IT-04-74-T 70534 D70534 - D70323 01 April 2011 SF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-04-74-T Original: English TRIAL CHAMBER III Before: Judge Jean-Claude Antonetti, Presiding Judge Arpad Prandler Judge Stefan Trechsel Reserve Judge Antoine Kesia-Mbe Mindua Registrar: Mr. John Hocking Filed: 31 March 2011 THE PROSECUTOR v. JADRANKO PRLIĆ BRUNO STOJIĆ SLOBODAN PRALJAK MILIVOJ PETKOVIĆ VALENTIN ĆORIĆ BERISLAV PUŠIĆ PUBLIC _______________________________________________________ BRUNO STOJIĆ’S REDACTED FINAL TRIAL BRIEF _______________________________________________________ The Office of the Prosecutor Counsel for Jadranko Prlić Counsel for Milivoj Petković Mr. Kenneth Scott Mr. Michael G. Karnavas Ms. Vesna Alaburić Mr. Douglas Stringer Ms. Suzana Tomanović Mr. Zoran Ivanišević Counsel for Bruno Stojić Counsel for Valentin Ćorić Ms. Senka Nožica Ms. Dijana Tomašegović Tomić Mr. Karim A. A. Khan Mr. Drazen Plavec Counsel for Slobodan Counsel for Berislav Pušić Praljak Mr. Fahrudin Ibrišimović Mr. Božidar Kovačić Mr. Roger Sahota Ms. Nika Pinter 70533 2 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-04-74-T Prosecutor v. Jadranko Prlić et al. BRUNO STOJIĆ’S REDACTED FINAL TRIAL BRIEF Pursuant to the Trial Chamber's instruction that all parties should submit a redacted, public version of their final trial briefs before 1 April 2011, the Defence for Bruno Stojić respectfully submits the redacted version of its Final Trial Brief. Word Count – 87 All of which is respectfully submitted, Senka Nožica Counsel for Bruno Stojić ____________________________ Karim A. A. Khan Co-counsel for Bruno Stojić Case No. IT-04-74-T Prosecutor v. Jadranko Prlić, et al 31 March 2011 70532 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-04-74-T Prosecutor v. Jadranko Prlić et al. REDACTED PUBLIC VERSION BRUNO STOJIĆ’S FINAL TRIAL BRIEF Counsel for Bruno Stojić Ms. Senka Nožica Mr. Karim A. A. Khan Legal Assistant Ms. Anna Katulu 70531 Table of Contents THE INTERNATIONAL CRIMINAL TRIBUNAL 1 1. INTRODUCTION 4 2. ALLEGED JOINT CRIMINAL ENTERPRISE 4 2.1 Prosecution’s allegations and Defence theory 4 2.2 Formation of Herceg-Bosna, HVO and Related Structures 7 2.2.1 Situation in Bosnia-Herzegovina prior to 18 November 1991 8 2.2.2 Defence erected against aggression of Serb forces 12 2.2.3 The establishment of the HVO and the Territorial Defence system 13 2.3 Cooperation Between HVO and ABiH Forces Throughout 1991-1994 16 2.3.1 Joint Command 17 2.3.2 Arms and Material transfer 25 2.4 Alleged Campaign to Prosecute Bosnian Muslims and non-Croats 30 2.4.1 Policy of HVO HZ H-B not intended to discriminate against or persecute Bosnian Muslims 30 2.4.2 No HVO plan to attack the ABiH in HZ H-B as part of a criminal plan 45 2.4.3 The alleged Ultimatums were a necessary military measure in the defence against the Serbs and were not directed at the Muslim population 59 2.5 Alleged Plan to Annex Portions of Bosnia Herzegovina into “Greater Croatia” 67 2.5.1 No plan to establish a Greater Croatia 67 2.5.2 No agreement between Croats and Serbs 70 2.5.3 Involvement of the Republic of Croatia 78 2.6 Conclusion: No common plan and JCE 81 3 THE CASE AGAINST BRUNO STOJIĆ 82 3.1 Defence theory 82 3.1.1 No JCE Liability (Art. 7.1.) 82 3.1.2 No liability as a commander 85 3.1.3 No liability for planning, instigating or ordering 89 3.2 The Defence Department as an overarching administrative body 89 3.2.1 De jure role of the Defence Department 90 3.2.2 Logistical and administrative work of the Defence Department 92 3.2.3 Municipal HVO institutions, including regional Defence Administrations and municipal Defence Offices, controlled and influenced local decisions. 109 3.3 Bruno Stojić did not have control over military operations and is not liable for crimes committed in the course of military operations 117 3.3.1 No control over armed forces 117 3.3.2 No control over the Security Sector 126 3.3.3 Stojić did not condone crimes or failed to prevent and punish 142 3.3.4 No liability under Article 7 (1) and (3) 143 3.4 Bruno Stojić did not take part in decisions on alleged policies of the HVO/HZ H-B and is not liable for crimes allegedly committed pursuant to any such policy 145 3.4.1 Bruno Stojić did not take part in any policies aiming at the discrimination, subjugation or “Croatisation” of Muslims or any propaganda aiming at engendering hatred of Bosnian Muslims among Bosnian Croats (paragraphs 17 (d) and (e), 17.2. (i) and (l) of the Indictment) 145 3.4.2 Stojić was not involved in the shipment of arms through BiH in participation in and furtherance of the alleged JCE (paragraph 17.2.(g) of the Indictment) 151 IT-04-74-T 2 31 March 2011 70530 3.4.3 Bruno Stojić did not facilitate the support of Republic of Croatia for HVO armed forces in participation in or furtherance of the alleged JCE (paragraph 17.2.(h) of the Indictment) 153 3.4.4 Bruno Stojić did not block passage of humanitarian aid to Bosnian Muslims in participation in or furtherance of the alleged JCE (paragraph 17.2.(o) of the Indictment) 154 3.4.5 Bruno Stojić did not direct, facilitate and participate in appropriation of property and transfer to HZ HB/HVO forces in participation in or furtherance of the alleged JCE (paragraph 17.2.(n) of the Indictment) 157 3.5 Bruno Stojić did not have control over HVO detentions or detention facilities 165 3.5.1 Scope and limitations of the Decree on the Treatment of Captured Persons During Armed Combat 166 3.5.2 Detention facilities were under control of OZ command 167 3.5.3 Bruno Stojić was not involved in the operation of any HVO detention centre 169 3.5.4 Stojić had no knowledge of or involvement in the practice of forced labor 179 3.5.5 Medical care for prisoners was not the responsibility of Health Sector 181 3.5.6 The Defence Department was not involved in the release or exchange of prisoners 182 3.5.7 Authority to close prisons not with the Defence Department 183 3.5.8 Stojić’s Role 183 3.5.9 Unreliability of Exhibit 4D00461 187 3.5.10 No liability under Article 7 (1) and (3) 188 3.6 Conclusion 190 4 SENTENCING 191 5 FINAL CONCLUSION 191 IT-04-74-T 3 31 March 2011 70529 1. INTRODUCTION 1. Pursuant to the Trial Chamber’s Second Amended Scheduling Order (Final Briefs, Closing Arguments for the Prosecution and the Defence) dated 6 December 2010, as well as the Third Amended Scheduling Order dated 4 January 2011,1 and Rule 86 (B) of the Tribunal’s Rules of Procedure and Evidence, the Defence for Bruno Stojić hereby files its Closing Brief. 2. ALLEGED JOINT CRIMINAL ENTERPRISE 2.1 Prosecution’s allegations and Defence theory 3. Paragraph 15 of the Indictment encapsulates the Prosecution’s case regarding the scope, nature and objectives of the Joint Criminal Enterprise (JCE) alleged in this trial. The Defence repudiate that theory and submit that the Prosecution have failed to establish the existence of the JCE alleged to the requisite standard. 4. The Prosecution must establish, beyond reasonable doubt, inter alia, that a common plan, design or purpose existed, which amounted to or involved the commission of a crime provided for in the Statute.2 In other words, the common plan, purpose or design has to be inherently criminal, that is, “either have as its objective a crime within the Statute, or contemplate crimes within the Statute as the means of achieving its objective.”3 It must be proven that the plan existed at the time the alleged crimes were committed.4 5. What this means, in the context of the present case, is that the Prosecution must prove, beyond a reasonable doubt, that a common plan existed to a) subjugate and remove Muslims and other non- Croats from the area alleged in the indictment, and b) establish a “Greater Croatia” by committing crimes punishable under the Statute of the ICTY. 6. The existence of a common plan itself may be inferred from the existence of a state-wide or regional policy,5 “from the fact that a plurality of persons acts in unison to put into effect a JCE,6 as 1 Troisième Ordonnance Portant Modification du Calendrier (Mémoires en Clôture, Réquisitoire, et Plaidoiries Finales), 4 January 2011. 2 Prosecutor v. Duško Tadić, IT-94-1-A, Judgment, 15 July 1999, para. 227. 3 Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (hereafter RUF), Trial Judgement, 2 March 2009, para. 260; Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (hereafter AFRC) Appeal Judgement, para. 80; See also Prosecutor v. Martić, IT-95-11-A, Judgement, paras 112-123, endorsing Prosecutor v Martić, IT-95-11-T, Judgement, para. 442. 4 Prosecutor v. Blagoje Simić et al., IT-95-9-T, Judgement, 17 October 2003, para. 987. 5 Prosecutor v. Milomir Stakić , IT-97-24-T, Judgement, 31 July 2003, para. 470-471. The Stakić Trial Chamber inferred that the state policy (as expressed by Karadžić in his six points) evidenced, and in fact, equaled a common goal. It appears that a “state policy” constitutes an aim or goal of a state (or state-like entity, per Stakić), and is evidenced by the espousal and support of that plan by political and military leaders.