23 authority, really, to contradict that.

24 Moreover, the Prosecution agrees with us that the substantial

25 effect of the accused's acts must be related to the commission of the

1 offence itself.

2 The Prosecution, in paragraph 11.9, then invites the Appeals

3 Chamber in essence to jettison the Trial Chamber's findings and say, Well,

4 regardless of what the Trial Chamber found, the Appeals Chamber has power

5 to substitute its own findings and therefore to substitute its own view

6 for that of the Trial Chamber. And I know that Your Honours will agree

7 that that's the sort of thing that an Appeals Chamber should not do

8 lightly and not without a significant record. And, Your Honour, the

9 record on appeal here, the Trial Chamber's findings based on evidence is

10 very clear. There is no basis for saying that they got it wrong. And,

11 Your Honours, I would submit that the Trial Chamber's factual findings in

12 that regard should be respected here.

13 We also demonstrated, Your Honour, in relation to the fourth

14 ground, that not only is our point on ex post facto good law in this

15 Tribunal, but it really represents the view across the board in domestic

16 systems of law. And although I know that is a second reconsideration, it

17 is significant here because it seems that right across the board, both in

18 common law and continental systems, the same principle applies. And Your

19 Honours will see in paragraphs 150 and following of our brief, we set out

20 the law in a number of jurisdictions, including the former Yugoslavia and

21 England. And we showed that there was a separate offence in these

22 jurisdictions. In England, it would have been called in the old days

23 being an accessory after the fact, where this offence is committed where a

24 crime has already been completed and then after that the accused comes, in

25 some way, to the aid of the perpetrators. And both at common law and by

1 Statute and I think also in the continental penal codes that were

2 examined, the same principle applies expressed in -- sometimes in a little

3 different language, that this was a separate offence, being an accessory

4 after the fact.

5 The problem the Prosecution faces, Your Honours, is that that

6 offence does not appear in Article 7(1) of the Tribunal, the Statute. For

7 what reason, I cannot really enlighten Your Honours very much. We drew

8 attention in our brief to the fact that the International Law Commission

9 had made some observations about how that offence should be treated; they

10 made certain recommendations I think pertaining to what should be the

11 position of the Statute of the International Criminal Court. But be that

12 as it may, clearly for some reason, consciously, the decision was taken

13 not to include an offence similar to being an accessory after the fact in

14 Article 7(1) of our Statute; it simply isn't there. And in our

15 submission, Your Honour, that is fatal to the conviction of Mr. Jokic for

16 any offences regarding the Pilica/Branjevo site or the Kozluk site because

17 of the undisputed evidence. And if one looks at it -- if one takes every

18 finding that the Trial Chamber made at face value and puts it in favour of

19 the Prosecution, one sees immediately that whatever assistance Mr. Jokic

20 gave was clearly ex post facto and he simply, as a matter of law, Your

21 Honours, cannot be convicted on that basis. Those convictions were simply

22 wrong as a matter of law.

23 Now, I will -- there is -- well, one other thing, Your Honour,

24 that I should say at this point. And this will now lead me into the fifth

25 ground, but it's of ongoing importance in relation to Mr. Jokic's overall

1 liability. The Trial Chamber accepted that Mr. Jokic had nothing to do

2 with any acts of reburial of the bodies after the immediate aftermath of

3 the massacres. Now, clearly there is a qualitative difference between the

4 initial burying of the bodies and any reburial because it's hard to avoid

5 the conclusion that a reburial could have had only one purpose and that

6 would have been to prevent the detection of these crimes by investigators.

7 And that leads me on to the fifth ground of appeal, which was one

8 that Your Honours gave us leave to insert and found that if true it would

9 make a difference in the outcome of the appeal, which I respectfully

10 agree. It was a matter that was raised in passing in the original

11 appellant brief, but Ms. Loukas and I took the view that it was important

12 enough to be discussed in its own right. And in coming to this fifth

13 ground of appeal, I want to reiterate, Your Honour, that nothing that I'm

14 about to say in any way at all indicates any disrespect for the victims or

15 anything less than the horror which both I and Mr. Jokic feel for what

16 happened at Srebrenica -- in regard to Srebrenica.

17 But we must face facts about what happened here. Now, we've

18 raised a certain number of factual challenges to the Trial Chamber's

19 conclusions, but for the moment, I want to put all of those aside and I

20 want to ask Your Honours to join me in just a theoretical construct in

21 which we assume for the moment that everything that the Prosecution said

22 and alleged about Mr. Jokic was true, assume that he knew what was going

23 on, and that with full knowledge of that he nonetheless deployed equipment

24 of the Engineering Company to the three sites in order to enable the

25 bodies to be buried.

1 Now, making that assumption, Your Honours, I, with the greatest

2 respect, pose this question: What else was Mr. Jokic to do? Because

3 unlike the reburial, and there really is no excuse for that. There is no

4 way to explain that in innocent terms at all. But the initial burial,

5 Your Honours, was something that simply had to be done. If Mr. Jokic had

6 not done it, somebody else had to. It was a matter of -- as the President

7 said in introducing the ground, a matter of public health, but whichever

8 language you choose to put on it, it was simply inevitable.

9 Well, the Prosecution, in its brief, says that well it doesn't

10 matter what Mr. Jokic's motivation may have been, but this is not a matter

11 of motivation. It's a matter of the actus reus. It's a matter of whether

12 what he did in these hypothetical circumstances, as I'm portraying them to

13 be, making these assumptions that we do not really agree with, but making

14 these assumptions, it is a matter of whether or not that was an act of

15 assistance. And the legal issue involved, Your Honours, is the burden of

16 proof.

17 The Prosecution had the burden of proving that Jokic committed an

18 unlawful act, and that that was an act of practical assistance to the

19 perpetrators, having a substantial commission -- effect on the commission

20 of the offence. But it was an equally probable inference from the

21 evidence that what Mr. Jokic did simply had to be done regardless of the

22 horrific crimes that had resulted in this situation. And if that is true,

23 if that logically is the position, the Prosecution failed to discharge the

24 burden of proof, to prove beyond a reasonable doubt that Mr. Jokic

25 committed the actus reus of aiding and abetting.

1 Now, if Your Honours feel that that is a technicality that is

2 inappropriate here, you will, please, blame me for that and not Mr. Jokic,

3 because, as his counsel, it's my responsibility to advance grounds of

4 appeal. But it was my judgement and is my judgement that that is a ground

5 of appeal that Your Honours have to consider here seriously, because as a

6 matter of policy, it raises an issue as to what conduct one criminalises

7 in the aftermath of a situation created by the criminal conduct of others.

8 And it may not be the first time that this problem is being posed, and it

9 certainly probably will not be the last. And it may be something that the

10 Appeals Chamber feels that it would be good to lay down some principle

11 about for the guidance of future Prosecutors and Courts.

12 Where does one draw the line and say criminality begins here? The

13 Prosecution would say, Well, Jokic was on any view doing something that he

14 shouldn't have done, and they raise the issue that the fact that his act

15 may have been lawful in itself does not prevent it from amounting to

16 aiding and abetting. We agree with that, Your Honour. It's not -- we

17 don't contend that one cannot aid and abet by means of an act which is,

18 per se, and in itself lawful. And the Prosecution in fact gave a number

19 of examples in their response brief as to situations in which they felt

20 that that would be true. At paragraph 13.14, they gave a number of

21 examples, including one involving General Krstic, as Your Honours may

22 recall.

23 Now, one can argue as to whether those examples involved lawful or

24 unlawful conduct, but I want to make it clear that we don't disagree with

25 the Prosecution in principle, that certainly a lawful act may amount to

1 aiding and abetting. But we would also add to that that it must be an act

2 of assistance. If it's an act that has to be done to redress the

3 immediate consequences of crimes committed by others and if in this case

4 the consequences of leaving it undone would have been to render very much

5 worse the situation that was already bad, then the question I invite Your

6 Honours to give some thought to is: Should that conduct in principle be

7 regarded as criminal conduct? I submit that that's a question that should

8 be faced and resolved, and I suggest that it should be resolved in favour

9 of Mr. Jokic in the particular circumstances of this case based upon the

10 situation regarding the burden of proof.

11 Your Honours, I have very little time remaining, so with your

12 permission, I would like to use it in this way, to address in general

13 terms the question of mens rea which is the subject of our first and

14 second grounds of appeal. And I will -- rather than go through the very

15 lengthy evidence that's been presented on both sides of this issue in the

16 brief - and Your Honours will be very much aware of - I can perhaps do it

17 in this way. And I recognise that I face here the -- the burden of

18 persuading Your Honours not only that the Trial Chamber came to the wrong

19 decision, but that it was a decision that no reasonable Trial Chamber

20 could have reached.

21 In each case -- in each case that we have alluded to, the three

22 different sites, the evidence of mens rea against Mr. Jokic was

23 necessarily circumstantial. There was no direct evidence. It depended

24 upon inferences that were to be drawn from the circumstances. And if we

25 may take Orahovac as an example, that was of course a situation in which

1 it was alleged that Mr. Jokic sent equipment to the site significantly

2 before any killings took place at that site.

3 The evidence, Your Honours, was - and I think this is not really

4 disputed - that on no occasion did Mr. Jokic ever give an order that

5 indicated knowledge that any killings were to take place. There was

6 clearly evidence to support an inference that he knew there were prisoners

7 and that he knew prisoners were being detained; that's clear. He was

8 involved, the Trial Chamber found, for example, in sending men to guard

9 prisoners. But as far as sending equipment, the Prosecution relies only

10 on inferences that they say should have been drawn from the evidence.

11 Jokic did not give orders to anyone to go and participate in burials; that

12 much is clear. What happened was that when the vehicles got to the sites

13 in question, they were used for that purpose. And the question is: Was

14 it appropriate for the Trial Chamber to draw the conclusion that Mr. Jokic

15 must have known and did know the true purpose for which they were being

16 sent. Take Orahovac, for example. Hours before, on the Prosecution's own

17 case, any killings were to be committed at that site. On what basis could

18 the Trial Chamber have found that Mr. Jokic had knowledge?

19 In the case of the Pilica site, the situation is even more

20 interesting, as Your Honours will see from our specific ground of appeal,

21 because in that instance, there was actually no evidence that Mr. Jokic

22 personally ordered the equipment at all. In fact, the evidence was that

23 the orders were given by others, and the involvement of Mr. Jokic in that

24 is an inference upon an inference that somehow Mr. Jokic not only knew

25 what was going on but knew what orders other people, outside any chain of

1 command he was involved in, had given.

2 Your Honour, I'm not going to try to develop that because the

3 evidence is very detailed and it's there. And rather than give Your

4 Honours a necessarily hurried and garbled account, I will leave that. And

5 I think at this point, Your Honour, I will invite any questions from the

6 Bench on the submissions I've made.

7 JUDGE POCAR: I thank you, counsel.

8 Judge Shahabuddeen, please.

9 JUDGE SHAHABUDDEEN: Mr. Murphy, somewhere in your lucid

10 submissions you might have referred to your client being accused of aiding

11 and abetting in respect of the aftermath of a completed crime.

12 MR. MURPHY: Yes.

13 JUDGE SHAHABUDDEEN: Yes. Now, what I want to ask your attention

14 to is page 30 -- 305 of the record. It says there that the accused Dragan

15 Jokic is found guilty pursuant to Article 7(1) of the Statute through

16 aiding and abetting on the following counts: Count 2, extermination as a

17 crime against humanity. Now, if that is a correct reading of the trial

18 record, then I have to ask you whether you would be inclined to draw a

19 distinction between the completion of a discrete single crime, such as

20 murdering a man, and the extermination of whole battalions of souls.

21 They've got to be buried, I take it, and whether one puts that on the

22 basis that the legality of the act is foreseen as completely lawful,

23 separate and apart, it's another question whether it is seen as

24 participating in the fullness of the act, the criminal act, of

25 exterminating whole battalions of people.

1 MR. MURPHY: Your Honour, I do recognise that distinction, and in

2 fact I think we did make it at one point either in our brief or in our

3 reply. I can't give Your Honour a paragraph reference now, but I can find

4 it. I think we mentioned that in any event, even if the Court was against

5 us on the general principle, it seemed clear, that as regards the crime of

6 murder, the conviction would have to be reversed because on any view that

7 crime was -- was completed. But, Your Honour, having made that

8 distinction, I would say that we maintain our argument in regard to each

9 of the convictions for this reason: Although, of course, these are very

10 different crimes and once -- one can only sympathise both with the

11 Prosecution and the Trial Chamber in trying to give legal definition to

12 events of this magnitude and this horror and whatever definition they give

13 to them, Your Honour, in some ways, obviously, is not entirely adequate to

14 describe what happened. And I take Your Honour's point that when one

15 talks of extermination, that might have a broader impact than the crime of

16 murder per se.

17 But as a realistic matter, what was it that was alleged here? By

18 the time that Mr. Jokic became involved in any way, the whole joint

19 criminal enterprise had been plotted and completed, starting not just with

20 the killings but, as Your Honour knows, with the overrunning of the United

21 Nations safe area in Srebrenica, the expulsion of the Muslim population,

22 the unlawful detention, the other ill treatment that was carried out. And

23 in all of that picture, I think Your Honour could rightly regard as part

24 of the crime of extermination. And obviously, that crime was much broader

25 in its scope than simply the act of murder, and we of course accept that.

1 But the fact is, Your Honour, that even the crime of extermination at some

2 point comes to an end. And realistically, one would say -- I would submit

3 that where the crime of extermination ends in this case is co-extensive

4 with the acts of murder, because after that, the criminality had in fact

5 ended and what was -- the act of burial -- and again, Your Honour, I don't

6 take any great point on whether that was lawful or unlawful. My fifth

7 ground was based upon the fact that it was just necessary.

8 And in relation to the third and fourth grounds, Your Honour, the

9 ground of ex post facto, once again, even for extermination, one is caught

10 with this dilemma that there is, if you will, a lacuna in the Statute,

11 whether consciously or otherwise, that the offense committed in these

12 circumstances at Pilica and Kozluk is simply not there. It's an act of

13 accessory after the fact and it's simply not in Article 7(1) of the

14 Statute.

15 JUDGE SHAHABUDDEEN: I'm so grateful, Mr. Murphy. May I press you

16 on another point? We have here reference at page 305 of the trial record

17 to murder in Count 4. Well, that invites the imagination to a single

18 murder or two or three or four, but is that the case here? Count 3 and

19 Count 4 in the indictment before we -- reads this way: "By their acts and

20 omissions described in the preceding paragraphs, Vidoje Blagojevic and

21 Dragan Jokic committed Count 3, murder, and Count 4, murder." So again,

22 we are on the field of visualising not a single murder, but murder of

23 whole fields of humanity. Now, would that enterprise be considered as

24 concluded in its criminality unless the bodies were buried?

25 MR. MURPHY: Your Honour, let me first, if I may, respectfully

1 offer one -- just a slight point, Your Honour. In fact, the Trial Chamber

2 did not convict Mr. Jokic on Count 3 because they found that -- I think

3 that that would have been cumulative --

4 JUDGE SHAHABUDDEEN: I beg your pardon, Count 4.

5 MR. MURPHY: But Your Honour's point of course applies equally to

6 Count 4.

7 And in that regard, Your Honour, I would say, yes. If one looks

8 at the offence of murder -- and that's really why I agree with Your

9 Honour's distinction between murder and extermination -- because if one

10 looks at the crime of murder as defined, I would submit that it is clearly

11 complete the moment the act of killing has ended. And although, as Your

12 Honour says, and this is a case in which unfortunately we all have to

13 exercise our imaginations in a horrific way, but I would respectfully

14 submit that the fact that murder was committed on this scale does not

15 affect the point of principle that we make.

16 JUDGE SHAHABUDDEEN: You see, the point which emerges from the

17 indictment is that the counts for murder relate to the count for

18 extermination. If thousands of people were exterminated under Count 2,

19 then they would equally be regarded as having been murdered under Count 4.

20 So it's not the same as a case in which an accused person is indicted for

21 murdering a discrete person, thousands of persons.

22 MR. MURPHY: Your Honour, that's true. And I think in a way the

23 problem comes from the fact that in the Statute of the Tribunal we combine

24 a number of different offences derived from different sources of law. So

25 in one respect, we have violations of the laws and customs of war, we have

1 crimes against humanity, and then of course, potentially, we could have

2 violations of the Geneva Conventions. Your Honour, the -- and of course,

3 that's one reason why we've developed the rules that we have about

4 cumulative convictions. But those rules, as Your Honour knows, really

5 going back at least to the Celebici case, where Judge Hunt in his separate

6 opinion wrote a very detailed account of the rules of cumulative

7 convictions, we've limited that concept to a rather technical overlapping

8 test to see whether there are additional elements. And when one looks at

9 the counts in this indictment, we see that clearly some of them do not fit

10 within that cumulative test. Nonetheless, though, they still refer to the

11 same factual background. And the -- although the Prosecution, quite

12 rightly, charges an accused with each offence which they think can be

13 supported by the evidence, at the end of the day, when we look at the

14 convictions, we see that there is an overall criminal act relating to a

15 certain factual situation. And that's reflected, I think, in the decision

16 of the Trial Chamber to impose a single offence reflecting the totally of

17 all the crimes for which Jokic was convicted. And we would say, Your

18 Honour, that however one describes these crimes, they came to an end at a

19 certain point. And in relation to Pilica or Kozluk, that point was

20 clearly many hours before Jokic on any view became involved. And that's

21 really the basis of our third and fourth grounds of appeal.

22 JUDGE SHAHABUDDEEN: I thank you for your assistance Mr. Murphy.

23 MR. MURPHY: Thank you, Your Honour.

24 JUDGE POCAR: I thank you.

25 Judge Meron.

1 JUDGE MERON: Thank you, President.

2 Mr. Murphy, you spoke earlier about the war situation that would

3 arise if the burials would not take place. Did you refer to a compelling

4 public health necessity to have the burials quickly or to something else?

5 MR. MURPHY: Your Honour, the -- we did in our brief suggest that

6 they -- the -- clearly there was such a danger presented. We referred to

7 evidence that had been presented to the Trial Chamber, and I don't -- it's

8 such a distasteful phrase, but it was called terrain restoration. I've

9 stayed away from that phrase because it's distasteful. There was evidence

10 presented to the Trial Chamber that justified the finding -- would have

11 justified a finding that there was an imminent public health danger. The

12 Prosecution, in its brief, complained that we were raising a new issue.

13 Your Honour, in some respects perhaps, but we pointed out in reply that it

14 was really the -- simply the issue of burden of proof, that there was in

15 fact evidence on the record from which the Trial Chamber could have

16 inferred that the acts of burial were a necessity. And I think that's a

17 matter that the Trial Chamber or this Appeals Chamber could really take

18 judicial notice. It's simply a reality of the situation that was there.

19 JUDGE MERON: Thank you, Mr. Murphy.

20 Let me see whether I understand. Apart from the legal arguments

21 that you adduced on aiding and abetting and the temporal element, you seem

22 to be saying two things and correct me if I'm wrong: That first, Jokic

23 did not have knowledge of the killings; and second, his acts were based on

24 public health or necessity. If that is so, do tell me which is your

25 primary argument.

1 MR. MURPHY: Your Honour, I perhaps didn't make as clear as I

2 should have. In relation to the fifth ground of appeal, I was asking Your

3 Honours to make a set of assumptions. I did not represent to the Court,

4 either in brief or in oral argument, that this was Mr. Jokic's motivation.

5 The position we have taken was that if we make every assumption that the

6 Prosecution asked the Trial Chamber to make, in other words, if we assumed

7 that Mr. Jokic knew exactly what was going on and with that knowledge he

8 dispatched equipment to carry out the burials, making all of those

9 assumptions, we say that the Prosecution still did not meet its burden of

10 proof because there was an equally probable explanation consistent with

11 innocence. But, Your Honour, again, I want to make very, very clear that

12 for the purposes of the fifth ground, I'm making -- asking the Court to

13 make assumptions as to the facts that we -- thank you. Thank you, Your

14 Honour.

15 [No interpretation]

16 [In English] Your Honour, I was making simply there -- asking Your

17 Honours to make an assumption as to the theoretical construct within which

18 making every assumption in favour of the Prosecution we say they did not

19 meet the burden of proof. But on a factual issue, we certainly do think

20 and submit that the Trial Chamber should not have found that Mr. Jokic had

21 the knowledge or mens rea.

22 JUDGE MERON: Thank you, Mr. Murphy.

23 JUDGE POCAR: Thank you.

24 If there are no other questions, I would turn to the Prosecution

25 and ask the Prosecution to submit their arguments in response for 30

1 minutes.

2 You have the floor.

3 MS. ISSA: Good morning, Your Honours. Thank you.

4 I will be addressing the factual challenges to the Trial Chamber's

5 judgement in all of the appellant's grounds, but will attempt to group

6 them thematically.

7 It is our submission that the arguments raised by the appellant,

8 in an attempt to demonstrate errors in the judgement are based on a

9 misapprehension of the judgement or are simply unsustainable. A

10 predominant theme, as we've heard today, is that the appellant's argument

11 is his claim that the mass killings of which Jokic was convicted as an

12 aider and abettor are distinct crimes separate and apart from the overall

13 murder operation. A secondary argument that the appellant makes is that

14 the initial mass burials in Kozluk and Branjevo Farm occurred after the

15 commission of the crimes.

16 First, I will address the argument that the Trial Chamber found

17 the burials in Kozluk and Branjevo Military Farm mass killing sites after

18 the commission of the crime; second, I will address his argument that the

19 Trial Chamber only found him liable for individual acts of contribution;

20 third, I will address his challenge to the Trial Chamber's finding that he

21 substantially contributed to the murder operation on the facts as found,

22 which he raises in ground 3 of his appeal; and finally, I will address the

23 issue of knowledge, with time permitting.

24 We largely rest on our brief in respect of ground 5 that -- in

25 respect of ground 5, when addressing -- in respect to his claim that there

1 was an equally innocent explanation that he carried out the burials to

2 promote public health. But it's our position that there has been no shred

3 of evidence presented at trial to support this claim. There has been no

4 testimony whatsoever. He did not testify and he could have. It was never

5 raised in argument at trial. He seems to be raising a hypothetical for

6 the first time on appeal.

7 Secondly, the standard is that he knowingly assisted the crimes.

8 And as found by the Trial Chamber, he -- he did know that he assisted the

9 crimes. The only alleged evidence that the -- that the appellant refers

10 to is a reference to Article 21 of the Legal Act which applies to the

11 civilian protection forces and was referred to by the Trial Chamber in

12 relation to the Bratunac Brigade. It's not evidence that Mr. Jokic

13 carried out the burials for the purpose of promoting health, and there's

14 no basis for the assertion that Mr. Jokic had a duty to act as he did, nor

15 that he even knew about such a duty. To the contrary, the evidence, based

16 on the Trial Chamber's findings, was based on the totality of his acts

17 under paragraph 770, including sending guards to detain prisoners and his

18 conversations with -- and one of the primary implementers in the

19 operation, Beara. Furthermore, the burials in Orahovac occurred while the

20 mass killings were ongoing. So that's just to point out that there was

21 absolutely no evidence to support this assertion.

22 Your Honours, the crimes that were committed following the fall of

23 Srebrenica were, as you know, on a vast and unimaginable scale. This was

24 not a series of individual murders, one having nothing to do with the

25 other, rather, it was an organised and continuous operation involving the

1 mass killing of over 7.000 men and boys from Srebrenica over the course of

2 four days and which followed a well-established pattern. The murder

3 operation began with the separation of the men and boys in Potocari on 12

4 and 13 July, their capture from the column, their transportation to

5 Zvornik on buses, their detention at schools, and ultimately their summary

6 executions and their burials which occurred either during or immediately

7 after the crimes.

8 The Zvornik Brigade members were involved in every facet of this

9 operation. Against that background, turning to the first question, has

10 the appellant demonstrated that the Trial Chamber found that the Kozluk

11 and Branjevo Farm initial burials occurred after the commission of the

12 crimes. A reading of the judgement as a whole demonstrates that there

13 were two central features to the operation: First, that it was a single

14 murder operation which was ongoing and involved several components, and

15 that is the capture, detention, mass killings, and burials; and secondly,

16 that the burials were an essential component of the crime.

17 So the appellant attempts to deconstruct the judgement by claiming

18 that the Chamber found that the initial burials occurred after the

19 commission of the crime. That's not what it found at all. If we look to

20 paragraphs 291 under the heading "organised mass executions and burials,"

21 it found: "A wide-scale and organised killing operation carried out by

22 the VRS and MUP from 12 to 19 July," and it found that "thousands of

23 Bosnian Muslim men were executed and buried in different locations in

24 Srebrenica, Bratunac, and Zvornik." And again, in the context of its

25 findings on extermination, at paragraph 577, it found that: "The crimes

1 were one murder operation which occurred -- which were carried out in a

2 short time-period with a similar pattern of killings."

3 In regards to its conclusions on the mass killings in paragraph

4 568, it referred to the burials that occurred either on or close to the

5 execution site and concluded that considering the limited time-period in

6 which all this happened, the Trial Chamber cannot but conclude that these

7 killings were done in an organised way. So it's clear that the ongoing

8 crimes followed a well-established pattern of mass killings and

9 subsequently followed by mass burials, and that's in stark contrast --

10 JUDGE POCAR: May you perhaps slow down for the interpreters.

11 MS. ISSA: I'm sorry, Your Honour. I will.

12 And that's in stark contrast to its findings in the -- in respect

13 of the reburials, which are found at paragraphs 730 to 31 of the

14 judgement. The Chamber -- the Trial Chamber expressly distinguished

15 between the reburials and initial burials by expressly finding that the

16 reburials occurred not as a result of the murder operation, but as a

17 consequence of the scrutiny of the international community a few months

18 after the murder operation. And in fact, that -- those paragraphs, 730

19 and 31, which exclusively deal with the reburials, is the only place in

20 the entire judgement which mentions ex post facto aiding and abetting.

21 And it might assist the Chamber to be aware of how this matter was

22 approached at trial. In the decision on the Defence motion for acquittal

23 pursuant to 98 bis, the Trial Chamber made it clear that the reburials

24 were part of the overall murder operation or -- the initial burials,

25 rather, were part of the murder operation and only characterised the

1 reburials as ex post facto aiding and abetting. The appellant, at that

2 stage, at the trial stage did not challenge this characterisation. Had it

3 not been clear, he could have challenged it then.

4 Furthermore, the fact that the initial burials were part of the

5 crime is supported by the evidence. Witness Erdemovic, who participated

6 in the killings at Branjevo Farm, testified that the lieutenant-colonel

7 who was present and overseeing those killings at the farm stated that the

8 men who were being shot would be buried there, and that's in footnote 1309

9 of the judgement. Clearly, he anticipated the burials before the killings

10 were over, because the burials were part of the crime.

11 This evidence is also consistent with the events in Orahovac at

12 mass killing site, where the burials occurred during the killings and the

13 location of the grave had been premarked with wooden poles. There's no

14 material difference between the killings and burials in Orahovac and the

15 other sites. In fact, the same equipment and personnel were used in all

16 three sites.

17 Turning then to the second question: Has the appellant

18 demonstrated that the Trial Chamber did not find that Mr. Jokic's act

19 substantially contributed to the ongoing murder operation? First, as I

20 have just indicated in various sections of the judgement, the Trial

21 Chamber concluded that this was one ongoing murder operation which was

22 carried out from 14 to 17 July, and included capture -- they included

23 several components, which was the capture, the transfer, the detention,

24 and the execution to burials. Each of these aspects was a component part

25 of the operation.

1 Second, the Trial Chamber found that Mr. Jokic substantially

2 contributed to the crimes by his acts as both as duty officer and as chief

3 of engineering, as reflected in its primary factual findings, which is

4 combined with paragraph 770, in which the Chamber finds that his acts of

5 assistance included coordinating, monitoring, and sending Zvornik Brigade

6 resources. So when the appellant challenges the wording in paragraph 770,

7 he is merely putting forward his own interpretation of the intention

8 behind the Trial Chamber's language, which differs from the express

9 language of paragraph 770. By doing so, the appellant is ignoring that

10 the Trial Chamber expressly stated that his acts included coordinating and

11 monitoring, not just sending engineering resources -- Zvornik Brigade

12 resources and not just sending engineering resources.

13 Third, the facts as found in the preliminary factual findings, for

14 example, in paragraphs 325 to 326 and 347 of the judgement are acts of

15 contribution which the Chamber expressly found. So although these acts

16 substantially contributed to the overall murder operation and the Trial

17 Chamber found that Mr. Jokic was aware of the ongoing killings since 14

18 July, the Trial Chamber did, in addition to that, look to his individual

19 acts of contribution, though it was not required to do so.

20 Further, the appellant ignores the findings of the Trial Chamber

21 by looking to the sentencing paragraph out of context and claiming that

22 the Trial Chamber did not find liability for all the other acts. It

23 cannot be that all the other findings must be dismissed because of one

24 paragraph in the sentencing context in the judgement. But even limiting

25 his acts of contribution to individual sites, the Trial Chamber's findings

1 included his acts as duty officer, as reflected in its primary factual

2 findings in paragraph 770, so his acts of contribution are more than those

3 submitted by the appellant. It wasn't just sending a piece of equipment,

4 as the appellant claims, but his other acts such as assuring the integrity

5 of the detentions and keeping a primary player in the operation informed

6 of problems concerning the prisoners were part of his acts of

7 contribution.

8 Alternatively, even just on the acts of sending excavators to

9 crime sites alone, the findings were sustainable because the burials were

10 a component part of the ongoing crime for which he had knowledge when he

11 sent equipment and men, and as duty officer and chief of engineering, he

12 was coordinating and monitoring the burials.

13 Lastly, if the Appeals Chamber finds that the Trial Chamber

14 limited its findings to Jokic's acts of assistance to sending equipment to

15 each site, then in our submission, the Trial Chamber erred by failing to

16 take into account its own factual findings. And it is our submission that

17 the Appeals Chamber can rely on those findings to find substantial

18 contribution without disturbing the conviction.

19 Your Honours, I'd like to turn to the third question which the

20 appellant raises in his reply and, to some extent, raised this morning,

21 and that is: Has the appellant demonstrated that on the facts as found

22 the Trial Chamber was unreasonable in reaching the conclusion that he

23 substantially contributed to the murder operation? The appellant attempts

24 to diminish his liability by alleging that his acts were too remote or

25 insubstantial, but in looking at the judgement as a whole, the Trial

1 Chamber found that his acts as duty officer were part of a constellation

2 of the acts which contributed to the murder operation. And that's clear

3 from paragraph 770 which refers to coordinating, monitoring and sending of

4 Zvornik Brigade resources. So in our submission, there was more than

5 ample evidence upon which the Trial Chamber could find that he

6 substantially contributed to the crimes and its findings were reasonable.

7 First, as found by the Trial Chamber in paragraphs 324 to 326, as

8 duty officer on 14 July, he acted on a request of Witness P130 to provide

9 additional security to guard prisoners in Orahovac. And in doing so,

10 Jokic substantially assisted the murder operation because the detention of

11 thousands of prisoners in preparation of their simultaneous killings was

12 an essential feature of the murder operation. So by maintaining the

13 integrity of the detentions, he was ensuring the success of the mass

14 killings.

15 Second, he then contacted Beara, who was a primary implementer of

16 the murder operation as found by the Trial Chamber, paragraph 321, and

17 informed him of problems with the prisoners. By this point, there were

18 thousands of prisoners detained in schools in Zvornik, and in particular,

19 the mass killings in Orahovac were under way. So in the context of the

20 number of resources needed to transport, guard, maintain control over

21 them, and ultimately kill them, by keeping a major implementer of the

22 operation informed of what is happening concerning the prisoners, he

23 assisted the operation by ensuring that it would continue. This is

24 particularly salient in light of having earlier informed former Drina

25 Corps commander General Zivanovic about the large number of prisoners or

1 the Bosnian Muslims in the Zvornik area. And then he informed General

2 Miletic of the Main Staff of the movements of the Bosnian Muslims in the

3 area and their surrender.

4 Mr. Jokic knew of the murder operation, and in his role as duty

5 officer, he continued to facilitate the ability of the VRS to deal with

6 the onslaught of the Muslim column in the area, and he informed them of

7 the surrender of the Muslims. He's thereby contributing to the operation

8 by ensuring that the main players are kept informed of what was happening

9 on the ground, which assists in ensuring that the operation can continue.

10 It is also relevant that when Mr. Jokic informed Beara about

11 problems with the prisoners, the murders in Orahovac were under way, and

12 indeed there were problems with the mass executions, as prisoners were

13 attempting to escape, as reflected in paragraph 329 of the judgement.

14 Third, as the Chamber found in paragraph 347 of the judgement,

15 Mr. Jokic prevented interference with the prisoners in Pilica by telling

16 Pero Petrovic to mind his own business and that there were people taking

17 care of this. He thereby assisted, once again, in maintaining the

18 integrity of the detentions which ensured the success of the mass

19 killings.

20 Finally, he deployed engineering equipment and personnel to

21 multiple killing sites where the mass burials were carried out, and it's

22 our submission, that even on this evidence alone, the Trial Chamber's

23 findings of his substantial contribution is reasonable because he didn't

24 just send excavators to one or two sites, as the appellant alleges in his

25 brief, but as the Trial Chamber found, he coordinated and monitored the

1 mass burials. And those acts in themselves substantially contributed to

2 the murder operation, as reflected in paragraph 770.

3 The sequence of his acts, taken together with the Trial Chamber's

4 findings, that in practice, as chief of engineering, Mr. Jokic issued

5 orders to implement -- to implement the orders of the commander, that he

6 had a de facto advisory role to members of the Engineering Company due to

7 his engineering expertise, that he was tasked with the responsibility of

8 overseeing the proper use of equipment demonstrates that he coordinated

9 and monitored the burial operation.

10 And I would just like to place a document up on the screen which

11 itemises the Trial Chamber's findings as to the sequence of events or the

12 sequence of his acts. If we -- if we look to his acts each day, starting

13 from -- oh, I'm sorry. Your Honours, this is actually on e-court. I'm

14 not sure if you're -- if you have it on your screens yet. Thank you.

15 I'm -- I think it's now on e-court.

16 If we look to his acts each day, Your Honour, starting from 14

17 July, it's clear that he was coordinating and monitoring the burials, as

18 the Chamber found. On 14 July, after having sent additional guards to

19 assist with the detentions in Orahovac, Mr. Jokic then sent Ristanovic, a

20 member of the Engineering Company, with an excavator to Orahovac in the

21 presence of deputy commander of engineering Bogicevic, who the Trial

22 Chamber found consulted with Jokic on all matters, as found in paragraph

23 523. At Orahovac, Bogicevic instructed Ristanovic to dig at a premarked

24 location. The killings were ongoing during the burials. Later, another

25 engineer was sent to assist Ristanovic with the digging and he arrived at

1 the site with deputy commander Bogicevic. During the night, one of the

2 engineering excavators was used to shine a light on the killing fields,

3 and at the end of the day, Jokic called Beara and told him about problems

4 with the prisoners.

5 The next day, on 15 July, platoon commander Lazarevic instructed

6 Ristanovic to return to Orahovac to finish digging the grave. We know

7 from other findings that Lazarevic replaced deputy commander Bogicevic in

8 his absence. That's in footnote 1237. And we know from the Trial

9 Chamber's findings and the sequence of events on 16 July, that as platoon

10 commander, Lazarevic would report back to Jokic.

11 The following day, on 16 day, after the killings occurred in

12 Kozluk, between 15 and 16 July, Jokic sent two engineers to Kozluk and

13 told them that they would get the necessary instructions at the site from

14 the platoon commander Lazarevic. At the site, Lazarevic instructed them

15 to cover up bodies who were -- that -- which were already dug -- in holes.

16 About 30 minutes later, Mitrovic, one of the diggers, is replaced by a

17 member of the Josanica company which was commandeered by the brigade for

18 the use of the Engineering Company. Dragan Jokic knew that Mitrovic's

19 excavator was not in working order when he sent him out initially to

20 Kozluk.

21 In the evening, Mr. Jokic was then informed of a request to send

22 an excavator and a loader to be at the Branjevo Farm for the next day on

23 17 July. By this point, the killings had occurred in Branjevo Farm on 16

24 July. And on 17 July, at 8.00 a.m., once again, platoon commander

25 Lazarevic instructed Ristanovic to go to Branjevo Farm with an excavator

1 and at the site Lazarevic instructed Ristanovic to dig.

2 These repeated successive acts of burials that are synchronised

3 with the ongoing mass killings over a space of a few days can hardly be

4 considered remote or insubstantial in the context of an ongoing mass

5 execution. It was reasonable to find on these factual findings that Jokic

6 was coordinating and monitoring the mass burials. These acts in

7 themselves, when placed in context of his role as the duty officer and

8 chief of engineering, substantially contributed to the mass killings, let

9 alone when combined with his acts of further detentions and communicating

10 with the primary players of the mass killings and the murder operation.

11 Finally, Your Honours, I just want to deal with one -- with a

12 couple of points in relation to --

13 JUDGE POCAR: May I draw your attention, Ms. Issa, that you have

14 three minutes.

15 MS. ISSA: I'll try and make my point in three minutes. Thank

16 you, Your Honour.

17 Just in respect of the issue of knowledge, it is our submission

18 that the appellant has not demonstrated that the Trial Chamber was

19 unreasonable in finding that Mr. Jokic knew about the murder operation.

20 Most of our response is contained in our response brief in relation to the

21 challenge of the -- of the factual findings.

22 I do want to point out, in respect of sending Ristanovic to

23 Orahovac on 14 July, in his reply, the appellant asserts that there was an

24 absence of evidence. The question is whether the Trial Chamber's finding

25 as to Jokic's knowledge of the mass killings when he sent Ristanovic was

1 reasonable. In our submission, it was because it cannot -- he sent

2 Ristanovic either during or right before the mass killings to a school

3 full of prisoners in Orahovac. There is no legitimate purpose to send a

4 digger with an excavator to a school full of prisoners in Orahovac, other

5 than if he had not anticipated the burials in anticipation of the mass

6 killings.

7 So on this evidence alone, the evidence reflects that he knew, but

8 certainly, the Chamber found, based on several bodies of evidence, as we

9 state in our brief, that he was -- that he knew about the mass killings.

10 Those conclude my submissions, Your Honours. I am available for

11 questions.

12 JUDGE POCAR: I thank you.

13 I turn to my colleagues. Judge Shahabuddeen has a question first.

14 JUDGE SHAHABUDDEEN: One little question, Ms. Issa. You will

15 pardon me if I don't seem to recollect precisely the page in the trial

16 judgement which I should be referring, but I have before me paragraph 129

17 of the trial judgement. The third line reads this way: "They tried to

18 find shelter at the UN base in Srebrenica."

19 My question is: Would you kindly point out where in the trial

20 judgement there is an explanation of that phrase "the UN base in

21 Srebrenica." Was there some special status assigned by the United Nations

22 to this little town?

23 MS. ISSA: Well, if Your Honour -- yes, Your Honour. The answer

24 is: Yes, that the town was -- that Srebrenica was considered to be a -- a

25 protected enclave by the United Nations at the time.

1 JUDGE SHAHABUDDEEN: Is there somewhere in the trial judgement

2 where that is made explicit? I appreciate that you cannot on the hoof, so

3 to speak, point exactly to where it might be. Can you show us, show me,

4 that it's someplace in the trial judgement?

5 MS. ISSA: It's paragraph 100, Your Honour, and I thank my

6 colleague for assisting me.

7 JUDGE SHAHABUDDEEN: 100. Oh, yes, United Nations Security

8 Council -- thank you very much.

9 JUDGE POCAR: If there are no other questions, then I believe we

10 can adjourn for the day. We will reconvene tomorrow morning at 8.00 to

11 listen to the reply of the Defence of Mr. Jokic.

12 The hearing is adjourned.

13 --- Whereupon the Appeals Proceeding adjourned at

14 12.10 p.m., to be reconvened on Wednesday, the 6th

15 day of December, 2006, at 8.00 a.m.

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