¹²⁹

Friday, 8 December 2006

[Appeal Proceedings]

[The appellant entered court]

(Open session)

--- Upon commencing at 9.01 a.m.

JUDGE MERON: Good morning, please be seated. We will now start our second day of proceedings in the case of Mr. Brdjanin, and the next item on our agenda is submissions by the Defence, and Mr. Ackerman will have an hour and 15 for that and knowing him he probably will not even need that.

MR. ACKERMAN: Good morning, Your Honour, Your Honours. Well, Judge Meron, I hope I don't disappoint that expectation on your part. I'll try not to but I do have a few things I want to say to you today.

I want to start, Judge Meron, with maybe giving a further answer to your question of yesterday and I hope it's not such a convoluted answer that it defies understanding. I'll try.

To understand that question, or to try to answer that question, I think it helps to know exactly what it was that the OTP agreed to at trial. The Chamber asked the OTP, " order to establish responsibility under the first category of JCE, is it necessary to show that the physical perpetrators of the crimes for which the accused is held responsible entered into agreement with the accused?" The OTP responded, "Yes," and then went on to say, "it's necessary to show that there was an understanding or arrangement amounting to an agreement between two or more ¹³⁰ persons that they will commit a crime." Clearly the answer to the question was yes. The question was submitted in writing and the OTP had time to consider it, several days, as I recall, and it would surprise me if the appellate section of the Prosecutor's Office was not consulted regarding the answer to that question. That's the normal course of events in that office that I know about.

However, that's not relevant, whether OTP considered it or not. Yesterday, I quoted to you from the decision of Trial Chamber II pre-trial where it was held that it's necessary for the Prosecution to prove 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. As the Prosecutor told you yesterday the case was tried upon the understanding that this was the law of the case. To come now to this stage of the process and argue that an agreement between the RPP and the accused is not really necessary and that Brdjanin should now be convicted under a JCE theory seems to be decidedly unfair. The case was tried under an allegation and understanding that he entered into agreements with perpetrators of underlying offences. It was that proposition that the Prosecutor undertook to prove and was required to prove by the law of the case. Examination and cross-examinations during the trial were conducted on that basis. To say now that that basis was wrong and that Brdjanin can therefore be convicted for JCE on a -- less than that amount of proof deprives Brdjanin of a right to present his Defence at a trial. It raised a notice problem. The right to notice of what he is charged with. Understand that the TC 2 order was entered in ¹³¹ the context of an attack on the indictment, so guidance was being given as to the notice required by the indictment which was ordered amended by the Trial Chamber. It was the law of the case. And whether it was the correct law or not is another matter entirely.

It seems to me that it's like amending the indictment at the appeals stage with no right to a trial so that if rejection of ground 2 of the Prosecutor's brief is not the appropriate remedy, then perhaps a new trial is and I know a new trial is a frightening prospect for this Chamber and in this Tribunal at this time.

I hope that has expanded my answer in some meaningful way, Your Honour.

I'm now going to talk about a little bit about some things that Ms. Brady said yesterday. At page 79, line 23, Ms. Brady told you in these words, that "Brdjanin was the major implementer of the criminal events in the Krajina." She also told you that in one of her statements in the brief they had gone a little over the top and that statement went way over the top. It took my breath away. How do a senior appeals attorney with the breadth of experience of Ms. Brady possibly say such a thing to this Chamber? I can only conclude she has not looked at the evidence in this case but only at the conclusions drawn by the Trial Chamber because there is no way that the evidence in this case can support such a broad and sweeping statement.

We all have to agree that the findings of the Trial Chamber are not evidence. It's what is behind those findings, the testimony and the exhibits, behind those findings, that is the evidence in this case. I ¹³² challenge Ms. Brady and I challenge this esteemed appellate Chamber to find in the underlying evidence in this case any evidence that would permit such a sweeping conclusion.

I want to be frank with Your Honours. This is -- you know I started practising law before you all were born, as was pointed out yesterday. This is the most difficult appeals case that I've ever handled and that problem is underscored yesterday as heard the Prosecutor refer over and over to the facts of the case based on the findings of the Trial Chamber. The Prosecutor was treating the findings of the Trial Chamber as if those were the facts of the case. Ordinarily that would not present a problem and would be a perfectly acceptable way to argue a case. However, in this case, it's of little or no value. In this case, as you know, the Appellant Brdjanin has raised probably an unprecedented number of issues relating to the factual findings of the Trial Chamber and has alleged that the evidence will not support those findings. These are not hollow allegations as you'll see. They are real.

So I urge this Chamber, do not accept any factual finding of the Trial Chamber in this case at face value. The evidence in this case, the facts in this case, come from the evidence, not from the Trial Chamber. At any time you're tempted to draw a conclusion based upon a Trial Chamber finding, look behind it for evidentiary support. It's likely there will be none or so little that there are a number of reasonable conclusions that could be drawn and only one of which is consistent with the guilt of the accused.

First I suggest that Your Honours will accept a very basic ¹³³ proposition, and that is that the Prosecution does not prove any part of a case by a showing that its allegations might have, must have, could have, or possibly were true. The requirement of proof beyond a reasonable doubt requires a much higher level of proof. It must exclude all reasonable inferences to the contrary. The might have, must have, could have problem seriously affects the judgement in this case.

I want to talk about three conclusions, just as an example and within the time allotted that the Trial Chamber made and I want to talk about them just because they are exemplary of the nature of there judgement. I've set out in the brief the concerns regarding factual deficiencies in the case and I won't even try to go through all of those or even many of them.

It's important to bear in mind that to the extent there was evidence supporting in any way a Trial Chamber finding, it's frequently a chain of circumstantial events which the Chamber finds leads to only one conclusion. So if one or more of the links in that chain of events is flawed or non-existent, then the chain may break and the holding may not stand. So if there are three chains, three links in the chain, to support a Trial Chamber conclusion but one of them is totally false, then maybe the circumstantial evidence does not rise to the level of proof beyond a reasonable doubt.

First the Chamber found that force and fear had to be involved in the realisation of the strategic plan, and if you do a search of the Trial Chamber judgement, you will find those words force and fear repeated over and over and over. They were key in many ways to the conclusions finally ¹³⁴ drawn by the Trial Chamber. In paragraph 67 of the judgement, the Chamber concluded this: During the first session of the Serbian Republic of Bosnia-Herzegovina Assembly held on 24 October 1991, Radovan Karadzic made it clear that the Bosnian Serbs were prepared to use force and fear to achieve their ends if they were otherwise unsuccessful. Now that's a compelling piece of evidence. In the footnote the Chamber says, Karadzic said this: War will start here only if someone attempts to force the Serbs to do something they do not want to do. That's the language from which that conclusion was drawn. But there is a problem. If you look at Exhibit P21, that the Chamber referred to, that quote does not appear. It's not there.

We can say, well, gosh, that was an unfortunate error. It happens all the time. These kinds of errors. They are unfortunate but they happen. And it doesn't affect the judgement. And I say to you, well, maybe if it was an isolated instance and not a decisive link in the chain, yes, an unfortunate error. However, it's only one of many. With regard to the authority of the ARK Crisis Staff, with regard to the army, the Chamber concluded that Brdjanin had influence over the army, as Ms. Brady told you yesterday. At paragraph 224 of the judgement, the Chamber was citing the interaction between the ARK Crisis Staff and the military as justification for this conclusion that Brdjanin had influence over the army. In footnote 606 the Chamber referred to a visit to Manjaca camp by Tadeuz Mazowietski, which was assisted by the ARK Crisis Staff and upon which he was accompanied by members of the ARK. The Chamber thus relies on three stated facts: One, Mazowietski visited Manjaca; two, the ARK ¹³⁵ Crisis Staff assisted in organising the visit; and three, he was accompanied by members of the ARK. The Chamber refers to Exhibit P1777. Unfortunately, if you look at Exhibit P1777 it makes it clear: One, Mazowietski did not visit Manjaca; two, the ARK Crisis Staff did not assist in organising the visit, since there had never been a visit and since the ARK Crisis Staff had been out of existence for nearly a month; and, three, he was accompanied by members of ARK. Thus every conclusion drawn by the Chamber from this exhibit is wrong. Completely, totally wrong. And the Chamber should have or must have known it was wrong because there was an exchange about that issue between the witness Brown, Ewan Brown, expert from the Prosecution, and Judge Agius during the trial. And you can read that exchange at page 21553 through 21558 of the transcript where Judge Agius is expressing his concern that Ewan Brown wrote this in his report that Mazowietski had visited Manjaca when the exhibit clearly showed that he hadn't. So Judge Agius knew, right there in open court, that that exhibit did not support that statement, and yet it winds up in the judgement of the Trial Chamber for reasons that I don't think any of us will ever understand.

In its reply to the appellant's brief where this was raised the Prosecution agreed that Mazowietski did not visit Manjaca but then said at paragraph 224 that the TC judgement did not claim or imply that he went to Manjaca. And I guess if all you look at is the language above the foot notes, that would be true. But in footnote 606, clearly the claim is made that he hadn't.

The result then was reliance by the Trial Chamber for their ¹³⁶ conclusion on, again, on non-existent evidence and you can say well that was just an error, it happens all the time but doesn't affect the judgement, and maybe so, if it was isolated and not a decisive link in the chain.

The third one I want to talk about is one that has almost become a cause celebre regarding this appeal and it's come to your attention more than once, Your Honour. In paragraph 200 of the judgement the Trial Chamber concluded that the ARK Crisis Staff exercised de facto authority over the municipalities and coordinated their work. The Chamber then went on to say this, and this is where the link is really important: "Although no single document from the SDS, SE RBiH leadership or the SE RBiH authorities addressed the normative relationship between the ARK Crisis Staff and the municipal authority," so they are saying there is no such document, "one document issued by the SDS Main Board's Executive Committee specifically refers to the role of the ARK Crisis Staff as set out above." And in this instance, the Chamber's referring to Exhibit P116 and I'd like to have it put on the ELMO so you can look at it.

And right at the bottom -- at the top you'll see it comes from the Executive Board of the SDS dated 24 February 1992. Now, this is almost three months before the -- two months before the Crisis Staff -- three months before the Crisis Staff existed. It appoints Mr. Radoslav Vukic as a coordinator for the SAO Serbian Autonomous District Krajina and says that he is to take part in the work of the SAO Krajina Crisis Staff. Now, understand this is over two months before there was an ARK Crisis Staff. Paragraph 10 of the indictment says the ARK Crisis Staff was ¹³⁷ formed on 5 May 1992 and if you look now at Exhibit 227 -- I'm sorry, Mr. Usher I guess you're going to have to go back and get another exhibit -- Exhibit 227, you will see that the ARK Crisis Staff was created by a decision on the 5th of May of 1992 where Mr. Brdjanin was appointed its president. In paragraph 6.26 of its response brief, the Prosecution tells you that the Brdjanin contentions that this document does not refer to the ARK Crisis Staff but to a Crisis Staff in Croatia are incorrect and misleading. And I tell you that's simply not so. For the Trial Chamber to conclude that this document that we looked at about the Vukic appointment referred to the ARK Crisis Staff and for the OTP to tell you Brdjanin's contentions are incorrect and misleading, the OTP had to ignore the Trial Chamber had to ignore and Your Honours, you will have to ignore, the testimony of Prosecution witness Islamcevic who said SAO Krajina is in Croatia. The testimony of another Prosecution witness, whose name I can't say, it's in confidential annex A 2 of my response to the Prosecution's reply -- reply to the Prosecution's response, who said SAO Krajina is in Croatia; the testimony of Prosecution Witness Mevludin Sejmenovic, who said SAO Krajina is in Croatia; the testimony of Prosecution Witness Osman Selak, a Muslim general, former JNA, who said SAO Krajina was in Croatia; the testimony of Prosecution Witness Jasmin Osobasic, who said SAO Krajina is in Croatia; the testimony of Prosecution Witness Rusmir Mujanic, who said the same; the testimony of Prosecution Witness Jovica Radojko, who said the same; the testimony of in-house Prosecution expert Ewan Brown, who said the same; Prosecution exhibit 1826, which says the same; and P 92 and 2382.12, Exhibit P21, page 03015402, Exhibit P13, and Exhibit P2417. ¹³⁸ In other words, overwhelming evidence that SAO Krajina has nothing to do with the ARK Crisis Staff, that it's in Croatia.

It was that part of Croatia that was taken over early in the war by Serb forces, and declared a region, a Serb Autonomous Region of Croatia. It's the Krajina area of Croatia just across the border from the Krajina area of Bosnia, and the Serb leadership in Bosnia was very interested in that area because the idea was to incorporate it into the proposed Republika Srpska and make it part of all Serbs in one state kind of idea.

In the brief we spoke of a need for a Chamber to -- I'm finished with those, Mr. Usher, thank you. We spoke of the need for a Chamber to write a reasoned opinion. A reasoned opinion would explain, if possible, why all this testimony and all these exhibits regarding this SAO Krajina were ignored and found not to be credible but there is no such reasoned opinion. It was simply ignored.

These three examples are simply the tip of the iceberg of a very seriously flawed judgement. In the appellant's brief and appellant's reply to the Prosecution response, the appellant sets out many of the conclusions reached by the Trial Chamber which are similarly without support. Those conclusions taken as a whole affect this judgement and demand that it be set aside in its entirety and that Mr. Brdjanin be released.

I'd like to go now to some questions from the scheduling order. Your Honour mentioned yesterday that I had dismissed my motion regarding the corrigendum to the judgement so I won't deal with that, and ¹³⁹ Your Honour you also mentioned yesterday that you had received a copy of an e-mail that I had sent to the Prosecution regarding the table of errors that I had enhanced a bit, and unless you think it's important for me to read that into the record I will skip that and go on.

JUDGE MERON: We have it.

MR. ACKERMAN: Okay, so you're satisfied that that does not need to be talked about or read into the record. That will take me then to the question regarding some evidence relating to a group called the SOS. The Chamber refers to paragraph 48 of the appellant's reply brief where it's referred that there was significant evidence that the SOS did not exist at any time the ARK Crisis Staff was in existence. Now, first of all you've seen the document and you're now familiar with paragraph 10 of the indictment, which indicates the ARK Crisis Staff came into existence on 5 May 1992. It lasted until 17 July 1992, and the Trial Chamber made that finding in paragraph 321 of its judgement where it said that the end of the Crisis Staff was 17 July 1992. And you won't find in any of the evidence any activity by the Crisis Staff after that date, no decisions, no activity, nothing of any kind.

In paragraph 114 of the judgement, the Trial Chamber found that the SOS arrived in Banja Luka on 3 April 1992, set up barricades and made certain demands. There is some confusion with regard to what happened then. The SDS -- the SOS demanded that a Crisis Staff be created in Banja Luka to deal with their demands, and that happened. A local Banja Luka Crisis Staff was created headed by the then-mayor of Banja Luka, Predrag Radic. That Crisis Staff was a very short duration. It existed long ¹⁴⁰ enough to deal with the demands of SOS. Those demands were largely met, although not to the extent contended but after these demands were met, there is very little indication in the record of this case of any further activity on the part of the SOS. There is a report from the 1st Krajina Corps in late July, that's after the ARK Crisis Staff ceased to exist involving an SOS threat to the chief of the security service centre in Banja Luka that they would attack the city prison and free a number of its members who had been arrested and imprisoned for crimes they had committed. That's Exhibit P395. It tells you more than one thing. It tells you that there were efforts made by the authorities to crack down on the SOS and that a lot of their members had been arrested and charged with crimes and convicted and imprisoned.

One exhibit speaks of what happened to the SOS. It's not all that helpful but somewhat helpful. The 1st Krajina Corps reported that the SOS was brought to an end in P2514, and that probably was part of the campaign of the military to bring any paramilitary group either into the military or to dissolve and disarm them. There is no evidence that the SOS engaged in any activity that formed a part of the crime base in this indictment. It's not mentioned by name in the indictment in this case. Another confusion: There was another unit over in Sanski Most that operated in that municipality that called itself at times the SOS and at times the Intervention Platoon. But it was not the same group as the SOS that figures into this case and that invaded Banja Luka on 3 April 1992.

If the Banja Luka SOS unit was in existence during the tenure of ¹⁴¹ the ARK Crisis Staff, there is no evidence that it did anything during that time.

When in paragraph 227 the Trial Chamber concludes that the ARK Crisis Staff used the SOS as an operational tool, that contributed to the implementation of the strategic plan, the indication is that that reference was to the demands of the SOS that were made in early April of 1992 before there was any ARK Crisis Staff. For this conclusion that the ARK Crisis Staff used the SOS to implement its demands, the Chamber cites an exhibit, P154, which is a newspaper article from the Glas newspaper in Banja Luka where on 21 April 1992, several days before the creation of the ARK Crisis Staff, Brdjanin is quoted as saying, "If individual people in the Banja Luka companies who have been asked to withdraw do not do so in a period of three days, then members of the SOS will come on to the scene." Now this is 21 April 1992. That's 15 days, I think, before the creation of the ARK Crisis Staff. So this certainly doesn't show that the ARK Crisis Staff was using the SOS as an operational tool. More importantly it indicates just by its language that SOS was no longer on the scene and would only return if its demands regarding these companies were not implemented. And as you know, and as has been set out very clearly in the judgement, in the evidence, and briefs, I think, those demands were implemented. So there was no reason for the SOS to return. You've asked me, Your Honours, to talk about the relationship between the Prijedor Crisis Staff and the ARK Crisis Staff and that's a very, very important question because to a great extent a lot of this case turns on that relationship and what it was and what its nature was. I ¹⁴² want you to look -- the analysis that I want to give you, I want you to look, to start with, with Exhibit P229 which I'll ask to be put on the ELMO. And I start basically where the Trial Chamber started in many ways. I need to explain to you what this document P229 is. This is a -- some conclusions adopted at a meeting that was held on the 7th of June 1992. This is about a month after the ARK Crisis Staff was created. And it was a subregional meeting of municipalities that were part of the Autonomous Region of Krajina, and it says -- you can see in the first paragraph, those municipalities were Bihac, Bosanski Petrovac, Srpska Krupa, Sanski Most, notably Prijedor, Bosanski Novi, and Kljuc. This -- these conclusions were sent to the Crisis Staff of the autonomous region in Banja Luka, the leadership of the Republic of Bosnia-Herzegovina in Sarajevo, and the 1st Krajina Corps. In paragraph 4, you'll see this language: "We demand that the 1st Krajina Corps in Banja Luka and particularly General Momir Talic of the 1st Krajina Corps purge the 1st Krajina Corps of Muslims and Croats."

Paragraph 5: "We absolutely demand that within the next three days the leadership of the Autonomous Region of Krajina," that's Mr. Brdjanin, who was president of the Crisis Staff at that point, or theoretically that's who it was, "clearly define the borders of the Autonomous Region of Krajina."

Paragraph 6: "All seven municipalities in our subregion agree that Muslims and Croats should move out of our municipalities until a level is reached where Serbian authority can be maintained and implemented on its own territory in each of these municipalities. In this respect we ¹⁴³ request that the Crisis Staff of the Autonomous Region of Krajina provide a corridor for the resettlement of Muslims and Croats to Central Bosnia and Alija's independent state of Bosnia-Herzegovina because they voted for it. If the leadership of the Autonomous Region of Krajina in Banja Luka fails to solve this issue, our seven municipalities will take all Muslims and Croats under military escorts from our municipalities to the centre of Banja Luka." And then finally in paragraph 7 they demand that Dr. Nikola Erceg "form a government of the Autonomous Region of Krajina which will take care of the economy and economic resources and potential of municipalities."

So this, on 7th June, is saying the ARK Crisis Staff is not doing the job we want it to do. It's not getting the Muslims and Croats out of here, it's not doing what we want it to do. We demand that it do that or we will take further action. And it says that Dr. Nikola Erceg should take over from Mr. Brdjanin.

Now, what happened next, then? A week later, look at P247. Apparently nothing had happened in response to that threat so they met again. This is on the 14th of June 1992. They met at Korcanica. The people present were representatives from Srpska Krupa, Bosanski Petrovac, Bosanski Novi, Bosanska Dubica, notably which side? Prijedor and Sanski Most. If you look at the bottom under 3 A of the first page: "We think that the work of the Crisis Staff of the Autonomous Region of Krajina under wartime circumstances should be much more serious and that its politicians and experts should pay more attention to the problems in all constituent municipalities of the Autonomous Region of Krajina." If we go ¹⁴⁴ to the second page, paragraph B: "Accordingly, we propose that Vujo Kupresanin be appointed president of the Crisis Staff of the Autonomous Region of Krajina given the position he currently occupies as president of the assembly." They then talk about other things that should be done with regard to the Crisis Staff. You go down to E, they say, "We think that the work of the Crisis Staff has been unsatisfactory and that it's been serving the local interests of Banja Luka. We are of the opinion that the Crisis Staff should be composed of the Municipal Assemblies and representative of the Serbian Democratic Party from all the constituent municipalities of the Autonomous Region of Krajina." So they are not happy, and you know what they are trying to do. They are trying to move all the Muslims and Croats out of the Autonomous Region of Krajina and they don't like the way the Crisis Staff of the autonomous region is pursuing what they think is the right thing to do. So if you look at that paragraph B at the top and then go down to underneath the line, under paragraph F, the second paragraph under F, "Accordingly, personnel changes should be made in the Crisis Staff of the Autonomous Region of Krajina and with a view to urgently breaking, to urgently breaking with individuals who have decided to obstruct the work of the Serbian Democratic Party in the Autonomous Region of Krajina and to question the lofty goals which have galvanised the Serbian people."

Now, I suggest to you what they are saying there is Mr. Brdjanin had decided to obstruct the work of the SDS and had decided to question the lofty goals which had galvanised the Serbian people. Those lofty goals being this strategic plan that you see talked about over and over. ¹⁴⁵ What other evidence is there of a break? You've now seen these two documents. You've listened to me talk about them. The Trial Chamber interpreted these documents, Your Honours, and this just should baffle any reasonably intelligent human being, the Trial Chamber interpreted these two documents as expressing a willingness by the municipalities involved to implement the decisions of the ARK Crisis Staff. Now, how you could get that conclusion from the language of those two documents is just baffling.

All right. So now we have got the June 7th complaint, the June 14th follow-up, and then the next thing that happens is nine days later, on the 23rd of June, P1261. Apparently those two pronouncements by this subregional group were ignored by Mr. Brdjanin and the ARK Crisis Staff so finally the Prijedor Crisis Staff decides it will take unilateral action, and so on the 23rd of June, the Prijedor Crisis Staff says, "the Crisis Staff of Prijedor municipality does not accept and considers invalid all decisions by the Crisis Staff of the Autonomous Region of Krajina adopted before 22 June 1992." Now, Your Honours should know that anything regarding disarmament coming out of the ARK Crisis Staff happened before 22 June 1992, so this rejection included all of those vaunted disarmament decisions. The break is now complete.

The June 22 conclusion --

JUDGE MERON: Mr. Ackerman, they have not implemented de facto the decisions by the Crisis Staff?

MR. ACKERMAN: No, Your Honour. And I'll talk about that more as we go on. And I want to talk to you about the conclusions drawn by Gerald ¹⁴⁶ Treanor who works for the OTP and was an expert in the case and will I think answer your question and if you give me time to get there I'll do it or if you would like me to do it now I will. Okay. Thank you. This 22 June conclusion says that they would start implementing enactments of the ARK Crisis Staff after the 22nd of June. So that's like there must have been some kind of a settlement reached between them which lasted for exactly three days. On the 25th of June, the Prijedor Crisis Staff again announced that it would not implement enactments of ARK until ARK did some certain things. It's important to understand that the ARK assembly had ceased to function and that's why there was a Crisis Staff. The purpose of the Crisis Staff was to substitute for the assembly in time of crisis so this complaint was a complaint to the ARK Crisis Staff again and again they announced that they would not implement their own enactments and there were no decisions of the ARK Crisis Staff between the 22nd and the 25th of June.

The Trial Chamber, regarding its views that Prijedor municipality was responding to decisions of the ARK Crisis Staff relies on Exhibit P2351, and this is part of the report of Gerald Treanor and relies on two paragraphs of that report. Relies on paragraph 59 and in paragraph 59 witness Treanor refers in the first part of that to what he calls the 26 April instructions, and since we are there, I'd like you to very quickly take a look at P157 and explain to you what that is and how it figures into -- I didn't give that to you, did I? Well, unfortunately, Your Honour, I don't have an extra copy to put on the ELMO, I don't think. P157 is a document dated 26 April 1992, and it was issued by the ¹⁴⁷ president of the government of the Serbian Republic of Bosnia and Herzegovina and it's called, Excerpt from the Instructions for the Functioning of Crisis Staffs of the Serbian People in Municipalities. Now, this is before the ARK Crisis Staff exists, and it has to do with the functioning of municipal Crisis Staffs. What I think is important about this document is paragraph 4, which points out: "Command of the Territorial Defence and the police force falls within the exclusive domain of professionals and it's therefore necessary to prevents any kind of interference into the matters of Territorial Defence or the deployment of police forces."

In other words, Crisis Staffs have nothing to do with those organisations.

Now, if we go back to Mr. Treanor's paragraphs 59 and 62, the only thing in paragraph 59 that talks about the ARK Crisis Staff is the very last paragraph which says, "The ARK Crisis Staff also explicitly claimed that municipal Crisis Staffs were now the highest organs of authority in the municipalities." Now, all that is, is the ARK Crisis Staff saying municipal Crisis Staffs are the highest organs of authority in the municipality. It has nothing to do with the relationship between the ARK Crisis Staff and the Prijedor Crisis Staff. If you look at paragraph 62, it again provides no support for the Trial Chamber's conclusion. It says, "Aside from their roles as emergency legislative but also executive bodies, Crisis Staffs also served as coordinating bodies for the activities of police, military and civilian governmental organs in the municipality as well as for coordination and communication with regional ¹⁴⁸ and republic level bodies. According to both the 19 December instructions and 26 April instructions, the composition of the Crisis Staffs was to be such as to allow for this coordination and communication while the 26 April instructions mandated that it actually take place. Evidence of the actual communication with the ARK Crisis Staff and implementation of its directives will be discussed in subsequent sections of this report." So this says nothing to support a relationship between the ARK Crisis Staff and the Prijedor Crisis Staff that was the conclusion of the Trial Chamber.

This is yet another example of the Trial Chamber's citing as evidence authority that's totally unrelated to the conclusion that it was set out to support.

Any finding of the Trial Chamber which imputed liability to Brdjanin based upon some concept that the ARK Crisis Staff controlled the functioning of the Prijedor municipality is simply inconsistent with these documents. The analysis by the Trial Chamber is fatally flawed. It is one that no reasonable Trial Chamber could have reached. I want to talk -- and Your Honour, I really will come to more about the Treanor report. I want to talk about aiding and abetting very briefly. Brdjanin was convicted of aiding and abetting persecutions and torture in counts 3 and 6; aiding and abetting deportation and inhumane acts, counts 8 and 9; aiding and abetting wilful killing in count 5; aiding and abetting torture in counts 7; aiding and abetting wanton destruction of cities, towns or villages in count 11; and aiding and abetting destruction or wilful damage to institutions dedicated to ¹⁴⁹ religion. Assigned error number 153 contends that the Trial Chamber erred by misapplying the law of aiding and abetting, which requires proof beyond a reasonable doubt that the actions of the accused had a substantial effect on the commission of the offence.

Beginning in paragraph 271, the Chamber accurately states the law of aiding and abetting in this Tribunal but then failed to apply it properly to the facts of the case.

Just in passing, one thing that I find somewhat curious and that is a proposition that has been taken by this Chamber and that was underscored over and over -- I shouldn't say over and over; at least once or twice by the Prosecution yesterday. And that is somehow aiding and abetting is seen as a lesser offence than participation in a joint criminal enterprise, which in circumstances -- there are circumstances in which I find that somewhat baffling because to convict someone of an aiding and abetting you have to prove that they had a substantial effect on the crime that was being committed but to prove someone guilty of a joint criminal enterprise, you don't have to prove that they had a substantial effect. So someone could have been heavily involved in the commission of a series of murders to the point where they had a substantial effect on those murders and be convicted of aiding and abetting, which you would say is a lesser crime to someone who was just nominally involved but a member of the JCE, and that tends to not make sense to me.

The other thing that I think flies in the face of that whole concept is this Tribunal is able to basically sentence an individual for ¹⁵⁰ what they believe is the impact of their activity, and whether that is under a rubric of aiding and abetting or under a rubric of JCE seems to me to make very little difference. So that the impact of the behaviour, the actions, of an accused here can be dealt with at sentencing regardless of which of those offences he might have been found guilty of. The law of aiding and abetting and its application was just very, very recently visited by this Appeals Chamber in the Simic appeals case. And this Chamber is well aware, I believe of the factual background of the Simic case and what it was that caused it to arrive at its conclusions there. I suggest the important parts of that decision with regard to this case can be found in paragraphs 103 and 130. In paragraph 130, specifically, it was said -- this is what was said. "Much the Appeals Chamber emphasises that the Trial Chamber's findings do not allow for a clear inference as to how the appellant's conduct was construed by the principal perpetrators committing the beatings or as to what effect his conduct may have had on their acts." "As to how the appellant's conduct was construed by the principal perpetrators," which seems to say that his conduct must be known to the principal perpetrators. They couldn't construe his conduct if they didn't know what his conduct was and the problem in this case is there was never any showing that any perpetrator ever knew anything about Mr. Brdjanin or what he was doing or anything about him. No showing that they had ever heard of him even. None. Not one perpetrator came into this courtroom and said, "Yeah, I know Mr. Brdjanin. I heard about him all through the war. He was a big leader. I followed his lead." Nothing like that. It's not in the ¹⁵¹ evidence in this case. It's not there.

Chamber also said in 130, the Appeals Chamber further notes in this regard that, "it was not established that the appellant ever visited any of the detention centres and recalls 245 it was accepted that the principal perpetrators of beatings, members of paramilitary forces from Serbia, local policemen, and a few members of the JNA, were not under his authority."

Of course you know that the Trial Chamber's finding in this case was that the relevant physical perpetrators were not under his authority. It goes on, "for the same reasons the Appeals Chamber considers that the Trial Chamber's findings would not allow a reasonable trier of fact to reach any conclusion beyond a reasonable doubt concerning the effect of the appellant's conduct upon the different acts of torture perpetrated in the detention facilities in Bosanski Samac." I suggest to you that the same conclusion must follow here. In paragraph 473, the Trial Chamber said it was satisfied beyond a reasonable doubt that the only reasonable inference that may be drawn is that when the ARK Crisis Staff decisions on disarmament were issued the accused was aware that the Bosnian Serb forces were to attack non-Serb towns, villages, and neighbourhoods, and that through the ARK Crisis Staff decisions on disarmament he rendered practical assistance and substantial contribution to the Bosnian Serb forces carrying out these attacks.

To paraphrase the Simic finding, the Trial Chamber's findings do not allow for a clear inference as to how the appellant's conduct was construed by the principal perpetrators committing these killings or as to ¹⁵² what effect his conduct may have had on their acts.

To further paraphrase the Trial Chamber's findings would not allow a reasonable trier of fact to reach any conclusion beyond a reasonable doubt concerning the effect of the appellant's actions upon the killings. No finding explained how it is that the killings were pursuant to the disarmament decisions of the ARK Crisis Staff rather than those previous to the existence of the ARK Crisis Staff which we talked about yesterday. The disarmament decisions of early May by Sajic, which was sent out by the CSB. No finding explained how it was that the accused was aware that the disarmament decisions would cause an attack on non-Serb.

THE INTERPRETER: Kindly slow down for the interpreters, thank you.

MR. ACKERMAN: Thank you. The conflict with paragraph 549 is unexplainable and fatal to the judgement. You remember we talked about 549 yesterday. It cannot be that military operations undertaken with displacement of the population as their aim but at the same time with disarmament as their aim. It just cannot be reconciled. And they found in paragraph 549 that the aim of these military attacks was displacement of population. So there is no connection made by the Trial Chamber or made by the evidence between disarmament decisions of any kind and these attacks but more specifically the disarmament decisions of the ARK Crisis Staff. And it's important, Your Honours, to look at those decisions. They don't say, go out and attack villages and take guns away from non-Serbs. They talk about enforcing the law, return weapons, weapons had been issued under ¹⁵³ Territorial Defence to people who were members of the Territorial Defence. They were asking for those weapons to be returned. They weren't asking for people to turn in private weapons. They were asking for people to turn in illegally held weapons. They were asking for illegally held weapons to be confiscated. The illegally held weapons would have, for instance, be those that were in the hands of paramilitary groups that were operating in the area. So each one of those decisions, if you look at it, calls for enforcement of the law. And the Prosecution contends that that was just a smoke screen to cover an effort to disarm the non-Serb population.

Now, there is a baffling question here. If it was a smoke screen and that was its sole purpose, to justify attacking villages, then you must ask yourselves why it was there came a time when the ARK Crisis Staff extended the deadline for the return of illegal weapons, after 11th of May. Now, why on earth would they extend the deadline if the whole thing was just a pretext and if it wasn't a serious effort to gather up illegally held weapons and try to reduce to some extent the threats to the lives of people that were going on in area at the time, especially from these paramilitary groups.

With regard to torture, the Chamber made two findings. The torture outside the camps flowed from disarmament decisions and that within the camps flowed from the omission by Brdjanin, his laissez faire attitude regarding those. With regard to forcible transfer and deportations, the findings involved disarmament, his public statements and the setting up of the agency. And the same argument I just made apply to ¹⁵⁴ those. The same or similar problems pervade all of the findings of aiding and abetting. Never is there an evidentiary basis for a finding that his contribution to the crimes, if any, if any, was substantial. You'll be hard pressed to find any contribution by Mr. Brdjanin to these offences, let alone a substantial one.

I want to talk for a moment about the statements of Mr. Brdjanin. A great deal is made both in the judgement and in the Prosecution's filings regarding various statements allegedly plead by Brdjanin. One of these that the Prosecution puts great store in to show that Brdjanin was aware that people were mistreated in camps and detention facilities is when he supposedly said, "If Hitler, Stalin, and Churchill could have working camps, so can we." Now there is no evidence of the context in which this statement was made so we don't know the context. However, one must, simply looking at it, wonder what were the camps of Churchill that he could have had in mind where prisoners were being mistreated. It seems to me the more reasonable conclusion from this statement, considering that Churchill was mentioned, that he was referring to the World War II POW camps where the Geneva Conventions were mostly respected, both in Germany and of course in Great Britain. I don't know of any notorious death and torture camps run by Churchill and the British.

The Chamber found that Brdjanin's public statements provided substantial assistance to those committing crimes in the camps. However, there was no evidence in the case that those committing crimes in the camps were aware of Brdjanin or aware of his public statements. There was no evidence that they read newspapers, listened to the radio or watched TV ¹⁵⁵ or could, and more importantly no evidence that they heard any of the public statements of Brdjanin. It seems to me at a minimum there must be some showing that those statements were heard by the people who, it is argued, were reacting to them the way it says they were reacting to them. You can't just say, I said A and therefore somebody miles away acted on what I said. I try very hard, Your Honours to read the International Herald Tribune every morning but I can't read it all. I miss large parts of it because I'm so busy and you all are the same, I know. You can't possibly read it all. I don't think you can. And for somebody to say that because something appeared in the International Herald Tribune on November 7th 2006 that you knew about it and acted upon it is pure folly. It would require a showing that you did read it that day and that you did see what that story said. You can't just assume that. You can't presume guilt. And that's what this does. This presumes guilt. I spoke yesterday about the testimony of Witness BT19 and the Prosecution responded to that. I can't identify this witness to you publicly but I really urge you to look at that evidence. This was a very significant witness, a gentleman of very high credibility. The testimony I spoke of yesterday can be found at page 20765 to 20766 of the transcript, and it's crucial to an understanding of this business of the statements of Brdjanin and propaganda.

It's been suggested that people were leaving Banja Luka because of the public statements of Mr. Brdjanin. Some witnesses even said that. If you look at paragraphs 85 and 86 of the response to the Prosecution's brief on appeal, there is discussion about that and I'm not going to go ¹⁵⁶ into any detail repeating it but the evidence in the case was that the vast majority of people did not leave Banja Luka until much later, way after the ARK Crisis Staff had ceased to exist. And Predrag Radic, the mayor of Banja Luka, spoke about that, spoke about when people left, and then there is a document, it's document DB 379, which is an analysis of people going in and out of Banja Luka during the time, and actually, almost as many people, non-Serb people, came to Banja Luka during the time of the Crisis Staff as left Banja Luka, because it was a -- it was a place of refuge, it was a -- an island of peace, and the famous journalist Roy Gutman of New York Newsday called Banja Luka a place that was free of the terror that was going on in other places in the Krajina. And if Mr. Brdjanin had any power at all, it would have been in Banja Luka, where he was president of the ARK Crisis Staff. The ARK Crisis Staff authority over municipalities, and Your Honour, I finally get to your question, it seems to me the most important bit of evidence regarding this issue is the implementation study done by Gerald Treanor a permanent employee of the OTP an expert in the case, and I suggest to you a very good and honest man. Treanor made a very detailed and thorough study of all of the decisions of the ARK Crisis Staff and the implementation of those decisions in each of the ARK municipalities, and he analysed that data at two levels. He first looked at municipality enactments that could have come from the ARK Crisis Staff but acknowledged that those enactments also could have come from Republika Srpska, the SDS, the MUP, the police, the services centres, the regional service centres of the police or the army of Republika Srpska. So it ¹⁵⁷ could have come from the ARK Crisis Staff but also could have come from any of those organisations and it was impossible for him to tell us which but if you just assumed that all of those came from the ARK Crisis Staff, then there was an implementation rate of ARK Crisis Staff decisions of 11.9 per cent. 11.9 per cent. In other words, almost 90 per cent were ignored and not implemented.

If you go to the second basis of his analysis, that would permit a conclusion beyond a reasonable doubt where he could directly link municipality enactments to ARK Crisis Staff decisions, the implementation rate drops to 3.6 per cent. 96 per cent not implemented. So to say, as the Trial Chamber did, that the municipalities implemented the ARK Crisis Staff decisions just defies logic, and it defies the findings, the specific findings of the Prosecution's own expert. This evidence was ignored by the Trial Chamber without any reasoned opinion as to why it was not conclusive for the proposition that the municipalities did not implement ARK Crisis Staff decisions.

It's difficult, Your Honours to explain the myriad defects in this judgement. Time would not permit me to show you all of them. I've shown you a few of them.

It's frustrating because it's like there are two different accounts sitting side by side of the events that happened in the Krajina during the time in question in this indictment. There is the Trial Chamber's account of what happened, found in the conclusions in its judgement, and then there is the evidence in the record, the testimony and the exhibits. And they seem to be unrelated. If you look at the ¹⁵⁸ testimony, exhibits, you get one impression of what happened there; if you look at the Trial Chamber judgement you get a totally different one. This man, Radoslav Brdjanin, I think, is nothing more than a patsy. As I stand here today I firmly believe that he was set up to take the fall for powerful and wealthy figures in Banja Luka who were the real power behind what happened in the Krajina. A lot of people made a lot of money out of the war and as a result became very powerful in the Banja Luka area. And they are not here. They didn't come here. They weren't brought here. Mr. Brdjanin repeatedly, and in fact wound up getting kicked out of the assembly, because he kept complaining about war profiteers people profiting from this war. That didn't endear him to those powerful people. The wrong man is here. The right ones are living wealthy and prosperous lives in Republika Srpska as we sit here and debate about the small Radoslav Brdjanin.

The ARK Crisis Staff was a virtual joke. People laughed at it. It had no employees, it had no offices, it had no telephones, it had no vehicles, it existed for a very short time between 5 May and 17 July. The events of note from the criminal standpoint in the Krajina happened before, during and significantly after the existence of the Crisis Staff. It simply had no effects on events, nor did Brdjanin. You've heard and read a lot about what he said but very little about what he did. He never ordered the commission of a crime. There is no evidence of that at all. But as you're considering this, look at what he did. Look at the testimony of Boro Mandic beginning at page 21241 where Mandic talks about working for Brdjanin after he'd left the Crisis ¹⁵⁹ Staff and became Minister of Housing and Construction of Republika Srpska. He was protecting housing for the Muslim and Croat residents of the area, preventing their ejection, protecting their property. This is not consistent in any way with someone labelled as the proponent of this strategic plan. Mandic presents numerous documents, and you can look at those documents, verifying these decisions pleads by Brdjanin protecting the housing for non-Serb occupants of Republika Srpska. They are not the work of the strategic plan. Look at the testimony of Mehmed Talic, a Muslim, beginning at page 24138, where he describes how Brdjanin saved 1860 Muslims and Croats in Celinac from being deported. They had been loaded on buses and the buses were nearly ready to leave when Brdjanin stopped that process and perhaps saved their lives. Talic tells how Brdjanin helped his daughter to escape from a very perilous situation in the Kljuc municipality and perhaps saved her life. The measure of a man, Your Honours, is by looking at his actions not his words. When you look at Brdjanin's actions you're not going to see a war criminal. I urge you, Your Honours, to set aside this judgement, look at the evidence, don't look at the judgement, look at the evidence, and that's when you'll learn the truth about this case. No reasonable Trial Chamber could have made the conclusions that were made in this case. Brdjanin should and must be acquitted. And Your Honour, I have finished, I think, early.

JUDGE MERON: Indeed, you did, Mr. Ackerman. I expected that from you. And I thank you for your argument.

We will now reconvene at 32 minutes past 10.00. ¹⁶⁰

--- Recess taken at 10.11 a.m.

--- On resuming at 10.35 a.m.

JUDGE MERON: Please be seated. We will now turn to the response by the Prosecution. And you are invited to address us now.

MS. GOY: Good morning, Your Honours. I will be addressing you on the question of the requisite duty for commission by omission and after that, Mr. Kremer will respond to Mr. Ackerman's submissions. You asked us to elaborate on the basis for upholding the finding in paragraph 537 of the trial judgement, in particular regarding the nature of the legal duty, if any, breached by Brdjanin and on the evidence supporting it. It is our primary position that the Trial Chamber in paragraph 537, although relying on Brdjanin's conduct as a whole focused on actions. The Trial Chamber found that Brdjanin's inactivity with regard to camps and detention facilities, combined with his public attitude encouraged and morally supported the physical perpetrators. Taken into account the impact of his propaganda campaign, the focus on Brdjanin's contribution is on what he did. This is consistent with the Trial Chamber's general findings on aiding and abetting in paragraphs 368 and 369, which do not mention omission.

But even if, and that is our alternative position, even if the Trial Chamber based Brdjanin's contribution also on omission, it was entitled to do so. Your Honours have asked the question about the duty for commission by omission. We understand commission by omission in the more general sense, including aiding and abetting by omission, and we will ¹⁶¹ respond to the question with regard to aiding and abetting by omission as the findings of the Trial Chamber in paragraph 537 were made in the context of Brdjanin's responsibility as an aider and abettor. We note, however, that our submissions regarding Brdjanin's duty to act would also apply to liability under JCE.

It is recognised in the jurisprudence of the ICTY that the contribution for aiding and abetting can be made through omissions provided the accused had the ability to act and a duty to act. The Trial Chamber was correct in finding that Brdjanin contributed by omissions as these elements are fulfilled. As the question Your Honours posed particularly refers to the duty to act I will focus my submissions on Brdjanin's duty to act. Brdjanin had a duty to act for two reasons. First, his prior dangerous conduct, his propaganda campaign, created a climate in which Bosnian Serb forces, Bosnian Serbs, were prepared to commit crimes against Muslims and Croats. And second, as head of the regional government, he had the duty to protect the civilian population and persons hors de combat, especially those deprived of their liberty. In our appeal brief, in paragraph 5.11, we focused only on the second of these duties and referred Your Honours to two domestic sources. Domestic law may be relevant in order to determine which individual is the addressee of the duty. Upon further reflection, we are, however, of the view that a duty which is only accepted in the domestic law of a country, in and of itself, cannot be sufficient to constitute international criminal liability.

Here, however, the duties in question, prior dangerous conduct, ¹⁶² and the responsibility of members of government to protect -- provide for protection of persons deprived of their liberty, are part of customary international law or constitute general principles of law. With regard to the duty arising out of prior dangerous conduct, Brdjanin created the risk of crimes being carried out in camps and therefore has a duty to ensure that detainees are not tortured. It is acknowledged in the jurisprudence of the post -- of this Tribunal, in post World War 2 jurisprudence and generally in national law, that prior dangerous conduct can constitute the source of a duty to act. The Trial Chamber in Oric, in paragraphs 283 and 304, accepted that a duty to act can result from prior dangerous conduct by which the person concerned has been exposed to danger, and I refer Your Honours to footnote 1943 of the Oric judgement to which I will quote. "By playing a substantial role in launching such attacks" -- I'm quoting from the Oric trial judgement. "By playing a substantial role in launching such attacks the accused participated in the creation of a dangerous situation. As a commander he had a duty to avert or minimise this danger and consequently had a duty to take measures to prevent the anticipated destruction of Bosnian Serb property."

In the synagogue fire case, a post World War II case, the Court concluded that prior dangerous conduct can constitute the duty to act with regard to crimes against humanity. The accused in this case had brought the victim in a situation where he could be, and in fact was, attacked by the crowd.

Prior dangerous conduct is moreover accepted as a duty to act in a ¹⁶³ large number of national systems and can therefore be said to constitute a general principle of law.

With regard to the acceptance of prior dangerous conduct as a source of the duty to act in national law, the Prosecution relies on a section of the article of Michael Dutvila [phoen] which is contained in our additional book of authorities. However, should Your Honours wish, we can provide the primary sources in national law.

Dutvila analysed national jurisdictions not specifically with regard to the source of the duty to act but more generally with regard to the question where the commission by omission is accepted as a general principle. Where, however, he refers to the duties under national law, he mentions prior conduct in a large number of countries, including common law countries, countries of the Romano-Germanic law family, Russia, and China.

Brdjanin, through his propaganda campaign, created a dangerous situation for the non-Serbs in the ARK. I refer Your Honours to the Trial Chamber's findings about the propaganda campaign in paragraphs 323 through 332 of the judgement. Brdjanin intentionally and systematically made inflammatory statements on the radio, TV, and print using the media as a tool to implement the strategic plan.

The Trial Chamber found that his public attitude, his public statements, had a disastrous impact. They incited the Bosnian Serb population to commit crimes against the Muslims and Croats. And the Trial Chamber found that Brdjanin intentionally contributed towards creation of a climate where Bosnian Serbs were ¹⁶⁴ prepared to commit crimes against Muslims and Croats. This constitutes dangerous conduct.

The evidence is contained in footnotes 860 and -- through 862 of the trial judgement, and I would like to refer Your Honours also to the testimony of BT94 as set out in our appeal brief in paragraph 5.36. Regarding the second source of Brdjanin's duty to act, as head of the regional government, Brdjanin was under a duty to protect the civilian population and persons hors de combat, especially those deprived of their liberty. Customary international law requires the protection of the civilian population and persons hors de combat in times of armed conflict, especially those deprived of their liberty. Rule 87 of the ICRC study on customary international humanitarian law states that civilians and persons hors de combat must be treated humanely. This rule is applicable regardless of the nature of the conflict.

It is based inter alia on common Article 3 of the Geneva Conventions, Article 13 of Geneva Convention 3, Article 27 of Geneva Convention 4, and recognised as a fundamental guarantee by both additional protocols. Article 75 of additional protocol 1 and Article 4 of additional protocol 2. A specific subset of this guarantee is the duty to ensure the protection of those who are deprived of their liberty. In this regard, I refer Your Honours particularly to Rule 121 of the ICRC study. The Oric trial judgement, in paragraph 304, confirmed that a duty can arise from humanitarian law out of the responsibility for the safety of the persons concerned, relying on Article 13 of the Geneva Convention 3 and Article 11 of additional protocol 1 as well as referring to the ¹⁶⁵ Blaskic appeal judgement, paragraph 663.

International humanitarian law therefore provides a fundamental protection to all categories of persons deprived of their liberty. The victims of torture referred to in paragraph 537 were Bosnian Muslims and Bosnian Croats in camps and detention facilities. Therefore, persons who are entitled to this protection.

As head of the ARK Crisis Staff, Brdjanin was under a duty to provide this protection. The Blaskic Appeals Chamber stated in tooth note 1384 of the judgement that although technically the duty to provide this protection is upon the state party to the conventions, they have resulted in the recognition of a general principle of criminal liability for omission. Similarly, the Trial Chamber of the ICTR in Rutagnira found in the context of crimes against humanity that the state who is the addressee of this duty can only act through his agents, and that the agents have the obligation not only to respect, like other individuals, fundamental rights, but also have to ensure that they are respected by others, who have a duty to act. That is paragraph 78 and 79. The Rutagnira judgement relied inter alia on Article 2 of the convention on the non-applicability of statutory limitations to war crimes and crimes against humanity, which implies criminal liability for state authority tolerating commission of war crimes and crimes against humanity.

The post World War II jurisprudence and the jurisprudence of this Tribunal recognise a duty to act for those who are in charge of persons deprived of their liberty. In the synagogue fire case I mentioned earlier, the Court found that a duty resulted from the fact that the ¹⁶⁶ accused was escorting the person who was factually in his control. In the International Military Tribunal Judgement for the Far East, the IMTFE Tribunal, it was recognised that a duty to provide the protection for people deprived of their liberty is not only incumbent upon those who have them in their immediate custody; rather, it extends to members of government. The IMTFE found as a matter of customary law that responsibility of the care of prisoners of war and civilian internees rests with the government having them in their possession. This responsibility is not limited to the duty of mere maintenance but extends to the prevention of mistreatment, in particular said that acts of inhumanity to prisoners which are forbidden by customary law and by conventions are to be prevented by the government having them in their possession.

The IMTFE thus acknowledged the duty to prevent crimes to be committed against the detainees.

The --

JUDGE MERON: Excuse me for a second. Do tell me, that articulation of duty on members of government recognition, was it applied to the government as a whole or only to, for example, the Minister of War?

MS. GOY: It was applied in the IMTFE judgement, for example to the Foreign Minister. I refer Your Honours to the -- to our supplementary book of authorities where we included the part on the conviction of the Foreign Minister.

JUDGE MERON: Thank you. ¹⁶⁷

MS. GOY: So the IMTFE judgement did not limit the responsibility to those who were directly in charge of the prisoners, not even to those who were in the departments directly concerned with the well being of prisoners, but included members of government.

In line with the post World War II jurisprudence, the jurisprudence of the ICTY confirms the existence of the duty to protect persons deprived of their liberty. The Krnojelac trial judgement in paragraph 316 found that Krnojelac as a warden was obliged to adopt appropriate measures with regard to the beatings of the detainees. The Delalic appeals judgement confirmed the conviction condition of Mucic, the camp commander in paragraph 379, for failure to release prisoners who were not granted procedural rights. It referred to his authority to release detainees to establish his duty to act.

More generally, with regard to civilian officials, Judge Lindholm in his separate and partly dissenting opinion of the Simic trial judgement said in paragraph 10 that, "as the highest-ranking civilian official in Bosanski Samac, Simic had a duty to do his utmost to protect the non-Serb population."

Especially taking into account the reasoning of the IMTFE judgement, Brdjanin was under an obligation to protect, due to his position as head of the ARK Crisis Staff. I refer Your Honours to paragraphs 296 through 302 of the trial judgement regarding Brdjanin's power as president of the ARK Crisis Staff.

The ARK Crisis Staff represented the government of the region in times of armed conflict, acting as the highest civilian authority in the ¹⁶⁸ ARK. Brdjanin's authority and influence included camps and detention facilities which were set up and controlled by the civilian authorities or police or the army, because by virtue of his position as president of the ARK Crisis Staff, he exercised de facto authority over the municipalities and the police and had great influence over the army. In connection -- his connection to camps is moreover demonstrated by the Trial Chamber's finding in 536 that he was made responsible that camps and detention facilities were mushrooming up in the ARK. And in fact, camps and detention facilities formed an integral part of the strategic plan which was implemented by Brdjanin.

The situation of camps and detention facilities were discussed during ARK Crisis Staff meetings, and there is moreover evidence establishing that another ARK official, Vojo Kupresanin, in August 1992, took persons out of Omarska and Manjaca camp. I refer Your Honours to the evidence of Witness Mevludin Sejmenovic, transcript pages 12122 and 12223; Witness Boro Blagojevic, transcript page 21923; Faik Biscevic transcript pages 7100 through 7102, and Exhibit P832.

Brdjanin himself visited Omarska camp in July, making a tour of the collection centres and there is moreover evidence that Brdjanin visited Manjaca camp and gave a speech that those who were not guilty would be released. I refer Your Honours to the evidence of Witness Enes Sabanovic.

MR. ACKERMAN: Excuse me, Your Honour, I think is a mistake. There is no evidence that Brdjanin visited Manjaca. The evidence has to do with Vojo Kupresanin. There is no evidence that Brdjanin ever went to ¹⁶⁹ Manjaca. The evidence has to do with a person named Vojo Kupresanin so the Prosecution is -- simply misspoke.

MS. GOY: No.

JUDGE MERON: Can you cite chapter and verse?

MS. GOY: Yes, we will. I referred to Brdjanin's visit to Manjaca camp and the evidence of witness Enes Sabanovic, transcript pages 6574 through 6576, and Witness BT27, transcript pages 12028 and 12029. To conclude, Brdjanin had a duty to act --

JUDGE MERON: Mr. Ackerman, we will have a look at that -- those transcripts so if you cannot look at them, check them now, we -- the Bench will do that.

MR. ACKERMAN: Your Honour, I do recall that there was some indication by Mr. Sabanovic that he thought he'd seen Brdjanin there but the Trial Chamber didn't make a finding that Brdjanin had gone there and he did not. It was Vojo Kupresanin who went there. It was very clear in the transcript and that's what the Trial Chamber found.

JUDGE MERON: Was there a determination, Ms. Goy, by the Trial Chamber on that or that was a statement in the evidence?

MS. GOY: There is no determination of the Trial Chamber on that. We however would like to refer Your Honours to the evidence on the record in this regard.

JUDGE MERON: Thank you. The situation is now clear. We will look at that.

MS. GOY: To conclude my submissions, Brdjanin had a duty to act for two reasons. First of all, due to his prior dangerous conduct and ¹⁷⁰ second because he was the representative of the regional government. This concludes my submissions and I'm available for Your Honours' questions.

JUDGE MERON: I will turn to my distinguished colleagues so see whether would like to. I do not see any questions. I believe that your colleague will now take over.

MS. GOY: Yes, thank you, Your Honours.

JUDGE MERON: Thank you very much. For the record, I will ask you to introduce yourself.

MR. KREMER: Peter Kremer. I will respond to Mr. Ackerman's reply submissions and the submissions that he made this morning which really echo his reply, repeat what is in his appeal brief and, in fact, repeat the argument that was advanced at trial.

What is interesting, from the submissions of Mr. Ackerman this morning, is that nothing has changed. His position at trial was advanced in a very eloquent way. He highlighted bits and pieces of the evidence. He took evidence that he preferred that the Court consider to evidence that his client did not like, and emphasised that, trying to convince the Trial Chamber of his innocence. He failed then, and our submission is that he should fail now. This is not a trial de novo, as this court has said on several occasions. Mr. Ackerman would have you believe that it is a trial de novo. He asks you during the course of his submissions to review the evidence, to review the exhibits, and make your own findings based on another interpretation, an interpretation opposite to that of the Trial Chamber. ¹⁷¹ We submit that the standards of review established by this Chamber show that that is neither the correct thing to do, nor would it be a helpful exercise in the finding of justice. We had three experienced, professional judges, considering the evidence carefully, considering the arguments put forward by Mr. Ackerman on Mr. Brdjanin's behalf carefully, providing reasoned opinions on most of the questions, and in terms of where the arguments are that the opinions were not fulsome enough, it is clear that they at least supported their conclusions by the -- a summary discussion supported by ample evidence.

This is not a case of a failure to deal with evidence. The evidence was substantial and it was reviewed carefully by the Trial Chamber, and, as this Court said in Kvocka, paragraph 23, "there is no requirement for the Trial Chamber to state all of the evidence that it referred to because it is expected that the Trial Chamber will consider all of the evidence." Yesterday and today, Mr. Ackerman, in his submissions, referred to Witness B19. He suggested that on cross-examination, he was asked if he ever heard of Radoslav Brdjanin. In terms of making statements or being involved in propaganda, and he said no. He did not hear of him in any connection let alone in any connection with the issue of propaganda and its affects.

I thank Mr. Ackerman. This morning he gave us the precise transcript references. Based on our review of the transcript of B19, during cross-examination, Mr. Brdjanin is only mentioned twice, in transcript references 20761-2 and 20765-6, which is the reference Mr. Ackerman referred you to. I would urge you to take a look at that ¹⁷² reference because that reference does not support Mr. Ackerman's statement. The questions and answers do not refer to making statements or being involved in propaganda. In framing his question, Mr. Ackerman never used those words or any words to suggest them. So the suggestion that that conclusion is possible is simply not there. Or not proven. Another example of statements made by Mr. Ackerman which aren't supported is, this morning he said that there is no example of a perpetrator knowing of Mr . Brdjanin. Again, that is not so. As an example, there is a witness, a protected witness, in closed session testimony, T 21123-21125, which clearly demonstrates that he as a perpetrator knew of the existence of Mr. Brdjanin and his authority.

Yesterday, you will recall, and this was re-emphasised today, that Mr. Ackerman spoke of the May 4th decision of the National Defence Secretariat which was issued the day before the coming into force of the ARK Crisis Staff. I'll make two observations about the discussion. First of all, the Trial Chamber in paragraph 649 acknowledged that the ARK Crisis Staff did not issue the decision. However, on May the 5th, it took over all of the responsibilities of the ARK assembly and its bodies, which included the National Defence Secretariat. So that the decision of May 4th became the responsibility of the ARK Crisis Staff. The ARK Crisis Staff, from May 5th, issued a number of subsequent decisions on disarmament, implemented by the municipalities, and was in charge of deadlines and any actions taken upon their expiry. The key to the finding of the Trial Chamber was not when the decision was made but how it was implemented. ¹⁷³ In addition, for Brdjanin's liability for aiding and abetting, the details of the previous disarmament decision are irrelevant because it is sufficient if the ARK Crisis Staff decisions on disarmament substantially contributed to the attacks. Moreover, a "but for" relationship between the ARK Crisis Staff decision on disarmament and the attacks is not necessary. All that is required is a substantial contribution. Thus the Trial Chamber's finding has no impact on the judgement in this respect. You've asked a question of the Prosecution in relation to resettlement, and that was as a result of an inadvertent error by the Prosecution to include references in annex B. We have prepared a handout that we've given to the clerks, which cites the footnotes to paragraph 194 that are not included in the submissions made by Mr. Brdjanin. They are footnote 678, 679, 681. You will see from the handout on page 2, the evidence he cites, at paragraph 194 of the appeal brief are simply two of the many exhibits that were referenced in that paragraph, which helped clarify quite -- helped clarify the position of the Trial Chamber in reaching its conclusion.

The judgement, and this is a comment of general application, has a specific structure that includes extensive cross-referencing to sections related to evidence and analysis. In the Defence brief relating to -- I'm sorry, in the Defence brief at paragraph 194, it omits cross-reference evidence such as section 9 C-.2 relating to deportation and inhumane acts. It also admits all of the other exhibits and testimony footnoted in 7 -- 678 to 681. Avoiding consideration of the evidence in the context of the Trial Chamber's full analysis does not meet this Chamber's standard of ¹⁷⁴ review.

And for analysis and arguments on the individual pieces raised in the Defence appeal brief, we rely on our Prosecution response. Now, I'll move on to the SOS question that was answered by Mr. Ackerman this morning. I want to point out that the use of the acronym SOS refers generally to the Serbian -- I'll be specific. Specifically in the glossary of the judgement, it's referred to the Serbian Defence forces. It doesn't distinguish between the Serbian Defence forces and the Serbian Defence forces in Sanski Most. Secondly, Mr. Ackerman refers to, this morning, Exhibit P395 as proof that the SOS was not operating after May the 5th, 1992. The document dated July 21st, 1992, at paragraph 4, contains the following sentence: "During the night a group of so-called SOS, Serbian Defence Forces, threatened the chief of the CSJB, public security services centre in Banja Luka that they would attack the city prison and free those of its members imprisoned for crimes." That clearly shows that at least in July 21st, 1992, that the SOS was still operating in Banja Luka. And, again, Exhibit P400, a report about paramilitaries operating in the 1st KK area specifically refers to the SOS and the discussion about their disarmament. That document is dated the 28th of July 1992. Both these documents were before the Trial Chamber and had relevance to their determination as to the SOS and its presence and use within the region.

Mr. Ackerman also went on for some length dealing with the confusion, as he put it, of the SAO Krajina. This is an issue that was raised at trial, was raised on appeal, and occupies a considerable space ¹⁷⁵ in his reply brief.

The issue as to whether there was a SAO in Croatia -- Krajina in Croatia or a SAO Krajina in Bosnia is something that was fully before the Trial Chamber and they discussed it specifically at trial judgement 166, footnote 426. And what is clear is that the evidence at the trial was such that there could be a confusion, a confusion Mr. Ackerman tries to continue to this day. The Trial Chamber decided the confusion. And the confusion, I would submit, is not really a confusion at all because on December 21st, 1991, as we point out in our response brief, the Republika Srpska Krajina was created. And the discussion in paragraphs 15 to 31 of his reply, and all of the witnesses that he spoke of this morning, who are cited there, are not really in dispute. There was a SAO Krajina in Croatia. But you have to look at 116, Prosecution Exhibit 116, that's referred to in paragraphs 184 and 200 of the Trial Chamber's decision, and you can only conclude that it is correct, based on its date, its content, and its background evidence. Its date is the 24th of February 1992, a full three months after the SAO Krajina became the Republika Srpska Krajina.

P116 deals with matters entirely Bosnian. It refers to the SDS in Bosnia-Herzegovina. It refers to the statute that created it. It refers to Vukic as a member of the Executive Committee who is appointed coordinator and it's signed by Dukic, the chairman of the Executive Committee.

Vukic is to cooperate with the assembly, not the Croatian assembly, but the BiH Serb Assembly, and the ARK assembly, to ensure ¹⁷⁶ implementation of decisions, conclusions, and attitudes of the assembly, the Bosnian assembly, and to keep the SDS Executive Committee informed. In terms of the background, P1144 demonstrates that Vukic at the time was the president of the SDS regional board and this role, I would submit, was merely an extension of this regional activity.

Moreover, the interpretation of P116 is supported by Blagojevic's testimony, transcript page 21846 to 50, where he discusses P116 and confirms that it deals with the ARK.

There is no confusion. To the extent that a confusion was attempted to be brought into the discussion as a result of the submissions by Mr. Ackerman, the Trial Chamber clearly addressed them, decided that it would avoid confusion in its judgement by referring to the ARK and all of the decisions as the ARK notwithstanding that in this particular document the ARK was referred to something different. It was referred to as the SAO Krajina.

How much time do I have left?

JUDGE MERON: You have no time left.

MR. KREMER: I have no time left. If I could just wrap up then by saying that it is our respectful submission that this appeal is an example of a factual appeal that fails entirely to meet the standard of review. It fails because it takes a snapshot of the evidence instead of looking at it all.

JUDGE MERON: Sorry, Mr. Kremer, in fairness to you I have to acknowledge that we started add few minutes late so you can carry on for three or four minutes. ¹⁷⁷

MR. KREMER: I'll just conclude by talking about the standard of the review and why this factual part of the appeal fails to meet it. On the legal grounds set out in the appeal brief, we rely on our submissions in our response brief.

It is our position, as I've alluded to, that Mr. Brdjanin has not assisted the appeal process by his appeal brief, by list response brief or by his submissions this morning. He largely proceeds on the assumption that an examination of the cited portion of the judgement will reveal a reviewable error. Moreover, he fails to assist the process by specifying the impact of the error, the miscarriage of justice that results. The table provided pursuant to the 24 July 2006 order does not assist because it does not specify how the error can impact the verdict. His appeal brief in reply brief illustrate his misunderstanding of the Tribunal standard of review. For example, in paragraph 5 of his reply brief regarding error 133, attacking 1065 of the judgement, he argues at the end so, "on its face the conclusion is so defective the reference in paragraph 303 of the Brdjanin brief was wholly sufficient to draw attention to factual error."

Again, I mentioned Kvocka at paragraph 23. I needn't mention it again. Throughout his submissions, Mr. Ackerman ignores that principle. In terms of the acceptance of municipalities -- municipal authority for -- excuse me -- for Prijedor -- I'm sorry, for the ARK Crisis Staff, again Brdjanin in his argument relating to paragraph 5 of his reply brief ignores large parts of the judgement, for example paragraph 210 is a complete answer to his submission on paragraph 5. The ¹⁷⁸ expert report of Patrick Treanor and its appendices cited in footnote 548 when examined support the finding. Secondly, the documentary exhibits from each municipality implementing ARK Crisis Staff decisions on the three key areas of disarmament, dismissal and retirement or resettlement, available to the Trial Chamber, were listed extensively in appendix C to the final trial brief. There are examples that become clear when the full analysis is done that Mr. Brdjanin's efforts to articulate the error are based solely on the use of the words "no evidence," but never point to the basis on which he makes the claim. He takes a small piece of a sentence or a small piece of the evidence referred to by the Trial Chamber in its judgement, and analyses it so specifically that it ignores the fabric of the judgement, and that is the fatal flaw to all of the factual errors. It is the reliance, over and over and over again, of the no evidence canard that leads to an emptiness that would, in our submission, support dismissing the factual grounds on the basis of standard much review alone, and not only does he not establish the standard of review, he also violates this Chamber's guidelines in respect of repeating arguments made at trial, that are clearly dealt with in the Trial Chamber, by the Trial Chamber, in its judgement, that were reviewed carefully and rejected. He's unhappy with the rejection and he makes the same arguments before you today.

And as a third basis, he says there is no reasoned opinion. There is a lot of discussion, a lot of explanation, by the trial judgement as to why it made the decisions it did. But it is clear from the trial judgement that it is based on all of the evidence that is relevant to the ¹⁷⁹ particular issue, and in our submission, it made no errors, factual errors, no legal errors, and it correctly came to the conclusion that Mr. Brdjanin was guilty of the crimes as charged. Thank you.

JUDGE MERON: Thank you, Mr. Kremer. Reply by the Defence, Mr. Ackerman?

MR. ACKERMAN: Thank you, Your Honour. My 40 years of doing this, if I've learned anything, I've learned that I've never been successful in a courtroom by attacking my opponent and talking about his failures and so forth. I don't think the Prosecution can be successful in doing that either.

When I talked to you about the deficiencies in this judgement, I am not repeating the arguments I made at trial. I'm not trying to get you to reconsider the argument that I made at trial. I know better than that. I know what the standards of review are. I wouldn't do that. What I'm trying to get you to do is what I suggested to you this morning, is look at the conclusions of the Trial Chamber as I have outlined them to you, those that are made based upon circumstantial evidence, and see if any reasonable Trial Chamber could arrived -- could have arrived at those conclusions. Now, that is within your brief. That is something you're supposed to do. That's what you're here for. The links in a chain of circumstantial evidence must be such that when taken together, they permit only one reasonable conclusion, and that is that consistent with the guilt of the accused. What I'm arguing to you is when one or two of those links come out of that chain, the chain collapses. I'm not saying there was no evidence regarding some of the conclusions but when they are built upon a ¹⁸⁰ chain of circumstantial evidence, part of that chain disappears, it falls.

The argument you heard about omission this morning was, I think, academically extremely interesting and extremely well done and I compliment counsel for her work in putting that together for you. I think it was quite well done. If has a major flaw, and the major flaw, I think, is quite obvious. There can't be a duty to act unless that act can affect the situation. There simply can't be. Why act if your act can't have some effect? And the Trial Chamber found that Mr. Brdjanin had no supervisory authority of any kind over any of the people that were committing offences. And therefore, an act would have just been a futile gesture. So there can't be a duty to act unless that act could affect something.

Now, you're told that the arguments I made here today are the same arguments I made at trial, are the same arguments that are in my brief, that nothing has changed. Well, how could I change anything? There is a record. I can't change the record. So of course nothing has changed. There is no new evidence, there is no different evidence. It's the same situation.

What the Prosecution seems to be saying to you is, if there is an injustice in what the Trial Chamber did, that that injustice must stand because you should not quarrel with the conclusions of the Trial Chamber. And that simply cannot be.

Witness BT19, it's this issue that won't go away, what I suggested to you in my argument yesterday was that the Prosecution was relying on a ¹⁸¹ statement by this witness who said it was terrible to see normal people become killing machines through the terrible power of the media. In other words, propaganda. And suggesting that that statement somehow applies to Mr. Brdjanin and his statements, and so this cross-examination of BT19, if you'll go look at it, was directed specifically toward the area of whether this person, who was so exposed to everything that was going on there, had ever heard of Brdjanin.

"Question: As you sit here today I take it that you don't recall any of those reports that even mention the name of Radoslav Brdjanin, do you?

"Answer: That's correct. "Question: None of the attachments that we've talked about here today mention the name of Radoslav Brdjanin, do they? "Answer: Not as far as I know.

"Question: And I take it that you've never heard from any source during the time that you were there that Mr. Brdjanin was in charge of anything or was the person you should speak to about anything? "Answer: That's correct."

Now, it's almost impossible, when you see who this person is, for him to have been there and not heard and not have dealt with Mr. Brdjanin if he is what the Prosecution says he is.

Prosecution referred to Exhibit P395, saying, wait a minute, SOS was operating in Banja Luka, look at P395, as if somehow I kept something from you. I put it on the ELMO so you could read it and told you that it had to do -- no I didn't put it on the ELMO, I just read from it to you, ¹⁸² I'm sorry -- that it had to do with an attack, a threatened attack, on the Banja Luka prison to free convicted members of the SOS. And what I said about it was it's dated the 21st of July, which is after the Crisis Staff ended. The Crisis Staff ended on 16 July. So to say that this document proves that the SOS was active during the Crisis Staff is of no moment whatsoever.

And the other issue that won't go away is the SAO Krajina issue. You were told just a moment ago that that issue was raised and fully argued during trial. It was not. The Prosecution never contended during trial that document P116 referred to the ARK Crisis Staff, did not. During an examination, and you'll see it in my brief, by my co-counsel, Mr. Trbovic at one point, it came up and he rose and said, "SAO Krajina, Your Honour, is not in Bosnia. It's in Croatia." And Ms. Korner, the Prosecution, stood up and said yes. So the Prosecution admitted during the trial that this document does not deal with the ARK Crisis Staff, as did witness after witness after witness, and I don't know why this issue won't die because nothing could be more clear.

My arguments, Your Honours, have to do with justice and fairness. We shouldn't allow someone to be convicted in this Tribunal unless there is proof of their guilt beyond a reasonable doubt. That should not happen. And what I'm asking you to do is look at the evidence in this case and see if the Trial Chamber -- if a reasonable Trial Chamber could have arrived at the conclusions that they arrived at in this judgement. Many of Your Honours know, especially Judge Shahabuddeen, who has even been here longer than me, I think, that I've been here a very long time. ¹⁸³ I came into the second trial that ever went and in this Tribunal. I've seen all the Judges of this Tribunal come and go. I've written a book about the jurisprudence of this Tribunal. It has been my life now for nearly ten years. I'm proud of the work I've done here. I'm proud of the work this Tribunal has done, and I want the world, once this place ends, to look back on this institution and say, that was a very worthy thing we did. Justice was done there. That's why I argue with you with such passion in this case, because justice has not been done in this case. But it still can be. And you can do it. And you should. Thank you.

JUDGE MERON: Thank you, Mr. Ackerman. We will now turn to Mr. Brdjanin and ask him whether -- sorry? Questions? Please, Judge Guney, I'm so sorry.

JUDGE GUNEY: [Interpretation] Thank you, Mr. President. Mr. Ackerman, you challenged the legal duty to act unless the said duty had an impact but the impact follows the act, doesn't it? Therefore, in order to clarify the Defence position in this respect, would you be so kind as to further develop the idea, the legal duty to act with relation to the commission by omission or commission by recklessness. Thank you.

MR. ACKERMAN: Your Honour, that's an excellent question and I appreciate it. I think sometimes when we start looking at these legal concepts, these concepts of law, we must take just a sort of brief step back and look at them from a very common sense way, because that's what we are really trying to do when we make all this law and when we talk about all this law, we are trying to impose common sense upon the human condition. And improve it by the imposition of that common sense. And ¹⁸⁴ common sense would -- even though the law may say that you have a duty to act in some way, common sense would say that that's not a duty that makes any sense if you have no ability to act, no power to act, no capability to act. And so when I argue that to you, what I say to you, how can you impose liability on someone's failure to act unless you can find that action would have resulted in some kind of change in the situation, when you look at what was going on in the Krajina, you simply can't make that finding. The crimes were being committed by people far distant, as the Trial Chamber found, extremely far removed, from Mr. Brdjanin. That's why they failed to find a JCE, and so there is simply no evidence that action on his part would have accomplished anything and I think that has to be there before you can actually impose a duty. I'm not sure that answered your question but it's the best I can do this morning. Any other questions, Your Honours?

JUDGE MERON: Thank you, Judge Guney. No, I don't believe so. Mr. Brdjanin, would you like to make a personal statement?

THE APPELLANT: [Interpretation] Good morning to everyone. Thank you for giving me this opportunity to address you. I will be very brief, because Mr. Ackerman has stated quite a lot today, and I gave up on challenging some of the documents that I was going to put a question about, but by your leave I would like to tell you a few words about my biography so that you can understand the role I played during the war. I completed my elementary school in Celinac, I completed secondary school in Novi Sad, my undergraduate studies in Sarajevo, and my graduate studies in Zagreb. I told you this because I wanted to show you what the ¹⁸⁵ situation was before the war. It didn't matter where people went. I worked initially as the supervisor of a construction site in Bosnia and Herzegovina in Serbian Croatia, and I even when went to Algiers. As a relatively young man I became a director of a small construction company in Celinac and later on a director of a larger construction company in Banja Luka. At the multi-party elections, I have to emphasise this, after the HDZ was established in Croatia and later on the SDA in Bosnia-Herzegovina, the SDS was established too. I was asked by a number of businessmen to put myself forward as the head of the municipal government in Celinac. I'm explaining this to you because I think that there was a confusion, not because somebody wanted to do this intentionally, but because simply people didn't understand how the system worked in our country. When I became head of the Executive Board as a member of the SDS party, and that was on the 16th of December 1990, and the Prosecutor can verify whether I'm telling you the truth about this, the only municipality in Bosnia and Herzegovina where nobody was removed from office was the municipality of Celinac and that was during my term in office. Should you find that somebody was removed from office, I will accept that I am to be blamed for everything. However, I didn't allow anybody to be removed from office because I wanted people who were able to serve in office.

At the time Celinac was populated by Serbs, predominantly, 93 per cent of the population were Serbs, and we had Muslims and others in the municipal government. When we had some disagreements I withdrew to Banja Luka and became unemployed there. Nikola Erceg at the time served as ¹⁸⁶ Secretary for Transportation and Communications. The word "secretary" doesn't mean the same as in English because he wasn't really a minister. It was a much more lower post. I was appointed on the 13th of May to an office within ARK. When Mr. Djeric established a cabinet, this is something that Mr. Ackerman spoke about, two things emerged. One was that he said that the Crisis Staff may not interfere into the work of the army and the police, and the other thing that he said is that there is no Crisis Staff of the autonomous region. This is why I wanted to explain how this came about.

Since municipalities were quite distant from each other, this is an area of some 10.000 square kilometres, representatives of municipalities within ARK came and they wanted to find a place where they could meet in Banja Luka. They wanted a coordination body to be established that would serve as the focal point where they could express their concerns, complaints, and so on, because the Crisis Staff were seen as a logistical support especially to the families whose sons had been mobilised into the army. They needed to provide firewood for the winter, they needed clothes, they needed food, and so on. You have to bear in mind that there was no corridor open to Serbia at the time, there was a war going on with Croatia, and people simply had to survive under such circumstances. Given that the only candidate could be Mr. Vojo Kupresanin or Mr. Nikola Erceg, I went home. There was nothing for me to do there and I simply went home.

When some individuals from municipalities plead a suggestion because they didn't want the Crisis Staff of the ARK to be a supreme body, ¹⁸⁷ they simply asked that another body be established that would be clarified by somebody. None of the two above mentioned persons agreed to that, and since they put forward my name, they said that I should chair that body because I had most time. I don't know how this word "chair" is seen in English but let me tell you that Mr. Ackerman did everything to find these minutes. However these minutes disappeared, as though there were some magic involved. These minutes clearly indicate that it was a coordinating body. That's all it was.

Now, what kind of powers this body had, I'm not a technical person but let me just give you some details. We never had a premises, we never had a staff. We never had any employees. We never had an office car. And the customary approach in the former socialist system was that once a body is established, it's given everything, it's given all the resources, so let me reiterate that that was not the case in this particular instance, we never had anything. There were 21 decisions adopted by the Crisis Staff out of which I signed only three.

Let me tell you, and this is the starting point of what I'm trying to tell you today, the Prosecutor said today that I headed the Krajina government. She said that three times. That's not true. I never headed the Krajina government. The Prosecutor is right, it is known as Executive Council or in other words the cabinet. There is an exhibit that Mr. Ackerman gave to the Trial Chamber where the president of the Executive Council stated that the -- that he worked the entire time but that the Crisis Staff never functioned.

Let me start from this document. On the 9th of July, when ¹⁸⁸ Mr. Karadzic sent out a letter that saying that all Crisis Staffs had been disbanded the journalists asked Nikola Erceg president of the Executive Council, "What are you going to do now that all the Crisis Staffs have been disbanded? And he said the following in Banja Luka: As for the existence or non-existence of Crisis Staffs, we, in the cabinet, really don't care." This was stated by Nikola Erceg to the newspaper known as Glas, when asked to comment on the government -- on government's decision on disbanding all Crisis Staffs. Then he continues and says, "I wish the Crisis Staffs never existed because had they not existed we would not have had this crisis." Which doesn't mean that the Crisis Staffs caused this crisis. What they are trying to say, that the crisis was caused by the war, not by the Crisis Staff. And then Erceg continues: "We mostly functioned independently as an executive organ of the government. We received decisions that from the government of -- Serbian government of Bosnia and Herzegovina that we simply had to verify at our sessions." This document, as far as I know, was admitted during trial. As for the verification of documents, or their ratification, this was used as a pretext, and I'm not a lawyer, I'm just a layman, but I think that the large majority of the judgement was based on this, on this decision on disarmament. Mr. Ackerman showed you the document indicating that on the 4th of May, 1999, the secretary of the region, in charge of National Defence, pursuant to the order of the Minister of Defence dated the 16th of April, announced mobilisation, announced disarmament and many other things. Maybe we failed to show you this: Namely that the Official Gazette of the autonomous region published a document which was valid, it ¹⁸⁹ was namely his document, not the document of the Crisis Staff, and the Crisis Staff simply ratified that document and verified it, and this is what the president of the Executive Council confirmed in his statement, namely that this had been adopted and the 4th of May. There was another document dated the 4th of May signed by 3 persons. I have this document here. The municipal president of Banja Luka, Lieutenant-Colonel Nikola Sajic [phoen] and Secretary for National Defence of the town of Banja Luka, they signed it on the 4th of May and they distributed it and they sent it directly to the Official Gazette. It had nothing to do with the Crisis Staff, which did not even exist at the time. It is true that we ratified or verified many decisions. And I'm not saying that it was illiterate or immature people who ratified or verified that and, yes, some blame can be attributed to them because of them but I can't tell you that we are the authors of this. No. It was done by the Minister of Defence. This is why I wanted to remind you of the constitution of Republika Srpska which I have here where it says explicitly that before the army is established it is the republican command of Territorial Defence that is the commander of Territorial Defence where as regional commanders are responsible to him.

I don't want to waste any more of your time. And the same applies to police, namely that policemen are responsible only to the Minister of Police to nobody else. The hierarchy existed. This was known as armed forces, and the armed forces encompassed Territorial Defence, Minister of the Interior and the army. It was centralised from 1945, that is to say from the end of World War II. And perhaps there is a detail here that ¹⁹⁰ wasn't explained enough, namely that the regional secretary doesn't mean that automatically belongs to autonomous region, no. We simply had six military districts within Bosnia-Herzegovina and it was established back in 1945. I think that one of the experts spoke about this. In parallel with it, another confusion emerged, the confusion that I failed to explain. The Autonomous Region of Krajina was never called SAO Krajina, never, never. It was in Celinac it was adopted, the name, precisely because the SAO had already existed, and this is why they decided to call it ARK.

And there is something else that shocked me, shocked me profoundly, namely several witnesses came here to prove that I had visited Manjaca. I apologise for looking perhaps too simplistic. If you were to offer me to go home on the condition that I should find the location of Manjaca camp, I would fail to do that. I don't know where it was. One of the witnesses who came to testify once again for the Prosecution said the following: I think Mr. Ackerman will remember this. He to talked about many things but not about that. When asked how long he stayed at Manjaca he said from the first day to the last day, and when asked whether I visited Manjaca, he said this man never visited Manjaca. He even explained the height and the appearance of the person who visit the Manjaca, he that is blond, tall, with blue eyes, and so on. I do not wish to justify any crime or anything of the sort but I wish to tell you the following: The more innocent people are sentenced, the more guilty people will be amnestied. This is why I simply do not understand the situation. If I am guilty for something, then say it plainly. Why are you now saying ¹⁹¹ that I visited Manjaca when I had never done that in my life? And this keeps coming up.

Today, for example, I learned that I headed the cabinet and when one of the representatives of Republika Srpska visited I apparently said the following: "It is only when somebody needs to be blamed that people say that I headed the government and when it comes to other things I am never in charge."

Let me give you another illustration about my role, and this is something that can be verified once again. When the war was over, Republika Srpska, rather its assembly, decided to award the so-called free shares or free vouchers to various high officials and other individuals, and normally individuals were awarded 150, and newborn children were awarded 20 shares. When I asked my wife, my wife said that I was awarded 20 shares just like a new born and then there are some other people that received what they deserved. I'm not here to blame anybody. Nothing was ever paid to me, not a single trip was paid to my wife, and if I was such a powerful person how is that possible?

Now let me tell you something about the powers I had and powers I didn't have. Mr. Ackerman spoke about war profiteers. People warned me back at the time that I would pay for criticising war profiteers, whenever I had a chance I criticised them in the media and I used various derogatory terms when referring to them. These war profiteers gained power, they became rich, and some of them are now active in politics. I'm now not referring to people who were rich before the war, who were wealthy before the war I'm not speaking about that. I'm speaking of the people ¹⁹² who had just a bicycle when the war began and had much more when the war ended. Everybody knew that I criticised war profiteering and various personal interests. I always criticised the war profiteers and paramilitary formations. And now I'm here on trial for allegedly supporting paramilitary formations.

Gentlemen, I'm sure that you have many recordings of my statements where I was the only one who publicly praised the fact that one commander of a paramilitary formation was arrested and disarmed, and now I want to say a few words about disarming. I told you that the decision on disarming was signed by the Minister for National Defence. I truly believe that this was a great act and I'll explain to you why. It has been constantly put forward here that disarmament was meant it disarm the Muslims and the first formation that was disarmed were Wolves from Vucjak, which comprised 100 per cent Serbs and the SOS was disarmed as well. It is precisely because of them that this decision was adopted at the level of Banja Luka. I cannot speak for what went on elsewhere. I can only speak of Banja Luka. But the purpose of disarming was not what the Prosecution claims.

The witnesses testified here and I wasn't there so I can't speak about that but the witnesses said that the war in Prijedor started when some Muslims attacked the troops, the army troops, that were withdrawing. And the same thing happened elsewhere. So this can't be the reason for disarming. Perhaps somebody abused the process of disarming, but that wasn't our initial goal and it would not have been ratified or verified at the Crisis Staff had it not been the case. We had 90 per cent of Serbs ¹⁹³ living in Banja Luka so if we adopted that decision that naturally we intend the Serbs to disarm, there is absolutely nothing -- this has nothing to do with paramilitary formations, which the Prosecution keeps alluding to.

I told you now about the disarming process. Now let me say a few words about the replacements of people from office and my powers over police and army.

Mr. Ackerman presented something to you and I will say something about it in the end, including the letter that I have to mention. There is a whole set of Official Gazette issues of Republika Srpska. I stayed after midnight going over them last night. When it comes to various dismissals, replacements, decisions, and everything else, there is not a single instance where my name is mentioned in the official gazette. I do not deny what I was but you cannot keep on saying that I was the official number 1 because it simply isn't true.

Mr. Ackerman believes that he showed very convincingly in the trial the following chart that you can look at yourself. Representatives of the international community, representatives of the Red Cross, Bishop Komarica representing the Catholic church, the Banja Luka efendi representing the Muslim community there, and other people addressed officials at the level of ARK in Banja Luka about a hundred times if not more. Mr. Ackerman showed that to you and you can see the five persons that they addressed. I have the list here. These people never addressed me. And they would not have been naive not to address me if I was indeed number 1 and they never addressed me. Mr. Ackerman led evidence to this ¹⁹⁴ effect during trial. This is why nowadays, when I watch television, I'm not going to waste much more of your time, I will wrap up but I have to tell you sincerely just how right I was when I criticised the war profiteers. Why? Because all of three peoples, Muslims, Croats, and Serbs, and you know, we in Detention Unit can watch the television stations from Sarajevo, Zagreb and Belgrade, and we can see that those who were poor became even more poor and that the new oligarchs are precisely the war profiteers. Nowadays they can pay for the information, they can present the information that suits them. One of the persons who was a thorn in their side was precisely myself. When I established the people's army [as interpreted] in the assembly, and I did that because I was unemployed for four years. I was unemployed precisely because I criticised war profiteering.

MR. ACKERMAN: Excuse me, Mr. Brdjanin, the transcript is wrong. Mr. Brdjanin didn't establish a people's army. He established a people's party. That's at 65 line 25. And the transcript says a "people's army." Mr. Brdjanin will confirm that he said "people's party."

JUDGE MERON: Please proceed, Mr. Brdjanin, and I hope that in a few minutes you will come to the end of your comments.

THE APPELLANT: [Interpretation] Yes, I will. Now, as I watch television, to tell you the truth, I deeply regret the fact that so many people fell victim throughout the former Yugoslavia. Everybody thought that they were waging a just war for their state, while in the meantime certain individuals were making themselves rich. This is something that I stated in the last assembly session, and I in fact gave ¹⁹⁵ the names of the people who covered war profiteers. That's what I did. So I'm not surprised by the consequences that ensued. The people who live in my area are known as the people who are easily misinformed, people receive information in various pubs and bars and so on. There was a director from Banja Luka, I'm not going to say his name, who said here that I had been replaced. He kept repeating that for seven days. When asked by Mr. Ackerman whether I was fired, whether he was fired by me, he said that that was the information that he received. That's what the people told him. That was the misinformation that was spread. This is why I wish to reiterate that I would never order a commission of a crime, that I wasn't empowered to do that, and as for me keeping quiet, the gentlemen, you have to understand that it was wartime, crimes were not a public affair. Crimes did take place everywhere, even among the Serbs. However, they were secret. They were kept secret. And you can see that here. There is this decision, the decision on establishing what they called a holding centre in Prijedor where chief of police says, not a single piece of information can be publicised, that all information must come to him, that not a single piece of information can be announced publicly. This is why it is absurd to believe that we were aware of everything that was going on and that we should have reacted. Yes, of course we should have reacted but we didn't know. I don't know whether you will believe me but I learned of 90 per cent of the things here during trial, even though I lived in Banja Luka. During wartime, for example, I never went to Sanski Most and here I'm being blamed for some things regarding Sanski Most. The president of that municipality and I ¹⁹⁶ were assemblymen together. After that meeting that was discussed here, we never had any further contacts, the meeting concerning the subregion. Now, let me tell you a word or two about the letter that you sent to me yesterday.

The letter that I sent to you yesterday. I was so displeased, I was so bitter, about the trial judgement, and I was bitter because so many things were ascribed to me that I simply flew it was absurd, and I was in such a mood that I stopped believing in my Defence counsel. I know today as I listen to Mr. Ackerman, that he tried to prove everything as it was. I know that it was difficult for him as an American to understand what happened there, to understand our customs, to understand the circumstances, and as a result of these misunderstandings, this problem came about. However, today, I realised that it was indeed just a misunderstanding, and you can consider this matter resolved.

Before I sit down, let me just say this: I'm pleased that my family knows, that my friends know, that I definitely am not the man 245 that I was portrayed to be here. I regret, and I feel bad, about the fact that both the Trial Chamber and the Prosecution here believe me to be some kind of the worst possible criminal.

I think that a lot of time will be needed in order to comprehend the role of the Crisis Staff. When Mr. Ackerman used the word "a puppet," I fully support it. It was decided that our bodies should be established just because people knew that one day they will need a scapegoat for whatever happens. ¹⁹⁷ Thank you for listening to me. I don't know whether I managed to say everything I wanted to say but that is irrelevant now. Once again, thank you.

JUDGE MERON: Thank you, Mr. Brdjanin, for your statement. We have heard with a great deal of attention the arguments made by the parties and, of course, the statement of Mr. Brdjanin. You may sit down, Mr. Brdjanin.

We will consider everything and work on the judgement, and in due course you will be told when the judgement will be pronounced. Before concluding, I would like to thank the parties for their argument. I would like to thank the staff for the very good work that they have done, the Registry and others, and I would like to thank the interpreters who translated sometimes very fast speeches which were not easy to translate. I thank the record writer and, of course, I thank my colleagues, my distinguished colleagues, the Judges, and these hearings are now completed and the Court will rise.

--- Whereupon the hearing adjourned at 12.03 p.m.