⁴¹

Thursday, 7 December 2006

[Appeal Proceedings]

(Open session)

[The appellant entered court]

--- Upon commencing at 2.18 p.m.

JUDGE MERON: Please be seated. Registrar, would you please call the case on the Appeals Chamber agenda.

THE REGISTRAR: Good afternoon, Your Honours. This is case number IT-99-36-A, the Prosecutor versus Radoslav Brdjanin.

JUDGE MERON: Thank you. I would like to make sure that the interpreters are here and that they can hear me. It's okay.

THE INTERPRETER: Yes, Your Honour.

JUDGE MERON: Mr. Brdjanin, I see, is in the room. Mr. Brdjanin, can you hear me in a language you understand? You are getting the translation, right?

THE APPELLANT: [Interpretation] Good afternoon to everyone. I can hear interpretation, and I can follow in a language I understand.

JUDGE MERON: Thank you, Mr. Brdjanin. You may sit down. Appearances of the parties. Prosecution.

MS. BRADY: Good afternoon, Your Honours. Helen Brady appearing on behalf of the Prosecution. Together with me today Mr. Peter Kremer, Ms. Katharina Margetts, Ms. Barbara Goy, and our case manager Ms. Lourdes Galicia. Thank you.

JUDGE MERON: Thank you, Ms. Brady. ⁴² The Defence.

MR. ACKERMAN: Good afternoon, Your Honours. I'm John Ackerman on behalf of Mr. Brdjanin. With me today is Milan Veselinovic who is serving as an interpreter for me.

JUDGE MERON: Thank you, Mr. Ackerman. By order of November 7, 2005, the Association of Defence Counsel was allowed to address the Appeals Chamber as amicus curiae during this hearing. I see that the representative of the Association of Defence Counsel is present. Would you identify yourself for the record so we all know you.

MR. KARNAVAS: Certainly, Mr. President, and Your Honours. Good afternoon. My name is Michael Karnavas.

JUDGE MERON: Thank you, Mr. Karnavas. You may be seated. Please let me explain how we are going to proceed during this hearing. This is the appeal hearing in the case of Prosecutor against Radoslav Brdjanin. The trial judgement was issued on 1 September 2004 by Trial Chamber II composed of Judges Agius, Janu, and Taya. The Trial Chamber found Brdjanin guilty pursuant to Article 7(1) of the Statute of the following crimes: Persecutions, Count 3, which also incorporates torture as a crime against humanity, Count 6; deportation as a crime against humanity, Count 8, and the inhumane acts of forcible transfer as a crime against humanity, Count 9. The Trial Chamber also found Brdjanin guilty of wilful killing, Count 5; torture, Count 7; wanton destruction of cities, towns and villages or devastation not justified by military necessity, Count 1; and destruction or wilful damage to institutions dedicated to religion, Count 1. ⁴³ The Trial Chamber found Brdjanin not guilty of the crimes of genocide, Count 1; complicity in genocide, Count 2; extermination as a crime against humanity, Count 4; and unlawful and wanton extensive destruction and the appropriation of property not justified by military necessity, Count 10.

The Trial Chamber imposed a sentence of 32 years' imprisonment. Let me turn to grounds of appeal.

Both the Prosecution and the Defence appealed against the judgement of the Trial Chamber. I will now briefly summarise the grounds of appeal of the parties; first Brdjanin, then the Prosecution. Brdjanin submits numerous challenges to the legal and factual findings of the Trial Chamber, and he argues that he should be acquitted of all charges against him. In particular, his challenges relate to 3 main areas.

First, some challenges relate to the role of the ARK Crisis Staff in the crimes that occurred in the ARK during the relevant period. Second, other challenges relate to Brdjanin's own power and role in relation to the ARK, his relationship with Radovan Karadzic, and his role in the implementation of the strategic plan. This strategic plan, according to the Trial Chamber, was to link Serb-populated areas in Bosnia-Herzegovina together, to gain control over these areas, and to create a separate Bosnian Serb state from which most non-Serbs would be permanently removed.

Third, Brdjanin challenges a number of findings related to his individual criminal responsibility for the crimes that occurred during, ⁴⁴ and as a result of, the implementation of the strategic plan. The Prosecution submits four grounds of appeal.

First, it argues that the Trial Chamber erred when it dismissed joint criminal enterprise as a valid mode of liability in this case and when it held that the physical perpetrator of a crime must be a member of the joint criminal enterprise concerned. The Prosecution submits further that the first category of joint criminal enterprise does not require an understanding or agreement between an accused and the physical perpetrator of the crime, contrary to what was stated by the Trial Chamber. The Prosecution further disputes the Trial Chamber's findings that Brdjanin is not liable for killings related to detention facilities and that Brdjanin is not responsible for the crime of extermination. In general, the Prosecution seeks an increase of Brdjanin's sentence to reflect the totality of his criminal conduct.

Let me say something about the standard of appeal. Before starting with the arguments of the parties, here I would like to recall the criteria applicable to errors of fact and law alleged on appeal. The appeal is not a trial de novo, and the appellants must not merely repeat the arguments made at trial. Rather, in accordance with Article 25 of the Statute of the Tribunal, the appellants must limit their arguments to alleged errors of law which invalidate the decision or alleged errors of fact occasioning a miscarriage of justice. Additionally, the Appeals Chamber recalls that the appellants have an obligation to provide precise references to materials supporting their arguments on appeal. Further, considering that extensive written ⁴⁵ submissions have been filed in the past two years in this case, the Bench urges the parties to address only those issues that, in their opinion, have not been sufficiently developed before.

The orders of 3 October, 27 October, and 3 November 2006 provide the agenda for the present hearing.

As I mentioned before, the Association of Defence Counsel was granted the possibility to make oral representations, as an amicus curiae, on the issue of the JCE. Through its representative it has notified the Appeals Chamber of its intention to spend 15 minutes later today on this issue.

I would like to address five additional preliminary matters. In its order of 3 November 2006, the Appeals Chamber put a number of questions to the parties on which it seeks elaboration during the hearing. The first question posed to the Defence, relating to the motion to strike or otherwise set aside the corrigendum to judgement, need not be answered in light of the Defence filing of 27 November 2006 withdrawing that motion.

The second question posed by the Appeals Chamber related to the withdrawal of alleged errors of fact by Brdjanin. The Judges have received a courtesy copy of the correspondence between the parties in this respect. The Bench is thus in a position to follow any argument on this issue more thoroughly.

Third, on 13 November 2006, the Prosecution filed a response to the Appeals Chamber's order of 27 October regarding the findings of the Trial Chamber that would support a conviction for joint criminal ⁴⁶ enterprise. Thus the Appeals Chamber would like a brief answer to this question, but only if anything needs to be added to the filing pursuant to the order of 27 October 2006. Brdjanin has chosen not to file any written reply on this issue, and is therefore expected to address it during this hearing.

Fourth, I recall that at the Status Conference of 18 October 2006, both parties suggested that oral arguments in this case would not take long. The Appeals Chamber has therefore made flexible arrangements for this hearing. However, parties are, as always, encouraged to use the time allotted efficiently. Should they feel that they need less time than what we scheduled, they are encouraged to say so.

Finally, the Appeals Chamber notes with regret that the Prosecution's response to the Appeals Chamber questions on JCE filed on 13 November 2006 was much longer than the Appeals Chamber had ordered. While the Appeals Chamber had ordered the Prosecution to submit a filing of no more than 10 pages, the Prosecution filed 14 pages. The filing contained a request for leave to extend the number of pages permitted in the order.

The Appeals Chamber recalls that pursuant to the practice direction on length of briefs and motions, and I quote: "A party must seek authorisation in advance from the Chamber to exceed the word limits in this practice direction and must provide an explanation of the exceptional circumstances that necessitates oversized filing." Although the limit had been established by the Appeals Chamber's order in this case, we consider that the principle applies mutatis ⁴⁷ mutandis. The Appeals Chamber finds that the Prosecution acted inappropriately in seeking this extension at the same time as it filed the response.

However, in order to avoid further discussion, and considering that the excessive length of the filing was partly due to the attempt to quote extensive portions of the trial judgement for ease of reference, the Appeals Chamber will not reject the filing this time. The Prosecution's request for leave to extend the number of pages permitted in the order is granted, but I take this opportunity to warn the Prosecution not to take this as an indication that such an extension will be granted in the future.

We will now turn to the oral submissions of the parties. We will proceed according to the Scheduling Order for preparation of appeal hearing of 3 November. I will not repeat that schedule now. It will be most helpful to the Appeals Chamber if the parties could present their submissions in a precise and clear manner and within the time allowed or shorter. The Judges may, as usual, interrupt the parties at any time to ask questions. They may also ask questions following each party's submissions as they might deem appropriate. Let me also state that the Appeals Chamber expects the parties to address the questions put to them in the Scheduling Order of 3 November during the time allotted for their submissions.

We will start with the submissions of the Prosecution, for which a maximum of 75 minutes have been allotted.

Finally, let me briefly mention the question of Mr. Brdjanin's ⁴⁸ counsel.

Mr. Brdjanin, as Presiding Judge in this case, I received copies of correspondence between you and the Registry. In your letter, you suggested that your counsel, Mr. Ackerman, failed to ensure proper communication with you. You have therefore asked the Registry to withdraw his appointment. At the request of the Registrar, Mr. Ackerman responded to your letter. Mr. Ackerman's letter that is not been provided to the Bench.

Under Article 20(A) of the directive on the assignment of Defence counsel, the registrar may, interests of justice, withdraw the assignment of counsel at the request of the accused. The Registry, exercising its authority in this matter, issued a decision on 5 December 2006, in which it rejected your request. According to Article 20(A) of the directive where a request for withdrawal of counsel has been denied, the person making the request may, within 15 days, seek review of the Registrar's decision with the President of the Tribunal. I read this provision as meaning that appeals against the Registrar's decision are not within the jurisdiction of this Chamber but are instead within the jurisdiction of the President of the Tribunal.

With that in mind, we shall therefore proceed with the hearing as planned, and with Mr. Ackerman, who has prepared the legal submissions, acting as your counsel.

I have been informed that you and Mr. Ackerman did meet shortly before this hearing. Should you consider it necessary, we would extend the time for your concluding personal statement to half an hour. ⁴⁹ This ends my introductory statement, and we will now proceed according to the order specified in our Scheduling Order for preparation of this hearing of 3 November 2006, and we will now -- you may be seated, Mr. Brdjanin. And we will now turn to the submissions of the Prosecutor, and you have until about 3.45, perhaps two or three minutes more. Ms. Brady.

MS. BRADY: Thank you. Thank you, Your Honours. Your Honours, this afternoon I'll be addressing the Prosecution's first two grounds of appeal, both of which concern joint criminal enterprise. Since it's only ground 2 which directly affects the accused's conviction, I'll be addressing that first and then after that I'll turn to ground 1.

Following my submissions, my colleague Ms. Margetts will address you on grounds 3 and 4, and then just to give you a road map for tomorrow when we're responding to the Appellant's appeal, Mr. Kremer will be responding on behalf of the Prosecution, and Ms. Goy as well, and in the course of that Ms. Goy will answer Your Honours' question concerning omission liability.

Before I turn directly to our first grounds, I'd like to give a brief overview of them and especially how they interrelate. In ground 2, we argue that the Trial Chamber erred in requiring that there be a direct agreement between JCE members in order to establish that there was a common criminal plan or purpose, and in ground 1 we argue that the Trial Chamber erred in requiring physical perpetrators to be members of the JCE. Both grounds raise very important -- a very important ⁵⁰ question; namely, whether JCE can apply to accused persons in hierarchically senior levels for crimes carried out on a vast scale by perpetrators who are structurally or physically removed from them. This Appeals Chamber has repeatedly affirmed that JCE can apply to hold accused responsible for large-scale crimes. Indeed, nationwide enterprises, as the ICTR affirmed in the Rwamakuba, 22 October 2004 decision on JCE and genocide.

The Appeals Chamber has already applied JCE to convict somebody at the level of leadership of a military corps; that is, General Krstic. The Appeals Chamber has also used or -- to convict or to confirm the convictions of somebody at the level as high as a municipal leader level; that is, Mr. Stakic. This case represents, in effect, the next level up, and at issue in both of our two grounds is: What are the proper limits of JCE?

In our submission, the Trial Chamber erroneously limited JCE in two ways: By requiring that the physical perpetrators be members of the JCE; and requiring that there be this direct or one-to-one agreement between JCE members.

Proper limits on the use of JCE, ensuring that only the truly culpable are liable, flow from the correct, the proper application of the elements of JCE. The Trial Chamber's approach would effectively paralyse JCE's use for the most senior leaders.

Your Honours will recall that Mr. Brdjanin was tried on the basis of his participation in a -- what we could call a large JCE whose members included republic leaders, regional leaders, and municipal leaders, and ⁵¹ the physical perpetrators themselves, the named ones, the identified ones, being the Bosnian Serb military and paramilitary forces. And at trial, the Prosecution proceeded on the understanding that both Brdjanin and the physical perpetrators did have to be members of the JCE in order to attribute their crimes to Mr. Brdjanin under JCE.

Had it not been for this, had it not been for the Prosecution's understanding, the Trial Chamber would have had two ways to apply JCE to these facts, and both would have been legally valid.

One way, and this is the way that the Trial Chamber did -- did use, this was the Trial Chamber's approach, was to examine if crimes were carried out by the physical perpetrators in execution of a criminal purpose which they and Mr. Brdjanin had in common. In other words, to examine whether the physical perpetrators were members of the JCE. And as I'll explain in ground 2, the Trial Chamber's incorrect approach to this element of common criminal plan or purpose requiring a direct or one-to-one agreement between the JCE members led it to erroneously dismiss JCE and to convict him merely for aiding and abetting. This gravely understated Mr. Brdjanin's culpability. As president of the ARK Crisis Staff, he was a leading coordinator and implementer of ethnic cleansing in the Bosnian Krajina. Had the Trial Chamber properly approached common criminal plan, it should have convicted him for committing these crimes under JCE.

The second way in which the Trial Chamber could have approached this case, and again had it not been for the Prosecution's understanding at trial, would have been to examine whether the members of a leadership ⁵² JCE acted through the instrumentality of the physical perpetrators. This is an equally legally valid way which does not require the physical perpetrators to be members of the JCE. And as I'll explain in our first ground, liability for the criminal actions of persons not in a JCE can be attributed to members of the JCE if the former were used as tools by members of the JCE to make their contributions to it, to the JCE. Now, although most cases, most cases which come before this Tribunal can be analysed in accordance with the first approach, the one the Trial Chamber took but for the error it made in requiring a direct agreement, that is, most cases can be analysed as a large-scale, all-encompassing JCE. However, the second approach which emphasises the role of the leadership in using physical perpetrators as mere tools may better reflect the reality of the facts that this Tribunal is so frequently confronted with.

I'll now turn to address each ground, and as I mentioned at the start of my submissions, since it's only ground 2 that directly affects the conviction of this accused, I'll turn to that first, and then afterwards I'll address on ground 1, which is raised as a matter of significance to the Tribunal's jurisprudence.

Turning then to ground 2. The Trial Chamber effectively required a direct or one-to-one agreement between JCE members in order to establish that they had a common criminal plan or purpose. And since the trial proceeded on the basis that Brdjanin was in a JCE with physical perpetrators, that is the Bosnian Serb army and the paramilitary forces, this meant that the Trial Chamber was ⁵³ requiring, was looking for a direct agreement between the accused and those physical perpetrators. In doing so, it applied the wrong standard. We've set out the correct legal standard, not just in our appeal brief but in our written filing dated the 13th of November in which we answered Your Honours', the Appeals Chamber's, question. Individuals have a common plan or purpose when they pursue the same criminal plan or purpose and act jointly to achieve it. There's no issue -- we have no issue that JCE members must have some form of understanding or agreement to commit a crime, rather, with how the Trial Chamber interpreted that notion.

Agreement in the context of JCE means that JCE members have a common criminal plan or purpose. If the evidence proves that all JCE members adopted the same criminal plan and acted jointly to implement it, the plan is common. The agreement, the understanding, is found. There's no need to prove that JCE members entered into a one-to-one arrangement. Brdjanin and the physical perpetrators did act pursuant to a common criminal plan. Had the Trial Chamber not erroneously required a direct agreement, it would have found a JCE, and as we've shown in our written answer to Your Honours' question, all elements of JCE are met, and he should be liable under JCE I for persecution, based on deportation and forcible transfer, and JCE III for all the other crimes insofar as committed by the military and the paramilitary forces. And these exact crimes, a listing of these crimes, are set out in the annexes to our appeal brief, and we filed public and revised versions of these on the 5th of December this week. ⁵⁴ I'd like to first address in more detail how the Trial Chamber erred and then to outline the proper approach that the Trial Chamber should have taken.

The Trial Chamber correctly acknowledged that the agreement or understanding need not be previously arranged. It could materialise extemporaneously. It didn't have to be express, it would be inferred. However, it's clear from paragraphs 340 to 355 of the judgement that the Trial Chamber thought that JCE members had to have this congruent state of mind, this "agreement," as a result of some kind of direct or one-to-one interaction between them.

I would like to take Your Honours, if I may, to the judgement to illustrate the point.

In paragraph 351 of the judgement, the third line of that paragraph, paragraph 351 speaks in terms of the JCE members having to have "an arrangement between them to commit a concrete crime." Turning over the page to paragraph 354 is also very revealing. The Trial Chamber refers in that paragraph three times, three times, to not being satisfied that the accused and the physical perpetrators "entered into" an agreement. Or entering into, enter into, entering into, entered into. I think they're the grammatical uses of the word "enter" in that paragraph.

These are very active words, suggesting that the Trial Chamber required direct or one-to-one interaction between JCE members. And finally, Your Honours, in footnote 691 of the judgement, the Trial Chamber there makes an interpretation of the Krnojelac appeals ⁵⁵ judgement as distinguishing between what it calls the "more or less formal agreement" between JCE members which is needed for the first two -- excuse me, for the categories JCE I and III versus the involvement in a system of ill treatment needed for JCE II.

What this reveals is that the Trial Chamber was interpreting "agreement" as if it was -- as if it was some kind of formal contract. Direct agreement of this nature is not required. Rather, the individuals must adopt the same criminal plan or purpose and act jointly to achieve it.

The Trial Chamber's error seems to have arisen because it viewed JCE as more appropriate for smaller cases and not for large-scale cases. In small cases, where JCE members have direct contact with each other, where they can speak to each other or they commit crimes in each other's presence, it may be clearer or it may be easier to infer they agreed with each other and they acted jointly to further the plan, but JCE applies equally in large cases where JCE members operate structurally or physically apart.

The Appeals Chamber has repeatedly endorsed that. Right from the start, in the Tadic case the Appeals Chamber recognised that in fact JCE was warranted by the very nature of international crimes which it called manifestations of collective criminality. Likewise, the ICTR Appeals Chamber in the Rwamakuba decision, which I mentioned, and the Karemera JCE decision on the 12th of April this year reiterated that JCE is not limited to smaller cases and can be applied to criminal enterprises on a vast scale. ⁵⁶ The JCE here did encompass a geographically very large area, the Bosnian Krajina region. But those in the Krstic case and the Stakic case can hardly be described as small, and in those cases this Chamber upheld the Trial Chamber conviction or entered its own conviction based on JCE without finding this direct agreement between the accused and the physical perpetrators. I also point Your Honours to the ICTR Trial Chamber decision in Simba, and the ICTY Trial Chamber decision in Simic which did the same thing.

Likewise, in the World War II cases, high-level accused were held responsible for large-scale crimes without establishing a direct agreement between participants. The physical perpetrators were rarely inquired into. The issue was more looked at through the lens of the accused, and what was essential was his knowledge of the criminal plan and his connector or contribution to the crimes.

So what is the correct approach, then, to common criminal plan or purpose?

As I've said, the element is established when JCE members have the same criminal plan or purpose and act jointly to achieve it. In that case, it's fair to attribute liability because there is a sufficient connection between the persons who physically committed the crimes and the accused. They're acting together toward the common purpose. The Krajisnik Trial Chamber articulated this well recently. It said: "A common objective begins to turn a plurality of persons into a group, but this will not always determine a group, as different and independent groups can chair identical objectives." ⁵⁷ Your Honours, if I could ask you to turn on -- apparently you have to press the e-court button, and on the slide there you'll see that the -- what the Trial Chamber in Krajisnik said at paragraph 884. It said: "Rather, it is the international or cooperation among persons - their joint action - in addition to their common objective that makes those persons a group. The persons in a criminal enterprise must be shown to act together or in concert with each other in the implementation of a common objective if they are to share responsibility for the crimes committed through the JCE."

Now, of course this will always depend on the evidence. The Krajisnik judgement itself at paragraph 1081 gives a useful list of factors which can give rise to the inference that people are working together to implement a common objective. And they're factors -- it's not an exhaustive list, but they're factors such as the crimes follow a similar pattern, the crimes are done against similar victims, they're done at a similar time, the crimes are done in cooperation or in conjunction with other JCE members, the perpetrators were associated with organised bodies or members of groups connected to the JCE. There was a lack of punishment of the crimes by people -- members of the JCE who could do so and a continued affiliation with the perpetrators, the physical perpetrators, by the JCE members. That's not an exhaustive list. Obviously it will depend on the evidence.

To conclude on this ground, and I'd like to turn briefly to look at the impact of the Trial Chamber's error, and as Your Honour has mentioned, we provided a written answer to this question. ⁵⁸ In our submission, the facts found by the Trial Chamber establish that Brdjanin and the physical perpetrators adopted the same criminal purpose; that is, to forcibly displace non-Serbs from the region, and acted together to achieve it.

Now, Your Honours asked for us not to repeat those written submissions, and I don't intend to, but in brief, the Trial Chamber's findings establish, firstly, that Brdjanin and the physical perpetrators adopted the same criminal purpose, to create an ethnically pure Serb region by ensuring that non-Serbs were forcibly transferred from the region.

There are many findings to this effect, but a particularly apt one was at paragraph 118, where the Trial Chamber observed that: "The ethnic cleansing was not a by-product of the criminal activity, it was its very aim and thus an integral part of the strategic plan." Secondly, Brdjanin and the physical perpetrators acted jointly to achieve this criminal purpose. Again, many findings are made by the Trial Chamber which establish, which show this fact was proven. As one of the most compelling of these findings, the Trial Chamber, at paragraph 353 said that: "The accused and the relevant physical perpetrators acted in unison to implement the strategic plan."

And at paragraph 100: "The crimes came about" -- "The crimes came about through close cooperation between the Bosnian Serb police, the army, and the Serbian paramilitary groups. The clearly recognisable pattern of criminal activity allows for only one reasonable conclusion: That these crimes were committed with the aim of implementing the strategic plan of ⁵⁹ the Bosnian Serb leadership to permanently remove most non-Serbs from this territory."

Thirdly, in terms of contribution, Brdjanin clearly contributed to this JCE. The role he played in coordinating the implementation of the strategic plan in the municipalities was described by the Trial Chamber itself at paragraph 320 as a substantial contribution to the implementation of the plan. Apart from that, he also contributed by his hateful propaganda and by the ARK Crisis Staff decisions, those on dismissals, those on disarmaments of -- which was -- which were discriminantly imposed upon non-Serbs, and by the decisions on the resettlements of non-Serbs. The physical perpetrators contributed to the JCE by their crimes.

Finally, fourthly, both Brdjanin act physical perpetrators intended to persecute the non-Serbs by forcibly transferring them and deporting them.

In paragraph 549, the Trial Chamber found: "The evidence shows the displacement of persons was not simply the consequence of military action but the aim of it."

And the persecutory, the findings on persecutory intent on both the side of Brdjanin and the physical perpetrators can be found at paragraphs 1028 and 1053.

So on this basis can be found -- Brdjanin should be found liable for JCE I for persecution based on deportation and forcible transfer. Further, it was foreseeable, and it was foreseen by Brdjanin that other crimes, including the persecution based on the other underlying ⁶⁰ acts, killings, torture, wanton destruction, destruction of religious institutions would occur in executing the common criminal purpose. We provided a very detailed answer to this in our written submissions, and for these he should be liable under JCE III. The very last point I'll make on this ground, Your Honours, is that we have asked Your Honours to impose a higher sentence to reflect his liability based on JCE rather than aiding and abetting. If I may, Your Honours, now turn to ground 1, and this is the ground that -- on which we argue that the physical perpetrators need not be members of the joint criminal enterprise.

As I said at the start, this ground will not affect the conviction of Mr. Brdjanin, but it will significantly affect JCE's application to senior leaders in the context of large-scale crimes.

The Trial Chamber erred in law in requiring that the physical perpetrators must be members of the JCE. The findings that are in error are paragraphs 344 and 347.

It's true that in many cases the physical perpetrators are JCE members. They adopt the common criminal plan, and they act jointly to achieve it, and their crimes can therefore, on that basis, be attributed to the other JCE members. And as I've just shown, this was in fact the case here.

However, JCE liability is not confined to these situations. The physical perpetrators need not be JCE members. A JCE, to pursue a criminal plan or purpose, may be comprised of members none of whom physically carry out crimes but who use other people to do so. This means ⁶¹ that a JCE may exist entirely at a leadership level. If such persons have agreed amongst themselves on a common criminal plan and carried out through others, they can be liable under JCE. There's no need to even inquire into whether the physical perpetrators agreed to or even knew of their criminal plan.

One important goal of international criminal law is to punish those most responsible for crimes and to accurately reflect their role in terms of the law. Requiring that physical perpetrators must be in the JCE does not reflect how international crimes typically occur by a multitude of people orchestrated or coordinated by those who are the most responsible at a senior -- a hierarchically senior level. Those on the higher level who have agreed on the criminal goal, they don't carry out the crimes themselves. Instead, they implement their plan by using the means at their disposal; the army, the police units, civilian authorities, paramilitaries and the like. And those high-level people will usually be physically remote from the actual perpetration of the crimes.

While the physical perpetrators may often agree with the purpose of the high-level perpetrators, the high-level people, the reality is that very often the high-level perpetrators make the decisions and then use the physical perpetrators as a way to implement those decisions. And moreover, in other cases high-level perpetrators may in fact use physical perpetrators who do not even necessarily adopt the criminal purpose, or it can't be proved that they adopted the criminal purpose, yet through their combined actions the high-level accused exactly achieve their criminal ⁶² goal.

Ordering, planning, instigating, Article 7(3) liability, these may apply, but they don't always capture the true situation and the true culpability of the high-level offenders.

On the other hand, using aiding and abetting to characterise these high-level accused is inappropriate. Not only does this mode of liability incur a lesser degree of culpability in this Tribunal, it denies full responsibility for commission.

In our submission, it's contrary to the objects and purposes of international criminal law that commission liability should pivot or depend on whether physical perpetrators were in the JCE and that the liability of senior leaders should depend on what is or is not in the mind of soldiers or policemen on the ground. The focus must be on the mind and the acts of the senior leaders, and the doctrine should apply when these JCE members further the common criminal plan by using the others as tools to carry out their crimes.

This reflects the reality of international crimes, and it furthers the culpability principle by placing criminal responsibility squarely on the shoulders of those who are or should be the most responsible. I'd like to take Your Honours now to ICTY cases, particularly recent ones which support our position.

In their response to our appeal, the Association of Defence Counsel has emphasised that Tadic decision, and Furundzija decision, in those cases the physical perpetrators were members of the JCE, and they also highlight certain findings in the Tadic judgement, indicating that ⁶³ the physical perpetrator must have agreed with the accused on the common criminal purpose.

We don't dispute this, but we do disagree that these cases limit JCE in the manner that they suggest. As His Honour Judge Bonomy recognised in his separate opinion in the Milutinovic case on the 22nd of March this year, these cases, such as Tadic and Furundzija, had no need to address the more complex factual situations since the JCEs there comprised a small group of active participants.

Of much more interest is that the Appeals Chamber has used JCE to convict or affirm the convictions of accused for large-scale crimes in circumstances where the common criminal purpose existed only, only among those on the same hierarchical level and without establishing that the physical perpetrators were also members of the JCE.

We've already referred in our appeal brief to the Krstic case, as Your Honours are well acquainted with. There the Appeals Chamber confirmed the convictions under JCE, even though there the JCE comprised only the high-level people, Mladic and the VRS Main Staff members, and without determining whether the physical perpetrators were in the JCE. In fact, the Chamber at one point describing Krstic as using the Drina Corps personnel as tools to carry out the criminal plan.

Most significantly, this Chamber recently took this approach in the Stakic appeals judgement. As Your Honours will show, the Trial Chamber in Stakic had applied indirect perpetration in order to attribute the acts of the physical perpetrators to a small group of high-level co-perpetrators. That's what the Trial Chamber did. ⁶⁴ And if Your Honours could go to your screens again. There's a slide we've prepared which pictorially represents what the Trial Chamber effective did.

The co-perpetrators at a hierarchically senior level and the physical perpetrators indirectly perpetrating -- sorry, the co-perpetrators indirectly perpetrating their crimes through the physical perpetrators.

Now, the Appeals Chamber corrected the Trial Chamber to the extent that the Trial Chamber had applied the wrong mode of co-perpetration with regard to the group of high-level co-perpetrators. The mode that the Trial Chamber had described this was co-perpetration by joint control over the act. The Appeals Chamber substituted JCE to uphold Stakic's convictions.

And if Your Honours could turn back to your screens, the slide which will appear in front of you depicts what the Appeals Chamber basically did. Hopefully. Yes, there it is.

So it substituted the JCE at the level of the high-level perpetrators.

However --

JUDGE MERON: I'm not sure we got it.

MS. BRADY: Okay.

JUDGE MERON: We just got the first slide.

MS. BRADY: It's an interactive slide. One slide moves into the other. We can do it again.

The first slide shows -- you should have the first slide. This is ⁶⁵ the Trial Chamber's findings, and then it moves into what the Appeals Chamber basically did.

JUDGE MERON: Yes. That's okay.

MS. BRADY: Okay. However, significantly the Appeals Chamber, in changing the mode from co-perpetration at that level to JCE, the Appeals Chamber left untouched, or another way of putting this is it didn't feel the need to correct the Trial Chamber's findings in paragraphs 741 to 743 and 746 and 818, where the Trial Chamber had explained that Stakic and his co-perpetrators carried out their crimes indirectly through the physical perpetrators who were used as tools.

Neither the Trial Chamber -- this is very important, because neither the Trial Chamber nor the Appeals Chamber in Stakic analysed the physical perpetrators in that case as JCE members. There were no findings that the physical perpetrators had agreed to the common criminal plan to deport or had the intent to deport. They were findings that they had the discriminatory intent but not -- there were no findings on the intent to deport. Rather, the Appeals Chamber identified as the JCE members Stakic and the other municipal leaders, the chief of police and the prominent members of the military. Nevertheless, the Appeals Chamber in Stakic found Mr. Stakic liable for the crimes of the physical perpetrators through the application of JCE.

Therefore, in Stakic the Appeals Chamber recognised that physical perpetrators are not required to be members of the JCE but, rather, that those who are JCE members can perpetrate crimes through them. The case ⁶⁶ endorses a JCE at a leadership level whose members used physical perpetrators to carry out crimes in furtherance of the JCE's objective. Judge Bonomy in his separate opinion in the Milutinovic case also endorsed this approach, finding no inconsistency in -- with Tribunal jurisprudence for a participant in a JCE to be found guilty of commission where crimes are perpetrated by persons who are not members of the JCE but who act as the instruments of it.

Finally, Your Honours, the case of Krajisnik. The Trial Chamber in that case also took this approach. It found Mr. Krajisnik criminally responsible for persecution and extermination on the basis that the JCE members were the republic, the regional and the municipal leaders. It didn't find it possible or - and this is important - even desirable or necessary to find that the physical perpetrators of the crimes were also members of the JCE.

In paragraph 883 -- and I invite Your Honours to again look at your screens. In paragraph 883 the Krajisnik trial judgement held: "Moreover, a JCE may exist even if none or only some of the principal perpetrators are part of it, because, for example, they are not aware of the JCE or its objective and are procured by members of the JCE to commit crimes which further that objective."

Why? Why could it reach this conclusion? Because it held that an accused could participate in implementing the common criminal objective either by himself committing a crime, forming part of the common objective, or by procuring or giving assistance to the execution of a crime forming the common objective. ⁶⁷ The position we're advocating is also supported by World War II precedents.

It's true that post-World War II cases did not explicitly apply JCE by its name. They determined responsibility more on the basis of criminal participation than on a strict application of modes of liability. But as this Chamber, the ICTR Appeals Chamber observed in the Rwamakuba case, the legal elements used by those cases to find accused liable were sufficiently similar to JCE, such as to define JCE's contours. And what clearly emerges from these World War II cases is that high-level accused who agreed to a criminal plan and contributed to it were held responsible for the physical perpetrators who carried out the crimes of the plan. This was regardless, regardless of whether the physical perpetrators were part of formulating that plan or agreed with or acted on behalf of the common purpose. In fact, what was in their minds or their criminal liability was rarely discussed.

We've referred in our appeal brief to two cases under control Council Law Number 10 which illustrate this, so I won't go into any detail now because we have handled it at quite some length in our appeal brief. But just to summarise, both of these cases, Rusha case and the Justice case, accused were held liable for the physical perpetrators' actions without even considering whether they adhered to the criminal plan; that is, without finding that they were members of the criminal enterprise. The final question or issue I want to turn to in this ground is this: How, then, can crimes of physical perpetrators who are not members of the JCE be attributed to the members of the JCE? How does that make ⁶⁸ sense legally?

A member of a JCE can contribute to the JCE either directly or indirectly through other people. There's no difference in principle if an accused uses a bomb or himself places a barricade or uses a police or military unit.

The actions of physical perpetrators can be linked to members of a JCE by indirect perpetration. If an accused in a JCE uses another person as his instrument, the instrument's actions become his actions. They become his contributions to the JCE and, as such, they can be imputed to all JCE members.

Notably the Association of Defence Counsel concede in their response to our appeal that the physical perpetrator of a crime need not be a member of the JCE where he or she is used as a tool or instrument to do so by someone who is a member of the JCE. In that case, they agree that JCE members can be attributed with their crimes. Virtually all systems, all legal system, recognise an accused can commit acts by indirectly perpetrating them. Your Honour, Judge Shahabuddeen, in your separate opinion in the Gacumbitsi ICTR appeals case put it very nicely when you recognised that: "Just as a person can use a JCE as his instrument through which he performs a crime, so too an accused can" - I quote from Your Honour at paragraph 24 - "perpetrate his crime through the instrumentality of another, even though no JCE is involved and though there is no personal contact between the accused and the victim." It's almost universally accepted in national systems that an accused can be liable if he uses another person as a tool to commit a ⁶⁹ crime. And I refer to our authorities in our appeal brief citing to a number of jurisdictions, as well as in our supplemental book of authorities referring to another two jurisdictions in addition to those in our appeal brief.

There are jurisdictions which limit indirect perpetration to innocent agents, while others recognise that even culpable physical perpetrators can also function as tools of a person who somehow controls their acts.

For example, by using a structure of power to carry out his crimes, such as in the Border Guards case in -- where high-ranking GDR politicians were found responsible by the German Supreme Court as commiters for the killings by the border guards at the East German border. It's also very significant that the ICC also recognises in their Rome Statute Article 25(3)(a) that someone can commit a crime through another person regardless of whether that person is criminally responsible. And that theory is -- is one presently being pursued in the Lubanga case at the ICC, and in fact it's being used in combination both with what -- the ICC's equivalent of co-perpetration by joint control but also in combination with their equivalent of JCE, which is in Article 25(3)(d) of the Rome Statute.

To conclude on this, Your Honours, the physical perpetrators need not be members of the JCE in order to attribute their crimes to those in a JCE. If the JCE members agree on a common criminal goal and use others to carry out acts in pursuance of their criminal goal, those acts can be ascribed to all members of the JCE. ⁷⁰ Those conclude my submissions, and I'd be happy to answer questions Your Honours may have.

JUDGE MERON: I would invite my colleagues to ask questions on this complex of joint criminal enterprise.

Judge Shahabuddeen, please.

JUDGE SHAHABUDDEEN: Would I be correct, Ms. Brady, in understanding the burden of your submissions to be this: That if A has a one-to-one agreement with B to commit a particular crime and that crime is committed by B, his criminal responsibility does not depend at all upon JCE, it depends upon the normal principles of criminal liability, including, in particular, agency.

Would that be an appreciation of the burden of your submissions?

MS. BRADY: Well, Your Honours, I think that there are two ways of viewing the matter. Either A and B have this agreement, one-to-one agreement to commit a crime and they both jointly act, they both make a contribution and therefore they can be liable under JCE; or Your Honour is quite correct, that A and B can have an agreement. I don't think it actually has to be a one-to-one, but it can be inferred that they have a common agreement together, and then B either commits the crime himself or he does it through somebody else, and in that case, yes, I think there is an agency principle underlying the situation. But they are -- they are two different ways of approaching the problem.

JUDGE SHAHABUDDEEN: Well, we can deal separately with the proposition involving an outsider to the JCE whose actions are in question. ⁷¹ What I have in mind is this: It seems to me it all turns upon the notion of an agreement, depending on the circumstances, the law can extrapolate the existence of an agreement from a variety of factors. What makes the difference in this case is your reference to the Trial Chamber's insistence that there has to be a one-to-one agreement between one member of the JCE and another member of the JCE to commit a particular crime, but in both situations there is an agreement. What makes the difference in this case from your submissions is the insistence of the Trial Chamber that JCE is applicable only when there is a particular kind of agreement.

MS. BRADY: Your Honour is quite right. For, as I said, the majority of cases, it will amount to the same thing because the agreement can be -- it was definitely very problematic, the Trial Chamber's use of this one-to-one agreement. That was its first error. It was problematic because it was requiring something which is -- it's too much. It's impossible to find this one-to-one agreement. That was problematic. In most cases you're correct. The people on the ground, the physical perpetrators, will agree with the common plan. They will agree with the person A in your example. But not in every case. And that's why, for example, there may be physical perpetrators who don't even -- they're not even aware of how they're being used.

Not here. In this case the facts were clear. The physical perpetrators shared the agreement. They were in the agreement. So that approach "works" for this case.

However, there may be cases where it does not and that was the import of my submissions when I was speaking about ground 1 and why it is ⁷² important not to always require that the physical perpetrator be necessarily in the JCE, because he may be used. He may not -- he may not share it. He may be directed. He may be ordered. And this is actually the type of situations that we are confronted with in the Tribunal very often. These are the factual cases that are before us.

JUDGE SHAHABUDDEEN: Let me ask you a third question. Would I be right from the impression I've formed of your submissions that the problem is this: A and B are both members of a JCE. B then gets an outsider to commit a JCE type of crime, and then what is involved is the criminal responsibility of A.

Now, I have the impression that the difficulty is this: That the criminal responsibility of A is erroneously focused on the criminal responsibility of the outsider. A only has a criminal responsibility for the crime committed by a fellow member of the JCE, but that fellow, that fellow member of the JCE may well have a criminal responsibility for the outsider's crime.

Is that a correct way of analysing the --

MS. BRADY: It is. It is a correct way of analysing our position, Your Honour.

JUDGE SHAHABUDDEEN: Thank you. Thank you.

JUDGE MERON: Judge Van Den Wyngaert.

JUDGE VAN DEN WYNGAERT: Thank you. Ms. Brady, if I understand you correctly, your position is that the Trial Chamber erred, your ground 1, by not applying the principle that the RPP -- or by requiring that the RPP should have been a member of the ⁷³ JCE.

My question is: You seem to apply that to the three forms of JCE, one, two, and three, because your submission is that the Trial Chamber should have applied the JCE III to the greatest number of the charges. My question is in the authorities that you quote both in the post-Second World War jurisprudence and in our own jurisprudence, what are the examples that are relevant for JCE III? I can see JCE II and I, especially I, but JCE III, what would be the cases, the precedents that we were to follow if we were to follow you on that point? Thank you.

MS. BRADY: In relation to the World War II cases, such as the ones of the Justice case and the Rusha case, the co-perpetrators who were responsible for crimes which indeed did fall within the common plan, the extermination plan in relation to the Justice case, and the same thing for the Rusha case.

I can't at this point point Your Honour in a direction towards a specific case, a specific World War II case that would have applied -- that would have allowed for responsibility for crime that wasn't "intended" but was foreseen.

I would make the observation that the World War II cases are dealing -- are using knowledge as their basis for mens rea, not intention in the strict sense. As you'll recall, our jurisprudence requires for JCE 1, the aiming at type of intent, the World War II cases for knowledge. So already there is a precedent for there being a slightly lower mens rea under those World War II cases.

However, what we say about the World War II cases is that they do ⁷⁴ not necessarily restrict you -- you can have -- when you're interpreting JCE, JCE is clearly -- JCE is clearly established under customary international law. This case raises an aspect of JCE's application, and as the Chamber emphasised in the Hadzihasanovic command decision, it's not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle.

Your Honour Judge Shahabuddeen in the Stakic dissenting opinion gave several examples where there'd been this -- that the principle is established under customary international law and this is an application. This is an interpretation to apply it to these facts. In addition, Your Honour, we note that the Stakic Appeals Chamber, which is a binding precedent, of course, on us for this case, this judgement applied JCE III and in effect indirect perpetration, and that, in our submission, would also take care of it in -- on this case.

JUDGE VAN DEN WYNGAERT: So to be absolutely clear, your proposition is that this is now part of customary international law. So the contours of JCE, as you describe them, are defined as such by customary international law.

MS. BRADY: Your Honour, yes, that's our primary position. It is customary international law, and especially in terms of how customary international -- how it can be interpreted on these supposedly new facts. It actually what happened in Stakic, but that's our first position. There's also another way of looking at the issue. In our submission, the principle of JCE is customary international law, and of ⁷⁵ course this Chamber can have recourse to general principles of law to determine the scope of parameters of application. This was done by the Furundzija Trial Chamber, looked to principles of criminal law common to major legal systems to define the elements of rape. The Chamber did the same -- took the same course in the Blaskic appeals decision in order to distil the mens rea for ordering. And that is also an approach that we would advocate in this case.

JUDGE MERON: Judge Guney.

JUDGE GUNEY: Ms. Brady, during your submission you argued that the forcible transfer or deportation may be amounted to the most tenuous crime, which is the crime of the crimes genocide. Is it correct -- am I correct in my recollection?

MS. BRADY: No, Your Honour. I didn't use the term "genocide" at all in my submissions, except in relation to referring to a decision of Karemera on JCE and genocide. But I didn't actually say that genocide was involved. Because, of course, it wasn't found in this case.

JUDGE GUNEY: Okay. Then I'm not going to put the second question in the light of your explanation. Thank you.

JUDGE MERON: Thank you, Judge Guney. Judge Vaz.

JUDGE VAZ: [Interpretation] Thank you, Mr. President. Ms. Brady, I have a question in relation to the comments you made yesterday -- earlier on when you said that high-ranking accused should be held fully responsible for their actions, and you seemed to exclude the principle of complicity for high-ranking accused. Why would you exclude ⁷⁶ the possibility of complicity as a mode of liability? Because that's the way I understood your comments.

MS. BRADY: Your Honour, we wouldn't necessarily exclude complicity or aiding and abetting. Defending on the facts, it may be an appropriate legal characterisation. However, for the majority of cases, what -- what we say is that because aiding and abetting in this Tribunal carries or incurs a lesser degree of responsibility, it's -- it's not appropriate to label people who are essentially the masterminds, the people who are at this high level orchestrating and coordinating. It's an inappropriate label. It doesn't -- it -- it denies the full responsibility concept which commission gives, and that's -- that's why we say that aiding and abetting is just not appropriate to describe perpetrators at this level who are basically the major implementers, the major controllers of the crime, the crimes that occur.

JUDGE VAZ: [Interpretation] Thank you very much for this additional information.

JUDGE MERON: Thank you, Judge Vaz. I have a question to ask you, if I may.

MS. BRADY: Yes.

JUDGE MERON: I'm referring to Prosecution's appeal brief, paragraph 348. In that brief, you argue that we should find that the physical perpetrators need not be members of the JCE. You suggested were we to find that physical perpetrators must be members of the JCE it would be, and I quote: "Difficult, if not impossible, to ever convict the seniors leaders based on the JCE." ⁷⁷ And I quote again: "Since the only way of proving that the on-the-ground actor acted with the requisite intent would be to identify each individual actor and put on proof of his intent." And then in your response, the response of the Prosecutor on the JCE, which is a more recent statement, you -- last month you suggested we should -- we should hold that every physical perpetrators here was in fact a member of the JCE, even though you have not identified each individual actor and put on proof of each actor's intent.

Could you explain how we should reconcile these two statements or these two positions, which obviously are different?

MS. BRADY: Yes, Your Honour. In relation to the first point, I think that in the brief that was filed a couple of years ago, I think we were stating the case a bit highly then. As I've said in my submissions, it is possible to find common criminal plan, and in fact on these facts you can find common criminal plan. You can find the agreement. That can be established, because you can infer it from the pattern.

So I think that we put the position a bit too high in terms of -- it was a bit dramatic in some ways what we put in our brief about the fact that we would have to call evidence on the intention of every single person on the ground. I think a better way of saying this, and in particular in light of recent jurisprudence which has provided a lot of assistance on this matter, Krajisnik and other decisions, that the intention, the agreement can be inferred from the pattern of crimes, from the fact that they're committed against the same victims at the same time, ⁷⁸ all the factors that I spoke about in my submissions earlier. I think -- on your second question, let me just see if I got it right.

JUDGE MERON: It's the same question.

MS. BRADY: It's really the same question. Would we have to put on evidence of every single actor's intent, and I think your question was well, where is it in this case? Well, no, we wouldn't have to put on evidence of every single actor's intent, but what must be found, and the facts of the Trial Chamber did find this, it was established, is that the relevant physical perpetrators were acting in accordance with the common criminal plan, and I've set it out -- we've set it out in some detail in the filing. And that is a sufficient way to find agreement and intent, because of course it can be inferred.

JUDGE MERON: Thank you. Thank you, Ms. Brady. Do we have any further questions? I do not see any. So I believe that under our Scheduling Order we now should have a break of 15 minutes. So at five minutes past 4.00 sharp we will reconvene.

--- Recess taken at 3.47 p.m.

--- On resuming at 4.08 p.m.

JUDGE MERON: Please be seated. Ms. Brady, the Prosecution strictly speaking, you know that the Prosecution's time is really up, and I believe that you still have two grounds to address. So we will give you 10 minutes for them.

MS. BRADY: We're grateful to Your Honour. Ms. Margetts --

JUDGE MERON: I think we should all manage our time more ⁷⁹ carefully.

MS. BRADY: Yes, indeed. Indeed, Your Honours. And we're grateful to Your Honours for this extra 10 minutes.

Your Honours, I now turn to Ms. Margetts, who will address you on the third and the fourth grounds of the Prosecution's appeal. Thank you.

JUDGE MERON: Yes. Ms. Margetts, you can start.

MS. MARGETTS: Good afternoon, Your Honours. In light of the time, I will only address the Prosecution's fourth ground appeal, extermination, because I believe that our third ground of appeal is fully briefed, and I would just rely on our submissions in the brief. And with respect to Your Honours' question on omission liability relevant to that ground, Ms. Goy will address you tomorrow morning in the Prosecution's response.

So I will now turn to the Prosecution's fourth ground of appeal, extermination.

Brdjanin should be convicted for aiding and abetting extermination because he was found guilty of aiding and abetting massive killings which individually constitute extermination.

The Trial Chamber erred when it acquitted Brdjanin of extermination on two grounds: (1), that he did not have the necessary knowledge that extermination would be committed; and, (2), because extermination was not necessarily envisaged by the strategic plan. The findings are in paragraphs 477 and 478.

The Trial Chamber was wrong in its conclusion because it convicted ⁸⁰ Brdjanin of three large-scale killing incidents which were committed during the attacks on villages. The convictions can be found in paragraph 476.

These killing incidents are the killing of around 300 victims in Biscani, Prijedor; the killing of 140 victims in Kozarac; and the killing of 68 victims in Brsevo. These killings each individually constitute extermination and the Trial Chamber found that Brdjanin knew of them. The findings are in 474 to 476 of the judgement.

This knowledge, in our submission, is sufficient to find him guilty for extermination, because the only difference between extermination and wilful killings is that the extermination requires an element of massiveness to be met. Brdjanin's knowledge of these individual killing incidents already satisfies this massive element that is required. He also knew that his acts would assist in killings on a massive scale.

The Trial Chamber found that he knew that the ARK Crisis Staff decisions on disarmament would assist the forces carrying out the large-scale attacks and who committed the large-scale killings that occurred during those attacks.

THE INTERPRETER: Could counsel please slow down a little bit.

MS. MARGETTS: [Previous translation continues] ... and 474 of the judgement.

In addition, for the reasons set out in ground 3 of our written submissions, we submit that Brdjanin also knew and substantially contributed to large-scale killing incidents committed during detention, ⁸¹ which individually constitute extermination. These killing incidents are referred to in paragraphs 456, 460, and 462 of the judgement. And they are the killing of 190 persons committed in the room 3, Keraterm massacre; the killing of 200 men during the transport from Trnopolje at Koricanska Stijena; and the killing of 144 men in Biljani. Finally, the Trial Chamber was wrong in its conclusion that extermination was not envisaged as part of the execution of the strategic plan because these large-scale killings were committed with the very aim of implementing the strategic plan. The Trial Chamber described these crimes committed in implementation of the plan in paragraphs 100, 104, and 115 of the judgement, which included the killings during attack and the killings in detention facilities.

They individually constitute extermination and, therefore, extermination was part of the execution of the strategic plan. Thank you, Your Honours. That concludes my submissions on ground 4. If you have any questions, I would be glad to answer them.

JUDGE MERON: Thank you. Thank you for your example of brevity. Questions? I don't see anyone so I think we will now move on. Thank you, Ms. Margetts.

MS. MARGETTS: Thank you, Your Honour.

JUDGE MERON: We will move on to the response of the Defence. Mr. Ackerman, you have 45 minutes.

Mr. Ackerman, since I gave a few more minutes to the Prosecution, I will also try to equalise this, if you need, by giving you a few more minutes. ⁸²

MR. ACKERMAN: Well, Your Honour, I appreciate that and I probably won't need it.

Good afternoon, Your Honours. It's a pleasure for me to appear before such an august body.

I was -- I walked in the courtroom this morning and I was reminded of 40 years ago when I -- I think made my first court appearance as a lawyer. It was in a small town in Wyoming.

JUDGE MERON: You realise most of us were not alive yet.

MR. ACKERMAN: Yes, Your Honour, that's true. It was in a small town in Wyoming, and we were up on the second floor of an old courthouse with a wooden floor, and the lawyer I was working for was a crusty old western Wyoming lawyer. And there was several law enforcement officers in the room because it was a criminal case. And he stood up and said, Your Honour, I'd like the record to show how many guns they've got and how many guns we've got. And I was reminded of that today when I came in and looked across at the breadth of the Prosecutor's bench over there; how many guns they've got, and how many guns we've got. But we will persist in our proceedings here. I want to -- I want to try to stay within my time, Your Honour, and I think I can do that. I'll talk briefly about some things and a little more at length about others that the Prosecution has talked about. I want to first begin with some of the things that you heard during the Prosecution's argument here today.

The Prosecutor told you at page 14, line 5, that -- that the Trial Chamber thought that JCE members had to have this congruent state of mind, ⁸³ this agreement, and Your Honours of course know that one of the reasons the Trial Chamber thought that was because that's what the Prosecution thought. That's what they were suggesting to the Trial Chamber at that time.

The Prosecution then referred you to paragraph 549 of the judgement as being a very interesting paragraph, and the Prosecution's right, it is an extremely interesting paragraph. You will recall throughout the judgement and throughout the arguments of the Prosecution that Mr. Brdjanin's responsibility primarily hinged upon the disarmament decisions of the ARK Crisis Staff. They rely heavily on disarmament decisions of the ARK Crisis Staff so that for liability to flow from that the attacks would have to have been as a result of those decisions. You look at paragraph 549 and what the Trial Chamber found there, and it is very interesting. Military operations were carried out against towns and villages that were not military targets. Bosnian Serb forces carried out attacks in Prijedor, Sanski Most, Bosanski Novi, Kljuc, Tesalic, and Kotor Varos, among others. And this is the important sentence: "Such military operations were undertaken with the specific purpose to drive Bosnian Muslim and Bosnian Croat residents away. The evidence shows that the displacement of persons was not simply the consequence of military action but the aim of it."

The aim of it. Not disarmament, to drive them away. The Prosecution then suggests to you that the -- the view that the Trial Chamber took of JCE did not really reflect the reality of international crimes. I think those were pretty close to the exact words. ⁸⁴ And we operate in a static arena here as regards the law. We have to deal with what was customary international law at the time the events in question occurred, so we can't sit here and change the law when it becomes inconvenient. And the Prosecution argues to you that, Gee, it's this JCE concept that has arisen from Tadic and spread its way throughout the cases up till today is inconvenient because it doesn't permit us to do some of the things we would like to do. Well, that's too bad. If that's what the JCE law is, then that's what it is. And I suggest to you that what it is is what the Tadic Appeals Chamber said it was. And if you go back to the source that the Tadic Appeals Chamber used to derive the concept, you won't find that it can be expanded the way the Prosecution argues here that it should be.

The basic Prosecution challenge here is to the Trial Chamber's finding that JCE is not an appropriate mode of liability to describe individual criminal responsibility of the accused given the extraordinarily broad nature of this case where the Prosecution seeks to include within a JCE a person as structurally remote from the commission of the crimes charged as in the indictment -- in the indictment as the accused. In making this finding, the Chamber pointed out in footnote 888 of its decision that the accused was both physically remote from the physical perpetrators and that the physical perpetrators were not subject to the structure over which the accused exercised de facto authority. This law that was applied by the Trial Chamber has been the law of JCE in this Tribunal, I suggest since we first saw it in the Tadic appeals decision. The OTP is not suggesting that the Trial Chamber applied the ⁸⁵ law wrongfully, even though that is a smokescreen that they float. At trial, they agreed with the Chamber. Trial Chamber II pre-trial agreed that that was the law in pre-trial rulings in the case, and we'll get to that in a little more detail. And this Appeals Chamber agreed throughout its jurisprudential history that that was the law. So what they're saying is not that the law was misapplied but that you need to change it. You need to expand it because it's inconvenient. This is in effect an effort by the Prosecution to get a whole new concept of JCE established in this Tribunal.

To give you a hypothetical example of the extension where the Prosecution seems to want you to go, assume that the mayor of Banja Luka was in an agreement with the SDS leadership regarding the strategic plan, that he made this clear in speeches that he made publicly in Banja Luka, that he was in agreement with the strategic plan, that one part of that strategic plan called for the expulsion of -- of non-Serb persons from the area that was claimed to be a Serbian state, a new Serbian state. Further, way over in Srebrenica some Serb soldiers kill a bunch of non-Serbs.

If you take the Prosecution's argument, their logical extension, even though the mayor of Banja Luka had no idea what was going on in Srebrenica, had no way of knowing what was going on this Srebrenica but he was part of the plan, the soldiers were part of the plan, therefore, he must be guilty for what went on over there, because even though he didn't know, they would argue to you that he must have known. It must be borne in mind that at trial the Prosecution agreed with ⁸⁶ the Defence and advised the Trial Chamber that under first category JCE, the physical perpetrators of the crimes alleged in the indictment must have entered into an agreement with the accused. To the extent, then, that this ground of appeal violates that agreement, the second ground of appeal, it cannot affect the outcome of this appeal. The arguments should be overruled.

It appears that the Prosecution has misinterpreted the holding of the Trial Chamber to state that JCE is limited to small cases. The key to the holding, it seems to me, is that the ARK Crisis Staff exercised no de facto authority over the physical perpetrators, nor did Mr. Brdjanin, who were not members of the JCE. If, for instance, the structure involved were the Serbian Republic of Bosnia-Herzegovina, and if the president of that entity exercised de facto authority over physical perpetrators who were members of the JCE, then JCE would be appropriate, even though that would be a much wider area than what we're talking about in this case. So that if the president of the Serbian Republic of Bosnia-Herzegovina orders a paramilitary group to go to a specific village in Bosnia and carry out what amount to some war crimes and they do so, there is no reason why under current JCE theory that he could not be convicted for that. The chapeau requirement of a JCE is the existence of a common plan. The dictionary defines "common" as belonging to or shared by two or more persons or things or by all members of a group. "Common" means that all the members of the group share the same goal.

The Prosecution proceeded at trial in this case on the basis that JCE must include the physical perpetrators. Clearly there can be no ⁸⁷ conviction entered with regard to JCE I, due to the agreement at trial and the Trial Chamber finding that no perpetrator was a member of the JCE. Thus the only ground for a JCE conviction in this case would be pursuant to JCE III.

If you look at paragraph 344 of the judgement, the Trial Chamber judgement, the Trial Chamber made some specific findings regarding JCE III that I think are very important. The Trial Chamber found that the Prosecution did not allege that the accused physically perpetrated any of the crimes charged in the indictment. Therefore, in order to hold the accused criminally responsible for the crimes charged in the indictment pursuant to the first category of JCE, the Prosecution must, inter alia, establish that between the person physically committing a crime and the accused, and these are the operative words, there was an understanding or agreement to commit that particular crime. And that is what the Prosecution agreed was true, was the law.

The Chamber then went on to say this: "In order to hold him responsible pursuant to the third category of JCE, the Prosecution must prove that the accused entered into an agreement with a person to commit a particular crime."

Exactly the same thing, and exactly the thing the Prosecutor agreed was part of the law of JCE. The only difference between those two being that one could then become responsible for crimes committed beyond the agreement if they were natural and foreseeable consequences of that agreement.

So both first category and third category JCE, the Trial Chamber ⁸⁸ found there must be an agreement. This was the proposition acknowledged and stipulated to by the OTP, that the perpetrators had to be part of a JCE. The difference being only that for third category JCE, the accused could be held responsible for a crime that was not part of the agreement. Now, that should be the end of any discussion in this appeal regarding the application of JCE to Mr. Brdjanin. There can be -- there can be a decision in this case regarding JCE that might agree with the Prosecutor's position in some respect, but it can't effect Mr. Brdjanin because of that agreement that was entered into at trial and because of the Prosecution's answer to the Judges' question regarding the law in that regard.

And this was not something that arose just at the end of the case as we were preparing for argument. It was made clear that this was the law of the case before the trial ever started in the decision by Judges Hunt, Mumba, and Daqun where they decided, among other things, that between the person who personally perpetrated the further crime charged and the person charged with that crime there was an agreement to commit at least a particular crime, so it could then be determined whether the further crime charged was a natural and foreseeable consequence of executing that agreed crime.

I want to turn now to the question that was asked by Your Honours about commission by omission.

JUDGE MERON: Excuse me, Mr. Ackerman. Do I understand you to say that even with regard to ground 2 should the Appeals Chamber have a different vision of JCE there can be no consequences regarding the ⁸⁹ culpability or convictions of Mr. Brdjanin?

MR. ACKERMAN: Yes, that's what I'm saying. Because the Prosecution agreed at trial that for JCE the perpetrator had to be a member of the JCE. So, no, it cannot go beyond that. There can be no JCE conviction in this case, that's my proposition, because of the stipulation, because of the agreement at trial.

JUDGE MERON: Please proceed.

MR. ACKERMAN: Thank you. With regard to commission by omission, this issue arises out of paragraph 537 of the Trial Chamber's judgement where the Trial Chamber basically found, although the accused did not actively assist in the commission of any of the crimes committed in camps and detention facilities, in the light of his position as president of the ARK Crisis Staff, the Trial Chamber is satisfied beyond reasonable doubt that his inactivity as well as his public attitude with respect to the camps and detention facilities constituted encouragement and moral support to the members of the army and the police to continue running those camps and detention facilities in the way described to the Trial Chamber throughout the trial.

As Your Honours mentioned in the question, the issue was discussed in the Blaskic case at paragraph 663. The notion from Blaskic was then reiterated in the Appeals Chamber decision in the Rwandan case of Ntagerura et al., and most recently the Appeals Chamber in the Galic appeal decision in paragraph 175 noted that it affirms the omission of an act where there is a legal duty to act -- only where there is a legal duty ⁹⁰ to act that can lead to individual criminal responsibility under Article 7(1).

The obvious converse of all those pronouncements is that there can be no conviction for an omission where there was no legal duty to act, and that is the case in this Brdjanin case.

To convict for an omission requires either a superior-subordinate relationship or the existence of a legal duty. Neither of these requirements exists here.

As the Trial Chamber found in footnote 888, which I referred to previously, the Trial Chamber refers to its previous finding that the accused was both physically remote from the physical perpetrators and the latter were not subject to the structure over which the accused exercised de facto authority.

At no point in the judgement did the Trial Chamber find that Brdjanin had a superior-subordinate relationship with any of the perpetrators. The Trial Chamber even went so far as to reject any notions that the accused had a duty to report the commission of crime. Paragraphs 375 -- 372, 373, and 375 of the Trial Chamber's judgement touch on these issues.

373 talks about there not being a superior-subordinate relationship with members of the SOS or other Serb paramilitary organisations. 372 talks about his relationship with the army and that there was no superior-subordinate relationship there. In 375, the Trial Chamber concludes, quoting: "During the time relevant to the indictment the accused did not have effective control over the police which would ⁹¹ translate into his material ability to prevent or punish the commission of crimes. There's also no concrete evidence that the accused at any time between April and December 1992 had the duty to report crimes as explained in paragraph 281 of the judgement."

Your Honours then asked the Prosecutor this question: Did any members of the JCE commit any of the crimes? The answer to that is a -- is a clear and categorical no, they did not.

At paragraph 345, the Trial Chamber found: "While the names of the perpetrators have been established in a relatively small number of cases, in most cases the physical perpetrators have only been identified by the group they belong to."

At 347 the Trial Chamber said: "What remains is an alleged JCE between the accused and members of the army and Serb paramilitary forces. The Trial Chamber in this context emphasises that for the purposes of establishing individual criminal responsibility pursuant to the theory of JCE, it is not sufficient to prove an understanding or agreement to commit a crime between the accused and a person in charge or in control of a military or paramilitary unit committing a crime. The accused can only be held criminally responsible under the mode of liability of JCE if the Prosecution establishes beyond a reasonable doubt that he had an understanding or entered into an agreement with the relevant physical perpetrators to commit the particular crime eventually perpetrated, or if the crime perpetrated by the relevant physical perpetrators is a natural and foreseeable consequence of the crime agreed upon by the accused and the relevant physical perpetrators." ⁹² At 351, the Chamber said: "Indeed the accused and the relevant physical perpetrators could espouse the strategic plan and form a criminal intent to commit crimes with the aim of implementing the strategic plan independently from each other and without having an understanding or entering into any agreement between them to commit a crime." At 353: "The Trial Chamber is satisfied that there is no direct evidence to establish such an understanding or agreement between the accused and the relevant physical perpetrators."

Now, when the Chamber makes this finding in the context of the agreement in this case regarding physical perpetrators and the elements of a JCE, what they're saying is they have not found an understanding or agreement between the accused and any of the relevant physical perpetrators which would make the relevant physical perpetrators members of the JCE. So clearly the Chamber found that no members of the JCE committed any of the underlying offences found to have been committed by the Trial Chamber, nor can such an inference be made. As the Trial Chamber found in paragraph 354: "Given the physical and structural remoteness between the accused and the relevant physical perpetrators and the fact that the relevant physical perpetrators in most cases have not even been personally identified, the Trial Chamber is not satisfied that the only reasonable conclusion that may be drawn from the accused's and the relevant physical perpetrators's respective actions aimed towards the implementation of the common plan is that the accused entered into an agreement with the relevant physical perpetrators to commit a crime." ⁹³ And, again, I refer to footnote 888, which I've shared with you twice now.

Let me go now to Prosecution's ground 3, and on this I'll be quite brief.

The basis for the Prosecutor's contention is the Trial Chamber's finding regarding torture in the camps and detention facilities based upon his inactivity in failing to take a stand against conduct in the camps both in public and in ARK Crisis Staff meetings combined with his public attitude towards these camps and detention facilities. The argument urges conviction for a crime of omission without showing in any way that there was either a superior-subordinate relationship between Brdjanin and the RPPs in the camps or that he had some duty to act or report. No such finding is justified by the evidence in this case. In fact, the great weight of evidence and the findings of the Trial Chamber compel an opposite conclusion.

Ground 4, erroneous acquitted on extermination count. As this ground is discussed, it may be helpful to have in mind what this Chamber has said about alleged errors of fact, and it was repeated to a great extent by the Judge this morning in his opening remarks.

In determining -- this is from the Galic appeals judgement, paragraph 9: "In determining whether or not a Trial Chamber's finding was one that no reasonable trier of fact could have reached, the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber." And then goes on to quote from Kupreskic. ⁹⁴ The Prosecution argues from paragraph 6.8 to 6.17 of their brief that the Chamber erred by failing to find that the killings satisfied the massiveness requirement. However, the Chamber actually found that the killings did satisfy the massiveness requirement at paragraph 465 where the Chamber said: "The Trial Chamber is further satisfied that these killings fulfil the element of massiveness for the crime of extermination."

So that was found. They didn't make an error in failing to find that; they found it.

In Part C of this section of the Prosecution's brief, the Prosecution suggests that the facts establish that Brdjanin knew that extermination would properly occur in the implementation of the strategic plan and then sets out the evidence that was considered by the Trial Chamber in reaching its opposite conclusion. No argument is made by the Prosecution as to how it was wholly erroneous for the Chamber to arrive at their conclusion. There's no argument that the Trial Chamber overlooked or failed to consider any of the evidence, only that it drew a conclusion with which the Prosecutor does not agree. That does not meet the threshold for overturning a factual conclusion made by a Trial Chamber. The same reasoning applies to the argument in Part D of their argument. In paragraph 6.29, the Prosecution repeats a factual error committed by the Trial Chamber when it avers that the disarmament decisions issued by Brdjanin, actually by the Crisis Staff, caused Brdjanin to be aware that a number of attacks would follow which would be large-scale and involve a number of killings. The evidence simply will ⁹⁵ not support such a finding and no reasonable Trial Chamber could have made such a finding beyond a reasonable doubt.

There would need to be some showing in the evidence that each of the attacks that were found to have occurred occurred for the purpose of disarmament and not for some other purpose, separate from disarmament, for that conclusion to work.

Second, if there was a finding that the purpose was disarmament, then there would need to be a showing that it was based on a Crisis Staff disarmament decision or conclusion and not on the earlier decisions of Milorad Sajic and the CSB.

And I really need to illustrate that requirement by having you look at a couple of documents on the ELMO. So with the usher's help, we can get that done.

The first page of that one. Let me give you another one.

JUDGE MERON: We have it before us, so you can proceed.

MR. ACKERMAN: Can you push the button and let me see the screen. Okay. Your Honour, what you're looking at is the Official Gazette of the Autonomous Region of Krajina. You're looking at a decision that was entered pursuant to the decision of the Ministry of National Defence of the Serbian Republic of Bosnia and Herzegovina, no. 1/92 of 16 April 1992. "The Secretariat for National Defence of the Autonomous Region of Krajina has made the following decision."

Number 1, you see that there was general public mobilisation ordered on the entire territory of the Autonomous Region of Krajina. And then if we go down, you'll see paragraph 5: "All paramilitary formations ⁹⁶ and individuals who illegally possess weapons and ammunition are to immediately, and by 1500 hours on 11 May 1992 at the latest, surrender them to the municipal headquarters ..." and I'll not read it on because you can read it.

And that decision was -- we'll have to go back to the top, I think, to find it.

Actually, if we go -- I haven't given the second page to the usher, but the second page shows that that decision was issued on the 4th of May, 1992.

Now, keep in mind that the ARK Crisis Staff did not exist until the 5th of May, 1992. So when this decision was issued, there was no ARK Crisis Staff.

And then if you look at the second document which I have provided, you'll see that what this is is a document from the security services centre in Banja Luka to the chief of all public security stations. That would be throughout the Krajina area. And it is referring to this decision we just looked at. And it's signed by Stojan Zupljanin, and it basically says that -- if you look at page 4 of that document above Stojan Zupljanin's name and right below Sajic's name, this is what Zupljanin ordered: "With regard to the above-mentioned, it is necessary that you immediately" - immediately - "undertake the necessary activities described in the above decision, and report to us about this as well as about all events of interest for the security situation in the course of tomorrow." So before there was any ARK Crisis Staff there were these very high-level decisions from the government and from the Secretariat for ⁹⁷ National Defence calling for disarmament.

I'm through with those. Thank you. It seems to me that for the Prosecution to succeed regarding any imposition of liability on Mr. Brdjanin regarding disarmament decisions of the ARK Crisis Staff, there would have to be a showing that any actions taken with regard to disarmament were taken not as a result of the disarmament decisions of the ARK Crisis Staff, that they were taken as a result of those decisions rather than from the earlier decisions that were obviously widely disseminated by the CSB throughout the ARK, and no effort has been made to do that at all and no such showing has ever been made. I will discuss the issue of disarmament at greater length when we meet tomorrow.

I want to talk about the Prosecution's response to the Appeals Chamber's questions on JCE, and that will probably conclude my remarks. It was the position of the Prosecutor at trial that Brdjanin was criminally liable pursuant to the first and third categories of JCE. That was the contentions they were making. They were making those contentions in the context of their understanding that the relevant physical perpetrator had to be a member of the JCE. It was, of course, argued consistent with the agreement that that had to be the case. The argument was rejected by the Trial Chamber, the argument that there was a JCE in this case, and they found that there was not.

Now in its response to the Appeals Chamber's questions on JCE, the OTP simply repeats and magnifies the arguments which failed at trial without a showing that the factual conclusions reached by the Trial ⁹⁸ Chamber were wholly erroneous and were conclusions that could not have been made by a reasonable Trial Chamber.

An especially significant problem for the OTP's position is the Chamber's findings at paragraph 159 of the judgement. After reciting the various crimes that it found to have been committed, the Chamber concluded and, Your Honours, this -- this goes to the heart of the problem -- of the problems with this case. The Trial Chamber concluded that on the basis of the pattern of conduct, and that is after they have recited all the various crimes that they found to have been committed, on the basis of the pattern of conduct by which these crimes were committed throughout the Bosnian Krajina, the Trial Chamber is satisfied that they were mostly - look at that word, "mostly" - perpetrated with a view to implement the strategic plan.

Now, that word "mostly" is absolutely critical, because when they find they were mostly perpetrated with a view to implement the strategic plan that is just a broad-based finding that we were unable to find that in every case they were perpetrated with a view to implement the strategic plan.

Now, I suggest to you that what then is required is specific findings with regard to each crime as to whether or not the relevant physical perpetrators of that crime were perpetrating it with a view to implementing the strategic plan.

In footnote 31 of its answer to Your Honours, the OTP seeks to explain this away by suggesting that in an operation as large as that in the Krajina, it is certainly possible that some of the crimes were ⁹⁹ committed by persons who were not carrying out the strategic plan and did not know of it or some other lack of participation in the JCE. The problem with this is the requirement of proof beyond a reasonable doubt. Liability in a criminal case needs to be focused so that a finding can be made beyond a reasonable doubt, that with regard to each specific underlying crime charged it can be determined that the relevant perpetrators of those crimes were carrying out the strategic plan and were members of the JCE. This the Trial Chamber was wholly unable to find. It could not be found from the evidence in the case. The Prosecution, to establish their asserted proposition, would need to make a showing to you with regard to each crime alleged in the indictment that there was evidence showing beyond a reasonable doubt that the elements of JCE were proved. This wasn't done, and it can't be done from the record in this case. That evidence simply does not exist. It's just not there.

Rather than cite specific evidence from which such a conclusion was the only reasonable conclusion to be made by a reasonable Trial Chamber, the Prosecution simply suggests that the relevant physical perpetrators must have understood that they were acting in pursuance of a strategic plan. That's the must have known standard, which we don't have in this Trial Chamber. What we have here is a beyond a reasonable doubt standard. The must have known standard is very, very far below beyond a reasonable doubt.

In much of its pleading the Prosecutor continues to refer to the testimony of Witness BT19, as they did in this particular pleading, who ¹⁰⁰ said: "It was terrible to see normal people become killing machines throughout the terrible power of the media."

The Prosecution, I think, in their pleadings filed with you in this appeal have probably referred to that statement by BT19 six or seven times. I haven't counted them.

What the Prosecution has always failed to point out to you about this witness is that this was a very important witness who was present in the area at the time and was receiving hundreds of reports, receiving daily reports from persons in the field about things that were going on in the Krajina and events relevant to the indictment in this case, and it was from all of those reports, all those hundreds of reports and from his own personal observations that he was able arrive at the conclusions cited by the OTP. And with all those hundreds of reports, he was asked on cross-examination if he ever heard of Radoslav Brdjanin in terms of making statements or being involved in propaganda, and he said no, he didn't hear of him in any connection, let alone in connection with the issue of propaganda and its effects.

Now, that's crucial evidence. That's important evidence, because there is a person who should have heard of Brdjanin if what is suggested about him is true.

I think it's important to Your Honours to understand the history of the Krajina area, to understand that the relevant physical perpetrators didn't need to be propagandised into a campaign to carry out crimes against the non-Serb population. The testimony of Dr. Donia in his expert report sets this history out for you in some detail. ¹⁰¹ The Croats and the Muslims from that area massacred thousands of Serbs during World War II when the Croats were allies of the Third Reich and when there was a Muslim SS unit operating in Bosnia. Memories of those massacres were fresh in the minds of Krajina Serbs, many of whom had lost family members to these massacres. This was especially pronounced in the Prijedor area where some of the worst crimes occurred, where many of the crimes against Serbs in World War II had happened, where thousands of Serbs were killed. And this area is just across the Croatian border from the infamous Jasenovac concentration camp, and the people in that area certainly were familiar with that camp and what happened there. The death of Tito and the disappearance of the enforcement of the Tito's concept of brotherhood and unity alone unleashed smouldering resentments leading to the commission of many crimes wholly independent of any strategic plan. The evidence in this case can't be appreciated without that sense of history.

Your Honours, I thank you.

JUDGE MERON: Thank you, Mr. Ackerman. I take it you have completed your argument.

MR. ACKERMAN: I have.

JUDGE MERON: Before turning to my colleagues and asking them whether they would have any questions for you, I would like to return to the question I asked you earlier.

MR. ACKERMAN: Yes.

JUDGE MERON: And I would be grateful for additional enlightenment, because I still have some problems with that JCE issue. ¹⁰² If I understood you correctly, you told me there could be no JCE conviction based on ground 2 of the Prosecution's appeal because of the Prosecution's agreement that physical perpetrators must be members of the JCE.

But as I understand the Prosecution, ground 1 of their appeal -- appeal relates to this issue, but ground 2 relates to a separate matter; namely, whether there must be direct agreement between the physical perpetrator and Mr. Brdjanin.

What I would like to know, whether the Prosecution had an understanding with you at trial; also about this element of agreement that this was necessary. If so, could you please, for the benefit of the Bench, cite chapter and verse. If you cannot find it today, you can give to us tomorrow.

MR. ACKERMAN: No. I think I can answer you rather briefly, Your Honour.

JUDGE MERON: Great. Please.

MR. ACKERMAN: The agreement at trial or at least the understanding at trial, and you know, Your Honour, this was based upon a question submitted to us by the Judge as to -- as to whether we believe that the relevant physical perpetrators in JCE had to be members of the JCE, and the Defence answered yes, and the Prosecution answered yes, and that was consistent with -- with what Judge Hunt and Judge Mumba and Judge Daqun had found pre-trial, in a motion pre-trial.

So my argument to you is that even if the Prosecution's argument under ground 2 has merit, it can't affect Brdjanin because the same ¹⁰³ requirement was imposed by the Trial Chamber; that is, that the relevant physical perpetrator of the JCE III also had to be a member of the JCE. And having agreed that that was the case, then it's my view that -- that ground 2, even though it may be relevant for academic purposes, cannot affect the conviction of Mr. Brdjanin, or the acquittal as it turns out to be.

JUDGE MERON: And you have no further comment about this problem of the agreement or direct agreement?

MR. ACKERMAN: I think that's as far as I can go with it today. I'll ponder it a little overnight. I might have something more to add, Your Honour. Probably not.

JUDGE MERON: Okay. If you want to return to it tomorrow, we will let you.

Sorry, Judge Guney. Judge Van Den Wyngaert.

JUDGE VAN DEN WYNGAERT: Mr. Ackerman, if I understand you correctly, your submission on the point of criminal liability by omission is that there should be a legal duty, and if I look at how you work it out, you seem to restrict it to the cases where there is a subordinate-inferior relationship.

My question then is: What then remains of responsibility for omission under Article 7(1) as compared to Article 7(3), because that's the typical situation of responsibility by omission for a superior. Would you reduce it then to almost nothing, aiding and abetting by omission, if I would follow your reasoning?

MR. ACKERMAN: It's my fault; I've been misunderstood. ¹⁰⁴ There are two, two places where a crime may be committed by omission: One where there is a superior-subordinate relationship; the other is where there is a duty, some kind of an affirmative duty to act. And my argument is that in this case there was no superior-subordinate relationship between Brdjanin and any of the relevant perpetrators, and the Trial Chamber found that to be the case.

The other prong, where it also could be imposed, is with regard to a duty, and the Trial Chamber also found that Brdjanin had no duty to act outside of -- of whether or not he was -- there was a superior-subordinate relationship. So there are two things there, two waves, and that's what the jurisprudence of this Tribunal establishes, I believe.

JUDGE MERON: I do not see -- I do not see additional questions from the Bench, so I thank you, Mr. Ackerman, for your argument.

MR. ACKERMAN: Thank you, Your Honour.

JUDGE MERON: And I would ask now Mr. Karnavas, the representative of the Defence association to make his -- present his argument in no more than 15 minutes, please.

MR. KARNAVAS: Good afternoon, Your Honours. I'll be brief. The Association of Defence Counsel -- sorry.

Good afternoon, Your Honours. The Association of Defence Counsel is grateful to have been asked to weigh in on this important issue, that is, under up the law a -- where there's a principle -- a physical perpetrator has to be a member of the JCE. We think it's an important issue, and we're happy to contribute to this discussion. First, however, let me point out what our official position is. ¹⁰⁵ It's a position, I believe, that most Defence counsel hold who come before this Tribunal, and that is that in spite of Tadic, we are of the opinion that JCE is not in the Statute explicitly or implicitly. But having said that, having said that, we are mindful that it is part of the jurisprudence, and we fully and unequivocally find it as binding precedent. So I want to make sure that our position is stated, but you also realise that we realise that it's binding precedent and, as such, we must follow it.

Now, the issue before us is -- is rather -- is rather narrow, and here we are, I think some ten years later after the first trial, and we're still trying to figure out the contours of JCE. And I don't think that there's any dispute that in order to incur liability for a crime pursuant to a JCE, an accused need merely have participated in the common plan, design, or purpose at the core of the JCE, and that he need not have performed any part of the actus reus or the perpetrated crime. So I think we -- that's the starting point. We all understand that. And that being said, what of the person who does perform the actus reus? Must he have participated in the common plan, design, or purpose? Using a word, the Association says yes.

Before addressing the -- how we arrive at this particular answer, it further bears recalling that the record reveals a position advocated by the -- by the ADC and Defence counsel John Ackerman was shared by the OTP during the pre-trial and trial stage of the case. Indeed, when examining the proceedings, the stark reality is that the Prosecution team at trial led by a senior trial attorney, Joanne Korner, who is a Queen's Counsel, ¹⁰⁶ came to this position, not as a result of some excited or spontaneous utterance, or, as they say, a slip between the cup and the lip, but after careful deliberation. As you well know, there was quite a bit of discussion, and Judge Hunt had quite a few questions to ask of the Prosecution team when they wanted to amend the indictment. So this was a deliberate process.

So it is our position that it was only after the OTP was unable to muster the evidence which it believed was sufficient to achieve its intended result after the findings by the Trial Chamber, that's when they decided to change their tune and say, Well, now we think differently. So what can we glean from the -- the existing jurisprudence? The Appeals Chamber in Ojdanic did not revisit the Tadic findings on the customary status of this form of liability holding that state practice in opinio juris reviewed by Tadic was sufficient to conclude that this norm existed under customary international law in 1992. Fair enough. In explaining the emergence or articulating JCE as a mode of liability, Judge Shahabuddeen, you have noted in your separate opinion in Gacumbitsi, and I think this is rather poignant. I've read it several times because I think it gives us the essence of where JCE has come about, has come from. You say that Tadic did not create JCE but, rather, the Appeals Chamber in Tadic merely put forward a judicial construct developed out of its analysis of scattered principles of law gathered together for the purpose of administering international criminal law. The expression "joint criminal enterprise" haven't been found in those principles. The Appeals Chamber did not propose any modifications of these principles, ¹⁰⁷ those principles, but simply identify "the elements of individual criminal responsibility for a crime collectively perpetrated." So I focus on this because I think this is our point of departure for our particular discussion, you know. So we need to keep this -- this -- these -- this observation which I believe is a very precise, concise, and astute observation in regards to how or what happened in Tadic.

There's no need to go through in any detail the litany of cases that are cited in Tadic. The Appeals Chamber has the respective briefs, so there's no need for me to go into them in any details and obviously you all know them. It might, however, be useful to make certain observations about these cases as they relate to this very narrow issue. Since the counters of JCE in Tadic were delineated based on certain post-World War II cases, the question that begs to be answered is whether these cases give decisive guidance as to whether the Tribunal's jurisprudence requires that the physical perpetrator be a participant in the JCE. I think that's the core issue that we -- we need to address. We, the Association, that is, is of the opinion that these cases do provide us guidance reflected in Tadic, though not explicitly specifying or setting out the element of the physical perpetrator but the element of the physical perpetrator must be a member of the JCE, Tadic recognises that membership of a physical perpetrator in the JCE as a requirement. Tadic explicitly requires, and we noted this in our brief, at least seven times that the physical perpetrator must be a member of the JCE. This was also noted by Judge Bonomy in his separate opinion which ¹⁰⁸ was referred to by the OTP, the separate opinion in -- in Ojdanic which challenged the incorrect co-perpetration, and that was of 22 March 2006. And this was what Judge Bonomy observed having done the analysis, and might I say that Judge Bonomy's separate opinion is exquisite in its approach, though we depart in some areas, but his analysis of the case law is superb.

"In its initial discussion," he notes, "of the elements of the third category in paragraph 204, in the summary of the elements of the first and third categories in paragraph 220, and in the rearticulation of the mental elements of the third category in paragraphs 228, the Appeal Chamber did recognise, at least as regards the first and third categories, a requirement that the physical perpetrator be a JCE member." Now, having said that, we are also mindful that Judge Bonomy also made an astute observation about Tadic, which perhaps is why we're here today, and this is what he notes: "Tadic did not take an unambiguous position on whether the person who does perform the actus reus must himself have participated in the common plan, design, or purpose." So you have Judge Bonomy looking at it as we have saying, yes, it was mentioned on numerous occasions that the physical perpetrator must be a member of the JCE, but then he notes -- and he cites some paragraphs where Tadic regrettably did not take an unambiguous position with respect to this particular issue that we are faced here today. That's his analysis, and I thought, in all fairness, I would present both sides. We maintain that the World War II cases or post-World War II cases which the Appeals Chamber replied upon in defining JCE as a mode of ¹⁰⁹ liability in Tadic appear to reflect that the physical perpetrator was a member of the common plan. We further maintain that when reviewing this body of case law, the Appeals Chamber in Tadic did not do so for the sole purpose, or for the purpose, I should say, of fashioning a mode of liability in order to -- to produce a desired result in Tadic. I think that's -- that's rather relevant.

Rather, in Tadic it did so in order to fulfil the Tribunal's mandate as spelled out in the Secretary-General's report to which the Secretary-General believes that all persons who participate in the planning or execution of serious violations of international humanitarian law in the former Yugoslavia are individually responsible for such violations.

Thus, it was by interpreting the Statute based on its object and purpose that it determined that the doctrine of common purpose was implicit in 7(1). And I want to stress again when the Appeals Chamber in Tadic didn't say, Well, we want to convict Tadic. We want to find him guilty somehow, so now let's look at the World War II cases and see whether we can come up with some mode of liability which may be implicit in -- in the Statute, but, rather, it looked at the case law, and based on the case law, which is why I quoted you, Judge Shahabuddeen, it was based on that that you arrived at the decision that JCE does indeed exist in customary international law and it's implicit in the Statute. So -- and I think that's rather important. Because as you noted, you look at all the various cases and you put them together in this -- and you came up with this -- this concept known as joint criminal enterprise ¹¹⁰ or common -- based on the common purpose theory.

The events of World War II were known to you at the time. The cases were known to you. You knew at the time when you reviewed -- the Appeals Chamber knew when they reviewed the cases that there were small, medium-sized and large types of enterprises that were ongoing in large areas for long periods of time that affected large numbers of victims. So it wasn't as if all of a sudden Brdjanin comes along and you say, My God, you know, there's -- we never anticipated that this was going to be a situation. This was all known when you looked at the case law, and of course the events of World War II have plenty of examples to tell us. While these cases obviously did not deal with all possible scenarios, they all share certain core elements which we submit served as the basis for the doctrine of JCE. Therefore, it would be misleading to suggest that the Appeals Chamber at the time of Tadic was not cognizant of these cases and was not cognizant of these events and certainly was not cognizant of what had happened in the former Yugoslavia in that there might be instances where you would have joint criminal enterprises in a vast area.

Therefore, I submit that the facts that the cases -- I submit that the fact that the cases that follow Tadic up until Brdjanin were dealing with relatively small or limited enterprises is of little importance when it comes to determining whether the physical perpetrator need be a member of the JCE. The doctrine does not shift on the basis of the facts of the case. It is what it is, nothing more, nothing else. What is at stake here is how far removed the physical perpetrator need be from a member of ¹¹¹ the JCE before his acts are not attributed to members of the JCE. Where are the limits? Are there any limits? Or, as one scholar noted, just convict all of them.

If we take the Prosecution's position, there are no limits. It's a moving target. We move as we go along, especially after we don't like the results. That's what our submission would be.

And I'm wrapping it up, Your Honours. The Trial Chamber's position in this case, which was also shared by the OTP during the trial up to the issuance of the judgement correctly reflects the parameters set by Tadic based on the case law it relied on in concluding that JCE, as a mode of liability, was recognised as customary international law. It provides for reasonable limitations and does not frustrate, does not frustrate the object and purpose of the Tribunal or its Statute. It also inhibits the imposition of liability on an accused where the link between him and those who physically perpetrated the crimes with which he is charged is to attenuated, and I think that's something that's rather important to all of us here. Moreover, it provides for certainty and uniformity.

In Limaj, the Trial Chamber took the same position as the Trial Chamber did in Brdjanin. While the Trial Chamber dismissed JCE as a possible form of responsibility due to the lack of evidence, it nonetheless looked at Kovocka and there it found that when the Appeals Chamber referred to crimes committed by one or more participants in the common design, in other members of the group it made it clear that the crimes committed by one or more participants in such an enterprise may ¹¹² give rise to liability of other participants.

But having said that, having said that, again, in fairness to the Prosecution, it would appear, if we look at Judge Bonomy's interpretation, he's not convinced, he's not convinced that Kovocka goes as far as the Limaj Trial Chamber had indicated. And so what we have here right now, we have two Chambers saying the physical perpetrator must be a member of the JCE. Two other Chambers, because Krajisnik is the other, that say that they need not be.

JUDGE MERON: I'm afraid, Mr. Karnavas, your time is up.

MR. KARNAVAS: I have one -- just if I could have 10 seconds.

JUDGE MERON: Sure.

MR. KARNAVAS: 10 seconds. In the final analysis, however, all four Chambers recognise and appreciate that before acts and conducts of the physical perpetrator can be attributed to the accused, a direct or close connection between the accused and physical perpetrator must be established, and I think that's something that I would urge you to consider when you weigh in on this particular issue.

And I appreciate the extra time provided to me. I'm afraid I was a little rushed and a little nervous, but I hope that I conveyed my thoughts as best as I could.

Thank you.

JUDGE MERON: I'm sure you did. Thank you, Mr. Karnavas. And I would like to consult my colleagues and the Prosecution about what will follow now. ¹¹³ Will the Prosecution want to reply to the statement of the -- of Mr. Karnavas? I'm not suggesting you do it now. I just want to know whether you will want to.

MS. BRADY: Yes, Your Honour. I can be quite brief. I was intending to deal with the matters I want to raise in reply to both, more or less together.

JUDGE MERON: What do you mean quite brief? I'm terribly sorry. I have to move from algebra to mathematics.

MS. BRADY: Your Honours, I do not think that the Prosecution would need more than 30 minutes in total in its reply. I think we were already at 45 minutes, but I believe that we could deal with the matters arising in 30 minutes.

JUDGE MERON: So you would join it to your reply tomorrow then?

MS. BRADY: Well, no, Your Honours. We're doing it today. We would prefer to do it today.

JUDGE MERON: Then I think in fairness the interpreters we will now have a break, and we will have a break of 20 minutes. So we will start at -- well, at about 20 to 6.00. I understand that we need 20 minutes as a minimum break, and I would abide by the rules. So we will now rise.

--- Recess taken at 5.22 p.m.

--- On resuming at 5.40 p.m.

JUDGE MERON: Please be seated. Ms. Brady, 30 minutes, and if you can do it in less that would not be regretted by the Bench. ¹¹⁴

MS. BRADY: I will do my best, Your Honour. Thank you. Both Mr. Ackerman and Mr. Karnavas have, to a large extent, repeated the arguments in their response briefs, and of course we've already given a rather detailed reply in our reply briefs to these, and I don't want to repeat what I said in -- what the Prosecution said in those reply briefs. Instead, what I'd like to do is focus on a few discrete points which have arisen and which we need to reply to. The first question I would like to address is the one that Your Honour Judge Meron asked Mr. Ackerman, and that was in relation to his submission that the Prosecution is somehow now estopped from bringing its ground 2 because somehow we had agreed ourselves out of this position at trial.

Now, we -- we agree that the Prosecution was asked at trial and had -- took the understanding and responded to a question from the Trial Chamber to the effect that the physical perpetrators of the crimes for which he is being held responsible, that they had to have entered into an agreement with the accused. Our answer to that in relation to the Trial Chamber's question, this was part of the closing brief, our answer was, yes, it's necessary to show that there was an agreement -- excuse me, an understanding or arrangement amounting to an agreement between two or more persons that they will commit a crime. However, in that answer we also said the circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. ¹¹⁵ And as an additional response, we said, yes, under the first category of JCE, it is necessary to show that the physical perpetrators and the accused shared the same criminal intent with respect to those particular crimes.

Now, we don't resile in any respect from that position. We're not taking a different position to that which we took at trial. Nowhere at trial did we say that this arrangement or this agreement had to be a direct one. We never said that at trial. We never said that it has to be a sort of like a formal contract, a one-to-one agreement. What we said is that there has to be agreement. And the thrust, the essence of the Prosecution's submissions on appeal are that this agreement is found once you prove common plan or purpose, and to prove that, it's that the physical perpetrators, and Brdjanin in this case, the JCE members, had the same criminal purpose and acted jointly to achieve it. That's how you find the agreement. So there's no doubling back or somehow changing our position.

We do say that for the purposes of the second ground that the physical perpetrators, yes, have to be members of the JCE, for the purposes of that ground. Of course, our ground 1 argues that they don't always have to be, but because we took the position at trial that we did, we're running ground 1 as -- purely as a legal error -- a matter of significance to the Tribunal but without impact for this accused. The second point I'd like to turn to is a theme which came out in both Mr. Ackerman's and Mr. Karnavas's submissions, basically to the effect that our position is not part of customary international law and ¹¹⁶ that we're extending it, and Tadic never said this, and we're going against Tadic, and we just want this because it's convenient, and we're trying to expand JCE and we're trying to push the boundaries. And I think at one point actually Mr. Karnavas says for us there are no limits on JCE. Well, that's just not true, and that's not the Prosecution's position. We're not trying to establish a whole now concept of JCE. Our position is that this is the concept of JCE as applied in Tadic, except that the facts of Tadic clearly confined the holding in Tadic to the facts of Tadic itself. They had no need in Tadic to go beyond the situation where the physical perpetrators were in the JCE. But that doesn't mean they're holding -- that the holding can only be restricted to those factual situations. And, indeed, the World War II cases in Tadic, yes, we agree the World War II cases, some of them did require physical perpetrators, they were actually members of the JCE. But not all the cases cited in Tadic had that. And I'll rest my submissions on our brief. I think we've covered that quite amply in the brief.

So Tadic doesn't provide this limit that, well, both Mr. Karnavas and Mr. Ackerman have indicated. And, in fact, looking at more recent jurisprudence of Stakic and Krstic and these cases, it's clear that they're not limited in this -- in this way that they say Tadic limits -- limits the law.

Both of them effectively say that our position on JCE paints JCE with too broad a brush and that there's no limits on JCE, according to us, and that it offends the principle that somebody should be responsible, the culpability principle. And they say that the limits that the Trial ¹¹⁷ Chamber put on were fair limits to prevent an overreaching, an abuse. Our position neither improperly broadens the scope of JCE. It doesn't take it beyond what is already established under customary international law, and it doesn't offend any notion, principle of culpability. Applied properly, and this can be said whether you're talking about application in large or small crimes, the JCE doctrine under customary international law will not overreach, applied properly, and in fact it does ensure that an accused is held responsible under JCE only for crimes for which he is truly culpable. This is because the elements of JCE itself provide the necessary safeguards against some sort of limitless, or as the Defence would have -- would paint our case, some kind of limitless expansion of criminal responsibility.

First, of course there's the intent requirement under JCE. That's one very important safety valve, check on JCE's application. For JCE I, all JCE members, including the accused, must have the necessary intent for the crimes intended by the JCE. This actually goes beyond the knowledge requirement which we saw in the World War II cases. It's higher. It's a higher standard. It's an aiming at intent.

For JCE III to apply, the accused must be able to foresee -- must be able to foresee and foresee that other crimes may occur in the execution of the common criminal purpose.

So that's one important check on JCE. That's a limit. Secondly, the contribution requirement is another limit. I think Mr. Ackerman, I might not be quoting him quite correctly, but he basically said, Well, as far as the Prosecution is concerned, all they have to prove ¹¹⁸ is that there's an existence of a JCE, that the accused joined, and, hey, presto, he's liable. This is not so. Again, all JCE members including the accused must contribute to the commission of crimes intended by the JCE.

And in terms of this contribution requirement, our submission is why should a difference arise from the fact that one of the accused's fellow JCE members made his contribution to the JCE directly, and yet another one does his act in contribution to the JCE indirectly through another? Why would there be a difference in culpability, so long as it can be said that in both cases it's the JCE members' act, then liability can be attributed to the other JCE members.

The third limit that is on JCE, the safety valve to prevent it from being this sort of all-expanding notion, which it's not, the third limit derives from the common criminal plan or element itself. And as I've explained, it requires -- this is in our second ground, it requires that the other members have the same criminal plan or purpose and act jointly to achieve it.

There's nothing unfair or overly expansive, nothing expansive at all about holding an accused liable when he acts together with others to achieve their common criminal goal, and this is so whether those people with whom he jointly acts to implement their shared criminal objective perform their acts directly or indirectly.

Putting it very simply, and I think to answer the example he gave about the mayor from Banja Luka, and just to make a comment on that that this is not a must-have-known type of case here. This is a case where -- ¹¹⁹ it can be -- the factual findings are that the physical perpetrators did know and did share and did have that same criminal plan. But to put our position very simply, where the physical perpetrators are members of the JCE, there's no dilution of the culpability principle, no expansion of criminal liability to hold an accused responsible for the acts of those with whom he jointly acts to implement their shared criminal objective.

And to answer Mr. Karnavas, where the physical perpetrators are not members of the JCE. Again, there's no expansion of the principle. There's no diminution of the culpability principle. There's no expansion of the JCE. Why shouldn't an accused be responsible for the acts of others when they do so as -- when the others act as tools of the individual with whom the accused has agreed to act together to carry out the common criminal objective?

I'd like to turn to reply to Mr. Ackerman's arguments which I clump under the heading where he emphasised -- put a lot of emphasis on the fact that the physical perpetrators weren't in his structure. He said a number of times that the ARK had no de facto authority over the relevant physical perpetrators. There was superior-subordinate relationship. Yes, that's all -- that's true. Those findings are the findings of the Trial Chamber, that they weren't in his direct de facto strict chain of command. But the finding of the Trial Chamber was that they were -- that he had -- the exact words were great influence, great influence over the army and paramilitary forces. It's in paragraphs 224 and 229 of the judgement. The effect of Mr. Ackerman's submission is that basically since ¹²⁰ those paramilitaries -- paramilitary and military forces were not under his authority, why can he be liable under 7(1) for JCE? In our submission, he is conflating or confusing two different modes of liability, 7(3) and 7(1), and in doing so he -- Mr. Ackerman's not recognising that these two modes criminalise different criminal conduct, and that's why they have different elements.

Now, under 7(3), as we know from the case law, a superior is liable for failing to prevent or punish subordinates committing crimes or for failing to punish them when they have done so, when he knew or had reason to know they had been committed. So it punishes for an omission to act where there's a duty to act. That's why in that situation the superior-subordinate relationship must be strictly proved. So if we were in the -- if we were dealing here with 7(3) liability, his submissions on that point would be fine. But when we're dealing here, as we are, for 7(1) liability, as we know, 7(1) liability doesn't require JCE members to be in any organised structure so long as it can be shown that they had a common criminal plan or purpose, that's the agreement between them, and acted jointly or together to implement it.

So, in other words, 7(3) is aiming at a different type of criminal responsibility. It punishes for the pursuance of a criminal objective which the accused had agreed to pursue and then does pursue with others. And sometimes a person's conduct, an accused's conduct can satisfy both modes. It could happen that you could -- in some cases it's a choice being made, but not always. And it doesn't mean just because there wasn't that sufficient superior-subordinate connection and that 7(3) therefore ¹²¹ wasn't applicable, it doesn't mean that 7(1) JCE is also not applicable. To the contrary in this case. Because his point that he made about the -- that he somehow couldn't impact the events, that Brdjanin couldn't impact things because he didn't have this superior-subordinate relationship, well, again, I remind Your Honours that the finding was that he had great influence over them, and it's clear he could have impacted events. He was -- he was the major implementer of the events themselves. That's how great his ability was to impact events.

There -- I also want to address briefly on a submission made by Mr. Ackerman to the effect that the trial -- he was concentrating on some findings in paragraph 351 of the judgement which he says means that JCE wasn't applicable on these facts.

In our submission, the Trial Chamber drew unreasonable inferences which led it not to find that JCE was applicable as a result of this legally erroneous approach that had taken to agreement, because it took this very narrow approach to agreement, this unduly erroneously narrow approach, it then allowed for these two very strained hypotheses, very strained factual inferences to be found. And in our submission, the findings, those findings, were unreasonable on the basis of applying common criminal plan or purpose when applied to the very findings of fact that the Trial Chamber had already made.

And I'd like to briefly run through the two hypotheses, the two inferences that the Trial Chamber did find which led it to take the view that there should not be JCE liability.

Firstly, the Trial Chamber allowed for the possibility that the ¹²² participants may have had the same criminal purpose but acted somehow independently of each other. Well, common criminal plan or purpose requires as a major -- as a feature of it not just that they adopt the same plan or purpose but they're acting jointly together. The Trial Chamber had already found throughout the judgement, especially in chapter 4 of the judgement, but right throughout, they found that Brdjanin and the physical perpetrators had the same criminal purpose, that is to deport or forcibly transfer the Bosnian Muslims and Croats from the region through force or fear, and acted jointly to implement it. So it had already made all the findings to the effect that they were acting together. They'd made the findings that there was an agreement. And in fact, the Trial Chamber in paragraph 119 found in fact that the impact of any so-called what they called marginal -- uncontrolled elements, excuse me, was marginal and that it was impossible to implement a systematic policy of this magnitude just by spontaneous actions or criminal actions by isolated groups.

So, in other words, the factual inference, that inference was simply not reasonable on the basis of the Trial Chamber's very own factual findings.

The second inference that the Trial Chamber allowed for, wrongly in our submission, was that the alleged JCE members may just have been responding to orders or instructions from their superiors, from their paramilitary and military superiors. I think this was the import of why Mr. Ackerman was pointing to all these paragraphs about the military aiming at certain conduct, but they thought, well, that could happen ¹²³ without the people being in agreement with the common criminal plan. Well, theoretically that might be true. That could happen in a case. It could happen that people didn't -- were simply acting to orders and not being in agreement. That's why we say our first ground is important, because it could happen in cases that that was the case. But not on these facts. Not here. Because, again, the proper application of common criminal purpose will address that concern as long as it's established that persons had the same criminal purpose and acted jointly as the Trial Chamber found, then acting under orders won't be inconsistent with acting to implement the common criminal plan.

Indeed, if somebody shared, had the -- adopted the criminal plan like this on such a vast scale, he or she would know that to achieve this would require such a degree of cooperation and implementation that the only way it could realistically be done was through the giving and execution of orders.

So, in a nutshell, in light of the Trial Chamber's findings that the physical perpetrators were in this agreement, they had the same purpose. They acted jointly, that's clear from the pattern, from the whole pattern of the crimes. Orders in this situation would not defeat JCE's application.

So, again, the Trial Chamber's finding, these factual findings that Mr. Ackerman emphasised, they're not reasonable. They weren't open on the basis of the Trial Chamber's very own factual findings. I'd finally like to turn to -- I'd finally like to turn to the question on impact that Mr. Ackerman addressed. He firstly made the ¹²⁴ submission that, well, did the JCE members commit crimes. Well, our answer is, well, yes. Yes, the JCE members committed crimes. The military and the paramilitary forces committed crimes, and they're JCE members. They're JCE members not because they walked up to Mr. Brdjanin and had a handshake but because they agreed with him in the sense that they were espousing the same plan, and they were acting together to achieve it, to implement it. And this is not based on the evidence. Our submissions are based on the findings of the facts as found by the Trial Chamber.

Most of or a lot of Mr. Ackerman's challenges were to the facts as found -- excuse me. A lot of Mr. Ackerman's challenges were essentially challenging the facts, the facts of -- in the judgement, the ones that were found by the Trial Chamber. But of course this is an appeal by the Prosecution, and it's based on the facts as found. So we need to proceed on the basis of those factual findings in the judgement. To the extent that he's raised arguments that they drew unreasonable factual findings, we've responded to this in our response brief, and tomorrow in our response to his appeal we will probably touch on some -- some of those issues to the extent that we haven't already done so in our response brief.

The gist of his -- the main point of his submission is that we haven't shown that there was this understanding or this agreement between JCE members to commit a crime. We haven't shown that they were members, that they didn't agree. Well, Your Honours, I think our submissions on this point, the filing of the 13th of November are very detailed, and ¹²⁵ we've put our full position there in the written submissions together with the revised -- the annexes which set out a full articulation of the crimes of the military and paramilitary, i.e., the JCE members, which they committed in the execution of their shared criminal objective. I won't go into detail now about those, but essentially the Trial Chamber's findings, their own findings themselves make it clear that Brdjanin and the physical perpetrators adopted the same plan to deport or forcibly transfer non-Serbs from the region.

He -- Mr. Ackerman kept stressing that but they didn't agree. They didn't agree. They didn't have an agreement. Well, agreement means that you share the common criminal plan and you act jointly together. What other conclusion can there be on the facts, on the facts found by the Trial Chamber but that they were in agreement? It's clear they acted together to further the implementation of the common criminal purpose. They were doing it jointly. There's no suggestion that they are independent groups.

So to that extent, yes, JCE members did commit crimes. They did commit the crimes. They shared, they adopted, they had the same criminal purpose, and they worked together to achieve it. Such a large and comprehensive plan could in fact only have been implemented through this coordinated cooperation of a large number of individuals and entities. I want to respond to just two quick points in relation to his submissions on impact. One was to the effect that he relies on paragraph 159 of the judgement to say that the finding is that the crimes were mostly committed with this -- mostly committed with a view to ¹²⁶ implement the strategic plan. And he reads that to mean, well, not in every case. And then he goes further and says, well, then you need to make specific factual findings. We've dealt with this in our written submissions.

In an operation such as this, there may be -- it could be that there are a negligible amount of people who for some reason or another are just running along with the group. They don't share the plan. Maybe their mind is not averted to the situation. And that's what the Trial Chamber had in mind. That's our submission, that that's what the Trial Chamber had in mind. And the reason why we say that is because all the other findings, all of its other findings throughout the judgement, they don't make disqualification. It's only in the paragraphs of I think 350, 351 and 159, we've cited them in our written submissions, where they make this, and that has to be read together with paragraph 119 where the finding of the Trial Chamber is actually that the effect of perhaps random isolated spontaneous groups was marginal.

We're talking about the majority of crimes, and the majority of crimes, they're the ones which are in our annexes. They're the ones that JCE members committed as part of the joint criminal enterprise. The final point I wish to address is this question about whether or not the physical perpetrators knew of Brdjanin or knew that Brdjanin's name, and he pointed to the fact that one of our witnesses, BT19, said he'd never heard of Brdjanin. We haven't -- I didn't get the precise transcript references, I'm not sure if Mr. Ackerman mentioned them, but I didn't -- I don't know the transcript, and we couldn't go to this ¹²⁷ immediately in the small time available to us, but that's not the point. The point is not whether they knew his name necessarily, although it's clear from the findings that the propaganda campaign was such. It was -- the findings are throughout the judgement that the propaganda campaign was a major way of implementing the strategic plan, and that the findings are clear that every -- everybody knew of what was going on. Now, the fact that maybe one person does not know the exact name, that's not really that important. What is important is that the only reasonable conclusion is that Brdjanin, he knew that the goal of the strategic plan could only be achieved with -- could not be achieved without the physical perpetrators, and he worked with them. The physical perpetrators, they were aware that they needed the leadership, the propaganda, and the support provided by the leadership. And who was in that leadership? Who was the number one in that leadership in terms of the highest? He was the president of the civilian authority. That was Mr. Brdjanin.

Your Honours, I've tried to be as quick as I could while covering all the points that we needed to cover. Mr. Ackerman also addressed on omission, where the duty lies for omission liability. I didn't deal with this in my rely today. My colleague Ms. Goy tomorrow will be addressing you on this question and setting out the Prosecution's position on it. Those concludes my submissions. Thank you very much.

JUDGE MERON: Thank you, Ms. Brady, for your argument. And now we will adjourn until 9.00 in the morning when we will come to the submissions by the Defence. So it will go back to ¹²⁸ Mr. Ackerman tomorrow morning at 9.00.

And I thank the parties, and I thank my colleagues, and have a good evening.

--- Whereupon the hearing adjourned at 6.14 p.m., to be reconvened on Friday, the 8th day

of December, 2006, at 9.00 a.m.